Opinion
23A-CR-2771
06-06-2024
Michael Dewayne Hughes, Jr., Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT Brian A. Karle Ball Eggleston, PC Lafayette, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Michelle Hawk Kazmierczak Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Marion Superior Court The Honorable Cynthia Oetjen, Judge The Honorable Anne Flannelly, Magistrate Trial Court Cause No. 49D30-2306-F2-18768
ATTORNEY FOR APPELLANT
Brian A. Karle Ball Eggleston, PC Lafayette, Indiana
ATTORNEYS FOR APPELLEE
Theodore E. Rokita Attorney General of Indiana
Michelle Hawk Kazmierczak Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
RILEY, JUDGE
STATEMENT OF THE CASE
[¶1] Appellant-Defendant, Michael DeWayne Hughes, Jr. (Hughes), appeals his sentence for Level 4 felony unlawful possession of a firearm by a serious violent felon and Level 6 felony possession of a narcotic drug.
[¶2] We affirm.
ISSUE
[¶3] Hughes presents this court with one issue on appeal, which we restate as: Whether Hughes' sentence is inappropriate in light of the nature of the offenses and his character.
FACTS AND PROCEDURAL HISTORY
[¶4] On June 28, 2023, while on patrol, Indianapolis Metropolitan police officer Cody Hopkins (Officer Hopkins) noticed a vehicle that matched the description of a vehicle that had been reported stolen. Following the vehicle, Officer Hopkins observed the car pull into an apartment complex where the driver, later identified as Hughes, parked in the first lot of the complex. Hughes and his passenger exited the vehicle and walked into a building on the south side of the apartment complex. After running the vehicle's plate and VIN number, Officer Hopkins determined that the vehicle had been stolen. Officer Hopkins then noticed Hughes walk into another apartment building. Once backup arrived, Officer Hopkins knocked on the apartment's door and requested Hughes and the passenger to exit. They both initially provided a false name when asked for identification. A search of the vehicle located several cell phones, digital scales, a blender with a white powdery residue, measuring cups, and a large amount of cash.
[¶5] On June 30, 2023, the State filed an Information, charging Hughes with Level 2 felony dealing in cocaine and Level 5 felony unlawful carrying of a handgun. On September 1, 2023, the State amended its Information, adding Level 4 felony unlawful possession of a firearm by a serious violent felon and Level 6 felony possession of a narcotic drug. On September 8, 2023, the State dismissed the Level 5 felony unlawful carrying of a handgun. On July 27, 2023, Hughes' two-day jury trial commenced, at the close of which the jury found Hughes guilty of Level 4 felony unlawful possession of a firearm by a serious violent felon and Level 6 felony possession of a narcotic drug.
[¶6] On October 26, 2023, the trial court conducted a sentencing hearing. During the proceedings, it was noted that Hughes had an extensive criminal history, which included multiple probation and parole violations. As a juvenile, Hughes had incurred three delinquency adjudications: Class C felony burglary, Class D felony theft, and Class A misdemeanor possession of marijuana. As an adult, he had three misdemeanor convictions and five felony convictions, including Class C misdemeanor possession of alcohol by a minor, Class B misdemeanor possession of marijuana, Class A misdemeanor invasion of privacy, Class 1 felony attempted predatory criminal assault (in Illinois), Level 6 felony unlawful entry by a serious sex offender, Level 5 felony fraud on a financial institution, Level 6 felony possession of cocaine, Level 6 felony failure to register as a sex or violent offender, Level 5 felony failure to register as a sex or violent offender, and Class A misdemeanor driving while suspended. While a juvenile and as an adult, he was provided with opportunities to engage in mental health and substance abuse counseling services, and he was placed in treatment facilities. None of these opportunities were successfully concluded.
[¶7] As a mitigating factor for sentencing, the trial court found that imprisonment would cause an undue hardship on Hughes' dependents. The trial court listed as aggravating factors: Hughes' criminal history, his prior probation revocations, and his jail write-up for disruption of jail operations. The trial court noted that since Hughes commenced his business, which he proffered as a mitigator, he had incurred a conviction for fraud. The court summed up Hughes' multiple convictions for alcohol and drug related offenses which resulted in years of unsuccessful opportunities to cooperate with the court, receive treatment, and rehabilitate. The trial court sentenced Hughes to seven years on the Level 4 felony unlawful possession of a firearm by a serious violent felon and two years on the Level 6 felony possession of a narcotic drug, with sentences to be served concurrently.
[¶8] Hughes now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
[¶9] Hughes maintains that his sentence is inappropriate in light of the nature of the offense and his character. Article 7, Sections 4 and 6 of the Indiana Constitution authorize independent appellate review and revision of a trial court's sentencing order. See, e.g., Livingston v. State, 113 N.E.3d 611, 613 (Ind. 2018). 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 his offenses and his character. See Ind. Appellate Rule 7(B); Rutherford v. State, 866 N.E.2d 867, 873 (Ind.Ct.App. 2007). We consider not only the aggravators and mitigators found by the trial court, but also any other factors appearing in the record. Baumholser v. State, 62 N.E.3d 411, 417 (Ind.Ct.App. 2016), trans. denied. It is the defendant's burden to "persuade the appellate court that his or her sentence has met th[e] inappropriateness standard of review." Roush v. State, 875 N.E.2d 801, 812 (Ind.Ct.App. 2007).
[¶10] 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). "In assessing whether a sentence is inappropriate, appellate courts may take into account whether a portion of the sentence is ordered suspended or is otherwise crafted using any of the variety of sentencing tools available to the trial judge." McFall v. State, 71 N.E.3d 383, 390 (Ind.Ct.App. 2017). 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).
[¶11] In the Indiana sentencing scheme, the legislature has set a minimum and maximum sentence for each class of crime, and it has determined an advisory sentence to be used as a starting point. Anglemyer v. State, 868 N.E.2d 482, 488 (Ind. 2007), clarified on reh'g, 875 N.E.2d 218 (Ind. 2007). Hughes was convicted of a Level 4 felony offense and a Level 6 felony offense. Pursuant to Indiana Code section 35-50-2-7, a Level 6 felony carries an advisory sentence of one year, with a range of six months to two and one-half years. Pursuant to Indiana Code Section 35-50-2-5.5, a Level 4 felony carries an advisory sentence of six years, with a range of two to twelve years. Hughes was sentenced to two years on the Level 6 felony offense and to seven years on the Level 4 felony offense, all to run concurrently. The court further recommended Hughes to participate in drug and mental health treatment while incarcerated.
[¶12] Turning first to the nature of the offenses, we cannot conclude that this element of our review necessitates a revision of Hughes' sentence. The nature of the offense is found in the details and circumstances of the commission of the offense and the defendant's participation. Croy v. State, 953 N.E.2d 660, 664 (Ind.Ct.App. 2011). Here, Hughes drove a stolen vehicle, attempted to avoid being caught by parking the car, by walking across a parking lot and through several buildings, and by giving Officer Hopkins a fake name. A subsequent search of the car revealed a loaded handgun with one bullet in the chamber and "six live rounds" in the magazine, 6 grams of narcotic drugs, and large amounts of cash. (Transcript Vol. III, p. 180). Hughes' simultaneous possession of drugs and a loaded firearm, while driven a stolen car, is a dangerous combination indicating a preparedness to engage in violent criminal activity at a moment's notice.
[¶13] With respect to the second prong of our review, we note that "[t]he character of the offender is found in what we learn of the offender's life and conduct." Croy, 953 N.E.2d at 664. When assessing a defendant's character, one relevant fact we consider is the offender's criminal history. Johnson v. State, 986 N.E.2d 852, 857 (Ind.Ct.App. 2013). "The significance of criminal history varies based on the gravity, nature, and number of prior offenses in relation to the current offense." Id. Hughes had seven referrals and three delinquency adjudications for offenses, which included burglary, felony-level thefts, and possession of marijuana. As an adult, he accumulated three misdemeanor convictions and five felony convictions for offenses, including possession of cocaine, attempted predatory criminal sexual assault, unlawful entry by a serious sex offender, fraud on a financial institution, possession of marijuana, and driving while suspended. Hughes was provided with probation and parole opportunities but was unsuccessful at every community-based sentencing chance. At the time of sentencing, he had an active warrant out of Hamilton County.
[¶14] Hughes now contends that his sentence warrants revision because his most serious offense is more than ten years old, his employment history reflects a willingness to work, he showed remorse, and his mental illness favors a less onerous sentence. Although Hughes is correct that his most serious offense is more than ten years old, in the last ten years he nevertheless continued to build his extensive history, failed at community-based corrections, and frequently had his probation or parole revoked. Although Hughes maintained full-time gainful employment for four years prior to his conviction, running his own auto mechanic business, during that time he also incurred convictions for fraud, possession of cocaine, failure to register as a sex offender, and driving while suspended. While our supreme court has found it appropriate to revise a sentence downward if the defendant has untreated mental health issues, the court has also cautioned that a court's sentence revision authority pursuant to Appellate Rule 7(B) should be reserved "for exceptional cases, and its exercise boils down to our collective sense of what is appropriate." Mullins v. State, 148 N.E.3d 986, 987 (Ind. 2020). There is a "need for a high level of discernment when assessing a claim that mental illness warrants mitigating weight." Covington v. State, 842 N.E.2d 345, 349 (Ind. 2006). "Factors to consider in weighing a mental health issue include the extent of the inability to control the behavior, the overall limit on function, the duration of the illness, and the nexus between the illness and the crime." Marlett v. State, 878 N.E.2d 860, 866 (Ind.Ct.App. 2007). Despite Hughes' claim of mental illness, he reported his mental health as being good when interviewed for his presentence investigation report. He fails to present any evidence reflecting a nexus between his mental illness and the crimes he committed, or any evidence that his mental health precluded him from functioning in society. To the contrary, Hughes emphasized his ability to run a business and raise a family. He claimed to take medicine and received mental health counseling for depression. Moreover, Hughes had prior opportunities to address his mental health but failed to take advantage of them. Hughes' inability to successfully complete multiple opportunities to rehabilitate and receive the treatment he required were considered aggravating circumstances by the trial court.
[¶15] In sum, based on the evidence before us, we cannot conclude that Hughes' sentence is inappropriate in light of the nature of his offenses and his character. Hughes amassed a long criminal history that demonstrated a continuance in criminal behavior and a failure to take advantage of community-based corrections opportunities. His attempts to place his character in a positive light and to avail himself of a downward sentence revision based on his mental health are unpersuasive.
CONCLUSION
[¶16] Based on the foregoing, we hold that Hughes' sentence is not inappropriate in light of the nature of his offenses and his character.
[¶17] Affirmed.
Felix, J. and Kenworthy, J. concur.