MEMORANDUM DECISION
                                                                             FILED
Pursuant to Ind. Appellate Rule 65(D), this                             Oct 18 2017, 10:19 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the                           CLERK
                                                                         Indiana Supreme Court
purpose of establishing the defense of res judicata,                        Court of Appeals
                                                                              and Tax Court
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Ronald J. Moore                                           Curtis T. Hill, Jr.
Richmond, Indiana                                         Attorney General of Indiana
                                                          Lyubov Gore
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Christopher N. Kennedy,                                  October 18, 2017

Appellant-Defendant,                                     Court of Appeals Case No.
                                                         89A05-1705-CR-1068
        v.                                               Appeal from the Wayne Superior
                                                         Court
State of Indiana,                                        The Honorable Charles K. Todd, Jr.,
                                                         Judge
Appellee-Plaintiff.
                                                         Trial Court Cause No.
                                                         89D01-1505-F5-52
                                                         89D01-1505-F5-53

Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 89A05-1705-CR-1068 | October 18, 2017          Page 1 of 6
                                STATEMENT OF THE CASE
[1]   Appellant-Defendant, Christopher Kennedy (Kennedy), appeals his sentence

      following his open guilty plea to two Counts of dealing in a narcotic drug, Level

      5 felonies, Ind. Code § 35-48-4-1; and his adjudication as a habitual offender,

      I.C. § 35-50-2-8.


[2]   We affirm.


                                                    ISSUE
[3]   Kennedy presents one issue on appeal, which we restate as: Whether

      Kennedy’s sentences are inappropriate in light of the nature of the offenses and

      his character.


                      FACTS AND PROCEDURAL HISTORY
[4]   On December 5, 2014, while on probation for operating a motor vehicle after a

      lifetime forfeiture of driving privileges, a Class C felony, and identity theft, a

      Class D felony, under Cause Number 10003-1003-FC-000004, Kennedy sold

      heroin in an amount of less than one gram to a confidential informant in

      Wayne County, Indiana. On January 5, 2015, Kennedy again sold heroin to a

      confidential informant in an amount of less than one gram.


[5]   On May 1, 2015, under Cause Number 89D01-1505-F5-52 (F5-52), the State

      charged Kennedy with dealing in a narcotic drug, a Level 5 felony. That same

      day, under Cause Number 89D01-1505-F5-53 (F5-53), the State charged

      Kennedy with another Level 5 felony, dealing in a narcotic drug. On May 26,

      Court of Appeals of Indiana | Memorandum Decision 89A05-1705-CR-1068 | October 18, 2017   Page 2 of 6
      2016, under each Cause, the State charged Kennedy with an habitual offender

      enhancement. A joint jury trial for both Causes was scheduled for January 10,

      2017. On January 5, 2017, Kennedy filed his Notice of Intention Plead Guilty

      to the Level 5 felonies under cause numbers F5-52 and F5-53. Kennedy also

      admitted to the habitual offender allegations under each Cause. On January 9,

      2017, the trial court conducted a change of plea hearing and accepted

      Kennedy’s guilty pleas.


[6]   On April 13, 2017, the trial court conducted a sentencing hearing. At the close

      of the hearing, under Cause Number F5-52, the trial court ordered Kennedy to

      execute a four and one-half years sentence in the Department of Correction,

      enhanced by four years based on Kennedy’s admission to the habitual offender

      charge. Under Cause Number F5-53, the trial court sentenced Kennedy to four

      and one-half years sentence, but it dismissed the habitual offender charge.

      Kennedy’s sentences under both Causes were to run concurrently, for an

      aggregate sentence of eight and one-half years.


[7]   Kennedy now appeals. Additional facts will be provided as necessary.


                              DISCUSSION AND DECISION
[8]   Kennedy claims that his eight-and-one-half-year sentence is inappropriate in

      light of the nature of the offenses and his character. Indiana Appellate Rule

      7(B) empowers us to independently review and revise sentences authorized by

      statute if, after due consideration, we find the trial court’s decision

      inappropriate in light of the nature of the offense and the character of the

      Court of Appeals of Indiana | Memorandum Decision 89A05-1705-CR-1068 | October 18, 2017   Page 3 of 6
      offender. Reid v. State, 876 N.E.2d 1114, 1116 (Ind. 2007). The “nature of

      offense” compares the defendant’s actions with the required showing to sustain

      a conviction under the charged offense, while the “character of the offender”

      permits a broader consideration of the defendant’s character. Cardwell v. State,

      895 N.E.2d 1219, 1224 (Ind. 2008); Douglas v. State, 878 N.E.2d 873, 881 (Ind.

      Ct. App. 2007). An appellant bears the burden of showing that both prongs of

      the inquiry favor a revision of his sentence. Childress v. State, 848 N.E.2d 1073,

      1080 (Ind. 2006). Whether we regard a sentence as appropriate at the end of

      the day turns on our sense of the culpability of the defendant, the severity of the

      crime, the damage done to others, and a myriad of other considerations that

      come to light in a given case. Cardwell, 895 N.E.2d at 1224. Our court focuses

      on “the length of the aggregate sentence and how it is to be served.” Id.


[9]   The advisory sentence is the starting point the legislature has selected as an

      appropriate sentence for the crime committed. Abbott v. State, 961 N.E.2d 1016,

      1019 (Ind. 2012). For his Level 5 felonies, dealing in a narcotic drug, Kennedy

      faced a sentencing range of one to six years, with the advisory sentence being

      three years, to each offense. Kennedy’s adjudication as an habitual offender in

      one of the offenses added an additional two to six years to his sentence. See I.C.

      § 35-50-2-8(i)(2). Here, the trial court imposed concurrent four and one-half

      years to each Level 5 felony conviction under Cause Numbers F5-52 and F5-53.

      However, it only enhanced the offense under Cause Number F5-52 by four

      years, thereby making Kennedy’s aggregate sentence, eight and one-half years.




      Court of Appeals of Indiana | Memorandum Decision 89A05-1705-CR-1068 | October 18, 2017   Page 4 of 6
[10]   Kennedy characterizes the nature of his offenses as an innocuous situation, in

       which he sold limited amounts of heroin to a confidential informant. He

       additionally describes his offenses as nonviolent and victimless; and that his

       sentences are inconsistent with the State’s historical posture of sentencing “low

       level street dealers” to lengthy prison sentences. (Appellant’s Br. p. 15). In the

       instant case, Kennedy admitted to making the drug sales in December 2014,

       and January 2015 to a confidential informant. Kennedy’s argument that his

       sentence is inappropriate because he sold limited amounts of heroin in both

       cases, does not assist an argument that his sentence is inappropriate.


[11]   With respect to his character, Kennedy offers no examples of “substantial

       virtuous traits or persistent examples of good character.” Stephenson v. State, 29

       N.E.3d 111, 121 (Ind. 2015). At Kennedy’s sentencing hearing, the trial court

       stated that it could not ignore Kennedy’s extensive criminal history. Over the

       course of twenty-eight years, Kennedy has amassed approximately twelve

       misdemeanors and ten felony convictions. His criminal resume includes

       convictions for minor consumption of alcoholic beverage, resisting law

       enforcement, driving while suspended, driving under the influence, leaving the

       scene of an accident, non-support of a dependent, domestic battery, operating a

       motor vehicle after lifetime forfeiture of driving privileges, and identity

       deception. Furthermore, this is not Kennedy’s first drug offense. In 1995,

       Kennedy was originally charged with possession of cocaine, a Class B felony;

       but was convicted of the lesser included offense, a Class D felony. Moreover, at

       the time Kennedy committed the instant offenses, he was on probation and he


       Court of Appeals of Indiana | Memorandum Decision 89A05-1705-CR-1068 | October 18, 2017   Page 5 of 6
       has had multiple probation violations filed against him. Kennedy postulates

       that his sentence is inappropriate because he is a “family man” and has

       exhibited “helpfulness and kindness to whom he was loyal.” (Appellant’s Br.

       16). Notwithstanding his claim, Kennedy has been convicted multiple times for

       non-support of a dependent. In addition, Kennedy’s longstanding substance

       abuse problem reflects poorly on his character. Kennedy reportedly began

       regularly using marijuana at age fourteen or fifteen, and at age eighteen, he

       regularly drank alcohol. Also, Kennedy experimented with prescription pills in

       his early twenties. In 2014 and 2015, Kennedy admittedly “snorted” heroin “a

       couple of times.” (Appellant’s App. Vol. II, p. 166). Kennedy fails to persuade

       us of any virtuous traits or circumstances that would in any way justify a

       downward revision of his sentence.


[12]   Even though Kennedy has received lenient sentences in the past, including

       suspended sentences, fines, and probation; none of these measures were

       sufficient to deter him from committing the present offenses. Kennedy has

       failed to meet his burden in persuading us that his sentence is inappropriate in

       light of his character and the nature of the offenses.


                                             CONCLUSION
[13]   In light of the nature of the offenses and Kennedy’s character, we cannot say

       that an aggregate eight-and one-half-year sentence is inappropriate.


[14]   Affirmed.


[15]   Robb, J. and Pyle, J. concur
       Court of Appeals of Indiana | Memorandum Decision 89A05-1705-CR-1068 | October 18, 2017   Page 6 of 6
