                                                                              FILED
                                                                         Oct 18 2017, 9:16 am

                                                                              CLERK
                                                                         Indiana Supreme Court
                                                                            Court of Appeals
                                                                              and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
P. Jeffrey Schlesinger                                     Curtis T. Hill, Jr.
Office of the Public Defender                              Attorney General of Indiana
Crown Point, IN
                                                           Michael Gene Worden
                                                           Deputy Attorney General
                                                           Indianapolis, IN



                                            IN THE
    COURT OF APPEALS OF INDIANA

Katherine Shuwan Holmes,                                   October 18, 2017
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           45A03-1705-CR-1155
        v.                                                 Appeal from the Lake Superior
                                                           Court, Criminal Division IV
State of Indiana,                                          The Honorable Samuel L. Cappas,
Appellee-Plaintiff                                         Judge
                                                           Trial Court Cause No.
                                                           45G04-1607-F1-0006



Vaidik, Chief Judge.




Court of Appeals of Indiana | Opinion 45A03-1705-CR-1155 | October 18, 2017                      Page 1 of 13
                                           Case Summary
[1]   Katherine Shuwan Holmes was sentenced to an aggregate term of forty years

      for one count of Level 1 felony neglect of a dependent resulting in death and

      five counts of Level 6 felony neglect of a dependent. She now appeals, arguing

      that the trial court erred by not recognizing three mitigators and that her

      sentence is inappropriate. We affirm her sentence.



                             Facts and Procedural History
[2]   The facts, as taken mostly from the stipulated factual basis, show that Holmes is

      the mother of all six victims in this case. In 2016, Holmes, Jarod McMillan (the

      father of Holmes’s three youngest children), Holmes’s brother, and Holmes’s

      six children lived in a one-bedroom apartment in Gary. On March 31, 2016,

      twenty-seven-year-old Holmes gave birth to K.M., the youngest of her six

      children. K.M. was 5 pounds, 5 ounces at birth. Holmes and K.M. were

      discharged from the hospital on April 2, with orders to follow-up with Dr.

      Hoess, a pediatrician, in 5-7 days. Holmes, however, did not take K.M. to the

      pediatrician as instructed. Instead, Holmes took K.M. to the pediatrician about

      two weeks later, on April 21. At the appointment, Dr. Hoess noted K.M.’s low

      weight and sent them home with specific feeding instructions. Dr. Hoess said

      that if K.M. did not gain any weight by the next day, she would admit him to

      the hospital. When Holmes and K.M. returned to the pediatrician the next day,

      K.M. had gained 4 ounces. Dr. Hoess told Holmes to continue feeding K.M. as



      Court of Appeals of Indiana | Opinion 45A03-1705-CR-1155 | October 18, 2017   Page 2 of 13
      instructed and to return on April 26. Holmes, however, did not return for this

      appointment.


[3]   Over two months later, on Friday, July 1, Holmes spoke with Dr. Hoess on the

      phone and said that K.M. was again not gaining any weight. Dr. Hoess told

      Holmes to bring K.M. to the clinic on Tuesday, July 5 and to take him to the

      emergency room if he had any problems in the meantime.


[4]   Holmes did not take K.M. to the emergency room over the weekend, nor did

      she take him to the clinic on July 5. Instead, on July 5, Holmes and McMillan

      left their apartment around 10:00 a.m. and returned home around 4:30 p.m., at

      which point they found K.M. unresponsive. K.M. was taken by ambulance to

      the hospital, where he was pronounced dead at 5:37 p.m. K.M., who was three

      months old, weighed just 5.9 pounds. According to medical records, K.M.

      appeared to be neglected, he had no body fat, his groin and perineum were

      burned (mostly likely from urine), and he was covered in dirt. The cause of

      death was malnutrition and dehydration.


[5]   In addition, the apartment in which Holmes, McMillan, Holmes’s brother, and

      the six children lived was roach, flea, and bedbug infested, and there was

      garbage littered throughout it. There was not a single bed in the apartment.

      When DCS removed Holmes’s other children a few days later, they “reeked of

      a foul odor and were all in need of baths.” Appellant’s App. Vol. II p. 53.


[6]   The State charged Holmes with one count (Count I) of Level 1 felony neglect of

      a dependent resulting in death (K.M.) and seven counts (Counts II-VIII) of

      Court of Appeals of Indiana | Opinion 45A03-1705-CR-1155 | October 18, 2017   Page 3 of 13
      Level 6 felony neglect of a dependent (two counts for K.M. and one count for

      each of the other five children). In March 2017, Holmes and the State entered

      into a plea agreement. Id. at 48. Holmes agreed to plead guilty to all of the

      charges. In addition, the parties agreed that they were “free to fully argue their

      respective positions as to the sentence to be imposed by the Court” and that the

      sentence for Count I would run concurrent to the sentences for Counts II-VIII.

      Id. at 49. The parties also stipulated to a factual basis. Id. at 50, 52-53. The

      court found that a factual basis existed and set the matter for sentencing.


[7]   At the April 2017 sentencing hearing, the State admitted twenty-eight

      photographs into evidence. Some of the photographs depicted the condition of

      Holmes’s apartment when the children were removed, but most of them

      showed K.M.’s body. See Exs. 16-28. In short, the photographs are

      “disturbing.” Sent. Tr. p. 5. A homicide detective with the Lake County

      Sheriff’s Department saw K.M. at the hospital and described the photographs at

      the hearing. For example, one of the photographs showed K.M.’s diaper,

      which had fungus growing in it. Other photographs showed fungus growing

      under K.M.’s armpits and dirt underneath his fingernails. The more disturbing

      photographs showed K.M.’s sunken and discolored stomach and his skin

      “removed all the way down to the muscle” in his groin and buttocks areas,

      including skin “missing from the edge of his phallic area.” Id. at 30, 31. In

      addition, the detective said that he spoke with the pathologist, who said that

      K.M. likely died 12-16 hours before he was taken to the hospital “due to the




      Court of Appeals of Indiana | Opinion 45A03-1705-CR-1155 | October 18, 2017   Page 4 of 13
      discoloration of his stomach noting that he had already begun to decay.” Id. at

      32.


[8]   Holmes’s aunt testified that Holmes grew up in “deplorable conditions” and

      compared the conditions Holmes grew up in to those of her apartment. Id. at

      39. Holmes’s aunt also testified that Holmes had completed schooling to be a

      certified nursing assistant (CNA); however, she had not received her license and

      was working two jobs—at “JJ Fish” and Rally’s. Id. at 42, 52; Appellant’s App.

      Vol. II p. 90 (PSI). Finally, Holmes testified as follows:


              This has been very hard. And I hate myself every day because of
              this. I love my kids with everything in me, despite of what
              happened. All six of them I love, because they are all I have in
              this world. Because I knew that they loved me. That’s all I got.
              Now, I probably will never see them again.


              And I’m sorry. I thought I was trying my best and I know it was
              bad, but I was trying to make it better. This is not something I
              intentionally did. I didn’t intentionally try to hurt my baby,
              because I loved him just as much as I loved my other kids. I just
              don’t want to lose my relationship with . . . my other five kids. I
              don’t want them to think that their momma just didn’t care about
              them, because of what anybody might say. Because I love them
              to death. They’re all I got in this world. And when nobody else
              cared, I know they loved me.


      Sent. Tr. pp. 67-68.


[9]   The trial court found the following aggravating circumstances:




      Court of Appeals of Indiana | Opinion 45A03-1705-CR-1155 | October 18, 2017   Page 5 of 13
        1. The nature and the circumstances are such that the harm
        suffered by the victim in Count I was greater than necessary to
        prove the elements of the crime;


        2. The State’s photographic exhibits 25, 26 and 27 show the skin
        in the groin and buttocks area of the victim in Count I
        deteriorated to such a degree that the underlying tissue and
        muscle had been exposed, which the Court finds had to have
        developed over a significant period of time. The Court finds this
        demonstrates malicious and cruel behavior to ignore the child’s
        condition and to fail to provide treatment;


        3. The Court finds the State’s photographic exhibits illustrate
        that the victim in Count I was emaciated to the point where he
        almost appeared mummified;


        4. The Court finds that the victim in Count I in all likelihood
        suffered from lack of food and care on a daily basis such that for
        the three (3) months that he lived such treatment amounted to
        torture;


        5. The defendant received training to be a certified nursing
        assistant and failed to apply her training to her children;


        6. The Court finds the condition of the victim in Count I to be
        horrendous and appalling;


        7. The defendant expressed little remorse.


Appellant’s App. Vol. II pp. 64-65. The court found two mitigators: (1) Holmes

had no criminal history and (2) she pled guilty. The trial court found that the

aggravators “substantially” outweighed the mitigators. Id. at 65. The trial


Court of Appeals of Indiana | Opinion 45A03-1705-CR-1155 | October 18, 2017   Page 6 of 13
       court found that Counts II and VIII, both of which involved K.M., merged into

       Count I. The court then sentenced Holmes to forty years for Count I, with the

       final three years to be served on community corrections. The trial court

       sentenced Holmes to two and a half years for each of the remaining five counts

       (Counts III-VII). The court ordered these sentences to be served consecutive to

       each other but concurrent to Count I, for an aggregate term of forty years.


[10]   Holmes now appeals.



                                  Discussion and Decision
[11]   Holmes challenges her sentence. First, she contends that the trial court erred by

       not recognizing three mitigators. Second, she contends that her sentence for

       Count I is inappropriate.


                                                I. Mitigators
[12]   Holmes contends that the trial court erred by not recognizing the following

       mitigators: (1) she was raised in deplorable conditions; (2) she was employed;

       and (3) she was remorseful. Sentencing decisions rest within the sound

       discretion of the trial court and are reviewed on appeal for an abuse of

       discretion. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on

       reh’g, 875 N.E.2d 218 (Ind. 2007). An abuse of discretion occurs if the decision

       is clearly against the logic and effect of the facts and circumstances before the

       court or the reasonable, probable, and actual deductions to be drawn

       therefrom. Id.

       Court of Appeals of Indiana | Opinion 45A03-1705-CR-1155 | October 18, 2017   Page 7 of 13
[13]   One way that a trial court may abuse its discretion is by not recognizing

       mitigators that are clearly supported by the record and advanced for

       consideration. Id. at 491. The defendant bears the burden of demonstrating

       that “the trial court failed to find or identify a mitigating factor by establishing

       that the mitigating evidence is both significant and clearly supported by the

       record.” McElfresh v. State, 51 N.E.3d 103, 112 (Ind. 2016) (quotation omitted).

       Remand for resentencing may be the appropriate remedy “if we cannot say with

       confidence that the trial court would have imposed the same sentence had it

       properly considered reasons that enjoy support in the record.” Anglemyer, 868

       N.E.2d at 491.


[14]   Holmes first argues that the trial court abused its discretion by not recognizing

       as a mitigator that she was raised in deplorable conditions, conditions similar to

       those of her own apartment.1 The court considered this fact but did not find it

       to be mitigating:


                [Defense counsel] points out—which I guess would be possibly a
                mitigating factor—and he exhibited through testimony that Ms.
                Holmes was raised in similar conditions. So the argument for
                that is that, that’s what she’s used to and that should be a
                mitigator. I guess I would say, being raised in those conditions
                might explain this situation, but it doesn’t excuse or justify it. I
                mean, she’s 28 years old. She’s an adult. She was 2[7] when this



       1
        To the extent Holmes also argues that the trial court should have recognized as a separate mitigator that she
       had a difficult childhood, she has failed to prove that the mitigating evidence is both significant and clearly
       supported by the record. See Appellant’s App. Vol. II p. 88 (PSI providing that Holmes stated her “family life
       growing up was good” and that Holmes “denied being abused, molested, or neglected during her formative
       years.”).

       Court of Appeals of Indiana | Opinion 45A03-1705-CR-1155 | October 18, 2017                       Page 8 of 13
               took place. She had schooling for being a certified nursing
               assistant, which teaches you how to take care of people. She,
               apparently, did not transfer those skills to her own situation, so I
               don’t find that as being a mitigating factor.


       Sent. Tr. p. 69. We are satisfied with the trial court’s explanation for rejecting

       as a mitigator that Holmes was raised in deplorable conditions. Accordingly,

       the trial court did not abuse its discretion.


[15]   Holmes next argues that the trial court abused its discretion by not recognizing

       her employment as a mitigator because it demonstrated that she “was making

       efforts to provide for her children.” Appellant’s Br. p. 9. Although Holmes’s

       aunt testified at the sentencing hearing that she was working two restaurant

       jobs, the PSI reveals that Holmes was working only one such job. That is,

       Holmes began working at Rally’s in May 2016 and stopped working there in

       July 2016 when she was arrested. Appellant’s App. Vol. II p. 90 (PSI); see also

       Appellant’s Reply Br. p. 6 (Holmes citing to PSI as evidence of her work

       history). In any event, many people are gainfully employed; therefore, a

       defendant’s employment is not necessarily a mitigating factor. Newsome v. State,

       797 N.E.2d 293, 301 (Ind. Ct. App. 2003), trans. denied. We find that the trial

       court did not abuse its discretion by not recognizing as a mitigator that Holmes

       had been employed at Rally’s for only a couple months at the time of K.M.’s

       death. This is especially so given defense counsel’s concession at the sentencing

       hearing that the fact that Holmes was employed was “no excuse” for what

       happened. Sent. Tr. p. 62.



       Court of Appeals of Indiana | Opinion 45A03-1705-CR-1155 | October 18, 2017    Page 9 of 13
[16]   Finally, Holmes argues that the trial court abused its discretion by not

       recognizing her remorse as a mitigator (and instead recognizing that she

       expressed little remorse as an aggravator). A trial court’s determination of a

       defendant’s remorse is similar to a determination of credibility. Stout v.

       State, 834 N.E.2d 707, 711 (Ind. Ct. App. 2005), trans. denied. As such, without

       evidence of some impermissible consideration by the trial court, we accept its

       determination as to remorse. Id. Here, at the conclusion of the sentencing

       hearing, the trial court made the following remarks:


               And I note, not that it matters at this point, you never said you
               were sorry. You said you loved your children and you didn’t
               want to be away from them. I didn’t ever hear you say the words
               “I am sorry.” I don’t know what that says. Frankly, your
               children would be better off without you mothering them, I’m
               sorry to say.


       Sent. Tr. p. 75. While Holmes did say the words “I’m sorry,” id. at 67, we are

       confident that the court would have imposed the same sentence even if it had

       found Holmes’s remorse to be a mitigator. This is because the court’s

       comments at the sentencing hearing and its sentencing order indicate that the

       nature and circumstances of the crime were by far its primary consideration in

       sentencing Holmes and that Holmes’s remorse was secondary.


                                    II. Inappropriate Sentence
[17]   Holmes next contends that her maximum sentence of forty years for Count I is

       inappropriate. See Ind. Code § 35-50-2-4(b). She asks us to reduce it to the

       advisory term of thirty years pursuant to Indiana Appellate Rule 7(B), which

       Court of Appeals of Indiana | Opinion 45A03-1705-CR-1155 | October 18, 2017   Page 10 of 13
       provides that 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.” Because we generally defer to the judgment of trial courts in

       sentencing matters, Norris v. State, 27 N.E.3d 333, 335-36 (Ind. Ct. App. 2015),

       defendants have the burden of persuading us that their sentences

       are inappropriate, Thompson v. State, 5 N.E.3d 383, 391 (Ind. Ct. App. 2014).

       “Whether a sentence is inappropriate ultimately turns on the culpability of the

       defendant, the severity of the crime, the damage done to others, and a myriad

       of other factors that come to light in a given case.” Id. (citing Cardwell v.

       State, 895 N.E.2d 1219, 1224 (Ind. 2008)).


[18]   Holmes concedes that the nature of the offense is “extremely serious.”

       Appellant’s Br. p. 11. As the trial court described this case:


               State’s Exhibits 25, 26 and 27 depicted the groin and genital area
               and the buttocks of [K.M.] where the skin was peeled and burned
               back or deteriorated . . . to the point where the detective says the
               underlying tissue and muscle can be seen. There’s nothing so
               horrendous and appalling to think that Ms. Holmes . . . could sit
               there and let a child waste away to this point. The photographs
               of the child almost look like he’s—not to be disrespectful—but it
               almost look[s] like he’s mummified. I mean, his bones were
               sticking out and his stomach sunken. It’s terrible. The cases I
               have seen in here where people are charged with neglect is, you
               know, a kid gets beaten, his head banged and they don’t take him
               to the doctor, you know, and he passes away through a cerebral
               hemorrhage. You know, it’s like a one-time event. But to me,
               again, this was like a daily event over, basically, three months
               that there was a neglect of dependent charge here.

       Court of Appeals of Indiana | Opinion 45A03-1705-CR-1155 | October 18, 2017   Page 11 of 13
               It’s even a bigger slap in the face when you find out that she was
               training to be a CNA and how to care for people and didn’t do
               that for her own children. She could have called 911 at any
               point. There are urgent care clinics all over this county, the
               emergency room. It should have been obvious that [K.M.]
               needed emergency medical care for a significant period of time. .
               ..


                                                      *****


               Ma’am, it’s just terrible, terrible circumstances. Every day there
               were warning signs that were looking you in the face, and you
               chose to ignore those . . . . It’s not that you didn’t know about it.
               Anyone who looks at those pictures, it’s clearly obvious the
               emergency condition this child was in. As [the prosecutor]
               points out, you chose to ignore that. Fungus growing in the
               baby’s diaper . . ., how long does that have to have sat there for
               that to happen? There was also blood in that baby’s diaper. It’s
               appalling. Appalling.


       Sent. Tr. pp. 71-72, 74-75.


[19]   As for Holmes’s character, she argues that she was raised in deplorable

       conditions, had no criminal history before this case, was employed “in an

       attempt to provide for her children,” and “appeared to express sincere remorse

       at the time of her sentencing.” Appellant’s Br. p. 11. But even considering

       these things in Holmes’s favor, they do not overcome the horrific nature of the

       offense in Count I, as relayed by the trial court and exhibited by the

       photographs in this case. Holmes has failed to persuade us that her forty-year

       sentence for Count I is inappropriate.



       Court of Appeals of Indiana | Opinion 45A03-1705-CR-1155 | October 18, 2017   Page 12 of 13
[20]   Affirmed.


       Mathias, J., and Crone, J., concur.




       Court of Appeals of Indiana | Opinion 45A03-1705-CR-1155 | October 18, 2017   Page 13 of 13
