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

• Court: Indiana Court of Appeals
• Decided: November 27, 2019
• Docket: 19A-CR-882
• Status: Published

Opinion

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