MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                     FILED
regarded as precedent or cited before any                            Jun 17 2020, 9:32 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                                   ATTORNEY FOR APPELLEE
Cara Schaefer Wieneke                                    Matthew B. MacKenzie
Wieneke Law Office, LLC                                  Deputy Attorney General
Brooklyn, Indiana                                        Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

James E. Fingers, Jr.,                                   June 17, 2020
Appellant/Defendant,                                     Court of Appeals Case No.
                                                         20A-CR-292
        v.                                               Appeal from the Vanderburgh
                                                         Circuit Court
State of Indiana,                                        The Hon. Kelli Fink, Magistrate
Appellee/Plaintiff.                                      Trial Court Cause No.
                                                         82C01-1907-F6-5131




Bradford, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 20A-CR-292 | June 17, 2020                  Page 1 of 6
                                          Case Summary
[1]   In December of 2019, James Fingers, Jr., pled guilty to Level 6 felony

      methamphetamine possession, Level 6 felony failure to register as a sex

      offender, and Class A misdemeanor marijuana possession and admitted that he

      is a habitual offender. The trial court imposed an aggregate term of five years

      of incarceration, which Fingers argues is inappropriately harsh. Because we

      disagree, we affirm.


                            Facts and Procedural History
[2]   On July 23, 2019, Evansville Police Detective Josh Patterson stopped a minivan

      being driven by Fingers after being advised by another officer that Fingers’s

      driving privileges had been suspended. A search of the minivan uncovered

      several baggies containing a green substance, a baggie containing a “crystal

      substance[,]” and a “blunt[.]” Appellant’s App. Vol. II p. 17. The green

      substance tested positive for THC, and the crystalline substance tested positive

      for methamphetamine. Fingers, who is a registered sex offender, presented

      identification to officers that listed a home address different than the address

      listed for him in the sex-offender registry.

[3]   On July 25, 2019, the State charged Fingers with Level 6 felony

      methamphetamine possession, Level 6 felony failure to register as a sex

      offender, and Class A misdemeanor marijuana possession and alleged that he is

      a habitual offender. On December 3, 2019, without benefit of a plea agreement,

      Fingers pled guilty as charged. On January 7, 2020, the trial court sentenced

      Court of Appeals of Indiana | Memorandum Decision 20A-CR-292 | June 17, 2020   Page 2 of 6
      Fingers to one and one-half years each for methamphetamine possession and

      failure to register a sex offender and ten months for marijuana possession, all

      sentences to be served concurrently, with the methamphetamine-possession

      sentence enhanced by three and one-half years by virtue of Fingers’s habitual-

      offender status.


                                 Discussion and Decision
[4]   Fingers contends that his five-year aggregate term of incarceration is

      inappropriately harsh. 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.” Ind. Appellate Rule 7(B). “Although appellate review of sentences

      must give due consideration to the trial court’s sentence because of the special

      expertise of the trial bench in making sentencing decisions, Appellate Rule 7(B)

      is an authorization to revise sentences when certain broad conditions are

      satisfied.” Shouse v. State, 849 N.E.2d 650, 660 (Ind. Ct. App. 2006), trans.

      denied (citations and quotation marks omitted). “[W]hether 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 myriad other factors that come to light in a given case.” Cardwell v.

      State, 895 N.E.2d 1219, 1224 (Ind. 2008). In addition to the “due

      consideration” we are required to give to the trial court’s sentencing decision,

      “we understand and recognize the unique perspective a trial court brings to its



      Court of Appeals of Indiana | Memorandum Decision 20A-CR-292 | June 17, 2020   Page 3 of 6
      sentencing decisions.” Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App.

      2007).

[5]   Fingers pled guilty to two Level 6 felonies and one Class A misdemeanor and

      admitted that he is a habitual offender. Indiana Code section 35-50-2-7(b)

      provides that “[a] person who commits a Level 6 felony […] shall be

      imprisoned for a fixed term of between six (6) months and two and one-half (2

      ½) years, with the advisory sentence being one (1) year.” Moreover, “[t]he

      court shall sentence a person found to be a habitual offender to an additional

      fixed term that is between […] two (2) years and six (6) years, for a person

      convicted of a Level 5 or Level 6 felony.” Ind. Code § 35-50-2-8(i)(2). As

      mentioned, the trial court imposed an aggregate five-year term, which is out of

      a possible maximum of ten.1

[6]   The nature of Fingers’s offenses does not warrant a reduction in his sentence.

      While none of Fingers’s offenses, looked at in isolation, seem particularly

      egregious, he did commit two felonies, for which he received moderately-

      enhanced sentences, and one misdemeanor. Moreover, Fingers committed

      these offenses despite his habitual-offender status. When we consider that the

      trial court could have imposed a term of incarceration twice as long as the one




      1
        Under the circumstances of this case, it seems that the trial court could have imposed a maximum
      aggregate sentence of no more than four years for Fingers’s three convictions, see Ind. Code § 35-50-1-2(d)(1)
      (“If the most serious crime [arising out of an episode of criminal conduct] for which the defendant is
      sentenced is a Level 6 felony, the total of the consecutive terms of imprisonment may not exceed four (4)
      years.”), which it then could have enhanced by six years.

      Court of Appeals of Indiana | Memorandum Decision 20A-CR-292 | June 17, 2020                       Page 4 of 6
      that it did, we conclude that the nature of Fingers’s offenses does not warrant a

      reduction.

[7]   Fingers’s character, as revealed by his truly appalling criminal history, fully

      justifies the five-year term of incarceration ordered in this case. Fingers, who

      was fifty years old when he committed the offenses in this case, has prior

      convictions for

                  • Class B felony burglary;
                  • Class C felonies sexual battery and conspiracy to commit
                    forgery;
                  • Class D felonies operating while intoxicated, possession of
                    cocaine, theft, possession of a controlled substance, and
                    possession of a schedule II controlled substance;
                  • Level 6 felonies failure to register as a sex offender, child
                    seduction, and criminal confinement;
                  • Felony failure to register as a sex offender (Kentucky);
                  • Class A misdemeanors invasion of privacy, domestic
                    battery, interfering with reporting of a crime, driving while
                    suspended, operating while intoxicated causing
                    endangerment, operating while intoxicated with a prior
                    conviction, marijuana possession, and conversion,
                  • Class B misdemeanors criminal recklessness, criminal
                    mischief, and public intoxication;
                  • Class C misdemeanors operating while intoxicated,
                    operating a motor vehicle without having received a
                    license, and illegal possession of paraphernalia;
                  • leaving the scene of an accident (Kentucky); and
                  • operating while suspended (Kentucky).



      Court of Appeals of Indiana | Memorandum Decision 20A-CR-292 | June 17, 2020   Page 5 of 6
      Fingers has multiple convictions for some of the crimes listed, bringing his total

      to fifteen prior felony convictions and many more than fifteen prior

      misdemeanor convictions. Despite Fingers’s lengthy criminal history and

      myriad opportunities to reform himself, he has not chosen to do so. In light of

      the nature of his offenses and his character, Fingers has failed to establish that

      the five-year term of imprisonment imposed in this case is inappropriate.


[8]   We affirm the judgment of the trial court.


      Baker, J., and Pyle, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 20A-CR-292 | June 17, 2020   Page 6 of 6
