Nino M. Pullins v. State of Indiana (mem. dec.) ( 2018 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Jun 21 2018, 9:34 am
regarded as precedent or cited before any
court except for the purpose of establishing CLERK
Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Michael P. DeArmitt Curtis T. Hill, Jr.
Columbus, Indiana Attorney General of Indiana
Michael Gene Worden
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Nino M. Pullins, June 21, 2018
Appellant-Defendant, Court of Appeals Case No.
18A-CR-388
v. Appeal from the Bartholomew
Superior Court
State of Indiana, The Honorable James D. Worton,
Appellee-Plaintiff. Judge
Trial Court Cause No.
03D01-1707-F3-3737
Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-388 | June 21, 2018 Page 1 of 6
Case Summary
[1] Nino M. Pullins (“Pullins”) pleaded guilty to Armed Robbery, as a Level 3
felony.1 He now appeals, arguing that his sentence is inappropriate.
[2] We affirm.
Facts and Procedural History
[3] Based on events that occurred on or about July 4, 2017, the State charged
Pullins with Armed Robbery, as a Level 3 felony. Pullins and the State reached
a plea agreement whereby (1) Pullins would plead guilty as charged; (2) the
executed portion of his sentence would not exceed nine years; and (3) the State
would not object to the court recommending participation in the Purposeful
Incarceration program. Pullins pleaded guilty pursuant to the agreement.
[4] When interviewed for a pre-sentence investigation report—and again at his
sentencing hearing on January 16, 2018—Pullins described the events leading
up to the offense. Pullins explained that he and friends were traveling back
from a college party in Kentucky; Pullins was a passenger in the vehicle. The
group needed gas money, so they went to a gas station and drove up next to a
man. Through an open window, a female passenger told the man to give them
his phone, cards, and money. Pullins then pointed a loaded gun at the man,
1
Ind. Code § 35-42-5-1.
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who surrendered his phone and approximately $10. Pullins admitted that he
was under the influence of Xanax and methamphetamine at the time.
[5] The trial court ultimately imposed a sentence of nine years executed in the
Indiana Department of Correction. In orally pronouncing the sentence, the
court explained that it did not think that participation in the Purposeful
Incarceration program was appropriate, but that it would consider allowing
participation in the program upon a future request for sentence modification.
[6] Pullins now appeals.
Discussion and Decision
[7] Pursuant to Article 7 of the Indiana Constitution, as implemented by Indiana
Appellate Rule 7(B), 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.” Ind. Appellate Rule 7(B). The appropriateness of a
sentence “turns on ‘myriad . . . factors that come to light in a given case.’”
Taylor v. State, 86 N.E.3d 157, 165 (Ind. 2017) (quoting Cardwell v. State, 895
N.E.2d 1219, 1224 (Ind. 2008))). Moreover, the question is not whether a
different sentence would be more appropriate; the question is whether the
sentence imposed is inappropriate. Helsley v. State, 43 N.E.3d 225, 228 (Ind.
2015). As “sentencing is principally a discretionary function,” Cardwell, 895
N.E.2d at 1222, we must give considerable deference to the court’s decision—
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and that 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). Ultimately, the principal role of our
review “is to attempt to leaven the outliers.” McCain v. State, 88 N.E.3d 1066,
1067 (Ind. 2018) (per curiam).
[8] Regarding the offense, Pullins received the advisory sentence of nine years. See
I.C. § 35-50-2-5 (providing that the sentencing range for a Level 3 felony is
between three years and sixteen years, with an advisory sentence of nine years).
Because the advisory sentence is the starting point that the legislature “has
selected as an appropriate sentence for the crime committed,” Childress v. State,
848 N.E.2d 1073, 1081 (Ind. 2006), the appellant “bears a particularly heavy
burden in persuading us that his sentence is inappropriate when the trial court
imposes the advisory sentence,” Fernbach v. State, 954 N.E.2d 1080, 1089 (Ind.
Ct. App. 2011), trans. denied. Nonetheless, Pullins does not challenge the length
of his sentence. Rather, he argues that his sentence is inappropriate because the
court imposed a fully executed sentence. Pullins asserts that he should have
received a partially suspended sentence and treatment for substance abuse. In
so arguing, Pullins focuses on his relatively young age—twenty when he
committed the offense—and his abuse of substances from the age of thirteen.
[9] As to the nature of the offense, Pullins argues that there is nothing particularly
egregious “about the actual facts of [the] case that would set it apart as being
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more heinous or aggravated than any other Armed Robbery.” Appellant’s Br.
at 9. However, we observe that Pullins was not just armed during the robbery;
rather, Pullins pointed a loaded gun at the victim while under the influence of
Xanax and methamphetamine.
[10] As to the character of the offender, we acknowledge that Pullins is a young
adult who expressed remorse at sentencing, asked for treatment, and shared
goals to further his education. However, Pullins admitted that he had never
previously considered treatment for substance abuse, despite having the benefit
of a strong family support system. Moreover, although Pullins does not have a
lengthy criminal record—he has a sole misdemeanor conviction for Illegal
Consumption of an Alcoholic Beverage—Pullins has had other contacts with
the criminal justice system. Most notably, Pullins was incarcerated for more
than two months in 2015 due to serious charges that were later dismissed.
Despite having had that daily reminder of the potential consequences of
unlawful behavior—a period during which Pullins claimed he was sober—
Pullins admitted that he “never thought about treatment even when [he] was in
jail.” Tr. at 33. After his release, Pullins was not deterred from engaging in
unlawful behavior; he began using drugs, decided to obtain a gun, and carried
the gun while under the influence of multiple substances. Pullins then broke
multiple jail rules during the pendency of this case.
[11] In imposing the nine-year executed sentence and declining to recommend
placement in the Purposeful Incarceration program, the court acknowledged
Pullins’s substance abuse issues, but noted that it did not “believe that substance
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abuse has caused [him] to pull a gun on someone and commit a robbery against
them.” Tr. at 39. After due consideration of the trial court’s decision, we are
not persuaded that the nine-year executed sentence is inappropriate in light of
the nature of the offense and the character of the offender.
[12] Affirmed.
Crone, J., and Brown, J., concur.
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