MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                           FILED
regarded as precedent or cited before any                                 Jun 12 2019, 7:10 am
court except for the purpose of establishing                                    CLERK
the defense of res judicata, collateral                                   Indiana Supreme Court
                                                                             Court of Appeals
estoppel, or the law of the case.                                              and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Sean C. Mullins                                          Curtis T. Hill, Jr.
Crown Point, Indiana                                     Attorney General of Indiana

                                                         Caroline G. Templeton
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Curtis L. Armour,                                        June 12, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-2929
        v.                                               Appeal from the
                                                         Lake Superior Court
State of Indiana,                                        The Honorable
Appellee-Plaintiff.                                      Diane R. Boswell, Judge
                                                         Trial Court Cause No.
                                                         45G03-1505-F2-3



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2929 | June 12, 2019                     Page 1 of 6
[1]   Curtis L. Armour (“Armour”) pleaded guilty to one count of dealing in

      cocaine1, a Level 4 felony, and was sentenced to seven years in the Indiana

      Department of Correction. He now appeals his sentence, arguing that his

      sentence is inappropriate in light of the nature of the offense and his character.


[2]   We affirm.


                                      Facts and Procedural History
[3]   In early 2015, Armour was laid off from his employment. Appellant’s App. Vol.

      II at 53. He lost his home and could not financially support himself or his

      family. Tr. Vol. II at 42. Armour then began selling cocaine. Id. In February

      2015, Armour sold cocaine to an undercover police officer on four occasions.

      Id. at 43. Each time, the cocaine weighed more than one gram and less than

      five grams. Id. Armour was initially charged with four counts of dealing in

      cocaine, as Level 3 felonies, and one count of dealing in cocaine as a Level 2

      felony. Appellant’s App. Vol. II at 72. During the plea negotiations, the charges

      were amended, and Armour was charged with one count of dealing in cocaine

      as a Level 4 felony, and the other charges were dismissed.


[4]   While waiting for his case to be resolved, Armour obtained a job as a janitor,

      and, at the time of sentencing, he had maintained his employment for nearly

      three years. Tr. Vol. II at 39. During this time, Armour became more




      1
          See Ind. Code § 34-48-4-1(c).


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2929 | June 12, 2019   Page 2 of 6
      financially stable and started his own savings account. Id. at 53. He also began

      to provide more support for his eight children. Id. at 52.


[5]   In preparation for the sentencing hearing, Armour was assessed by the IRAS-

      CST and determined to be a “HIGH” risk to reoffend. Appellant’s App. Vol. II at

      54. The trial court considered this information and Armour’s criminal history,

      which began in 1996. On the two occasions that Armour was previously

      allowed to serve his sentence on probation, he violated his probation, and the

      State filed petitions to revoke his probation. Tr. Vol. II at 46. The trial court

      found Armour’s criminal history to be an aggravating factor and found no

      mitigating factors. Id. at 67. Armour was sentenced to seven years executed in

      the Indiana Department of Correction. Id.


                                     Discussion and Decision
[6]   Pursuant to Indiana Appellate Rule 7(B), this court “may revise a sentence

      authorized by statute if, after due consideration of the trial court’s decision, the

      [c]ourt finds that the sentence is inappropriate in light of the nature of the

      offense and the character of the offender.” Our Supreme Court has explained

      that the principal role of appellate review should be to attempt to leaven the

      outliers, “not to achieve a perceived ‘correct’ result in each case.” Cardwell v.

      State, 895 N.E.2d 1219, 1225. (Ind. 2008). We independently examine the

      nature of Armour’s offense and his character under Appellate Rule 7(b) with

      substantial deference to the trial court’s sentence. Satterfield v. State, 33 N.E.3d

      344, 355 (Ind. 2015). “In conducting our review, we do not look to see whether


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2929 | June 12, 2019   Page 3 of 6
      the defendant’s sentence is appropriate or if another sentence might be more

      appropriate; rather, the test is whether the sentence is ‘inappropriate.’” Barker v.

      State, 994 N.E.2d 306, 315 (Ind. Ct. App. 2013), trans. denied. Whether a

      sentence is inappropriate ultimately depends upon “the culpability of the

      defendant, the severity of the crime, the damage done to others, and a myriad

      of other factors that come to light in a given case.” Cardwell, 895 N.E.2d at

      1224. Armour bears the burden of persuading this court that his sentence is

      inappropriate. Id.


[7]   Armour argues that his sentence is inappropriate in light of the nature of the

      offense and his character. He contends that the nature of the offense did not

      warrant the aggravated sentence because the offense was not more egregious

      than necessary to fulfill the elements of the crime. Appellant’s Br. at 6. He

      asserts that the trial judge found the nature of the offense was not an

      aggravating factor and claims that the judge failed to recognize his character

      improvements as a mitigating factor. Id. at 8-9. Armour states that he has more

      financial stability and job security, and this will remove his likelihood to return

      to criminal activities. Id. Armour requests that he serve four years incarcerated

      and two years on probation.


[8]   When determining whether a sentence is inappropriate, the advisory sentence is

      the starting point the legislature has selected as an appropriate sentence for the

      crime committed. Kunberger v. State, 46 N.E.3d 966, 973 (Ind. Ct. App. 2015);

      Thompson v. State, 5 N.E.3d 383, 391 (Ind. Ct. App. 2014). Here, Armour was

      convicted of one count of a Level 4 felony. The advisory sentence for a Level 4

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2929 | June 12, 2019   Page 4 of 6
       felony is six years, with a range between two and twelve years. Ind. Code § 35-

       50-2-5.5. Armour was given a seven-year sentence.


[9]    As this court has recognized, the nature of the offense is found in the details

       and circumstances of the commission of the offense and the defendant’s

       participation. Perry v. State, 78 N.E.3d 1, 13 (Ind. Ct. App. 2017). Armour had

       been previously convicted for dealing cocaine, and this was an aggravating

       factor. Here, Armour’s sentence is not inappropriate because of the nature of

       the offense.


[10]   The character of the offender is found in what we learn of the offender’s life and

       conduct. Perry, 78 N.E.3d at 13. When considering the character of the

       offender, one relevant fact is the defendant’s criminal history. Johnson v. State,

       986 N.E.2d 852, 857 (Ind. Ct. App. 2013). Armour has a criminal record

       which spans twenty-two years and which includes several convictions for drug-

       related offenses. In 2003, Armour pleaded guilty to three counts of dealing in

       cocaine as a Class A felony and one count of Class B felony possession of

       cocaine. Id. In another case from 2003, Armour pleaded guilty to three counts

       of Class A felony dealing in cocaine. Id. Since then, Armour has also been

       convicted of possession of marijuana, eight counts of dealing in cocaine,

       domestic battery, criminal mischief, and operating a vehicle while intoxicated.

       Id. at 49-52. Armour’s extensive criminal history is an aggravating factor.


[11]   The trial court concluded that although Armour’s change in behavior was an

       improvement, it did not rise to the level of a mitigating factor. Appellant’s App.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2929 | June 12, 2019   Page 5 of 6
       Vol. II at 70. We agree. Armour contends that he only went back to drug

       dealing after he lost his job and would not go back to drug dealing if he were to

       lose his job today because he has started a savings account. Appellant’s Br. at 5.

       Although Armour’s improvements are notable, his return to drug dealing after

       his previous convictions for the same crime was an aggravating factor.

       Armour’s sentence of seven years executed is not inappropriate in light of the

       nature of the offense and the character of the offender.


[12]   Affirmed.


       Vaidik, C.J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2929 | June 12, 2019   Page 6 of 6
