Adam C. Ferman, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2024)

MEMORANDUM DECISION

Case Summary

[1] Adam Ferman challenges his sentence following his convictions for possession of a narcotic drug, as a Level 6 felony;¹ possession of methamphetamine, as a Level 6 felony;² and resisting law enforcement, as a Level 6 felony.³ He raises the sole issue of whether his sentence is inappropriate in light of the nature of the offenses and his character. We affirm.

Facts and Procedural History

[2] At approximately 8:00 a.m. on September 17, 2022, the Wayne County 9-1-1 dispatcher received a report from a Party City store that there was a vehicle in their parking lot with someone hunched over in the driver's seat. Police were dispatched to perform a welfare check and found Ferman asleep in the driver's seat of the vehicle with the windows rolled down. Ferman was “slumped back in the seat, head hanging down with a cigarette burned all the way out in his mouth.” Tr. v. II at 166. One officer yelled at Ferman to wake him and shook him. Ferman “didn't respond and then he eventually came around.” Id. Ferman was “was kind of mumbling and his speech was kind of slurred and he was immediately like moving around inside the car—like moving his hands around and things like that.” Id. at 167. He said he was sleeping and had borrowed the car from a friend. The officer believed Ferman was impaired based on the slurred speech, poor dexterity, and track marks on his arms consistent with intravenous drug use.

[3] One officer went to check Ferman's identification and the status of the vehicle while a second officer remained with Ferman. Ferman then “began to touch the keys that were in the ignition,” and the officer told him to “relax and to leave his keys alone.” Id. at 141. Ferman instead started the vehicle, put it into gear, and drove off at a high rate of speed, as the officer yelled at him to stop and exit the vehicle.

[4] A vehicle pursuit followed with speeds up to 110 miles per hour. The pursuit went through curvy back roads and residential areas where there were “residences there along the street.” Id. at 171. At one point, the vehicles “kinda fishtailed and slid sideways because of the speed.” Id. at 171. Ferman was swerving, and “there were multiple times when his entire body would go over to the passenger side of the console.” Id. at 172. At one point, Ferman threw what appeared to be a “square shaped clear plastic bag” out of the window. Id. at 173. After approximately thirteen miles, Ferman stopped his vehicle and was arrested.

[5] During a subsequent search of Ferman's vehicle, police found on the driver's seat a clear plastic baggie of a white powder that appeared to be cocaine and a crystal rock substance that appeared to be methamphetamine. Police also found along the route of the chase a “clear plastic bag containing like a[n] off-white rock-like material” that appeared to be methamphetamine that Ferman had thrown from his vehicle while driving. Id. at 155. Subsequent testing confirmed that the items were 1.18 grams of cocaine and 2.22 grams of methamphetamine, respectively.

[6] The State charged Ferman with Level 6 felony possession of a narcotic drug, Level 6 felony possession of methamphetamine, Level 6 felony resisting law enforcement, and alleged he is a habitual offender. During two pretrial competency evaluations, Ferman told the evaluators that the night before his arrest he had possessed a “bag of Xanax bars” with 400 pills that he had planned to sell, and that he “tested too many” or about 25 pills. App. at 107. He also acknowledged injecting cocaine and “of course heroin.” Id. at 109. Both evaluators found Ferman to be competent to stand trial.

[7] A jury found Ferman guilty as charged, and he admitted to being a habitual offender. Ferman's presentence investigation (“PSI”) report shows he is forty years old and has accumulated a significant criminal history, including a juvenile adjudication and two informal adjustments, eleven misdemeanor convictions, ten felony convictions, seven probation violations, and four failures to appear. His convictions include burglary, criminal mischief, theft, attempted theft, fraud, resisting law enforcement, and battery resulting in bodily injury. He has a prior conviction for possession of 10-28 grams of methamphetamine and has admitted to selling drugs. He also has several substance abuse-related convictions including public intoxication, disorderly conduct, public nudity, possession of marijuana, and unlawful possession of a syringe. At the time of sentencing, he had a pending case in Ohio for operating a vehicle while intoxicated.

[8] The PSI further shows that Ferman dropped out of high school in the ninth grade and has no significant work experience. He has two children, but they do not live with him, and there is no support order. He described drugs as his “hobby and habit,” with substance abuse starting at age eleven or twelve and significant opioid use since his teens. App. at 223. Ferman told the interviewer that he has been in multiple treatment programs, has “never really tried” to successfully complete a treatment program, and did not express any interest in additional treatment at this time. Id. at 224. He stated, “I don't get help, I get high,” and “I'm gonna do whatever the f--- I want.” Id.

[9] At the sentencing hearing, Ferman stated he reviewed the PSI report and had no objections, corrections, or additions. He presented no evidence but made a short allocution, stating, “Prison is not the answer to a drug addiction. It's just not conducive to recovery.” Tr. v. III at 34. Ferman requested placement in purposeful incarceration.

[10] The trial court sentenced Ferman to consecutive terms of one-and-one-half years on each of the three counts, with a three-year enhancement for being a habitual offender. In support of the sentence, the court found aggravating factors based on Ferman's criminal history and that he was released on bond in another felony case at the time of his offenses. The court found as mitigating that Ferman pled guilty to the habitual enhancement and was “respectful and attentive during these proceedings.” App. at 229. This appeal ensued.

Discussion and Decision

[11] Ferman contends that his sentence is inappropriate in light of the nature of the offenses and his character. Article 7, 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 in original). This appellate authority is implemented through Indiana Appellate Rule 7(B). Id. Revision of a sentence under Rule 7(B) requires the appellant to demonstrate that his sentence is “inappropriate in light of the nature of the offense and the character of the offender.” Ind. Appellate Rule 7(B); see also Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007).

[12] Indiana's flexible sentencing scheme allows trial courts to tailor an appropriate sentence to the circumstances presented, and the trial court's judgment “should receive considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008). 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 factors that come to light in a given case.” Id. at 1224. The question is not whether another sentence is more appropriate, but rather whether the sentence imposed is inappropriate. King v. State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008). Deference to the trial court “prevail[s] unless overcome by compelling evidence portraying in a positive light the nature of the offense (such as accompanied by restraint, regard, and lack of brutality) and the defendant's character (such as substantial virtuous traits or persistent examples of good character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015).

[13] In determining whether a sentence is inappropriate, the advisory sentence “is the starting point the Legislature has selected as an appropriate sentence for the crime committed.” Childress v. State, 848 N.E.2d 1073, 1081 (Ind. 2006). For Ferman's Level 6 felony convictions, the sentencing range is between six months and two and one-half years, with an advisory sentence of one year. I.C. § 35-50-2-7(b). By sentencing Ferman to consecutive sentences of one and one-half years on each of the three Level 6 felony counts, the trial court imposed a sentence only slightly longer than the advisory sentence and one year shorter than the maximum sentence. Thus, the sentence was well within the sentencing range.

[14] When considering the nature of the offense, we look at the defendant's actions in comparison to the elements of the offense. Cannon v. State, 99 N.E.3d 274, 280 (Ind. Ct. App. 2018), trans. denied. Here, while released on bond in another case that resulted in a conviction for possession of methamphetamine, Ferman committed another crime of possession of methamphetamine and cocaine. That is, Ferman did not merely commit the crime charged, but did so while released on bond in another case involving the same crime—i.e., possession of methamphetamine. Moreover, Ferman fled from law enforcement while committing the current drug charge, and he did so at high speeds through residential areas while intoxicated from ingesting multiple drugs. That behavior obviously put both police officers and the community at large at significant risk. Thus, the nature of Ferman's offenses in this case does not suggest that his sentence was inappropriate.

[15] Nor does Ferman's character warrant a sentence reduction. He has an extensive criminal history that includes eleven misdemeanor convictions, ten felony convictions, two probation violations, and four failures to appear. His convictions include burglary, criminal mischief, theft, attempted theft, fraud, resisting law enforcement, and battery resulting in bodily injury. He has several substance abuse-related convictions including public intoxication, disorderly conduct, public nudity, possession of marijuana, and unlawful possession of a syringe. Ferman's convictions and admissions show that he is both a drug user and a drug dealer. See Prince v. State, 148 N.E.3d 1171, 1174 (Ind. Ct. App. 2020) (citation omitted) (observing that even a minor criminal history reflects poorly on a defendant's character). In addition, Ferman committed the instant offenses while he was out on bond in another case involving possession of methamphetamine. There was no evidence that Ferman has “substantial virtuous traits or persistent examples of good character.” Stephenson, 29 N.E.3d at 122. Rather, despite his admitted life-long drug addiction, Ferman stated, “I don't get help, I get high,” and “I'm gonna do whatever the f--- I want.” App. at 224. Ferman has failed to demonstrate that his sentence is inappropriate in light of his character.

[16] Ferman's sentence is not inappropriate in light of the nature of his offenses and his character.

[17] Affirmed.

Bradford, J., and Foley, J., concur.

FOOTNOTES

1.   Ind. Code § 35-48-4-6(a).

2.   I.C. § 35-48-4-6.1(a).

3.   I.C. § 35-44.1-3-1(a), (c)(1).

Bailey, Judge.

Judges Bradford and Foley concur.