II v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

Case Summary

[1] Michael Gene Nichols, II, appeals his 12-year sentence for Level 3 felony dealing in a schedule IV controlled substance and Level 5 felony carrying a handgun without a license, arguing that it is inappropriate given the nature of the offenses and his character. We affirm.

Facts and Procedural History

[2] On April 26, 2022, Nichols was pulled over for speeding. An officer smelled marijuana and asked Nichols if he had any in the car. Nichols responded, “[N]ah man, I smoked it all.” Appellant's App. Vol. II p. 61. Officers asked him to step out of the car, but he sped away, leading the officers on a chase that lasted two miles at speeds exceeding 100 miles per hour. Nichols eventually stopped, and a search of his car revealed a large Ziplock bag containing 973 Xanax pills weighing 222 grams, along with 3 grams of cocaine and 7 grams of marijuana. The State did not immediately file charges.

[3] Five weeks later, on June 2, Nichols was again stopped for a traffic violation. Officers smelled marijuana and asked Nichols if they could search the car. Nichols told the officers there was a handgun gun in the center console, which the officers confiscated along with other items. The State charged Nichols with Level 5 felony carrying a handgun without a license (enhanced from a Class A misdemeanor because Nichols had a felony conviction in the previous 15 years) and two counts of Class A misdemeanor possession of a controlled substance under Cause No. 45G04-2206-F5-261 (“F5-261”).

[4] Then, under Cause No. 45G04-2207-F3-87 (“F3-87”), the State filed the following charges stemming from the April 26 incident: Level 3 felony dealing in a schedule IV controlled substance, Level 6 felony possession of cocaine, Level 6 felony resisting law enforcement, Class A misdemeanor possession of a controlled substance, and Class B misdemeanor possession of marijuana.

[5] In October 2024, the parties entered into a plea agreement. Nichols pled guilty to Level 3 felony dealing in a schedule IV controlled substance in F3-87 and Level 5 felony carrying a handgun without a license in F5-261. The parties agreed to consecutive sentences with a maximum of 8 years for the Level 3 felony and a maximum of 4 years for the Level 5 felony. The State dismissed the remaining charges in those cases and the charges in a separate case, Cause No. 45G04-2208-F5-426 (Level 5 felony unlawful carrying of a handgun and Class A misdemeanor possession of marijuana).

[6] In sentencing Nichols, the trial court found his criminal history to be an aggravating circumstance. According to the presentence investigation report, Nichols had 24 prior contacts with the criminal-justice system. He has at least six felony convictions in Illinois: in 2010, two counts of Level 2 felony unlawful use of weapon/vehicle, two counts of Level 3 felony felon in possession/use of weapon/firearm, and Level 4 felony obstruction of justice/destroy evidence; and in 2006, Level 4 felony unlawful use of weapon/vehicle. Appellant's App. Vol. II pp. 18-24. He also has three misdemeanor convictions: possession of marijuana in 2011; possession of cannabis in 2004; and theft in 2002. Id.¹ The court found additional aggravating circumstances: Nichols has had “two petitions to revoke probation,” “an interim sanction while on parole,” and “the opportunity to participate in two drug programs, community service”; he was charged with armed robbery in Chicago in February 2024, while out on bond in these cases; the amount of drugs was more than necessary to prove the elements of the dealing charge; he is in need of rehabilitative treatment that can only be provided in a penal facility; and a reduced sentence would depreciate the seriousness of the offenses. Id. at 64-65.

[7] The trial court found one mitigating circumstance: Nichols's incarceration would cause undue hardship to his dependents. He was employed at the Ford Assembly Plant in Chicago and had been supporting his two children—paying child support and sharing equal custody of one, while having full custody of the other.

[8] Finding the aggravating factors to outweigh the mitigating factor, the trial court imposed consecutive sentences of 8 years for the Level 3 felony and 4 years for the Level 5 felony, for a total sentence of 12 years, with the first 10 years served in the Department of Correction and the last 2 years served on community corrections.

[9] Nichols now appeals.

Discussion and Decision

[10] Nichols contends that his sentence is inappropriate and asks us to reduce it under Indiana Appellate Rule 7(B), which provides that an appellate court “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.” The court's role under Rule 7(B) is to “leaven the outliers,” and “we reserve our 7(B) authority for exceptional cases.” Faith v. State, 131 N.E.3d 158, 160 (Ind. 2019). “Whether a sentence is inappropriate ultimately turns on the culpability of the defendant, the severity of the crime, the damage done to others, and a myriad of other factors that come to light in a given case.” Thompson v. State, 5 N.E.3d 383, 391 (Ind. Ct. App. 2014) (citing Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008)). Because we generally defer to the judgment of trial courts in sentencing matters, defendants must persuade us that their sentences are inappropriate. Schaaf v. State, 54 N.E.3d 1041, 1044-45 (Ind. Ct. App. 2016).

[11] Nichols pled guilty to Level 3 felony dealing in a schedule IV controlled substance and Level 5 felony carrying a handgun without a license. The sentencing range for a Level 3 felony is 3 to 16 years, with an advisory sentence of 9 years. Ind. Code § 35-50-2-5(b). The sentencing range for a Level 5 felony is 1 to 6 years, with an advisory sentence of 3 years. I.C. § 35-50-2-6(b). Therefore, without a plea agreement, Nichols faced up to 22 years on the two counts. But the plea agreement, while calling for consecutive sentences, capped the total sentence at 12 years—8 years for the Level 3 felony and 4 years for the Level 5 felony. And those are the sentences the trial court imposed. While those aren't the advisory terms for the individual offenses, the total of 12 years is essentially the “advisory” for the two offenses when run consecutively, since the advisory sentences for Level 3 felonies (9 years) and Level 5 felonies (3 years) also total 12 years. Because our legislature has selected the advisory sentence as the “starting point” for “an appropriate sentence for the crime committed,” the defendant bears a “particularly heavy burden” when the trial court imposes the advisory sentence. Fernbach v. State, 954 N.E.2d 1080, 1089 (Ind. Ct. App. 2011), trans. denied. Nichols has not met that burden.

[12] As to the nature of the offenses, Nichols notes that neither charge involved “violent behavior or harm to another person.” Appellant's Br. 13. But his admitted conduct during the April 26 incident went far beyond the statutory elements for Level 3 felony dealing in a controlled substance. He fled from a traffic stop, leading officers on a high-speed chase that reached speeds over 100 miles per hour. In addition, he possessed 222 grams of Xanax—almost 8 times more than the amount required for the charge. See I.C. § 35-48-4-3(f) (“The offense is a Level 3 felony if: (1) the amount of the drug involved is at least twenty-eight (28) grams[.]”). Nichols's sentence is not inappropriate given the nature of his offenses, since his decision to engage in reckless conduct while in possession of illegal substances significantly heightened the danger he posed to the public.

[13] Turning to his character, Nichols notes that he is hardworking and supports his children and that he pled guilty. However, other facts reflect unfavorably on his character. Nichols has an extensive criminal history spanning over two decades, including six felony convictions and three misdemeanor convictions. Also, while awaiting charges following the April 26 incident, Nichols committed another felony offense just five weeks later. Although he later pled guilty, the circumstances suggest that was largely a pragmatic decision, since the State agreed to dismiss eight charges in three different cases. Nichols has failed to persuade us his essentially advisory sentence of 12 years, with the last 2 years served on community corrections, is inappropriate.

[14] Affirmed.

FOOTNOTES

1.   Nichols notes that the presentence investigation report, at certain points, states that he had only five felony convictions and one misdemeanor conviction. Appellant's App. Vol. II pp. 24, 27. However, the report lists at least six felony convictions and three misdemeanor convictions. Id. at 18-23.

Vaidik, Judge.

Judges Tavitas and Felix concur. Tavitas, J., and Felix, J., concur.