Michael W. Hart, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

Case Summary

[1] Michael Hart asks us to exercise our authority under Indiana Appellate Rule 7(B) to revise his ten-year sentence for unlawful possession of a firearm by a serious violent felon. Because Hart has failed to prove his sentence is inappropriate, we affirm.

Facts and Procedural History

[2] Hart was the primary caregiver for his elderly father for approximately three years. During that time, he lived in a trailer on his father's property and aided his father in many ways, including cleaning his father's house, maintaining the yard, and cooking.

[3] One day, Hart, who has dealt with chronic pain for ten years after suffering several compression fractures in his back, ingested a mixture of alcohol and prescription opioids. His behavior became “uncontrollable[,]” and he threatened to shoot his father's dogs. Transcript at 28. His father called 911, telling the dispatcher that Hart had a shotgun and was threatening him. When the police arrived, Hart initially ignored several verbal commands to put his hands up. As the officers attempted to place him in handcuffs, he pulled one of his arms away and twisted his body against the arresting officer, which made the officer fear that Hart was attempting to grab a knife tucked in his waist or retrieve the nearby shotgun. The officers tackled Hart to the ground and then successfully placed him in handcuffs.

[4] The State charged Hart with one count of Level 4 felony Unlawful Possession of a Firearm by a Serious Violent Felon ¹ and one count of Class A misdemeanor Resisting Law Enforcement.² Hart agreed to plead guilty to the unlawful possession charge, and the State agreed to dismiss the resisting law enforcement count as well as two unrelated misdemeanor charges pending in another case. At the sentencing hearing, the trial court found several aggravating circumstances, including Hart's lengthy criminal history (including twenty-four misdemeanor convictions and seven felony convictions), that he violated the conditions of pretrial release in a different case by committing the instant offense, and that the leniency shown to Hart in his prior cases had not deterred his continued criminal behavior. As mitigating circumstances, the court gave some weight to the fact that Hart had pled guilty and any executed sentence would be a hardship to Hart's father. Ultimately, the court sentenced Hart to ten years executed in the Department of Correction. Hart now appeals.

Discussion and Decision

[5] Hart argues his sentence is inappropriate and asks us to revise it under Indiana Appellate Rule 7(B) “in a manner more appropriate in light of his character and the circumstances surrounding his criminal act.” Appellant's Brief at 8. Rule 7(B) permits us to revise a sentence if it “is inappropriate in light of the nature of the offense and the character of the offender.” McCain v. State, 148 N.E.3d 977, 985 (Ind. 2020) (quoting Ind. Appellate Rule 7(B)). We give the trial court “considerable deference” when reviewing a sentence under Rule 7(B). Oberhansley v. State, 208 N.E.3d 1261, 1267 (Ind. 2023) (quoting Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008)). We will not revise a sentencing decision absent “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).” Konkle v. State, 253 N.E.3d 1068, 1093 (Ind. 2025) (quoting Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015)). The burden is on the defendant to persuade us that his sentence is inappropriate. Id. at 1092.

1. Nature of the Offense

[6] Hart contends that the nature of his offense warrants revision because “but for the mixture of pain pills and alcohol” he was using to address his chronic pain, he would never have been in the “unmanageable state that caused his father to call for help” which led to his arrest. Appellant's Br. at 7. When evaluating the nature of an offense, we “look at the extent, brutality, and heinousness of the offense.” Borroel v. State, 241 N.E.3d 8, 18 (Ind. Ct. App. 2024), trans. denied. We begin with the advisory sentence as “the starting point the Legislature has selected as an appropriate sentence for the crime committed.” Anglemyer v. State, 868 N.E.2d 482, 494 (Ind. 2007), as clarified on reh'g by 875 N.E.2d 218 (2007).

[7] Hart was convicted of a Level 4 felony. Pursuant to statute, “[a] person who commits a Level 4 felony shall be imprisoned for a fixed term of between two [ ] and twelve [ ] years, with the advisory sentence being six [ ] years.” Ind. Code § 35-50-2-5.5. In determining whether Hart's ten-year sentence is inappropriate, we consider “whether there is anything more or less egregious about the offense committed by the defendant that makes it different from the ‘typical’ offense accounted for by the legislature when it set the advisory sentence.” T.A.D.W. v. State, 51 N.E.3d 1205, 1211 (Ind. Ct. App. 2016) (quoting Holloway v. State, 950 N.E.2d 803, 806-07 (Ind. Ct. App. 2011)). We also consider whether the offense was “accompanied by restraint, regard, and lack of brutality[.]” Stephenson, 29 N.E.3d at 122.

[8] As an initial matter, we are unpersuaded by Hart's claim that he was abusing alcohol and opioids at the time he committed his offenses only because he was suffering from chronic pain. His presentence investigation report reveals that he first began to regularly consume alcohol at the age of thirteen and abused alcohol throughout his life. Moreover, he testified at his sentencing hearing that “[a]lcohol and drugs” have been “the root of” his lifelong criminal behavior. Tr. at 37-38. Clearly, Hart's drug and alcohol problems, and the corresponding litany of criminal offenses relating to his use of illegal substances, run far deeper than merely an attempt to ease his chronic pain.

[9] Additionally, to convict Hart of unlawful possession of a firearm, all the State was required to prove was that he was a serious violent felon who “knowingly or intentionally possess[ed] a firearm[.]” I.C. § 35-47-4-5(c). Hart, who in 1998 was convicted of criminal confinement (a serious violent felony under Indiana Code section 35-47-4-5(b)(10)), did much more than simply possess a firearm. In an alcohol and opioid-fueled rage, Hart used a shotgun to intimidate his wheelchair-bound father and threatened to shoot his dogs. When the police attempted to arrest Hart, he pulled away from the arresting officer in such a manner that the officer was afraid Hart was reaching for the shotgun or a knife he had tucked in his waistband. As such, Hart's behavior went beyond the elements necessary to convict him of unlawful possession of a firearm, distinguishing his crime from the “typical” offense contemplated by the advisory sentence.

[10] In light of these facts, Hart has failed to prove that the nature of his offense renders his ten-year sentence inappropriate.

2. Character of the Offender

[11] Hart next contends that his sentence is inappropriate given his character because he “pled guilty, showed a great deal of remorse,” and despite his “lengthy criminal history, he was also serving an essential caretaker role” for his father, who wanted him “to come back to his home[ ] to continue to care for him.” Appellant's Br. at 7. In considering Hart's character, “we engage in a broad consideration of [his] qualities[.]” Burkhart v. State, 259 N.E.3d 347, 355 (Ind. Ct. App. 2025) (quoting T.A.D.W., 51 N.E.3d at 1211), trans. denied. This includes “whether [he] has ‘substantial virtuous traits or persistent examples of good character[.]’ ” Id. (quoting Stephenson, 29 N.E.3d at 122).

[12] Starting with his role as a caretaker, it is well-settled that the burden imposed on a defendant's dependent by their imprisonment does not in and of itself justify a sentencing revision. See Jones v. State, 218 N.E.3d 3, 16 (Ind. Ct. App. 2023) (“[H]ardship to a defendant's dependents can be given little consideration when the defendant fails to show why incarceration for a particular term will cause more hardship than incarceration for a shorter term[.]”), trans. denied; see also Nicholson v. State, 768 N.E.2d 443, 448 n.13 (Ind. 2002) (noting defendant failed to prove his imprisonment was an undue hardship on his dependents when he “presented no evidence to demonstrate that the hardship to his family would be any worse than that normally suffered by a family whose relative is imprisoned”). Here, while Hart's incarceration will indeed burden his father, Hart failed to show an undue burden that warrants a shorter sentence.

[13] While we acknowledge that Hart's willingness to care for his father is commendable, this factor is overshadowed by his extensive criminal history. See Garcia v. State, 47 N.E.3d 1249, 1252 (Ind. Ct. App. 2015) (reasoning the defendant failed to demonstrate good character when his “numerous contacts with the criminal justice system, including [ ] several incarcerations and stints on probation, ha[d] not led him to reform himself”), trans. denied. Hart has a history of illegal substance use, including underage drinking and alcohol abuse starting at the age of thirteen and lifelong marijuana use. He has been convicted of a laundry list of offenses—many related to alcohol and drugs—which his presentence investigation report summarized as follows:

• Twenty-four misdemeanor convictions, including:

o Six counts of OVWI;

o Six counts of Possession of Marijuana;

o Operating a Vehicle as a Habitual Traffic Offender;

o Seven counts of Public Intoxication;

o Criminal Mischief;

o Battery;

o Possession of Paraphernalia; and

o Resisting Law Enforcement.

• Seven felony convictions, including:

o Two counts of D felony Residential Entry;

o B felony Criminal Confinement;

o D felony Theft;

o D felony Unlawful Possession of a Legend Drug;

o D felony OVWI-Prior; and

o D felony Maintaining a Common Nuisance.

Moreover, Hart has been shown leniency for his prior criminal acts, having been placed on probation seven times, work release three times, and home detention once. It reflects poorly on Hart that despite this lenient treatment, he has continued to commit criminal offenses and abuse alcohol and drugs. Hart's history of criminal behavior outweighs his status as his father's caregiver, the remorse he expressed for his actions, or his acceptance of responsibility by pleading guilty to the present offense.

As such, Hart has failed to demonstrate that his sentence is inappropriate in light of his character.

Conclusion

[14] Because Hart failed to show his sentence is inappropriate in light of the nature of his offense or his character, we affirm.

[15] Affirmed.

FOOTNOTES

1.   Ind. Code § 35-47-4-5(c).

2.   I.C. § 35-44.1-3-1(a)(1).

DeBoer, Judge.

Bradford, J., and Weissmann, J., concur.