Michael D. Himes, Jr. v. State of Indiana (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Nov 27 2019, 11:17 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke Curtis T. Hill, Jr.
Brooklyn, Indiana Attorney General of Indiana
Megan M. Smith
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Michael D. Himes, Jr., November 27, 2019
Appellant-Defendant, Court of Appeals Case No.
19A-CR-882
v. Appeal from the Rush Superior
Court
State of Indiana, The Honorable Brian D. Hill,
Appellee-Plaintiff. Judge
Trial Court Cause No.
70D01-1712-F5-1083
Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-882 | November 27, 2019 Page 1 of 4
Case Summary
[1] Michael D. Himes, Jr. challenges the sentence imposed upon his conviction of
Burglary, as a Level 5 felony,1 enhanced due to his status as a habitual
offender.2 He presents the sole issue of whether his aggregate nine-year
sentence is inappropriate. We affirm.
Facts and Procedural History
[2] On December 19, 2017, Himes and an accomplice broke into a wireless
communications store in Rushville, Indiana and stole more than $6,000.00
worth of merchandise. The pair fled at a high rate of speed in a distinctive
vehicle, a former police vehicle with a spotlight attached to one side. They
were soon apprehended.
[3] On the following day, Himes was charged with Burglary, Theft, and Possession
of Marijuana. The State also alleged him to be a habitual offender. On March
13, 2019, a jury found Himes guilty of Burglary and Theft. He admitted his
status as a habitual offender. The trial court vacated the judgment of conviction
for the Theft count, and sentenced Himes to five years imprisonment for
Burglary, enhanced by four years due to his habitual offender status. Himes
now appeals.
1
Ind. Code § 35-43-2-1.
2
I.C. § 35-50-2-8.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-882 | November 27, 2019 Page 2 of 4
Discussion and Decision
[4] Pursuant to Indiana Code Section 35-50-2-6, a person who commits a Level 5
felony faces a sentence of between one and six years, with an advisory sentence
of three years. Pursuant to Indiana Code Section 35-50-2-8, a person convicted
of a Level 5 felony and found to be a habitual offender is subject to an
additional term of two years to six years. Accordingly, Himes faced a sentence
of three years to twelve years. He received an aggregate sentence of nine years.
[5] Under Indiana Appellate Rule 7(B), this “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.” In performing our review, we assess “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). The principal role of such review is
to attempt to leaven the outliers. Id. at 1225. The “considerable deference”
given to the trial court’s sentencing judgment “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) (citing
Cardwell, 895 N.E.2d at 1222).
Court of Appeals of Indiana | Memorandum Decision 19A-CR-882 | November 27, 2019 Page 3 of 4
[6] As for the nature of the offense, Himes and his accomplice gained entry to a
store by smashing the front window. They ripped display counters from the
wall, taking possession of approximately $6,253.70 of merchandise. They fled
in a vehicle reported as stolen. Himes points out that his offense was non-
violent; however, he was not being sentenced for a violent offense.
[7] As for Himes’s character, he has a significant criminal history. He has four
felony and two misdemeanor convictions (for Resisting Law Enforcement and
multiple counts of Theft and Auto Theft). He has twice violated the terms of
his probation. He also violated the terms of his home detention. While out on
bond in this case, Himes was arrested on charges of Theft, Possession of
Marijuana, and False Informing.
[8] Having reviewed the matter, we conclude that the trial court did not impose an
inappropriate sentence under Appellate Rule 7(B), and the aggregate sentence
of nine years does not warrant appellate revision. Accordingly, we decline to
disturb the sentence imposed by the trial court.
[9] Affirmed.
Kirsch, J., and Mathias, J., concur.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-882 | November 27, 2019 Page 4 of 4