Court of Appeals of Indiana | Memorandum Decision 02A03-1604-CR-993 | December 29, 2016 Page 1 of 8

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 J. Frew

Fort Wayne, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Christina D. Pace

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Kenneth Rollingcloud,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

December 29, 2016

Court of Appeals Case No.

02A03-1604-CR-993

Appeal from the Allen Superior 

Court

The Honorable Frances C. Gull, 

Judge

Trial Court Cause No.

02D05-1511-F6-1135

Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 02A03-1604-CR-993 | December 29, 2016 Page 2 of 8

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.
Court of Appeals of Indiana | Memorandum Decision 02A03-1604-CR-993 | December 29, 2016 Page 3 of 8

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.
Court of Appeals of Indiana | Memorandum Decision 02A03-1604-CR-993 | December 29, 2016 Page 4 of 8

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.
Court of Appeals of Indiana | Memorandum Decision 02A03-1604-CR-993 | December 29, 2016 Page 5 of 8

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, AntiSocial 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 posttraumatic stress disorder, or his other claimed mental health conditions. 
Court of Appeals of Indiana | Memorandum Decision 02A03-1604-CR-993 | December 29, 2016 Page 6 of 8

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).
Court of Appeals of Indiana | Memorandum Decision 02A03-1604-CR-993 | December 29, 2016 Page 7 of 8

[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.
Court of Appeals of Indiana | Memorandum Decision 02A03-1604-CR-993 | December 29, 2016 Page 8 of 8

[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.