Court of Appeals of Indiana | Memorandum Decision 19A-CR-1061| August 16, 2019 Page 1 of 9

MEMORANDUM DECISION

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

Donald C. Swanson, Jr.

Deputy Public Defender

Fort Wayne, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Tyler Banks

Supervising Deputy Attorney 

General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

David A. Dowty,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

August 16, 2019

Court of Appeals Case No.

19A-CR-1061

Appeal from the Allen Superior 

Court

The Honorable Frances C. Gull, 

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 2 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.
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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 
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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 5 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. 
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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 7 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 thirtyeight, 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. 
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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. 
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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.