 Pursuant to Ind.Appellate Rule 65(D),

                                                                 FILED
 this Memorandum Decision shall not be
 regarded as precedent or cited before
 any court except for the purpose of
                                                              Feb 07 2013, 9:29 am
 establishing the defense of res judicata,
 collateral estoppel, or the law of the case.
                                                                      CLERK
                                                                    of the supreme court,
                                                                    court of appeals and
                                                                           tax court




ATTORNEY FOR APPELLANT:                              ATTORNEYS FOR APPELLEE:

DAVID M. ZENT                                        GREGORY F. ZOELLER
Leonard, Hammond, Thoma & Terrill                    Attorney General of Indiana
Fort Wayne, Indiana
                                                     MICHELLE BUMGARNER
                                                     Deputy Attorney General
                                                     Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

KENNY L. FUTCH,                                      )
                                                     )
       Appellant-Defendant,                          )
                                                     )
               vs.                                   )       No. 02A03-1209-CR-381
                                                     )
STATE OF INDIANA,                                    )
                                                     )
       Appellee-Plaintiff.                           )


                       APPEAL FROM THE ALLEN SUPERIOR COURT
                           The Honorable Wendy W. Davis, Judge
                              Cause No. 02D05-1111-FB-250


                                          February 7, 2013

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

VAIDIK, Judge
                                       Case Summary

        Kenny L. Futch was convicted of two counts of Class B felony dealing in cocaine

and received two concurrent, seventeen-year sentences, with two years suspended to

probation on each count.         On appeal, Futch contends that these sentences are

inappropriate in light of the nature of the offenses and his character. We conclude that

Futch’s sentences are not inappropriate in light of the nature of the offenses and his

character. We affirm.

                               Facts and Procedural History

        On October 8, 2011, Detective Jamie Masters, an undercover narcotics detective

with the Fort Wayne Police Department, was working with a confidential informant to

purchase narcotics in controlled transactions. Detective Masters arranged to buy crack

cocaine from Futch at his apartment. When Detective Masters and the informant arrived

at the apartment, Futch opened the door and invited them inside. They followed Futch to

a back room where a couch and folding table were set up. The informant told Futch she

wanted a “hundred” – one hundred dollars of crack cocaine. Futch put three bags of

crack cocaine on the table in front of Detective Masters and the informant, left the room,

and then returned with three more bags, which he also placed on the table. The informant

picked up the crack cocaine and handed it to Detective Masters, and they left Futch’s

apartment. Detective Masters then dropped off the informant and went to the police

station, where she sealed the crack cocaine in evidence bags, marked the bags with her

initials, and sent them to the Indiana State Police lab for testing.




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       Two weeks later, Detective Masters and the same informant purchased another

“hundred” of crack cocaine from Futch at his apartment. After this transaction, Detective

Masters followed the same routine of sealing, marking, and sending the crack cocaine to

the lab for testing. Lab tests confirmed that the substances sold to Detective Masters by

Futch were indeed crack cocaine. On October 28, 2011, Detective Masters executed a

search warrant for Futch’s apartment. Cocaine paraphernalia was found inside, and Futch

was arrested.

       The State charged Futch with two counts of Class B felony dealing in cocaine. A

jury found Futch guilty as charged. At sentencing, Futch recounted his criminal history

in Michigan, which included a misdemeanor conviction for larceny and four felony

convictions for possession of cocaine, carrying a concealed weapon, possession with

intent to deal, and dealing in cocaine. PSI p. 4-5. Futch also had his probation revoked

twice.1 Id. at 5. Defense counsel told the court that Futch suffered from substance-abuse

issues and noted that Futch’s most recent felony conviction had occurred many years ago,

in 1996. Counsel asked the court to impose the minimum sentence and argued that Futch

“would do well in supervision . . . through probation or something of that sort.” Tr. p. 14.

       The State conceded that Futch’s most recent felony conviction occurred in 1996

but explained that Futch had served a fifteen-year executed sentence after being

convicted. Id. at 14-15. The State argued that Futch’s interactions with the legal system

had not “decreased [] his ability to commit the same type of offenses” and “prior attempts


       1
          At sentencing, Futch claimed the presentence investigation report incorrectly stated that his
probation had been revoked twice. Futch put forth no evidence that the report was incorrect, however.
The court noted Futch’s argument: “I know you disagree with that, but that’s the information I am told
objectively though the presentence investigation report.” Tr. p. 17.
                                                  3
at rehabilitation have failed.” Id. at 15. The State asked the court to impose a fifteen-

year sentence.

       In summarizing the evidence, the court noted no mitigating factors.                As

aggravating factors, the court noted Futch’s criminal history, specifically the “pattern of

the same [or] similar offenses.” Id. at 17. The court also noted the “absolutely lethal

combination” of weapon and drug-related offenses and past failed attempts at

rehabilitation. Id. at 18. Finally, the court noted that the presentence investigation report

had categorized Futch as high-risk to reoffend. Id.; PSI p. 7. In light of this evidence, the

trial court sentenced Futch to seventeen years, with two years suspended to probation, on

each count, to run concurrently, for a total executed sentence of fifteen years.

       Futch now appeals.

                                 Discussion and Decision

       On appeal, Futch argues that his sentences are inappropriate in light of the nature

of the offenses and his character. We disagree.

       Although a trial court may have acted within its lawful discretion in imposing a

sentence, Article 7, Sections 4 and 6 of the Indiana Constitution authorize independent

appellate review and revision of sentences through Indiana Appellate Rule 7(B), which

provides that a court “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.” Reid

v. State, 876 N.E.2d 1114, 1116 (Ind. 2007) (citing Anglemyer v. State, 868 N.E.2d 482,

491 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007)). The defendant has the


                                             4
burden of persuading us that his sentence is inappropriate. Id. (citing Childress v. State,

848 N.E.2d 1073, 1080 (Ind. 2006)).

       The principal role of Rule 7(B) 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 a perceived ‘correct’ result in each case.”

Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). We “should 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. Whether a sentence is

inappropriate ultimately turns on 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. Id. at 1224. In assessing whether a sentence is inappropriate, appellate courts

may take into account whether a portion of the sentence is ordered suspended or is

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). These tools include probation,

home detention, placement in a community corrections program, executed time in a

Department of Correction facility, concurrent rather than consecutive sentences, and

restitution/fines. Id.

       The sentencing range for a Class B felony is six to twenty years, with ten years

being the advisory term. Ind. Code § 35-50-2-5. Here, the trial court sentenced Futch to

two concurrent, seventeen-year sentences, with two years suspended to probation on each

count. This is within the statutory range, and we note that the trial court ordered that a

portion of both sentences be suspended.


                                             5
       Regarding the nature of the offenses, Futch sold crack cocaine to an undercover

detective and confidential informant on two separate occasions. In these transactions,

Futch sold at least two grams of crack cocaine. Although the nature of these offenses is

not remarkable, Futch’s character does not help his cause.

       Futch has a history of criminal activity linked to his substance abuse. He has a

misdemeanor conviction for larceny and three of his four felony convictions are related to

drug charges; the remaining conviction is for carrying a concealed weapon. In addition,

Futch’s probation has been revoked twice. Futch’s substance-abuse issues began with

alcohol and marijuana abuse at age eighteen. By age twenty-six, Futch was smoking

marijuana daily, and at that time also started using cocaine. Four years later, Futch was

using cocaine four times per week and also abusing prescription medication. As the

presentence investigation report states, there is a high risk that Futch will commit another

offense. Futch has failed to convince us that his character warrants a reduction in his

sentence.

       After due consideration of the trial court’s decision, including the fact that two

years of each sentence was suspended, we cannot say that Futch’s concurrent, seventeen-

year sentences are inappropriate in light of the nature of the offenses and his character.

       Affirmed.

BAILEY, J., and BROWN, J., concur.




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