Howell Atkins, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff. (2026)

MEMORANDUM DECISION

[1] Howell Atkins appeals his sentence for his conviction of felony theft. Finding no basis for revision of his sentence, we affirm.

Facts and Procedural History

[2] In November 2024, Atkins entered a Walmart store with reusable shopping bags. He first went to the jewelry department where he had an associate retrieve a watch for him. He proceeded into other departments and selected merchandise, including gloves, a pocketknife, vitamins, a t-shirt, and a package of underwear. Atkins then went to the deli counter where he obtained food items and a drink. He took these items to the in-store Subway shop, where he consumed them without purchasing them.

[3] Once Atkins had eaten, he returned to the merchandise area of the store and began concealing the items he had previously selected. He put the vitamins in the sleeve of his jacket and the t-shirt, gloves, and pocketknife inside his jacket. The package of underwear he put in his pants. He proceeded to a register where he paid for the watch and a piece of chicken and then proceeded to exit the store. Atkins was apprehended by the store's asset protection officer.

[4] Based on this incident, the State charged Atkins with theft as both a Class A misdemeanor and a Level 6 felony. Following a jury trial at which Atkins was tried in absentia, the jury found Atkins guilty on both counts. The court dismissed the misdemeanor count, entered judgment on the felony, and sentenced Atkins to an executed term of twenty-four months.

Discussion and Decision

[5] Atkins’ sole contention on appeal is that his sentence is inappropriate. Indiana Appellate Rule 7(B) authorizes us to revise a sentence if we determine it to be inappropriate in light of the nature of the offense and the character of the offender. Although Rule 7(B) requires us to consider both of these factors, the appellant is not required to prove that each of them independently renders his sentence inappropriate. Turkette v. State, 151 N.E.3d 782, 786 (Ind. Ct. App. 2020), trans. denied. Rather, they are separate inquiries that we ultimately balance to determine whether a sentence is inappropriate. 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 v. State, 895 N.E.2d 1219, 1224 (Ind. 2008).

[6] Our Supreme Court has long said that sentencing is “ ‘principally a discretionary function in which the trial court's judgment should receive considerable deference.’ ” Lane v. State, 232 N.E.3d 119, 122 (Ind. 2024) (quoting Cardwell, 895 N.E.2d at 1222). This deference prevails 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).’ ” Littlefield v. State, 215 N.E.3d 1081, 1089 (Ind. Ct. App. 2023) (quoting Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015)), trans. denied. The defendant bears the burden of persuading the appellate court that his sentence is inappropriate. Reynolds v. State, 142 N.E.3d 928, 944 (Ind. Ct. App. 2020), trans. denied.

[7] Our analysis of the nature of the offense starts with the advisory sentence, as it is the starting point selected by the legislature as an appropriate sentence for the crime. Reis v. State, 88 N.E.3d 1099, 1104 (Ind. Ct. App. 2017). Atkins was convicted of theft as a Level 6 felony, for which the sentencing range is between six months and two and one-half years, with an advisory sentence of one year. Ind. Code § 35-50-2-7. The court imposed a twenty-four-month sentence, which is just shy of the maximum.

[8] To further assess the nature of the offense, we look to the details and circumstances surrounding it and his participation therein. Perry v. State, 78 N.E.3d 1, 13 (Ind. Ct. App. 2017). In this case, there is nothing particularly remarkable about Atkin's offense other than he initially refused to surrender all the items he had stolen. Tr. Vol. 2, p. 56.

[9] Turning to Atkins’ character, our analysis involves a broad consideration of a defendant's qualities, including age, criminal history, background, past rehabilitative efforts, and remorse. Pritcher v. State, 208 N.E.3d 656, 668 (Ind. Ct. App. 2023). In examining a criminal history, the significance varies based on the gravity, nature, temporal proximity, and number of prior offenses in relation to the current offense. Id. But even a minor criminal record reflects poorly on a defendant's character. Id. (quoting Prince v. State, 148 N.E.3d 1171, 1174 (Ind. Ct. App. 2020)).

[10] As the trial court observed at sentencing, Atkins’ criminal record spans sixty years. Tr. Vol. 2, p. 127. Atkins was first arrested at the age of 11, and from the beginning, he primarily committed theft-based offenses. Appellant's Amended App. Vol. 2 Confid., pp. 99-106 (Presentence Investigation Report). When less restrictive rehabilitation efforts proved unsuccessful, Atkins was sent to the Indiana Boys’ School for several years. Id. at 100-01.

[11] Upon his release from boys’ school, Atkins quickly settled back into his pattern of criminal activity and amassed a lengthy adult history. Id. at 102-06. He was incarcerated for several years for two different burglaries, followed by a robbery for which he was sentenced to ten to twenty-five years. Id. at 102-03. Atkins was subsequently charged with four counts of auto theft and conspiracy to commit a felony and again sentenced to prison. Id. at 103. He then served a lengthy prison term from 1989 to 2008 for assisting a criminal and being adjudicated a habitual offender. Id. at 104. Once released, Atkins committed several counts of conversion, for which he served short stints in the county jail, before serving close to a year for a battery that involved strangulation and resulted in moderate bodily injury. Id. at 104-05.

[12] Atkins is appropriately characterized as a career criminal, and the trial court rightly considered his criminal history to be aggravating:

[T]hat's what you're going to get. And I will tell you why. It's because you have -- you have a history going back to 1963. 1963. Over sixty years, sir. You have a burglary conviction in ’70, ’72, a robbery in ’76, an auto theft in ’85. You have a habitual offender and assisting a criminal in ’88. You were released from parole in 2009. You picked up a criminal conversion in 2011, 2012, 2017, and a battery in 2019. Your history, sir, has caught up with you. And so I'm not going to look the other way and say, gee, you know he's old. This is the life you've chosen for yourself. This is the life you decided you wanted to live. And so there's a price you pay for living that life. And unfortunately for you it's in prison. So it's 24 months.

Tr. Vol. 2, p. 127.

[13] In support of his request for a sentence reduction, Atkins submits his age of seventy-four years, his high blood pressure, and his homelessness. Appellant's Amend. Br., p. 12. Yet, he fails to detail why these circumstances weigh in favor of a reduced sentence. He also suggests that he cooperated with store security and that Walmart suffered little to no financial loss as a result of his crime. Id. However, as we noted in our evaluation of the nature of this offense, Atkins failed to surrender all the stolen items when first confronted, and any positive effect of his small-dollar crime is outweighed by his extensive criminal history.

[14] In sum, Atkins offers no compelling evidence that portrays the nature of his offense or his character in a positive light to overcome the deference we show to a trial court's sentence.

Conclusion

[15] We therefore conclude that Atkins failed to meet his burden of establishing that his sentence is inappropriate, and we affirm.

[16] Affirmed.

Shepard, Senior Judge.

Tavitas, C. J., and Foley, J., concur.