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.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1345 | January 17, 2019   Page 2 of 7
[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
       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.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1345 | January 17, 2019   Page 5 of 7
[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.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1345 | January 17, 2019   Page 6 of 7
                                                 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.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1345 | January 17, 2019   Page 7 of 7
