Kenneth Rollingcloud v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Dec 29 2016, 10:12 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Donald J. Frew Gregory F. Zoeller
Fort Wayne, Indiana Attorney General of Indiana
Christina D. Pace
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Kenneth Rollingcloud, December 29, 2016
Appellant-Defendant, Court of Appeals Case No.
02A03-1604-CR-993
v. Appeal from the Allen Superior
Court
State of Indiana, The Honorable Frances C. Gull,
Appellee-Plaintiff. Judge
Trial Court Cause No.
02D05-1511-F6-1135
Bailey, Judge.
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Case Summary
[1] Kenneth Rollingcloud (“Rollingcloud”) pleaded guilty to (1) Possession of
Cocaine,1 as a Level 6 felony; (2) Invasion of Privacy,2 as a Class A
Misdemeanor; and (3) Possession of Paraphernalia, 3 as a Class C
Misdemeanor. Rollingcloud now appeals his sentence. We affirm.
Issues
[2] Rollingcloud presents the following restated issues for our review:
I. Whether the trial court abused its discretion in sentencing
him by failing to identify certain mitigating factors; and
II. Whether Rollingcloud’s sentence is inappropriate.
Facts and Procedural History
[3] On November 16, 2015, Fort Wayne Police Department officers responded to a
reported disturbance at the Delux Inn.4 A concerned caller had heard a male
and female arguing, and possibly heard glass breaking. When police arrived,
1
Ind. Code § 35-48-4-6.
2
I.C. § 35-46-1-15.1.
3
I.C. § 35-48-4-8.3.
4
We note that the transcript of Rollingcloud’s plea hearing is not before us. In the facts section of his brief,
however, Rollingcloud cites to the Affidavit for Probable Cause, appearing to concede that the facts as stated
therein are accurate. Accordingly, we use those facts.
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Rollingcloud claimed there was no disturbance and that he was alone.
Rollingcloud let officers enter the hotel room, where they found a female adult,
M.M., in the bathroom. While in the room, officers saw two glass smoking
pipes on the nightstand. They also found a metal pipe in the bathroom, and
other paraphernalia under the top bed covers. The pipes contained burnt
residue and screens, and the officers recognized them as crack cocaine pipes.
[4] The officers arrested Rollingcloud and M.M. for possessing drug paraphernalia.
At that point, Rollingcloud stated that there was crack cocaine in shoes by the
bed. The officers found a pair of tennis shoes with a small plastic bag inside.
The bag contained a white chunky substance, and during a subsequent
interview, Rollingcloud admitted that he and M.M. had purchased cocaine and
had both smoked cocaine prior to law enforcement’s arrival. The officers also
discovered that there was a valid No Contact Order in place prohibiting
Rollingcloud from being in direct contact with M.M.
[5] On November 20, 2015, the State charged Rollingcloud with Possession of
Cocaine, Invasion of Privacy, and Possession of Paraphernalia. Rollingcloud
later pleaded guilty on January 4, 2016, and the trial court placed Rollingcloud
into the drug court diversion program, deferring sentencing. As a participant in
the program, Rollingcloud was placed into transitional living, but he relapsed in
February 2016, and absconded from the transitional living center. The trial
court issued a warrant and Rollingcloud was arrested.
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The trial court later revoked Rollingcloud’s drug court participation and set the
matter for sentencing. Following a sentencing hearing, the trial court sentenced
Rollingcloud to an executed term of two and one-half years for Possession of
Cocaine, one year for Invasion of Privacy, and sixty days for Possession of
Paraphernalia, reflecting the maximum sentence for each count. The sentences
were to run concurrently, for an aggregate sentence of two and one-half years.
[6] Rollingcloud now appeals.
Discussion and Decision
Abuse of Discretion
[7] Rollingcloud argues that the trial court abused its discretion in sentencing him
because the trial court should have identified certain mitigating factors. 5
Rollingcloud focuses his argument on whether the trial court should have found
that his post-traumatic stress disorder was a mitigating circumstance, although
Rollingcloud also cursorily points out his other mental and physical conditions.
[8] Sentencing decisions are within the discretion of the trial court and are
reviewed on appeal for an abuse of discretion. Anglemyer, 868 N.E.2d at 490.
A trial court abuses its sentencing discretion if its sentence is clearly against the
5
Rollingcloud recites the standard for Appellate Rule 7(B) sentence revision, but much of his argument
focuses on the trial court’s handling of his proffered mitigating factors, which we review under a different
standard. We remind counsel that inappropriate sentence and abuse of discretion claims are to be separately
analyzed. See Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind.
2007). We accordingly separately address each aspect of Rollingcloud’s argument.
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logic and effect of the facts and circumstances before the court, or the
reasonable, probable, and actual deductions to be drawn therefrom. Id. In
sentencing a defendant, the trial court must enter a sentencing statement that
includes “reasonably detailed reasons or circumstances for imposing a
particular sentence.” Id. at 491. Where, as here, the appellant alleges that the
trial court failed to identify or find a mitigating factor, the appellant must
establish that the mitigating evidence is both significant and clearly supported
by the record. Id. at 493. However, the trial court is not obligated to explain
why it did not find a circumstance to be particularly mitigating. Id. Moreover,
the relative weight or value assignable to reasons properly found, or those that
should have been found, is not subject to review for abuse. Id. at 491. When
reviewing a sentencing decision, we will not remand unless we “cannot say
with confidence that the trial court would have imposed the same sentence had
it properly considered reasons that enjoy support in the record.” Id.[9] Here, when interviewed for his presentence investigation report, Rollingcloud
stated that he “was diagnosed with Bipolar Disorder, severe depression, Anti-
Social Personality Disorder, and Post-Traumatic Stress Disorder by the
American Indian Health Clinic” in the late 1990s. (Appellant’s App. Vol. II. at
50.) At the outset of the sentencing hearing, Rollingcloud corrected the
presentence investigation report to additionally note that “he was verbally,
physically, and mentally abused by his father.” (Tr. at 5.) The record is
otherwise devoid of the nature or extent of Rollingcloud’s purported post-
traumatic stress disorder, or his other claimed mental health conditions.
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Similarly, Rollingcloud reported certain medical conditions, but the record
lacks other evidence relating to Rollingcloud’s health, much less why these
physical conditions warrant a mitigated sentence.
[10] Based on the record before us, Rollingcloud has failed to show that his alleged
mitigating evidence is both significant and clearly supported by the record.
Appropriateness of Sentence
[11] Rollingcloud also asks that we exercise our authority under Appellate Rule 7(B)
to revise his sentence. Even when a trial court has not abused its sentencing
discretion, we may independently review a sentence under Indiana Appellate
Rule 7(B). Under this rule, 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.” In performing our review, we consider “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). The principal role of such review is to attempt to
leaven the outliers, not achieve the perceived “correct” result in each case. Id.
at 1225. We therefore “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. The defendant bears the burden of
persuading us that his sentence is inappropriate. Childress v. State, 848 N.E.2d
1073, 1080 (Ind. 2006).
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[12] Regarding the nature of the offense, the advisory sentence “is the starting point
the Legislature has selected as an appropriate sentence for the crime
committed.” Id. at 1081. As to the nature of Rollingcloud’s offenses,
Rollingcloud was found with cocaine and drug paraphernalia in a hotel room
with M.M., whom he was prohibited from contacting. There is nothing
particularly remarkable about the nature of his offenses. Turning to the
character of the offender, however, Rollingcloud has eleven prior felony
convictions, thirteen prior misdemeanor convictions, and four juvenile
delinquency adjudications, three of which would have been felonies if
committed as an adult. Rollingcloud’s multi-state criminal history includes
multiple convictions of theft and terroristic threats as well as multiple
convictions of drug possession. Rollingcloud has had his probation revoked
once and his parole revoked three times. Moreover, Rollingcloud lied to police
officers about being alone in the room and violated drug court rules. Further, at
his sentencing hearing, Rollingcloud had a pending misdemeanor charge
because he was again in contact with M.M. The trial court noted that
Rollingcloud has “been in treatment multiple times” and “had counseling,
intervention, transitional living[,] and then finally the drug court program,”
with failed attempts at rehabilitation from 1997 to 2016. (Tr. at 14.).
Rollingcloud has also “been given the benefit of short jail sentences and longer
jail sentences, the Department of Correction, probation, parole, the ACP
program, [and] community service,” (Tr. at 14), yet continues to commit
criminal offenses.
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[13] Rollingcloud has not persuaded us that his sentence is inappropriate.
Conclusion
[14] The trial court did not abuse its discretion in sentencing Rollingcloud and the
sentence is not inappropriate.
[15] Affirmed.
Najam, J., and May, J., concur.
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