Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT:
ATTORNEYS FOR APPELLEE:
CARA SCHAEFER WIENEKE
Wieneke Law Office, LLC
Plainfield, Indiana
GREGORY F. ZOELLER
Attorney General of Indiana
MICHELLE BUMGARNER
Deputy Attorney General
Indianapolis, Indiana
FILED
Dec 15 2011, 9:42 am
IN THE
COURT OF APPEALS OF INDIANA
DONALD S. FORKER,
Appellant-Defendant,
vs.
STATE OF INDIANA,
Appellee-Plaintiff.
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No. 28A04-1106-CR-364
APPEAL FROM THE GREENE SUPERIOR COURT
The Honorable William G. Sleva, Special Judge
Cause No. 28D01-1102-FA-69
December 15, 2011
MEMORANDUM DECISION - NOT FOR PUBLICATION
NAJAM, Judge
CLERK
of the supreme court,
court of appeals and
tax court
STATEMENT OF THE CASE
Donald S. Forker appeals his sentence after he pleaded guilty to dealing in a
controlled substance, as a Class B felony. Forker raises a single issue for our review,
namely, whether his fifteen year sentence, with three years suspended to probation, is
inappropriate in light of the nature of the offense and his character. We affirm.
FACTS AND PROCEDURAL HISTORY
On August 4, 2010, Forker sold morphine pills to Kevin Walton. Forker had taken
the pills from his wife’s prescription. Walton purchased morphine pills from Forker on
two later occasions as well.
On February 10, 2011, the State charged Walton with multiple felonies.
On
March 24, Forker agreed to plead guilty to one Class B felony allegation of dealing in a
controlled substance, in exchange for which the State agreed to dismiss the remaining
charges against him.
On June 3, the court accepted Forker’s guilty plea and held a sentencing hearing.
Following that hearing, the court entered its sentencing order, in which it stated in
relevant part:
The Court found as aggravating circumstances the following:
1.
The Defendant has a prior juvenile and criminal history:
a.
On August 30, 1999, the Defendant was found to have
committed the offense of Illegal Consumption of an Alcoholic
Beverage . . . .
b.
On June 16, 2000, the Defendant was found to have
committed the offense of Illegal Consumption of an Alcoholic
Beverage . . . .
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c.
On March 19, 2001, the Defendant was convicted of Theft,
judgment entered as a Class A misdemeanor . . . .
d.
On February 12, 2003, the Defendant was convicted of
Possession of a Controlled Substance, [as] a Class D felony . . . .
e.
On June 6, 2008, the Defendant was convicted of Possession
of Marijuana, [as] a Class A misdemeanor . . . .
2.
The Defendant has a history of violating the terms of
probation. There have been two [petitions to revoke probation] filed
against him in the past, both of which resulted in his suspended
sentence being revoked.
The Court found as mitigating circumstances the following:
1.
The Defendant has entered a plea of guilty and in so doing
has accepted responsibility for his actions.
The Court found that the aggravating circumstances outweigh the
mitigating circumstances. Therefore, the Court concluded that the sentence
of fifteen (15) years is appropriate.
The Court suspends three (3) years of Defendant’s sentence . . . .
***
The Court recommends the Defendant receive Drug and Alcohol
Treatment and Counseling during his incarceration at the Department of
Correction.
Appellant’s App. at 51-52. This appeal ensued.
DISCUSSION AND DECISION
Forker contends that his sentence is inappropriate. Although a trial court may
have acted within its lawful discretion in determining a sentence, Article VII, Sections 4
and 6 of the Indiana Constitution “authorize[] independent appellate review and revision
of a sentence imposed by the trial court.” Roush v. State, 875 N.E.2d 801, 812 (Ind. Ct.
App. 2007) (alteration original). This appellate authority is implemented through Indiana
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Appellate Rule 7(B). Id. Revision of a sentence under Appellate Rule 7(B) requires the
appellant to demonstrate that his sentence is inappropriate in light of the nature of his
offense and her character. See Ind. Appellate Rule 7(B); Rutherford v. State, 866 N.E.2d
867, 873 (Ind. Ct. App. 2007). We assess the trial court’s recognition or non-recognition
of aggravators and mitigators as an initial guide to determining whether the sentence
imposed was inappropriate. Gibson v. State, 856 N.E.2d 142, 147 (Ind. Ct. App. 2006).
However, “a defendant must persuade the appellate court that his or her sentence has met
th[e] inappropriateness standard of review.”
Roush, 875 N.E.2d at 812 (alteration
original).
Moreover, “sentencing is principally a discretionary function in which the trial
court’s judgment should receive considerable deference.” Cardwell v. State, 895 N.E.2d
1219, 1222 (Ind. 2008). Indiana’s flexible sentencing scheme allows trial courts to tailor
an appropriate sentence to the circumstances presented. See id. at 1224. The principal
role of appellate review is to attempt to “leaven the outliers.” Id. at 1225. Whether we
regard a sentence as inappropriate 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 facts that come to light in a given case.” Id. at 1224.
Forker’s fifteen-year sentence for his Class B felony conviction is five years above
the advisory sentence and five years below the maximum sentence. See Ind. Code § 3550-2-5.
On appeal, he asserts that his sentence is inappropriate because he has a
substance abuse problem, which, in turn, has resulted in his ability to maintain steady
employment. “So when his son needed clothes for school,” he continues, “Forker agreed
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to sell some of his wife’s morphine pills to an acquaintance so he could make money.”
Appellant’s Br. at 4.
We cannot say that Forker’s fifteen-year sentence, with three years suspended, is
inappropriate. Forker sold morphine pills to Walton on multiple occasions, and he has an
established criminal history relating to drugs and alcohol, as well as numerous probation
violations. Thus, we cannot say Forker’s sentence, which includes an executed term that
is slightly above the advisory term, is inappropriate in light of the nature of this offense
and Forker’s character. We affirm Forker’s sentence.
Affirmed.
ROBB, C.J., and VAIDIK, J., concur.
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