MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Oct 26 2018, 9:12 am
court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Donald E.C. Leicht Curtis T. Hill, Jr. Kokomo, Indiana Attorney General of Indiana Caroline G. Templeton Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Richard Ford, October 26, 2018 Appellant-Defendant, Court of Appeals Case No. 18A-CR-880 v. Appeal from the Howard Superior Court State of Indiana, The Honorable William C. Appellee-Plaintiff. Menges, Jr., Judge Trial Court Cause No. 34D01-1705-F6-555
Mathias, Judge.
[1] Richard Ford (“Ford”) appeals his sentence of thirty months in the Department
of Correction (“DOC”) from the Howard Superior Court. He presents one issue
Court of Appeals of Indiana | Memorandum Decision 18A-CR-880 | October 26, 2018 Page 1 of 7 for review, which we restate as whether the sentence is inappropriate given the
nature of the offense and the character of the offender.
[2] We affirm.
Facts and Procedural History [3] On May 2, 2017, an officer with the Kokomo Police Department conducted a
traffic stop of Ford. During this traffic stop, the officer determined that one of
the passengers who was in Ford’s vehicle had active warrants. During this
passenger’s transportation to the Howard County Jail, she admitted that she
frequently purchased heroin from Ford at his home. The Kokomo Police
Department also had an earlier tip that multiple people were entering Ford’s
house and leaving only a few minutes later. Based on this information, police
were able to obtain a search warrant for Ford’s home that they executed the
next day.
[4] During the execution of the warrant, police discovered three syringes, clear
plastic bags, straws with an off-white powdery substance, a burnt spoon, digital
scales, Suboxone, and five yellow capsules in Ford’s bedroom. Officers also
found a safe containing marijuana and a clear plastic bag with a white powder
Ford identified as “chemy.” Appellant’s App. p. 21. Ford admitted the safe and
its contents belonged to him. Two pill bottles with a variety of pills and capsules
were found in a backpack that Ford also identified as his.
[5] The State charged Ford with unlawful possession of a syringe, a Level 6 felony,
maintaining a common nuisance, a Level 6 felony, possession of a synthetic
Court of Appeals of Indiana | Memorandum Decision 18A-CR-880 | October 26, 2018 Page 2 of 7 drug or look-a-like substance, a class A misdemeanor, possession of marijuana,
a class B misdemeanor, and possession of paraphernalia, a class C
misdemeanor. On March 12, 2018, Ford pleaded guilty to maintaining a
common nuisance, possession of a synthetic drug or look-a-like substance, and
possession of marijuana.
[6] The trial court sentenced Ford to an aggregate sentence of thirty months
executed in the DOC. He challenges this sentence as inappropriate in light of
the nature of the offense and character of the offender.
Discussion and Decision [7] Indiana Appellate Rule 7(B) provides that the court on appeal “may revise a
sentence authorized by statute if, after due consideration of the trial court’s
decision, the Court finds that the sentence is inappropriate in light of the nature
of the offense and the character of the offender.”
[8] Still, we must and should exercise deference to a trial court’s sentencing
decision because Rule 7(B) requires us to give “due consideration” to that
decision and because we understand and recognize the unique perspective a
trial court brings to its sentencing decisions. Trainor v. State, 950 N.E.2d 352,
355 (Ind. Ct. App. 2011) (quoting Stewart v. State, 866 N.E.2d 858, 866 (Ind. Ct.
App. 2007)), trans. denied. Although we have the power to review and revise
sentences, the principal role of appellate review should be to attempt to “leaven
the outliers” and identify some guiding principles for trial courts and those
charged with improvement of the sentencing statutes, but not to achieve what
Court of Appeals of Indiana | Memorandum Decision 18A-CR-880 | October 26, 2018 Page 3 of 7 we perceive to be a “correct” result in each case. Fernbach v. State, 954 N.E.2d
1080, 1089 (Ind. Ct. App. 2011) (quoting Cardwell v. State, 895 N.E.2d 1219,
1225 (Ind. 2008)), trans. denied.
[9] The appropriate question is not whether another sentence is more appropriate;
rather, the question is whether the sentence imposed is inappropriate. Fonner v.
State, 876 N.E.2d 340, 344 (Ind. Ct. App. 2007). Whether a sentence is
appropriate “turns on our sense of the culpability of the defendant, the severity
of the crime, the damage done to others, and myriad other factors that come to
light in a given case.” Cardwell, 895 N.E.2d at 1224. When considering the
character of the offender, an individual’s criminal history is relevant to the trial
court’s determination. Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct. App.
2007). Even a minor criminal record reflects poorly on the character of a
defendant. Reis v. State, 88 N.E.3d 1099, 1105 (Ind. Ct. App. 2017). It is the
defendant’s burden on appeal to persuade us that the sentence imposed by the
trial court is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).
[10] Ford faced a sentence of between six months and thirty months, with an
advisory sentence of one year, in the DOC for the Level 6 felony of maintaining
a common nuisance. Ind. Code § 35-50-2-7(b). He also faced a term of not more
than one year for possession of a synthetic drug or look-a-like substance as a
class A misdemeanor, and a term of not more than 180 days for possession of
marijuana, a class B misdemeanor. Ind. Code § 35-50-3-2 & 3. Therefore, his
total term of consecutive imprisonment for the charges in the instant matter
could not exceed four years. Ind. Code § 35-50-1-2(d)(1).
Court of Appeals of Indiana | Memorandum Decision 18A-CR-880 | October 26, 2018 Page 4 of 7 [11] The nature of the crimes supports the appropriateness of the sentence. Ford was
acting as a middleman in drug transactions to support his heroin habit. Police
were alerted to the possibility that Ford was selling drugs after a concerned
father reported that Ford had gotten his daughter addicted to synthetic
marijuana and a report from a neighbor who had noticed high traffic in and out
of his home.
[12] Ford’s poor character does not convince us that his sentence is inappropriate.
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Oct 26 2018, 9:12 am
court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Donald E.C. Leicht Curtis T. Hill, Jr. Kokomo, Indiana Attorney General of Indiana Caroline G. Templeton Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Richard Ford, October 26, 2018 Appellant-Defendant, Court of Appeals Case No. 18A-CR-880 v. Appeal from the Howard Superior Court State of Indiana, The Honorable William C. Appellee-Plaintiff. Menges, Jr., Judge Trial Court Cause No. 34D01-1705-F6-555
Mathias, Judge.
[1] Richard Ford (“Ford”) appeals his sentence of thirty months in the Department
of Correction (“DOC”) from the Howard Superior Court. He presents one issue
Court of Appeals of Indiana | Memorandum Decision 18A-CR-880 | October 26, 2018 Page 1 of 7 for review, which we restate as whether the sentence is inappropriate given the
nature of the offense and the character of the offender.
[2] We affirm.
Facts and Procedural History [3] On May 2, 2017, an officer with the Kokomo Police Department conducted a
traffic stop of Ford. During this traffic stop, the officer determined that one of
the passengers who was in Ford’s vehicle had active warrants. During this
passenger’s transportation to the Howard County Jail, she admitted that she
frequently purchased heroin from Ford at his home. The Kokomo Police
Department also had an earlier tip that multiple people were entering Ford’s
house and leaving only a few minutes later. Based on this information, police
were able to obtain a search warrant for Ford’s home that they executed the
next day.
[4] During the execution of the warrant, police discovered three syringes, clear
plastic bags, straws with an off-white powdery substance, a burnt spoon, digital
scales, Suboxone, and five yellow capsules in Ford’s bedroom. Officers also
found a safe containing marijuana and a clear plastic bag with a white powder
Ford identified as “chemy.” Appellant’s App. p. 21. Ford admitted the safe and
its contents belonged to him. Two pill bottles with a variety of pills and capsules
were found in a backpack that Ford also identified as his.
[5] The State charged Ford with unlawful possession of a syringe, a Level 6 felony,
maintaining a common nuisance, a Level 6 felony, possession of a synthetic
Court of Appeals of Indiana | Memorandum Decision 18A-CR-880 | October 26, 2018 Page 2 of 7 drug or look-a-like substance, a class A misdemeanor, possession of marijuana,
a class B misdemeanor, and possession of paraphernalia, a class C
misdemeanor. On March 12, 2018, Ford pleaded guilty to maintaining a
common nuisance, possession of a synthetic drug or look-a-like substance, and
possession of marijuana.
[6] The trial court sentenced Ford to an aggregate sentence of thirty months
executed in the DOC. He challenges this sentence as inappropriate in light of
the nature of the offense and character of the offender.
Discussion and Decision [7] Indiana Appellate Rule 7(B) provides that the court on appeal “may revise a
sentence authorized by statute if, after due consideration of the trial court’s
decision, the Court finds that the sentence is inappropriate in light of the nature
of the offense and the character of the offender.”
[8] Still, we must and should exercise deference to a trial court’s sentencing
decision because Rule 7(B) requires us to give “due consideration” to that
decision and because we understand and recognize the unique perspective a
trial court brings to its sentencing decisions. Trainor v. State, 950 N.E.2d 352,
355 (Ind. Ct. App. 2011) (quoting Stewart v. State, 866 N.E.2d 858, 866 (Ind. Ct.
App. 2007)), trans. denied. Although we have the power to review and revise
sentences, the principal role of appellate review should be to attempt to “leaven
the outliers” and identify some guiding principles for trial courts and those
charged with improvement of the sentencing statutes, but not to achieve what
Court of Appeals of Indiana | Memorandum Decision 18A-CR-880 | October 26, 2018 Page 3 of 7 we perceive to be a “correct” result in each case. Fernbach v. State, 954 N.E.2d
1080, 1089 (Ind. Ct. App. 2011) (quoting Cardwell v. State, 895 N.E.2d 1219,
1225 (Ind. 2008)), trans. denied.
[9] The appropriate question is not whether another sentence is more appropriate;
rather, the question is whether the sentence imposed is inappropriate. Fonner v.
State, 876 N.E.2d 340, 344 (Ind. Ct. App. 2007). Whether a sentence is
appropriate “turns on our sense of the culpability of the defendant, the severity
of the crime, the damage done to others, and myriad other factors that come to
light in a given case.” Cardwell, 895 N.E.2d at 1224. When considering the
character of the offender, an individual’s criminal history is relevant to the trial
court’s determination. Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct. App.
2007). Even a minor criminal record reflects poorly on the character of a
defendant. Reis v. State, 88 N.E.3d 1099, 1105 (Ind. Ct. App. 2017). It is the
defendant’s burden on appeal to persuade us that the sentence imposed by the
trial court is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).
[10] Ford faced a sentence of between six months and thirty months, with an
advisory sentence of one year, in the DOC for the Level 6 felony of maintaining
a common nuisance. Ind. Code § 35-50-2-7(b). He also faced a term of not more
than one year for possession of a synthetic drug or look-a-like substance as a
class A misdemeanor, and a term of not more than 180 days for possession of
marijuana, a class B misdemeanor. Ind. Code § 35-50-3-2 & 3. Therefore, his
total term of consecutive imprisonment for the charges in the instant matter
could not exceed four years. Ind. Code § 35-50-1-2(d)(1).
Court of Appeals of Indiana | Memorandum Decision 18A-CR-880 | October 26, 2018 Page 4 of 7 [11] The nature of the crimes supports the appropriateness of the sentence. Ford was
acting as a middleman in drug transactions to support his heroin habit. Police
were alerted to the possibility that Ford was selling drugs after a concerned
father reported that Ford had gotten his daughter addicted to synthetic
marijuana and a report from a neighbor who had noticed high traffic in and out
of his home.
[12] Ford’s poor character does not convince us that his sentence is inappropriate.
Ford’s criminal history is extensive. His history contains juvenile adjudications,
seventeen misdemeanor convictions, and eight felony convictions. Prior to the
instant matter, he had been placed on community supervision nineteen times.
The State had filed seven violations of community supervision, which resulted
in his probation being revoked three times. Additionally, he has fathered eight
children for whom he does not regularly pay support. He admitted at
sentencing that he is a drug addict and lived a criminal lifestyle for
approximately twenty-seven years. However, the record contains no evidence
that he has previously sought treatment for his addiction or otherwise made any
attempt to remedy his criminal lifestyle. His numerous probation violations
demonstrate prior lenient treatment was unsuccessful in reformation.
[13] Based on the nature of the crimes and the character of the offender, we are
unable to conclude that Ford’s sentence is inappropriate.
[14] Ford also requests that we change the location of his sentence to be served at a
residential treatment facility with his prison time suspended. The location
Court of Appeals of Indiana | Memorandum Decision 18A-CR-880 | October 26, 2018 Page 5 of 7 where a sentence is to be served is an appropriate focus for application of a
reviewing court’s review and revise authority. King v. State, 894 N.E.2d 265, 267
(Ind. Ct. App. 2008) (citing Biddinger v. State, 868 N.E.2d 407, 414 (Ind. 2007)).
As the question under Appellate Rule 7(B) analysis is “not whether another
sentence is more appropriate” but rather “whether the sentence imposed is
inappropriate,” it is “quite difficult” for a defendant to prevail on a claim that
his placement is inappropriate. Id. at 267–68. “As a practical matter, trial courts
know the feasibility of alternative placements in particular counties or
communities.” Id. at 268. A defendant challenging the placement of a sentence
must convince us that the given placement is itself inappropriate. Id.
[15] At the sentencing hearing, Ford requested placement in a community setting, or
in the alternative, to be placed in the Therapeutic Community Program at the
DOC. The trial court considered Ford’s request and sentenced him to the DOC
with a recommendation that he be placed in a clinically appropriate substance
abuse treatment program. The trial court also stated that it would consider a
sentence modification upon successful completion of a clinically appropriate
substance abuse treatment program at the DOC. It is disingenuous for Ford to
make a request for a placement, even in the alternative, have it granted by the
trial court, and then argue on appeal that the location for the sentence is
inappropriate. We cannot conclude that the location of the sentence in the
instant matter is inappropriate.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-880 | October 26, 2018 Page 6 of 7 Conclusion [16] For all of these reasons, we conclude that Ford’s thirty-month sentence is not
inappropriate in light of the nature of the offense and the character of the
offender.
[17] Affirm.
Bailey, J., and Bradford, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-880 | October 26, 2018 Page 7 of 7