Hashim Holly v. State of Indiana (mem. dec.) , 121 N.E.3d 136 ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
Jan 17 2019, 8:58 am
regarded as precedent or cited before any
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
Valerie K. Boots Curtis T. Hill, Jr.
Marion County Public Defender Agency Attorney General of Indiana
– Appellate Division Monika Prekopa Talbot
Indianapolis, Indiana Supervising Deputy Attorney
Kevin Wild General
Indianapolis, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Hashim Holly, January 17, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-1345
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Alicia A. Gooden,
Appellee-Plaintiff. Judge
The Honorable Richard E.
Hagenmaier, Commissioner
Trial Court Cause No.
49G21-1702-F2-5123
Mathias, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1345 | January 17, 2019 Page 1 of 7
[1] Hashim Holly (“Holly”) appeals his sentence of ten years executed in the
Department of Correction from the Marion Superior Court as inappropriate
considering the nature of the offense and the character of the offender. We
affirm.
Facts and Procedural History
[2] On February 5, 2017, at approximately 2:30 a.m., on Keystone Avenue at 34th
Street in Marion County, an officer with the Indianapolis Metropolitan Police
Department (“IMPD”) initiated a traffic stop of Holly for having no license
plate light. Holly had a passenger with him in the vehicle. He testified he was
driving a neighbor home from work. The first officer approached the vehicle
from the driver’s side. A second officer arrived shortly thereafter and
approached the vehicle on the passenger side.
[3] Both officers shined their flashlights into the car. The initial officer did not see
anything unusual from his viewpoint; however, when Holly lifted his body to
reach his wallet in his back pocket, the second officer observed a gun handle
under Holly’s right leg. This officer asked the occupants of the vehicle if either
of them held a permit to carry a gun. Both answered negatively. At this point,
both officers drew their weapons, called a third officer, and held Holly and his
passenger at gunpoint until the third officer arrived. When the third officer
arrived, Holly and his passenger were removed from the car. Once both
occupants were removed, officers could clearly see a gun on the right side of the
driver’s seat.
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[4] A search of Holly’s person revealed a bag in his jacket containing a variety of
controlled substances, including marijuana, cocaine, Hydrocodone, and
Suboxone, and a digital scale and a crack pipe. The officers read Holly his
Miranda rights, and Holly stated that he had a drug problem.
[5] Holly was charged with the following:
Count I: Level 2 felony dealing in cocaine;
Count II: Level 4 felony possession of cocaine;
Count III: Level 4 felony unlawful possession of a firearm by a
serious violent felon;
Count IV: Level 5 felony possession of a narcotic drug;
Count V: Level 6 felony possession of a controlled substance;
Count VI: Level 6 felony dealing in marijuana;
Count VII: Class A misdemeanor possession of marijuana; and
Count VIII: Class C misdemeanor possession of paraphernalia.
[6] A bench trial was held on April 26, 2018. At the beginning of the bench trial,
the State dismissed the dealing charges in counts I and VI. At the conclusion of
the bench trial, Holly was found guilty of Count II, possession of cocaine as a
lesser included Level 5 felony; Count III, unlawful possession of a firearm by a
serious violent felon as a Level 4 felony; Count IV, possession of a narcotic
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1345 | January 17, 2019 Page 3 of 7
drug as a Level 5 felony; Count V, possession of a controlled substance as a
Level 6 felony; Count VII, possession of marijuana as a Class A misdemeanor;
and Count VIII, possession of paraphernalia as a Class C misdemeanor.
[7] Holly faced a maximum sentence of six years for each of his Level 5 felony
convictions, twelve years for his Level 4 felony, three years for his Level 6
felony, one year for his Class A misdemeanor, and sixty days for his Class C
misdemeanor. See Ind. Code §§ 35-50-2-5.5–7; Ind. Code §§ 35-50-3-2, -4. Holly
was sentenced to six years for Count II, ten years for Count III, six years for
Count IV, two years for Count V, one year for Count VII, and one year for
Count VIII, all to run concurrently for a total aggregate sentence of ten years.
Holly appeals, arguing his sentence is inappropriate in light of the nature of the
offense and character of the offender.
Discussion and Decision
[8] Indiana Appellate Rule 7(B) provides that the court on appeal “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.”
[9] Still, we must and should exercise deference to a trial court’s sentencing
decision because Rule 7(B) requires us to give “due consideration” to that
decision and because we understand and recognize the unique perspective a
trial court brings to its sentencing decisions. Trainor v. State, 950 N.E.2d 352,
355 (Ind. Ct. App. 2011) (quoting Stewart v. State, 866 N.E.2d 858, 866 (Ind. Ct.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1345 | January 17, 2019 Page 4 of 7
Ohio App. 2007)), trans. denied. Although we have the power to review and revise
sentences, the principal role of appellate review should be to attempt to “leaven
the outliers” and identify some guiding principles for trial courts and those
charged with improvement of the sentencing statutes, but not to achieve what
we perceive to be a “correct” result in each case. Fernbach v. State, 954 N.E.2d
1080, 1089 (Ind. Ct. App. 2011) (quoting Cardwell v. State, 895 N.E.2d 1219,
1225 (Ind. 2008)), trans. denied.
[10] The appropriate question is not whether another sentence is more appropriate;
rather, the question is whether the sentence imposed is inappropriate. Fonner v.
State, 876 N.E.2d 340, 344 (Ind. Ct. App. 2007). Whether a sentence is
appropriate “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. When considering the
character of the offender, an individual’s criminal history is relevant to the trial
court’s determination. Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct. App.
2007). Even a minor criminal record reflects poorly on the character of a
defendant. Reis v. State, 88 N.E.3d 1099, 1105 (Ind. Ct. App. 2017). It is the
defendant’s burden on appeal to persuade us that the sentence imposed by the
trial court is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).
[11] The nature of the offense supports the sentence. As a serious violent felon,
Holly made the choice to possess a firearm and carry a variety of controlled
substances and paraphernalia. He carried with him marijuana, cocaine,
Hydrocodone, Suboxone, a digital scale, and a crack pipe.
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[12] The character of the offender also supports the sentence. Holly testified at
sentencing that he cares for his ailing grandmother and aunt. He also testified
that he was employed by a car dealership doing repossessions. However, Holly
has a lengthy and significant criminal history. The parties stipulated prior to
trial that Holly was a serious violent felon. His criminal history includes
juvenile true findings for batteries. In 2005, he was convicted of battery as a
Class D felony and robbery as a Class B felony. In 2011, he was convicted of a
misdemeanor possession of marijuana as well as a misdemeanor battery. In
2012, he was convicted of domestic battery as a Class D felony. In 2013, he was
convicted of possession of hashish as a Class D felony. In 2014, he was
convicted of a Level 6 felony neglect of a dependent. In 2015, he was convicted
of a Level 6 felony possession of cocaine. Over this time period, Holly also
accumulated various charges that had been dismissed.
[13] Holly’s lengthy criminal history shows a clear disrespect of the law and others.
This criminal history also shows significant dealings with illegal substances, and
Holly believes he has an addiction to marijuana. He has not shown any
attempts to rehabilitate himself or reform his criminal behavior. His sentence of
ten years is less than the maximum sentence of twelve years for his Level 4
felony conviction, which was only one of his six convictions in this matter.
Given these facts, we cannot conclude that the sentence in this matter is
inappropriate.
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Conclusion
[14] Defendant has failed to meet his burden of persuading this court that his
sentence is inappropriate in light of the nature of the offense and the character
of the offender.
[15] Affirmed.
Bailey, J., and Bradford, J., concur.
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