MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Nov 09 2018, 9:04 am
regarded as precedent or cited before any
court except for the purpose of establishing CLERK
Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral 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, November 9, 2018
Appellant-Defendant, Court of Appeals Case No.
18A-CR-881
v. Appeal from the Howard Superior
Court
State of Indiana, The Honorable William C.
Appellee-Plaintiff. Menges, Jr., Judge
Trial Court Cause No.
34D01-1707-F5-848
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
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for review, which we restate as whether the sentence is inappropriate in light of
the nature of the offense and character of the offender.
[2] We affirm.
Facts and Procedural History
[3] The Kokomo Police Department conducted two controlled buys of heroin from
Ford, using a confidential informant. On the dates of both of the controlled
buys, on March 7, 2017, and on April 6, 2017, Ford had in his possession
heroin, knowing that it was a narcotic drug for which he did not have a
prescription. On July 20, 2017, the State charged Ford with two counts of
dealing in a narcotic drug as a Level 5 felony. On February 9, 2018, Ford
pleaded guilty to the lesser-included offenses of possession of a narcotic, a Level
6 felony.
[4] The trial court combined the sentencing hearing in the instant matter with the
sentencing hearing in Cause No. 34D01-1705-F6-555, which we also affirmed
in Ford v. State, Case No. 18A-CR-880 (Ind. Ct. App. Oct. 26, 2018). In the
instant matter, the trial court sentenced Ford to thirty months in the DOC to be
served consecutive to the sentence entered in Cause No. 34D01-1705-F6-555.
Ford challenges this sentence as inappropriate in light of the nature of the
offense and the character of the offender.
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Discussion and Decision
[5] 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.”
[6] 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
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.
[7] 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
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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).
[8] Ford faced a period of imprisonment between six months and two and one-half
years, with an advisory sentence of one year and a maximum fine of $10,000
for each of the two Level 6 felonies he pleaded guilty to. Ind. Code § 35-50-2-
7(b).
[9] The nature of the crimes supports the appropriateness of the sentence. Ford, on
two separate occasions, possessed heroin and sold this heroin to another
individual. He was acting as a middleman in drug transactions to support his
heroin habit.
[10] While the crimes at issue are not particularly heinous, Ford’s character also
supports the appropriateness of the sentence. 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
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whom he does not regularly pay support. He admitted at sentencing that he is a
drug addict and had 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 that prior
lenient treatment was unsuccessful in reformation. Based on the nature of the
crimes and the character of the offender, we are unable to conclude that Ford’s
sentence is inappropriate.
[11] 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
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
(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 (emphasis in original). “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.
[12] 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
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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.
Conclusion
[13] 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.
[14] Affirmed.
Bailey, J., and Bradford, J., concur.
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