David A. Dowty v. State of Indiana (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Aug 16 2019, 9:42 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Donald C. Swanson, Jr. Curtis T. Hill, Jr.
Deputy Public Defender Attorney General of Indiana
Fort Wayne, Indiana
Tyler Banks
Supervising Deputy Attorney
General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
David A. Dowty, August 16, 2019
Appellant-Defendant, Court of Appeals Case No.
19A-CR-1061
v. Appeal from the Allen Superior
Court
State of Indiana, The Honorable Frances C. Gull,
Appellee-Plaintiff. Judge
Trial Court Cause No.
02D05-1807-F6-780
Brown, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1061| August 16, 2019 Page 1 of 9
[1] David A. Dowty appeals his sentence for three counts of forgery as level 6
felonies. We affirm.
Facts and Procedural History
[2] On or about June 6, 2018, Dowty made, uttered, or possessed a written
instrument, to wit “Check #1100,” with the intent to defraud A.D., in such a
manner that the written instrument purported to have been made by another
person or by authority of one who did not give authority. Appellant’s
Appendix Volume II at 13. On or about June 7, 2018, he made, uttered, or
possessed a written instrument, to wit “Check #1101,” with the intent to
defraud A.D., in such a manner that the written instrument purported to have
been made by another person or by authority of one who did not give authority.
Id. at 14. On or about June 8, 2018, he made, uttered, or possessed a written
instrument, to wit “Check #1102,” with the intent to defraud A.D., in such a
manner that the written instrument purported to have been made by another
person or by authority of one who did not give authority. Id. at 15.
[3] On July 6, 2018, the State charged him with three counts of forgery as level 6
felonies in cause number 02D05-1807-F6-780 (“Cause No. 780”). 1 On
September 10, 2018, he entered a plea of guilty on all three counts, and the
1
The affidavit for probable cause and Initial Hearing order included in the record indicate that the cause was
originally entered as “02D06-1807-F6-780,” and the presentence investigation report states that, “[o]n July
10, 2018, cause number 02D06-1807-F6-780 was transferred to cause number 02D04-1807-F6-780.”
Appellant’s Appendix Volume II at 25, 35, 37. The September 10, 2018 Plea of Guilty included in the record
states that the case was “ordered transferred to Superior Court 02D05.” Id. at 17.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1061| August 16, 2019 Page 2 of 9
court took the matter under advisement. The State filed a Drug Court
Participation Agreement and Dowty was placed into a Drug Court Diversion
program. On February 11, 2019, Dowty failed to appear for a Drug Court
Status hearing, and the court issued a warrant order, no bond, and ordered his
release revoked.
[4] On March 11, 2019, an Allen County Drug Court case manager filed an
amended petition to terminate Dowty’s participation in the Drug
Court/Veterans Court program, which stated that he was discharged from
Shepherd’s House on February 8, 2019, for failing to return to the house, and
tested positive on urine drug screens for cocaine on February 4 and 6, 2019. On
the same day, the court found that he had violated the terms of the Drug Court
Participation Agreement and ordered him revoked from drug court. It ordered a
presentence investigation report (“PSI”), which was filed on April 4, 2019. The
PSI included the probable cause affidavit filed in Cause No. 780, which stated
that the affiant detective observed “that the victim, [A.D.] reported
unauthorized forging and cashing of company business checks,” “that on
6/6/18 at 2:37pm check 1100 had been cashed at . . . Kroger store 410 . . . for
$100.00,” “that on 6/7/18 at 8:55am check 1101 had been cashed at . . . Kroger
store 412 . . . for $215.75,” and “that on 6/8/18 at 11:41am check 1102 had
been cashed at . . . Kroger store 410 . . . for $285.13.” Id. at 35. The affidavit
further stated that the detective contacted A.D., who advised that Dowty
worked for him and had access to the company checkbook that was left in a
company work truck and that on or about June 8, 2018, he found out his
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1061| August 16, 2019 Page 3 of 9
company account was short and discovered that six checks in total had been
written out and signed by Dowty. The PSI indicated that Dowty committed the
offenses for which he was convicted in Cause No. 780 while he was on bond in
cause number 02D06-1804-F5-120 (“Cause No. 120”), which included “Count
1, Burglary, a level 5 felony; Count II, Possession of Cocaine, a level 6 Felony;
and Count III, Habitual Offender.” Id. at 33. It further stated that, “[p]ursuant
to I.C. 35-50-1-2, [Dowty] must serve the sentence imposed in [Cause No. 780]
consecutive to the sentence imposed in [Cause No. 120], as he was on bond
when he committed the present offense[s].” Id. at 34.
[5] On April 11, 2019, the court entered a judgment of conviction on all counts
alleged under Cause No. 780 and held a sentencing hearing, in which Dowty
stated that he regretted that he did not take advantage of Drug Court, failed his
family, wife, and kids, and apologized to his victims. He stated that his
addiction was not an excuse but rather “just helped [him] do what [he] did,” he
had been an addict for twenty-five years, and that when he relapses, he
“relapse[s] 100 percent.” Transcript Volume II at 8. He also indicated that he
was forty-five years old, had a bad heart, and that, if he kept using cocaine, it
was “gonna kill” him. Id.
[6] The court found his criminal history and failed efforts at rehabilitation from the
years 1996 to 2018 as aggravators and stated, “[y]ou’ve been given the benefit
of probation, time in the Department of Correction, you’ve been on parole,
you’ve been through the home detention program. You’ve had short jail
sentences, longer jail sentences, multiple attempts at treatment and then,
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1061| August 16, 2019 Page 4 of 9
ultimately, the Veteran’s Court Program, and yet your criminal conduct has
continued.” Id. at 9. It found his guilty plea and his remorse and acceptance of
responsibility as mitigators and sentenced him in Cause No. 780 to one and
one-half years on each count to be served concurrently, but consecutively to the
sentence imposed for his convictions under Cause No. 120. 2 Dowty now
appeals his sentence under Cause No. 780.
Discussion
[7] The issue is whether Dowty’s sentence is inappropriate in light of the nature of
the offenses and his character. Ind. Appellate Rule 7(B) provides that we “may
revise a sentence authorized by statute if, after due consideration of the trial
court’s decision, [we find] that the sentence is inappropriate in light of the
nature of the offense and the character of the offender.” Under this rule, the
burden is on the defendant to persuade the appellate court that his or her
sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).
[8] Dowty argues that a sentence of one and one-half years for each count, in
excess of the advisory sentence, is inappropriate given his chronic addiction
disease and the fact that he is serving a lengthy consecutive term for the
convictions in Cause No. 120. He asserts that science has long concluded that
incarceration does not cure addiction and requests this Court to consider
2
In Cause No. 120, the court ordered a sentence of “four years on count one, enhanced by a term of three
years on count three, for a net sentence on count one of seven years; order two years executed on count two
concurrent.” Transcript Volume II at 10.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1061| August 16, 2019 Page 5 of 9
shortening his sentence so that he may continue on to successful recovery. In
his reply, he contends that his offenses were a result of his “momentary lapse in
judgment resulting from his chronic addiction, and not in efforts to obtain more
drugs.” Appellant’s Reply Brief at 6.
[9] Ind. Code § 35-50-2-7 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 1/2) years, with the advisory sentence being one (1) year.” To the
extent that the court ordered his sentence in Cause No. 780 be served
consecutively to the sentence imposed for his convictions under Cause No. 120,
Ind. Code § 35-50-1-2(e) provides:
If, after being arrested for one (1) crime, a person commits
another crime:
(1) before the date the person is discharged from
probation, parole, or a term of imprisonment imposed for
the first crime; or
(2) while the person is released:
(A) upon the person’s own recognizance; or
(B) on bond;
the terms of imprisonment for the crimes shall be served
consecutively, regardless of the order in which the crimes are
tried and sentences are imposed.
[10] Our review of the nature of the offenses reveals that Dowty made, uttered, or
possessed three checks over the course of three separate days with the intent to
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1061| August 16, 2019 Page 6 of 9
defraud A.D., in such a manner that they purported to have been made by
another person or by authority of one who did not give authority.
[11] As for his character, Dowty pled guilty to the three counts of forgery in Cause
No. 780 which, as the PSI reveals, were committed using his employer’s checks
while out on his bond in Cause No. 120. At the sentencing hearing, he
indicated he regretted not taking advantage of Drug Court, he had been an
addict for twenty-five years, that his addiction was not an excuse, and that
when he relapses, he “relapse[s] 100 percent.” Transcript Volume II at 8.
According to the PSI, he reported that he started to use alcohol at age nineteen
and marijuana at age twenty-two, he used marijuana daily until age thirty-nine
when he claimed he quit, and he participated in substance abuse treatment
while incarcerated in the Indiana Department of Correction (the “DOC”) in
2003. The PSI indicates he stated that he experimented with cocaine once in
1998, started daily usage at age thirty-nine, continued until the present with his
last use being on March 5, 2019, and “conveyed he was ‘clean’ for five (5)
months from September 2018 to February 2019.” 3 Appellant’s Appendix
Volume II at 32. It states that he reported using methamphetamine two or three
times at age forty-two and three times in March 2019 and experimented with
acid two or three times at age twenty-four, mushrooms four times at age thirty-
eight, and Vicodin two or three times in the 1990s. While the PSI indicates that
3
Although the PSI states that he was clean until “February 2018,” it appears to reference instead February
2019. Appellant’s Appendix Volume II at 32.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1061| August 16, 2019 Page 7 of 9
he denied the use of all other drugs and stated that he participated in intensive
outpatient treatment through the VA Northern Indiana Health Care System in
Fort Wayne from September 2018 to February 2019, it reveals that he had
positive urine screens for cocaine on December 17, 2018; January 4, 22, and 24,
2019; and February 4 and 6, 2019. 4 It further indicates that on February 8,
2019, he failed to return to the Shepherd’s House, and on February 11, 2019, he
failed to appear for court.
[12] According to the PSI, Dowty’s criminal history consists of: burglary as a class C
felony and receiving stolen property as a class D felony for which he was
sentenced in 1996; burglary as a class C felony and receiving stolen property as
a class D felony for which he was sentenced in 2000; sexual misconduct with a
minor as a class B felony for which he was sentenced in 2001; burglary as a
class C felony in 2012 for which he was sentenced in 2013 to six years in the
DOC with four years executed and two years suspended, probation, substance
abuse evaluation, Criminal Intervention Program, and restitution; driving while
suspended as a class A misdemeanor for which he was sentenced in 2012 to
thirty days; and false informing as a class B misdemeanor for which he was
sentenced in 2015 to 180 days, thirty days executed and 150 days suspended. In
Cause No. 780, Dowty received concurrent sentences of one and one-half years
on each count, which was less than the recommendation of the probation
4
The PSI also indicates that on December 17, 2018, Dowty had a diluted urine screen, and on December 27,
2018, and February 1, 2019, he missed two urine screens.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1061| August 16, 2019 Page 8 of 9
officer who prepared the PSI of two years and one hundred and eighty-three
days on each count. After due consideration, we conclude that Dowty has not
sustained his burden of establishing that his sentence in Count No. 780 is
inappropriate in light of the nature of the offenses and his character. 5
Conclusion
[13] For the foregoing reasons, we affirm Dowty’s sentence.
[14] Affirmed.
Altice, J., and Tavitas, J., concur.
5
To the extent Dowty argues that the court abused its discretion in sentencing him by failing to consider that
his incarceration will result in an undue hardship to his dependent wife who, per counsel’s argument, “is
suffering from ALS,” Transcript Volume II at 6, we need not address this issue because we find that his
sentence is not inappropriate. See Chappell v. State, 966 N.E.2d 124, 134 n.10 (Ind. Ct. App. 2012) (noting
that any error in failing to consider the defendant’s guilty plea as a mitigating factor is harmless if the
sentence is not inappropriate) (citing Windhorst v. State, 868 N.E.2d 504, 507 (Ind. 2007) (holding that, in the
absence of a proper sentencing order, Indiana appellate courts may either remand for resentencing or exercise
their authority to review the sentence pursuant to Ind. Appellate Rule 7(B)), reh’g denied; Mendoza v. State, 869
N.E.2d 546, 556 (Ind. Ct. App. 2007) (noting that, “even if the trial court is found to have abused its
discretion in the process it used to sentence the defendant, the error is harmless if the sentence imposed was
not inappropriate”), trans. denied ), trans. denied; Shelby v. State, 986 N.E.2d 345, 370 (Ind. Ct. App. 2013)
(holding that “even if the trial court did abuse its discretion by failing to consider the alleged mitigating factor
of residual doubt, this does not require remand for resentencing” and citing Windhorst and Mendoza), trans.
denied.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1061| August 16, 2019 Page 9 of 9