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

• Court: Indiana Court of Appeals
• Decided: June 21, 2018
• Docket: 18A-CR-388
• Status: Published

Opinion

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.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-388 | June 21, 2018 Page 2 of 6 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—

Court of Appeals of Indiana | Memorandum Decision 18A-CR-388 | June 21, 2018 Page 3 of 6 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

Court of Appeals of Indiana | Memorandum Decision 18A-CR-388 | June 21, 2018 Page 4 of 6 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

Court of Appeals of Indiana | Memorandum Decision 18A-CR-388 | June 21, 2018 Page 5 of 6 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.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-388 | June 21, 2018 Page 6 of 6