MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                    FILED
this Memorandum Decision shall not be                                Oct 04 2017, 8:31 am
regarded as precedent or cited before any
                                                                          CLERK
court except for the purpose of establishing                          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
Hilary Bowe Ricks                                        Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana

                                                         Tyler G. Banks
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Kennan Dumas,                                            October 4, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A04-1703-CR-577
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Alicia Gooden,
Appellee-Plaintiff                                       Judge
                                                         The Honorable Richard
                                                         Hagenmaier, Commissioner
                                                         Trial Court Cause No.
                                                         49G21-1610-F4-41901



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A04-1703-CR-577 | October 4, 2017         Page 1 of 7
                                             Case Summary
[1]   Kennan Dumas appeals the twelve-year sentence imposed by the trial court

      after a jury convicted him of level 4 felony possession of a firearm as a serious

      violent felon. He contends that his sentence is inappropriate in light of the

      nature of the offense and his character. Concluding that he has not met his

      burden to demonstrate that his sentence is inappropriate, we affirm.


                                 Facts and Procedural History
[2]   On October 23, 2016, Indianapolis Metropolitan Police Department (“IMPD”)

      Officer Samuel House was dispatched to an address on North Grant Avenue in

      response to a report of “a person assaulted with shots fired.” Tr. at 109-10.

      When Officer House arrived, he encountered Michael Bennett sitting on the

      front porch of the residence. Based on his conversation with Bennett, Officer

      House determined that there was another individual with whom he needed to

      speak. Officer House walked around the left side of the residence to a side

      entrance with a separate address written on it. The other individual Officer

      House was looking for was not present at the residence, so Officer House told

      Bennett to call if there were “any other issues or if the individual comes back.”

      Id. at 111. Officer House then left the scene.


[3]   A few hours later, at approximately 3:50 a.m., IMPD Officer Brian Sosbe was

      dispatched to the same address on a “disturbance call.” Id. at 117-18. Officer

      Sosbe was aware that there had been a previous report that morning of shots

      fired at that address. Officer Sosbe encountered two men sitting on the front


      Court of Appeals of Indiana | Memorandum Decision 49A04-1703-CR-577 | October 4, 2017   Page 2 of 7
      porch. As he was speaking to those men, Officer Sosbe heard the sound of a

      door slamming on the left side of the residence. When Officer Sosbe walked

      around the left side of the residence, he saw a man, later identified as Dumas, in

      the side yard. Officer Sosbe activated the flashlight attached to his firearm,

      identified himself, and ordered Dumas to stop and show his hands.


[4]   Dumas briefly raised his hands above his waist, but then “immediately turned

      and ran to the door” on the left side of the residence and went inside. Id. at

      123. Dumas slammed the door and locked the deadbolt behind him. Officer

      Sosbe heard a “loud thud” that “sounded like a heavy metallic object hitting the

      floor” just inside the door. Id. at 124. Because Officer Sosbe “took the sound

      of that thud being a gun,” he backed slowly away from the door, assumed a

      defensive position, and called for backup. Id. at 125.


[5]   About a minute later, Dumas exited the residence and Officer Sosbe placed him

      in handcuffs. Noticing that there was also a female just inside the door, Officer

      Sosbe ordered her to come outside. While Dumas was handcuffed on the

      ground, he yelled repeatedly to the female, “Don’t talk to them. Don’t tell them

      nothing. Don’t let them in the house.” Id. at 126. Officers discovered that the

      female, Breanna Benner, was the owner of the residence. While on the scene,

      Benner signed a consent to search form after being advised of her rights.

      During a search of the residence, officers discovered two handguns underneath

      a metal grate just inside the door. Dumas had a prior conviction for class B

      felony dealing in cocaine or a narcotic drug, so it was illegal for him to possess

      a firearm.

      Court of Appeals of Indiana | Memorandum Decision 49A04-1703-CR-577 | October 4, 2017   Page 3 of 7
[6]   The State charged Dumas with level 4 felony possession of a firearm as a

      serious violent felon, level 5 felony battery, and level 6 felony criminal

      recklessness. The State later dismissed two of the charges and a jury trial

      proceeded on the level 4 felony. The jury found Dumas guilty as charged.1

      Following a hearing, the trial court sentenced Dumas to twelve years, with four

      years suspended, two of which were to be served on probation. This appeal

      ensued.


                                          Discussion and Decision
[7]   Dumas claims that his sentence is inappropriate and invites this Court to revise

      his sentence pursuant to Indiana Appellate Rule 7(B), which provides that we

      may revise a sentence authorized by statute if, after due consideration of the

      trial court’s decision, we find that the sentence “is inappropriate in light of the

      nature of the offense and the character of the offender.” The defendant bears

      the burden to persuade this Court that his or her sentence is inappropriate.

      Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). Indiana’s flexible

      sentencing scheme allows trial courts to tailor an appropriate sentence to the

      circumstances presented, and the trial court’s judgment “should receive

      considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008).

      The principal role of appellate review is to attempt to “leaven the outliers.” Id.

      at 1225. Whether we regard a sentence as inappropriate at the end of the day

      turns on “our sense of the culpability of the defendant, the severity of the crime,



      1
          Dumas stipulated to having a prior class B felony conviction for dealing in cocaine or a narcotic drug.

      Court of Appeals of Indiana | Memorandum Decision 49A04-1703-CR-577 | October 4, 2017                 Page 4 of 7
      the damage done to others, and myriad other facts that come to light in a given

      case.” Id. at 1224. We consider all aspects of the penal consequences imposed

      by the trial court in sentencing the defendant, including whether a portion of

      the sentence is ordered suspended “or otherwise crafted using any of the variety

      of sentencing tools available to the trial judge.” Davidson v. State, 926 N.E.2d

      1023, 1025 (Ind. 2010). In conducting our review, we do not look to see

      whether the defendant’s sentence is appropriate or “if another sentence might

      be 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).


[8]   Regarding the nature of the offense, the advisory sentence is the starting point

      that the legislature has selected as an appropriate sentence for the crime

      committed. Fuller v. State, 9 N.E.3d 653, 657 (Ind. 2014). The sentencing range

      for a level 4 felony is between two and twelve years, with the advisory sentence

      being six years. Ind. Code § 35-50-2-5.5. The trial court here imposed the

      maximum sentence of twelve years, with four years suspended.


[9]   Dumas complains that he should not have received the maximum sentence for

      his crime because, although he did unlawfully possess weapons, he never

      “openly” displayed a weapon “on his person.” Appellant’s Br. at 15. He also

      posits that by exiting the residence and succumbing to Officer Sosbe’s demands,

      he avoided creating a “SWAT situation.” Id. However, the record indicates

      that Dumas is not simply a defendant with a prior felony conviction who had

      the misfortune of being found in unlawful possession of a firearm. Rather, after

      being confronted by Officer Sosbe, Dumas initially fled and retreated into the

      Court of Appeals of Indiana | Memorandum Decision 49A04-1703-CR-577 | October 4, 2017   Page 5 of 7
       residence to hide his weapons. When Dumas later exited the residence, he

       belligerently yelled to Benner to not allow police to search the home. We are

       not persuaded that the nature of this offense warrants a sentence reduction.


[10]   In any event, Dumas’s character alone supports the sentence imposed by the

       trial court. When considering the character of the offender, one relevant fact is

       the defendant’s criminal history. Sanders v. State, 71 N.E.3d 839, 844 (Ind. Ct.

       App. 2017). Dumas has an extensive criminal history, including numerous

       juvenile adjudications, six prior felony convictions, and several prior

       misdemeanor convictions. He has been granted the leniency of probation on

       numerous occasions, only to have that probation revoked multiple times.

       Indeed, he was on probation when he committed the current offense. Dumas’s

       refusal to alter his criminal behavior reflects poorly on his character.


[11]   Nevertheless, Dumas emphasizes evidence of his past substance abuse and

       asserts that the trial court should have recommended his placement in

       “Purposeful Incarceration so [that he] could begin working on his addictions

       and the underlying issues that feed[] them….” Appellant’s Br. at 17. This

       Court has recognized that it is quite difficult for a defendant to prevail on a

       claim that the placement of his sentence is inappropriate. Fonner, 876 N.E.2d at

       343. “As a practical matter, trial courts know the feasibility of alternative

       placements in particular counties or communities.” Id. That is, “a trial court is

       aware of the availability, costs, and entrance requirements of community

       corrections placements in a specific locale.” Id. at 343-44. Moreover, because

       our appellate review is focused not on whether another sentence might be more

       Court of Appeals of Indiana | Memorandum Decision 49A04-1703-CR-577 | October 4, 2017   Page 6 of 7
       appropriate, but on whether the sentence imposed is inappropriate, a

       “defendant challenging the placement of a sentence must convince us that the

       given placement is itself inappropriate.” Id. at 344. Here, rather than placing

       Dumas in Purposeful Incarceration, the trial court ordered substance-abuse

       treatment as a condition of Dumas’s probation to be completed following his

       eight-year executed sentence. Dumas has not demonstrated that this placement

       is itself inappropriate.2


[12]   Dumas has not met his burden to demonstrate that the sentence imposed by the

       trial court is inappropriate in light of the nature of the offense or his character.

       Accordingly, we affirm.


[13]   Affirmed.


       Vaidik, C.J., and Mathias, J., concur.




       2
        We note that the presentence investigation report indicates that Dumas does not believe that he has a
       substance abuse problem. Appellant’s Conf. App. at 131.

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