MILLS v. STATE (2021)

MEMORANDUM DECISION

[1] Keegan A. Mills (“Mills”) pleaded guilty to battery by means of a deadly weapon,¹ a Level 5 felony, and the trial court sentenced Mills to six years, with three years executed in the Indiana Department of Correction (“DOC”), one year served on work release, and two years on probation. Mills raises one issue on appeal: whether his sentence is inappropriate.

[2] We affirm.

Facts and Procedural History

[3] On January 6, 2020, Brandon Smith (“Smith”) called Mills and accused Mills of stealing $20.00 from him. Tr. Vol. II at 12; Appellant's App. Vol. 2 at 22. Mills left his Kokomo, Indiana residence and went to the home of Delonte Walker (“Walker”), also in Kokomo, and when Mills arrived at Walker's residence, Smith was there. Appellant's App. Vol. 2 at 16, 18, 20. Julie Smith (“Julie”) was also inside the residence. Id. at 18. Mills and Smith argued, and Mills, who was armed with a handgun, fired three or four rounds at Smith, with one round striking Smith in the upper arm. Id. at 16, 18, 20. Mills and Julie fled. Id. at 18, 20. Smith was transported to St. Vincent Hospital in Kokomo, and x-rays revealed that the bullet passed through his arm and lodged in his chest cavity. Id. at 16. Smith was airlifted to St. Vincent Hospital in Indianapolis. Id. While searching for Mills, officers went to Mills's residence, where the homeowner consented to a search of the residence. Id. at 21. During the search, officers discovered the gun Mills had used to shoot Smith. Id.

[4] On January 7, 2020, the State charged Mills with attempted murder, a Level 1 felony. Appellant's App. Vol. 2 at 11. On November 23, 2020, the State added a second count, battery by means of a deadly weapon, a Level 5 felony. Id. at 43. On December 8, 2020, Mills entered into an agreement with the State, in which he would plead guilty to battery by means of a deadly weapon, and the State would dismiss the attempted murder charge. Id. at 44-45; Tr. Vol. II at 3. At a hearing held on January 13, 2021, Mills pleaded guilty pursuant to the terms of the plea agreement. Tr. Vol. II at 4-9.

[5] At the sentencing hearing, the trial court found Mills's guilty plea was the only mitigating factor. Id. at 19; Appellant's App. Vol. 2 at 61. It found Mills's juvenile adjudications and adult convictions as aggravating factors. Tr. Vol. II at 19-20; Appellant's App. Vol. 2 at 61. The trial court also noted that prior attempts to rehabilitate Mills had failed. Tr. Vol. II at 19. It sentenced Mills to six years, with three years executed in DOC, one year served on work release, and two years on probation. Tr. Vol. II at 18-20; Appellant's App. Vol. 2 at 60-62. Mills now appeals.

Discussing and Decision

[6] Mills argues that his sentence is inappropriate considering the nature of his offense and his character. Under Indiana Appellate Rule 7(B), we may revise a sentence if, after due consideration of the trial court's decision, we find the sentence is inappropriate considering the nature of the offense and the character of the offender. Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007), clarified on reh'g, 875 N.E.2d 218 (Ind. 2007). The nature of offense compares the defendant's actions with the required showing to sustain a conviction under the charged offense, Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008), while the character of the offender permits for a broader consideration of the defendant's character. Anderson v. State, 989 N.E.2d 823, 827 (Ind. Ct. App. 2013), trans. denied. Whether a sentence is inappropriate turns on our sense of the culpability of the defendant, the severity of the crime, the damage done to others, and other factors that come to light in a given case. Cardwell, 895 N.E.2d at 1224.

[7] We consider not only the aggravators and mitigators found by the trial court but also any other factors appearing in the record. Johnson v. State, 986 N.E.2d 852, 856 (Ind. Ct. App. 2013). We defer to the trial court's decision, and our goal is to determine whether the appellant's sentence is inappropriate, not whether some other sentence would be more appropriate. Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012). “Such deference should prevail 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). When we review a sentence, we seek to leaven the outliers, not to achieve a perceived correct result. Cardwell, 895 N.E.2d at 1225.

[8] Mills contends his sentence is inappropriate considering the nature of his offense. More specifically, he argues that his sentence is inappropriate because there was nothing particularly egregious about the facts and circumstances of his crime. When considering the nature of the offense, the advisory sentence is the starting point in our analysis. Anglemyer, 868 N.E.2d at 494; Holloway v. State, 950 N.E.2d 803, 806 (Ind. Ct. App. 2011). As a Level 5 felony, Mills's conviction for battery by means a deadly weapon carried an advisory sentence of three years and a range between one and six years, so Mill's six-year sentence was the maximum he could have received. See Ind. Code § 35-50-2-6(b).

[9] The nature of the offense is found in the details and circumstances of the commission of the offense. Perry v. State, 78 N.E.3d 1, 13 (Ind. Ct. App. 2017). The nature of the offense refers to a defendant's actions in comparison with the elements of the offense. Cardwell, 895 N.E.2d at 1224. When determining whether a sentence that exceeds the advisory sentence is inappropriate, “we consider whether there is anything more or less egregious about the offense as committed by the defendant that ‘makes it different from the typical offense accounted for by the legislature when it set the advisory sentence.’ ” Moyer v. State, 83 N.E.3d 136, 142 (Ind. Ct. App. 2017) (quoting Holloway, 950 N.E.2d at 807), trans. denied.

[10] Mills's argument that there was nothing egregious about the facts and circumstances of his crime consists of the following:

[T]here is no evidence of any factor or element that made this act more egregious than would have been intended by the Legislature. The victim did not provide a victim's statement, did not appear at the sentencing hearing, and gave statements in his deposition supporting less, not max [sic]. His absence speaks volumes about “severity” and “damage.”

Appellant's Br. at 7 (internal citation). The first sentence of this argument provides no facts and is thus conclusory, and the remainder of the argument relies on matters irrelevant to whether Mills's sentence is inappropriate. Mills has waived this issue for lack of cogent argument. See Ind. Appellate Rule 46(A)(8)(a) (argument section of appellant's brief “must contain the contentions of the appellant on the issues presented, supported by cogent reasoning”); see also Jarman v. State, 114 N.E.3d 911, 915 n.2 (Ind. Ct. App. 2018), trans. denied.

[11] Mills also argues his sentence is inappropriate in light of his character. He notes that he is a skilled carpenter and cares for an elderly, disabled godfather. See Tr. Vol. II at 10. He acknowledges that he has three juvenile adjudications but correctly observes those occurred ten years ago and that he successfully completed probation for at least one of those offenses; Mills also admits he has three convictions as an adult but correctly notes none of those convictions were for felonies. Appellant's Conf. App. Vol. 2 at 50-51; Tr. Vol. II at 19.

[12] We reject Mills's argument that his sentence is inappropriate in light of his character. Even though Mills is only twenty-one years old, he has a substantial juvenile and adult record. He has juvenile delinquent adjudications for what would be burglary (two counts) and intimidation if committed by an adult. Appellant's Conf. App. Vol. 2 at 50. As an adult, he has misdemeanor convictions for 1) knowingly or intentionally operating a motor vehicle without ever receiving a license, 2) possession of a controlled substance, 3) possession of a controlled substance – possession of a Schedule I, II, III, or IV substance, and 4) possession of marijuana. Id. at 51. Additionally, Mills has violated probation twice, and at the time he committed the instant offense, he had a pending charge for domestic battery. Id. at 50-51. This recurring criminal activity indicates Mills does not take the criminal justice system seriously, and his disregard for the law does not portray his character in “a positive light,” which is his burden under Indiana Appellate Rule 7(B). Stephenson, 29 N.E.3d at 122. Mills's sentence is not inappropriate in light of his character.

[13] Affirmed.²

FOOTNOTES

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

2.   In addition to claiming his sentence is inappropriate, Mills also appears to argue the trial court abused its discretion because it “diminished the mitigating weight of Mills's plea.” Appellant's Br. at 7. We need not reach this issue because the relative weight assigned to a mitigating factor is not subject to appellate review. Anglemyer v. State, 868 N.E.2d 482, 494 (Ind. 2007), clarified on reh'g, 875 N.E.2d 218 (Ind. 2007).

Kirsch, Judge.

Altice, J., and Weissmann, J., concur.