MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                FILED
regarded as precedent or cited before any                       Dec 29 2016, 10:12 am
court except for the purpose of establishing                         CLERK
the defense of res judicata, collateral                          Indiana Supreme Court
                                                                    Court of Appeals
                                                                      and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Donald J. Frew                                          Gregory F. Zoeller
Fort Wayne, Indiana                                     Attorney General of Indiana
                                                        Christina D. Pace
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Kenneth Rollingcloud,                                   December 29, 2016
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        02A03-1604-CR-993
        v.                                              Appeal from the Allen Superior
                                                        Court
State of Indiana,                                       The Honorable Frances C. Gull,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        02D05-1511-F6-1135



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 02A03-1604-CR-993 | December 29, 2016   Page 1 of 8
                                              Case Summary
[1]   Kenneth Rollingcloud (“Rollingcloud”) pleaded guilty to (1) Possession of

      Cocaine,1 as a Level 6 felony; (2) Invasion of Privacy,2 as a Class A

      Misdemeanor; and (3) Possession of Paraphernalia, 3 as a Class C

      Misdemeanor. Rollingcloud now appeals his sentence. We affirm.



                                                        Issues
[2]   Rollingcloud presents the following restated issues for our review:

                 I.        Whether the trial court abused its discretion in sentencing
                           him by failing to identify certain mitigating factors; and


                 II.       Whether Rollingcloud’s sentence is inappropriate.


                                   Facts and Procedural History
[3]   On November 16, 2015, Fort Wayne Police Department officers responded to a

      reported disturbance at the Delux Inn.4 A concerned caller had heard a male

      and female arguing, and possibly heard glass breaking. When police arrived,




      1
          Ind. Code § 35-48-4-6.
      2
          I.C. § 35-46-1-15.1.
      3
          I.C. § 35-48-4-8.3.
      4
        We note that the transcript of Rollingcloud’s plea hearing is not before us. In the facts section of his brief,
      however, Rollingcloud cites to the Affidavit for Probable Cause, appearing to concede that the facts as stated
      therein are accurate. Accordingly, we use those facts.

      Court of Appeals of Indiana | Memorandum Decision 02A03-1604-CR-993 | December 29, 2016               Page 2 of 8
      Rollingcloud claimed there was no disturbance and that he was alone.

      Rollingcloud let officers enter the hotel room, where they found a female adult,

      M.M., in the bathroom. While in the room, officers saw two glass smoking

      pipes on the nightstand. They also found a metal pipe in the bathroom, and

      other paraphernalia under the top bed covers. The pipes contained burnt

      residue and screens, and the officers recognized them as crack cocaine pipes.


[4]   The officers arrested Rollingcloud and M.M. for possessing drug paraphernalia.

      At that point, Rollingcloud stated that there was crack cocaine in shoes by the

      bed. The officers found a pair of tennis shoes with a small plastic bag inside.

      The bag contained a white chunky substance, and during a subsequent

      interview, Rollingcloud admitted that he and M.M. had purchased cocaine and

      had both smoked cocaine prior to law enforcement’s arrival. The officers also

      discovered that there was a valid No Contact Order in place prohibiting

      Rollingcloud from being in direct contact with M.M.


[5]   On November 20, 2015, the State charged Rollingcloud with Possession of

      Cocaine, Invasion of Privacy, and Possession of Paraphernalia. Rollingcloud

      later pleaded guilty on January 4, 2016, and the trial court placed Rollingcloud

      into the drug court diversion program, deferring sentencing. As a participant in

      the program, Rollingcloud was placed into transitional living, but he relapsed in

      February 2016, and absconded from the transitional living center. The trial

      court issued a warrant and Rollingcloud was arrested.




      Court of Appeals of Indiana | Memorandum Decision 02A03-1604-CR-993 | December 29, 2016   Page 3 of 8
      The trial court later revoked Rollingcloud’s drug court participation and set the

      matter for sentencing. Following a sentencing hearing, the trial court sentenced

      Rollingcloud to an executed term of two and one-half years for Possession of

      Cocaine, one year for Invasion of Privacy, and sixty days for Possession of

      Paraphernalia, reflecting the maximum sentence for each count. The sentences

      were to run concurrently, for an aggregate sentence of two and one-half years.


[6]   Rollingcloud now appeals.



                                  Discussion and Decision
                                         Abuse of Discretion
[7]   Rollingcloud argues that the trial court abused its discretion in sentencing him

      because the trial court should have identified certain mitigating factors. 5

      Rollingcloud focuses his argument on whether the trial court should have found

      that his post-traumatic stress disorder was a mitigating circumstance, although

      Rollingcloud also cursorily points out his other mental and physical conditions.


[8]   Sentencing decisions are within the discretion of the trial court and are

      reviewed on appeal for an abuse of discretion. Anglemyer, 868 N.E.2d at 490.

      A trial court abuses its sentencing discretion if its sentence is clearly against the



      5
        Rollingcloud recites the standard for Appellate Rule 7(B) sentence revision, but much of his argument
      focuses on the trial court’s handling of his proffered mitigating factors, which we review under a different
      standard. We remind counsel that inappropriate sentence and abuse of discretion claims are to be separately
      analyzed. See Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind.
      2007). We accordingly separately address each aspect of Rollingcloud’s argument.

      Court of Appeals of Indiana | Memorandum Decision 02A03-1604-CR-993 | December 29, 2016           Page 4 of 8
      logic and effect of the facts and circumstances before the court, or the

      reasonable, probable, and actual deductions to be drawn therefrom. Id. In

      sentencing a defendant, the trial court must enter a sentencing statement that

      includes “reasonably detailed reasons or circumstances for imposing a

      particular sentence.” Id. at 491. Where, as here, the appellant alleges that the

      trial court failed to identify or find a mitigating factor, the appellant must

      establish that the mitigating evidence is both significant and clearly supported

      by the record. Id. at 493. However, the trial court is not obligated to explain

      why it did not find a circumstance to be particularly mitigating. Id. Moreover,

      the relative weight or value assignable to reasons properly found, or those that

      should have been found, is not subject to review for abuse. Id. at 491. When

      reviewing a sentencing decision, we will not remand unless we “cannot say

      with confidence that the trial court would have imposed the same sentence had

      it properly considered reasons that enjoy support in the record.” Id.


[9]   Here, when interviewed for his presentence investigation report, Rollingcloud

      stated that he “was diagnosed with Bipolar Disorder, severe depression, Anti-

      Social Personality Disorder, and Post-Traumatic Stress Disorder by the

      American Indian Health Clinic” in the late 1990s. (Appellant’s App. Vol. II. at

      50.) At the outset of the sentencing hearing, Rollingcloud corrected the

      presentence investigation report to additionally note that “he was verbally,

      physically, and mentally abused by his father.” (Tr. at 5.) The record is

      otherwise devoid of the nature or extent of Rollingcloud’s purported post-

      traumatic stress disorder, or his other claimed mental health conditions.


      Court of Appeals of Indiana | Memorandum Decision 02A03-1604-CR-993 | December 29, 2016   Page 5 of 8
       Similarly, Rollingcloud reported certain medical conditions, but the record

       lacks other evidence relating to Rollingcloud’s health, much less why these

       physical conditions warrant a mitigated sentence.


[10]   Based on the record before us, Rollingcloud has failed to show that his alleged

       mitigating evidence is both significant and clearly supported by the record.


                                 Appropriateness of Sentence
[11]   Rollingcloud also asks that we exercise our authority under Appellate Rule 7(B)

       to revise his sentence. Even when a trial court has not abused its sentencing

       discretion, we may independently review a sentence under Indiana Appellate

       Rule 7(B). Under this rule, we “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.” In performing our review, we consider “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 v. State, 895 N.E.2d

       1219, 1224 (Ind. 2008). The principal role of such review is to attempt to

       leaven the outliers, not achieve the perceived “correct” result in each case. Id.

       at 1225. We therefore “focus on the forest—the aggregate sentence—rather

       than the trees—consecutive or concurrent, number of counts, or length of the

       sentence on any individual count.” Id. The defendant bears the burden of

       persuading us that his sentence is inappropriate. Childress v. State, 848 N.E.2d

       1073, 1080 (Ind. 2006).


       Court of Appeals of Indiana | Memorandum Decision 02A03-1604-CR-993 | December 29, 2016   Page 6 of 8
[12]   Regarding the nature of the offense, the advisory sentence “is the starting point

       the Legislature has selected as an appropriate sentence for the crime

       committed.” Id. at 1081. As to the nature of Rollingcloud’s offenses,

       Rollingcloud was found with cocaine and drug paraphernalia in a hotel room

       with M.M., whom he was prohibited from contacting. There is nothing

       particularly remarkable about the nature of his offenses. Turning to the

       character of the offender, however, Rollingcloud has eleven prior felony

       convictions, thirteen prior misdemeanor convictions, and four juvenile

       delinquency adjudications, three of which would have been felonies if

       committed as an adult. Rollingcloud’s multi-state criminal history includes

       multiple convictions of theft and terroristic threats as well as multiple

       convictions of drug possession. Rollingcloud has had his probation revoked

       once and his parole revoked three times. Moreover, Rollingcloud lied to police

       officers about being alone in the room and violated drug court rules. Further, at

       his sentencing hearing, Rollingcloud had a pending misdemeanor charge

       because he was again in contact with M.M. The trial court noted that

       Rollingcloud has “been in treatment multiple times” and “had counseling,

       intervention, transitional living[,] and then finally the drug court program,”

       with failed attempts at rehabilitation from 1997 to 2016. (Tr. at 14.).

       Rollingcloud has also “been given the benefit of short jail sentences and longer

       jail sentences, the Department of Correction, probation, parole, the ACP

       program, [and] community service,” (Tr. at 14), yet continues to commit

       criminal offenses.



       Court of Appeals of Indiana | Memorandum Decision 02A03-1604-CR-993 | December 29, 2016   Page 7 of 8
[13]   Rollingcloud has not persuaded us that his sentence is inappropriate.



                                               Conclusion
[14]   The trial court did not abuse its discretion in sentencing Rollingcloud and the

       sentence is not inappropriate.


[15]   Affirmed.


       Najam, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 02A03-1604-CR-993 | December 29, 2016   Page 8 of 8
