Kenny L. Futch v. State of Indiana

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MEMORANDUM DECISION - NOT FOR PUBLICATION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
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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.
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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
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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.
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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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