PULLUAIM v. STATE (2026)

MEMORANDUM DECISION

[1] Otho Troy Pulluaim was convicted of Level 5 felony battery with a deadly weapon,¹ Level 6 felony battery resulting in moderate bodily injury,² and Level 6 felony criminal recklessness while armed with a deadly weapon,³ and he was adjudicated a habitual offender.⁴ The trial court imposed a four-year sentence for Level 5 felony battery, which it enhanced by three years for the habitual offender adjudication, and it ordered two-year sentences for each of the Level 6 felonies be served concurrent with that seven-year sentence.

[2] Pulluaim appeals his three convictions as violative of substantive double jeopardy under Indiana law because all three are based on Pulluaim's singular stabbing of a friend's arm with a pocketknife. The State agrees with Pulluaim that his Level 6 felony convictions must be vacated, and we accordingly vacate them.

[3] Pulluaim also argues his seven-year sentence is both an abuse of discretion and inappropriate for his offense and character. We cannot say the trial court abused its discretion when the mitigator alleged by Pulluaim on appeal was not argued to the trial court at sentencing or clearly significant. Nor can we say Pulluaim's seven-year sentence is inappropriate for Pulluaim's offense and character.

[4] For all these reasons, we vacate Pulluaim's two Level 6 felony convictions, affirm his seven-year sentence for Level 5 felony battery with a deadly weapon, and remand for the trial court to enter a corrected sentencing order.

Facts and Procedural History

[5] On January 8, 2025, Pulluaim was at the apartment of David Christopher with Christopher and Robert Jackson. Jackson cooked food, ate, and fell asleep. Christopher and Pulluaim were drinking beer and began to argue about a song. During the argument, Pulluaim decided to leave, so he walked to the refrigerator, gathered the remaining beers, and carried them to the dining room table. Christopher told Pulluaim that he could not take the beers, and Christopher moved toward Pulluaim. Pulluaim grabbed Christopher's pocketknife from the dining room table and stabbed Christopher in the upper arm. Jackson woke up to see Pulluaim holding a knife and Christopher bleeding profusely from his arm. Pulluaim attempted to tie a towel around Christopher's wound to stop the bleeding, and Jackson ran to the apartment's security desk to ask for an ambulance. The apartment manager reported the stabbing to authorities.

[6] Police arrived and encountered Christopher and Pulluaim in the hallway outside Christopher's apartment. Police separated the two men to interview them individually about what happened. Pulluaim, who was carrying unopened beer cans, did not stay where police told him to wait and instead approached Christopher and attempted to hand him a pocketknife. Police secured the weapon and arrested Pulluaim. DNA samples were collected from the knife's handle and blade. Testing of the samples indicated DNA from both Christopher and Pulluaim were on the handle, while DNA from only Christopher was on the blade.

[7] The State charged Pulluaim with Level 5 felony battery with a deadly weapon, Level 6 felony battery resulting in moderate bodily injury, and Level 6 felony criminal recklessness while armed with a deadly weapon, and it also alleged he was a habitual offender. During a bifurcated trial, the jury found Pulluaim guilty of the three crimes and then the trial court adjudicated Pulluaim a habitual offender.

[8] At a later sentencing hearing, the trial court entered judgment of conviction on the verdicts and adjudication. The court found mitigating factors in Pulluaim having community support and “mental health issues.” (Appellant's App. Vol. 2 at 14.) The court found nine aggravating factors:

the defendant's criminal history; petition to revoke pends; was on probation in two (2) cases at the time of the instant offense; has a pending case in Superior Court 7; has an outstanding warrant; placed in segregation at the Tippecanoe County Jail during the pendency of this case; child support arrearage; substance abuse history; and previous attempts at rehabilitation have failed.

(Id.) The court initially imposed four years for Level 5 felony battery by means of a deadly weapon and then enhanced that sentence by three years for the habitual offender adjudication. The court imposed a two-year sentence for each of the Level 6 felonies and ordered those sentences served concurrent to each other and to the seven-year sentence for Level 5 felony battery. Finally, the trial court ordered five years executed in the Department of Correction and two years suspended to supervised probation.

Discussion and Decision

1. Substantive Double Jeopardy

[9] Pulluaim first argues his three simultaneous convictions based on his singular stabbing of Christopher violate Indiana law. He argues that Powell v. State, 151 N.E.3d 256 (Ind. 2020), prohibits his convictions of both Level 5 felony battery and Level 6 felony battery, and that Wadle v. State, 151 N.E.3d 227 (Ind. 2020), prohibits his convictions of both Level 5 felony battery and Level 6 felony criminal recklessness. (See Appellant's Br. at 14-19.) The State agrees that those two convictions must be vacated under the tests provided by Powell and Wadle. (See Appellee's Br. at 10-15.) We accordingly vacate Pulluaim's two Level 6 felony convictions.

2. Sentencing Discretion

[10] Pulluaim next argues the trial court erroneously failed to identify a mitigating factor at sentencing. We apply an abuse of discretion standard when reviewing sentencing decisions. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh'g, 875 N.E.2d 218 (Ind. 2007). A trial court abuses its discretion when its decision is “clearly against the logic and effect of the facts and circumstances before the court, or the reasonable, probable, and actual deductions to be drawn” from those facts and circumstances. Id. (quoting K.S. v. State, 849 N.E.2d 538, 544 (Ind. 2006)). A trial court abuses its discretion at sentencing by entering no sentencing statement at all, entering a statement that includes reasons not supported by the record, entering a statement that “omits reasons that are clearly supported by the record and advanced for consideration,” or basing a sentence on considerations that are “improper as a matter of law.” Id. at 490-91.

[11] Pulluaim specifically identifies his attempt to provide aid to Christopher after the stabbing as a mitigating factor the trial court should have found. However, at the sentencing hearing, neither Pulluaim nor his counsel raised his attempt to provide aid as a possible mitigating factor. When a defendant fails to raise an alleged mitigator at sentencing, the trial court cannot be said to have abused its discretion by failing to consider that factor. Id. at 492. Nor can a defendant raise mitigators for the first time on appeal. Creekmore v. State, 853 N.E.2d 523, 530 (Ind. Ct. App. 2006), reh'g denied with opinion, 858 N.E.2d 230 (Ind. Ct. App. 2006) (addressing question of fees). Thus, Pulluaim waived this possible mitigator by failing to present it to the trial court.

[12] Waiver notwithstanding, “an allegation that the trial court failed to identify or find a mitigating factor requires the defendant to establish that the mitigating evidence is not only supported by the record but also that the mitigating evidence is significant.” Anglemyer v. State, 875 N.E.2d 218, 220-21 (Ind. 2007). Pulluaim argues he provided assistance to Christopher after the stabbing, but Christopher testified Pulluaim was too drunk to effectively tie the towel on Christopher's arm. (Tr. Vol. 2 at 157) (“I think he was just drunk honestly because he couldn't even put the thing on my arm.”). The State presented evidence suggesting Pulluaim put the towel around Christopher's arm below the stab wound, which would have increased Christopher's loss of blood had it been sufficiently tightened. (Id. at 221-222) (testimony of officer who initially encountered Christopher at scene). While Pulluaim may have been trying to help Christopher, his “aid” may have exacerbated the damage caused by his crime or, at best, been unhelpful. We cannot say Pulluaim has demonstrated the trial court overlooked a significant mitigator clearly supported by the record.

3. Inappropriate Sentence

[13] Pulluaim also argues his seven-year sentence is inappropriate. We may revise a sentence when we find, “after due consideration of the trial court's decision ․ that the sentence is inappropriate in light of the nature of the offense and the character of the offender.” Ind. App. R. 7(B). Because sentencing is a function of the trial court, its judgment “should receive ‘considerable deference.’ ” Oberhansley v. State, 208 N.E.3d 1261, 1267 (Ind. 2023) (quoting Cardwell v. State, 895 N.E.3d 1219, 1222 (Ind. 2008)). This deference can only be “ ‘overcome by compelling evidence portraying in a positive light the nature of the offense’ and ‘the defendant's character.’ ” Lane v. State, 232 N.E.3d 119, 122 (Ind. 2024) (quoting Oberhansley, 208 N.E.3d at 1267). Appellate review of a sentence is “to leaven the outliers, ․ but not to achieve the perceived ‘correct’ result in each case.” Nicholson v. State, 221 N.E.3d 680, 684 (Ind. Ct. App. 2023) (quoting Cardwell, 895 N.E.2d at 1225), trans. denied. The burden of proving a sentence is inappropriate falls to the defendant. Littlefield v. State, 215 N.E.3d 1081, 1089 (Ind. Ct. App. 2023), trans. denied.

[14] Our review is “holistic” and takes into consideration “the whole picture before us.” Lane, 232 N.E.3d at 127. Appellants need not prove their sentence is inappropriate for both their character and offense, but “to the extent the evidence on one prong militates against relief, a claim based on the other prong must be all the stronger to justify relief.” Id. Our determination “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.” Cardwell, 895 N.E.2d at 1224.

[O]ur goal is to determine whether the appellant's sentence is inappropriate, not whether some other sentence would be more appropriate. We consider not only the aggravators and mitigators found by the trial court, but also any other factors appearing in the record.

George v. State, 141 N.E.3d 68, 73-74 (Ind. Ct. App. 2020) (internal citations omitted), trans. denied.

[15] To assess the appropriateness of a sentence for the nature of the offense, we begin by looking at the sentencing parameters imposed by our legislature. Hamilton v. State, 233 N.E.3d 461, 485 (Ind. Ct. App. 2024), trans. denied. The statutory range for a Level 5 felony is one to six years, with an advisory sentence of three years. Ind. Code § 35-50-2-6. The habitual offender enhancement for a Level 5 felony is to be a nonsuspendible, fixed term between three and six years. Ind. Code § 35-50-2-8(i)(2). The trial court imposed a seven-year sentence – three years for the habitual offender enhancement and four years for the base crime. The court imposed the shortest possible habitual offender enhancement and a Level 5 felony sentence that was one year above the advisory and two years below the maximum.

[16] We cannot say this sentence is inappropriate for Pulluaim's crime. Pulluaim was at Christopher's apartment for dinner and drinks. When the two men began to argue over a song, Pulluaim tried to leave with all of Christopher's beer. Christopher objected to Pulluaim leaving with all the beer and walked toward Pulluaim, so Pulluaim stabbed Christopher with the knife sitting on the kitchen table. Christopher has a scar on his arm, his bicep muscle is now deformed, and he continues to have pain when he moves his arm. Seven years does not seem inappropriate when Christopher has permanent injuries because Chirstopher stabbed him over possession of beer.

[17] Turning now to the character of the offender, we note one relevant consideration is a defendant's history with the juvenile justice or criminal justice system, see Denham v. State, 142 N.E.3d 514, 517 (Ind. Ct. App. 2020) (referencing “criminal history”), trans. denied, and Pulluaim has had multiple engagements with that system. In 2003, when he was thirteen years old, Pulluaim was adjudicated a juvenile delinquent for committing disorderly conduct. Pulluaim was convicted of Class D felony theft in 2013, Class A infraction possession of paraphernalia in 2014, Class C misdemeanor operating a vehicle with a Schedule I or II controlled substance in his body in 2014, Level 6 felony strangulation in 2017, Level 5 felony neglect of a dependent resulting in serious bodily injury in 2019, Level 4 felony dealing in methamphetamine in 2019, Class A misdemeanor criminal trespass in 2024, and Class A misdemeanor resisting law enforcement in 2024. Pulluaim was on probation in two cases when he battered Christopher, and at the time of his sentencing for battery of Christopher, Pulluaim had a pending charge of Class A misdemeanor fraud. Indiana's Risk Assessment System placed Pulluaim in the “HIGH risk category to reoffend.” (Appellant's App. Vol. 2 at 158) (emphasis in original). Despite having attended multiple treatment programs to obtain and maintain a sober lifestyle, Pulluaim was drinking alcohol when he battered Christopher. Moreover, Pulluaim has six children and has been ordered to pay $168 per week in support, but he is not current on those payments. None of these facts reflects well on Pulluaim's character, and we cannot say his sentence is inappropriate.

Conclusion

[18] In accordance with the State's concession, we vacate Pulluaim's two Level 6 felony convictions, and we remand for the trial court to enter a corrected sentencing order. We also affirm Pulluaim's seven-year sentence as he has not demonstrated that the trial court overlooked a significant mitigator clearly supported by the record or that his sentence is inappropriate.

[19] Affirmed in part, vacated in part, and remanded.

FOOTNOTES

1.   Ind. Code § 35-42-2-1(c)(1) & (g)(2).

2.   Ind. Code § 35-42-2-1(c)(1) & (e)(1).

3.   Ind. Code § 35-42-2-2(a) & (b)(1)(A).

4.   Ind. Code § 35-50-2-8.

May, Judge.

Altice, J., and Foley, J., concur.