MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                    FILED
regarded as precedent or cited before any                           May 06 2020, 9:50 am
court except for the purpose of establishing                             CLERK
the defense of res judicata, collateral                              Indiana Supreme Court
                                                                        Court of Appeals
estoppel, or the law of the case.                                         and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Christopher Kunz                                         Curtis T. Hill, Jr.
Marion County Public Defender                            Attorney General of Indiana
Indianapolis, Indiana                                    Courtney Staton
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Mekielle Pullins,                                        May 6, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-2527
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Grant Hawkins,
Appellee-Plaintiff.                                      Judge
                                                         The Honorable Peggy Hart,
                                                         Magistrate
                                                         Trial Court Cause Nos.
                                                         49G05-1707-F1-26700
                                                         49G05-1709-F3-33826



Brown, Judge.



Court of Appeals of Indiana | Memorandum Decision 19A-CR-2527 | May 6, 2020                  Page 1 of 18
[1]   Mekielle Pullins appeals her sentences for two counts of aggravated battery as

      level 3 felonies. We affirm in part, reverse in part, and remand.


                                         Facts and Procedural History

[2]   On May 9, 2019, Pullins pled guilty pursuant to a plea agreement to one count

      of aggravated battery as a level 3 felony in cause number 49G05-1707-F1-26700

      (“Cause No. 26700”) and one count of aggravated battery as a level 3 felony in

      cause number 49G05-1709-F3-33826 (“Cause No. 33826”). 1 The plea

      agreement provided the sentences were to run consecutively, and all other terms

      and conditions were left open for argument before the court. The factual basis

      provided at the guilty plea hearing for the count under Cause No. 33826, as

      stated by the prosecutor, was as follows:


               [O]n Wednesday, July 5th, 2017, Officer Endicott (phonetic) of
               [the Indianapolis Metropolitan Police Department (“IMPD”)]
               was dispatched to the 4300 block of North Michigan Road, the
               International School, on report of a person assaulted. Upon
               arrival, he met with D.D.[] D.D. stated he and his girlfriend,
               whom he identified as [Pullins], got into an argument. He stated
               that around the intersection of West 42nd Street and Michigan
               Road, Ms. Pullins began hitting Mr. D.D. in the face.

               She then took her LG smartphone and struck Mr. D.D. on the
               right side of his face, breaking the cell phone and causing pain
               and lacerations to the right side of his face, and causing his right




      1
        In addition to the counts for which Pullins pled guilty, the State charged her with attempted murder as a
      level 1 felony in Cause No. 26700 and battery resulting in serious bodily injury as a level 5 felony in Cause
      No. 33826, which it dismissed pursuant to the plea agreement. (App II 108, 228, 230)

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2527 | May 6, 2020                        Page 2 of 18
         eye to bulge from his eye socket.[ 2] He pulled into the parking lot
         of the International School to call for help. Ms. Pullins got into
         the driver’s seat of the vehicle and took off northbound on
         Michigan Road. Ms. Pullins later crashed in the 4400 block of
         Michigan Road.


Transcript Volume II at 16. The factual basis provided for the count under

Cause No. 26700 as stated by the prosecutor was as follows:


         [O]n July 18th, 2017, about 1 p.m., Nola Hunt (phonetic) with
         Indiana Department of Child Services [(“DCS”)] notified the
         detectives that she’d received a report less than an hour earlier
         stating [Pullins], who is 22 years old, had filmed herself
         obstructing the airway of her one-year-old son, L.D. and sent the
         video to the child’s father, along with threats to kill the child.
         [Indianapolis Metropolitan Police] Sergeant Eli McAllister
         received a copy of the video from DCS. The video depicted
         [Pullins] standing in front of a bathroom mirror. In her left hand,
         the female was holding a cell phone pointed at the mirror. Her
         right hand was completely covering the mouth and nose of a
         small child. [Pullins] was pressing so hard with her right hand
         that the child’s entire body weight was supported by the force of
         her grip against the child’s face, pressing his head back against
         her body. This video lasted approximately ten seconds. In the
         audio of the video, the child can be heard audibly trying to
         breathe and cry out, but is unable to do so due to [Pullins’s] hand
         over his nose and mouth. It’s clear from the video that the
         airway was obstructed and the child was not allowed to breathe
         in or out for the duration of the video. The child also reached up
         with his right hand for a second or two in the video, grabbed
         [Pullins’s] hand in an attempt to remove it from his mouth. At


2
 The prosecutor indicated D.D. underwent two surgeries related to his eye, he reported “that his vision, up
until the second surgery, still remained blurry,” and that “doctors were indicating that it could, eventually,
come back.” Transcript Volume II at 17.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2527 | May 6, 2020                        Page 3 of 18
        the same time the child is struggling to remove the hand, he lifts
        his legs and squirms around, also trying to get free from
        [Pullins’s] grasp. At the end of the video, the child appears to
        arch his back in effort to get free from the suffocating grasp of
        [Pullins].

        On July 18th of 2017, Detective Chris Lawrence (phonetic) with
        IMPD spoke to L.D.’s father, D.D.[] He said that he had two
        children in common with [Pullins], L.D. and E.D. He reported
        that he received an email from [Pullins] saying she was going to
        kill L.D.[] Subsequently, he received the video from [Pullins]
        depicting her suffocating their child.

        IMPD Missing Persons Unit was contacted and an Amber Alert
        was issued for [Pullins] and her three sons, based on concern for
        the safety of the children. Within a couple of hours of the Amber
        Alert, police received a call stating the children were located at
        home, . . . in Indianapolis, Indiana. The children were found by
        IMPD at the address and taken into DCS custody and then
        transported to Riley Hospital to be checked.

        On July 18th of 2017, D.D. provided written consent for law
        enforcement to access the email account he had been using to
        correspond with [Pullins]. He provided law enforcement with
        the use or login and password, and agreed for investigators to
        access this account for the purpose of investigating the crimes.
        When that account was accessed, detectives reviewed the emails
        from [Pullins] to D.D.[] There was an email located sent from
        [Pullins] to D.D. at 12:05 a.m. that was marked as read.
        Attached to the email was that video of [Pullins] suffocating their
        child. The subject line read, video of me suffocating L.D., and
        the body of the email read, told you, get him. Aside from the
        above email, there were two additional emails sent from the same
        email address, both with the subject line, video suffocating L.D.[]
        Those were marked as unread. They both contained video
        attachments, and one of them was a second video of [Pullins]
        suffocating L.D.[]


Court of Appeals of Indiana | Memorandum Decision 19A-CR-2527 | May 6, 2020   Page 4 of 18
              The second video was taken in the same bathroom and in the
              same manner as the first video, but was clearly a different
              recording than the first. In the second video, the child’s hand is
              attempting to pull [Pullins’s] hand away from his mouth,
              suggesting that this video was filmed shortly after the first video,
              as in the first video, the child is clearly in distress, trying to cry
              out and audibly gasp for air, but the woman’s hand is covering
              his mouth and his nose.

              There were also numerous emails sent from [Pullins] to the father
              of L.D. saying things like, I can’t wait for L.D. to die, get your
              baby before I kill him, he deserves to die, he has nobody, Imma
              just stab him, Imma just stab him to death, I’m stabbing L.D. to
              death tonight, I hate him, I wish you never gave him to me, I
              don’t love him or you. In addition to the emails and videos,
              there were several photographs attached to some of the emails
              from the two email addresses belonging to [Pullins]. They also
              depict her holding L.D. and requesting D.D. to take the kids for
              just an hour so she can nap.

              The children and the videos were taken at the address of [P.D.]
              which is located here in Indianapolis. [P.D.] asked [Pullins]
              about the videos. Initially, [Pullins] told her that the detectives
              had lied about the videos existing, but when [P.D.] replied that
              she didn’t believe the detectives had lied, [Pullins] admitted to
              [P.D.] that she filmed herself putting her hands over L.D.’s
              mouth and sent it to his father, D.D., along with a threat to kill
              L.D.[]


      Id. at 13-16. When asked by the court, Pullins indicated she had been

      diagnosed with depression, “bipolar,” and a personality disorder. Id. at 18.


[3]   At sentencing, Pullins presented evidence of her mental illness. Licensed

      clinical social worker Aftan Archer-Cox testified there was a history of mental

      illness in Pullins’s maternal family, Pullins was diagnosed with bipolar disorder

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2527 | May 6, 2020      Page 5 of 18
      when she was twelve years old and bipolar disorder, substance misuse, and

      PTSD diagnoses were the “primary diagnoses that are seemingly consistent

      through the reports.” Id. at 57. The court admitted Archer-Cox’s report as

      Defendant’s Exhibit A, which indicated Pullins’s teenage years were filled with

      traumatizing fights at homes, arrests insisted on by her mother, and stays at

      residential facilities and foster homes when her mother was unable to manage

      her behavior; that, while developing bipolar disorder, she was offered treatment

      through the juvenile system but was unable to maintain results “likely due to

      [her] unpredictable and volatile home environment”; and that, if her trauma

      and her bipolar disorder were not specifically addressed, she would be less

      capable of managing day-to-day living after a lengthy prison sentence. Exhibits

      Volume at 8. Archer-Cox’s report reveals that Pullins had three children before

      the age of twenty-five and had no job, driver’s license, car or money for food,

      diapers, wipes or milk; she rarely left the house and had little social interaction

      with adults; she received little to no support from her mother; her father was

      deceased; and her children’s father either was not involved or worked

      constantly and always left the children in her care.


[4]   Clinical psychologist Dr. Stephanie Callaway diagnosed Pullins with bipolar

      disorder and post-traumatic stress disorder and testified Pullins presents with

      borderline personality traits and has a history of using alcohol, marijuana, and

      methamphetamine. When asked to describe how Pullins’s methamphetamine

      use and her mental health interact, Dr. Callaway indicated Pullins self-reported

      that using methamphetamine “just a little bit” calmed her down and that such


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2527 | May 6, 2020   Page 6 of 18
      an effect is one which often occurs with individuals with ADHD or bipolar

      disorder. Transcript Volume II at 75. She answered affirmatively when asked

      if there had been no regularity in treatment and if it was her opinion that

      Pullins’s mental health issues contributed to the events. Dr. Callaway’s

      evaluation indicated Pullins had been in a non-marital relationship with D.D.

      since she was eighteen years old and he was approximately thirty-seven years

      old, that D.D. was the father of L.D. and E.D., the relationship included

      domestic violence, and he was controlling of the children and her.


[5]   At its conclusion, Dr. Callaway’s evaluation states:


               Based on a review of collateral sources and Ms. Pullins[’s] self-
               report, there were numerous situational factors that contributed
               to her behavior at the time of the offense. Namely, she was
               under a great deal of duress due to being homeless, their lack of
               finances, serving as the only caretaker for three children, and
               detoxing from drugs and alcohol. She described feeling “crazy,
               desperate, and stupid all at once,” with no means of escaping her
               situation. She felt desperate to get help from [D.D.], but did not
               have adequate coping skills to effectively ask for help and
               assistance. Instead, Ms. Pullins[] took desperate actions to try to
               get her needs and her children’s needs met and to try to get help
               caring for her three children.[ 3] . . .

               MITIGATING FACTORS: A review of the available records
               and Ms. Pullins’ self-report yields the following mitigating
               factors:




      3
       In speaking to the court, Pullins testified she made “an unconscionable decision” to create a “staged video”
      so that D.D., to whom she reached out but received no response, would “take care of his responsibilities,”
      which she believed he would do only if he thought “they were in danger.” Transcript Volume II at 83-84.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2527 | May 6, 2020                      Page 7 of 18
                                                   *****

                  • Ms. Pullins has serious mental disorders, to include
                    Bipolar Disorder and PTSD, in addition to Alcohol,
                    Marijuana, and Methamphetamine Use Disorders. She
                    also has Borderline Personality Traits, which is considered
                    a mental disorder or condition per the DSM-S. These
                    mental disorders contributed to her poor decision-making
                    and impulsivity during the offense, especially since these
                    conditions were untreated at that time.


      Exhibits Volume at 31-32.


[6]   Before it sentenced her, the court heard argument from Pullins’s counsel and

      stated:


              I appreciate both sides putting forth the evidence you have today,
              and I do agree with you, [Pullins’s counsel]. I think that you
              have presented enough facts and circumstances, if you will, to
              suggest that there is some context to all of this behavior, so I
              appreciate that, but I’m not quite sure that I – that it’s enough for
              me to find overwhelming mitigation, but I do appreciate the fact
              that, you know, in my mind, it put it in perspective, if you will, of
              where you were, and why you did what you did, if you will. So
              I’ll take that into consideration. I’m not necessarily going to find
              it as a mitigator, though, right now.


      Transcript Volume II at 93-94. The trial court found the mitigating

      circumstances were that Pullins pled guilty, took responsibility for her actions,

      and saved judicial resources. The court found the aggravating circumstances

      included her history of juvenile delinquency, “most of which was aggressive

      behavior,” five prior adjudications for batteries, eight adjudications total, and


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2527 | May 6, 2020   Page 8 of 18
      twenty-five referrals 4; her history of criminal behavior which included a prior

      misdemeanor; she was out on bond at time of her offenses; and she caused

      permanent bodily injury to D.D. and harmed L.D., her child who was

      approximately one year of age. Id. at 94. It sentenced her to eight years under

      Cause No. 33826 and twelve years with one year suspended under Cause No.

      26700 and ordered the sentences to be served consecutively for an aggregate

      sentence of twenty years with one year suspended. Both sentencing orders

      indicate the court recommends “mental health treatment while at DOC.”

      Appellant's Appendix Volume II at 20; Appellant's Appendix Volume III at

      150. The sentencing orders also provide the court may modify her placement

      based on good conduct in the Department of Correction (“DOC”). The

      prosecutor requested that Pullins have no contact with D.D. and L.D. and

      requested a no contact order for “any minor child, just to be safe,” and the

      court indicated that it would “put any minor child, at this time, since she’s

      obviously going to DOC.” Transcript Volume II at 96.


                                                      Discussion

[7]   Pullins first argues the trial court abused its discretion in sentencing her.

      Sentencing decisions rest within the sound discretion of the trial court and are

      reviewed only for an abuse of discretion. Anglemyer v. State, 868 N.E.2d 482,

      490 (Ind. 2007), clarified on other grounds on reh’g, 875 N.E.2d 218 (Ind. 2007).




      4
        The presentence investigation report, to which both Pullins and the State point, identifies twenty-four
      juvenile incidences, many of which identify her mother as the complainant.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2527 | May 6, 2020                        Page 9 of 18
      “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. (quotation

      omitted). A trial court abuses its discretion if it: (1) fails “to enter a sentencing

      statement at all”; (2) enters “a sentencing statement that explains reasons for

      imposing a sentence – including a finding of aggravating and mitigating factors

      if any – but the record does not support the reasons”; (3) enters a sentencing

      statement that “omits reasons that are clearly supported by the record and

      advanced for consideration”; or (4) considers reasons that “are improper as a

      matter of law.” Id. at 490-491. If the trial court has abused its discretion, we

      will remand for resentencing “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.” Id. at 491. The relative weight or

      value assignable to reasons properly found, or those which should have been

      found, is not subject to review for abuse of discretion. Id.


[8]   Pullins contends the trial court abused its discretion in not considering her

      mental illness as a mitigator. 5 When, as here, an allegation is made that the




      5
       Pullins also argues that the court abused its discretion when it considered as aggravators numerous juvenile
      delinquency petitions which did not reach disposition. While “[o]ne or more arrests, standing alone, do not
      establish the ‘history of criminal or delinquent activity’ aggravator to enhance a sentence,” Pickens v. State,
      767 N.E.2d 530, 534 (Ind. 2002) (quoting Ind. Code § 35-38-1-7.1(b)(2) (subsequently amended by Pub. L.
      No. 71-2005, § 3 (eff. April 25, 2005)) (subsection currently appears as Ind. Code § 35-38-1-7.1(a)(2))), we
      note the Indiana Supreme Court, in examining an earlier version of Ind. Code § 35-38-1-7.1, has stated:
            “While a record of arrests does not establish the historical fact of prior criminal behavior, such a
            record does reveal to the court that subsequent antisocial behavior on the part of the defendant


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2527 | May 6, 2020                        Page 10 of 18
trial court failed to find a mitigating factor, the defendant is required to establish

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

record. Id. at 493. The determination of mitigating circumstances is within the

discretion of the trial court. Rogers v. State, 878 N.E.2d 269, 272 (Ind. Ct. App.

2007), trans. denied. The trial court is not obligated to explain why it did not

find a factor to be significantly mitigating. Chambliss v. State, 746 N.E.2d 73, 78

(Ind. 2001). The sentencing court is not required to place the same value on a

mitigating circumstance as does the defendant. Beason v. State, 690 N.E.2d 277,

283-284 (Ind. 1998).




       has not been deterred even after having been subject to the police authority of the State and
       made aware of its oversight activities of its citizens.” Tunstill[ v. State], 568 N.E.2d [539, 545
       (Ind. 1991)]. Indiana Code § 35-38-1-7.1(d) “gives a sentencing court the flexibility to consider
       any factor which reflects on the defendant’s character, good or bad, in addition to those
       expressly set out in the rest of the statute.” Id.

767 N.E.2d at 534 (citing Ind. Code § 35-38-1-7.1(d) (subsequently amended by Pub. L. No. 71-2005, § 3 (eff.
April 25, 2005; Pub L. No. 213-2005, § 3 (eff. May 11, 2005) (subsection currently appears as Ind. Code § 35-
38-1-7.1(c))). Pullins points to the sentencing orders which indicate, in handwriting, for Cause Nos. 33826
and 26700 respectively: “aggravators: history of delinquent aggressive +/or violent behavior (at least 5 prior
batteries, 8 adjudications, 24 complaints many of which were batteries)” and “aggravators: long history of
delinquent behavior which consisted of violent + aggressive behavior. (24 Referrals most which are battery, 8
adjudications most of which are batteries + Resisting + escaping).” Appellant’s Appendix Volume III at 130;
Appellant’s Appendix Volume IV at 131. Pullins’s presentence investigation report includes eight true
findings of delinquent adjudications. We conclude the court did not abuse its discretion on this basis. See
Saylor v. State, 765 N.E.2d 535, 559 (Ind. 2002) (“Indeed, an adjudication itself may not be enough to prove a
criminal history. However, ‘the acts committed by the juvenile may constitute a criminal history to support
enhancement of a sentence.’ ([E]mphasis added). In this case, the record does show that a few of Saylor’s
juvenile offenses were dismissed and at least one was disposed of informally. However, the record also
shows that Saylor engaged in a number of acts as a juvenile that would have been crimes if committed by
adults. Saylor has not shown that the trial court relied improperly on his juvenile record in imposing
sentence.” (citations omitted)), reh’g granted and rev’d on other grounds, 808 N.E.2d 646 (2004); Johnson v. State,
837 N.E.2d 209, 215 (Ind. Ct. App. 2005) (“Johnson’s criminal history, on the other hand, reveals a pattern
of contempt for the law, including three felonies among nine adult convictions and seven true findings as a
juvenile. We cannot say that the trial court abused its discretion by giving Johnson’s criminal history
significant aggravating weight.”), trans. denied.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2527 | May 6, 2020                         Page 11 of 18
[9]    The Indiana Supreme Court has identified four factors “that bear on the weight,

       if any, that should be given to mental illness in sentencing.” Weeks v. State, 697

       N.E.2d 28, 30 (Ind. 1998) (citing Archer v. State, 689 N.E.2d 678, 685 (Ind.

       1997)). Those factors are: (1) the extent of the defendant’s inability to control

       his or her behavior due to the disorder or impairment; (2) overall limitations on

       functioning; (3) the duration of the mental illness; and (4) the extent of any

       nexus between the disorder or impairment and the commission of the crime.

       Id.


[10]   The Court has held there is a need for a “high level of discernment when

       assessing a claim that mental illness warrants mitigating weight.” Covington v.

       State, 842 N.E.2d 345, 349 (Ind. 2006). In Archer, the Court held in part:


               In a case where the court finds that defendant, who is mentally ill
               but able to distinguish right from wrong and therefore not legally
               insane, suffers from a serious mental illness, particularly a long-
               standing illness, or where that defendant’s visions or voices led to
               bizarre behavior and played an integral part in the crime, the
               court may decide not to impose an enhanced sentence or may
               decide to otherwise accord significant weight to defendant’s
               mental illness as a mitigating factor. On the other hand, where
               the mental illness is less severe and defendant appears to have
               more control over his thoughts and actions, or where the nexus
               between defendant’s mental illness and the commission of the
               crime is less clear, the court may determine on the facts of a
               particular case that the mental illness warrants relatively little or
               no weight as a mitigating factor.


       689 N.E.2d at 685 (footnotes omitted). In Anglemyer, the defendant pled guilty

       to robbery and battery pursuant to an agreement that the “sentence will not

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2527 | May 6, 2020   Page 12 of 18
exceed sixteen (16) years executed. Each count’s sentence shall run

consecutive.” 868 N.E.2d at 485. Accepting the agreement, the court imposed

a ten-year sentence for the Class B felony conviction and a six-year sentence for

the Class C felony conviction, ordered the sentences to run consecutively, and

imposed a total term of sixteen years. Id. On appeal, the Court observed that

the defendant was


        incorrect in his assertion that the trial court “overlooked” his
        mental illness as a mitigating factor, or in the language of our
        decision today, that “the sentencing statement omits [a] reason [
        ],” specifically Anglemyer’s mental illness, that is “supported by
        the record.” The record shows that at sentencing Anglemyer
        presented to the trial court a lengthy psychological evaluation
        conducted on March 29, 2001 which, summarized, revealed that
        at age fourteen Anglemyer suffered a personality disorder
        characterized by symptoms of “situational stress,” “depression,”
        feelings of “guilt[ ]” and “inadequate amounts of energy.”
        Anglemyer also presented excerpts of a psychiatric evaluation
        dated July 1, 2002 that noted, “Alex has a long history of
        emotional and behavioral problems.” He was diagnosed with
        “Bipolar Mood Disorder,” “Intermittent Explosive Disorder,”
        and “Oppositional Defiant Disorder.”


Id. at 493 (internal citations omitted). The Court held:


        It is apparent to us that rather than overlooking Anglemyer’s
        mental illness, the trial court determined it was not significant
        and thus would not be a factor influencing the trial court’s
        sentencing decision. This was the trial court’s call. We find no
        error. To the extent Anglemyer complains that the trial court
        abused its discretion in failing to give his proffered mitigating
        factor greater weight, this claim is not available for appellate
        review.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2527 | May 6, 2020   Page 13 of 18
        Id. at 493-494.


[11]   We find Anglemyer instructive. The court had the opportunity to review and

       consider evidence regarding Pullins’s mental illness, and it heard argument

       from Pullins’s counsel at sentencing. The court’s comments at sentencing

       demonstrate that it considered Pullins’s evidence and argument regarding

       mental illness. We cannot say the trial court abused in discretion in sentencing

       Pullins.


[12]   Pullins next argues her sentence is inappropriate in light of the nature of the

       offenses and her character. She argues that, as a result of her untreated mental

       health, she was unable to effectively manage her stress and impulses when

       confronted with extremely difficult hardships, “finally reached her breaking

       point,” and “responded in a way that most mentally-stable people would not.”

       Appellant’s Brief at 23. She contends her battery of D.D. is indistinguishable

       from other instances of domestic battery except for the permanency of his injury

       which was taken into account as she was charged of a level 3 felony and that,

       while the videos of L.D. were “undoubtedly disturbing and the emails

       contained statements that one would hope a parent never makes about their

       own child,” her mental illnesses “adversely impacted her impulse control and

       caused her to reach out for help in unhealthy or dysfunctional ways.” Id. at 25-

       26. She further argues her character cannot be separated from her mental

       illnesses and she has never had an opportunity to consistently engage in

       appropriate treatment and therapy.



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2527 | May 6, 2020   Page 14 of 18
[13]   Ind. Appellate Rule 7(B) provides that we “may revise a sentence authorized by

       statute if, after due consideration of the trial court's decision, [we find] that the

       sentence is inappropriate in light of the nature of the offense and the character

       of the offender.” Under this rule, the burden is on the defendant to persuade

       the appellate court that his or her sentence is inappropriate. Childress v. State,

       848 N.E.2d 1073, 1080 (Ind. 2006).


[14]   Ind. Code § 35-50-2-5(b) provides that a person who commits a level 3 felony

       shall be imprisoned for a fixed term of between three and sixteen years with the

       advisory sentence being nine years. Pullins’s plea agreement provided the

       sentences under the two causes were to be served consecutively, and she

       received, taking into consideration the year which the court suspended in Cause

       No. 26700, one year below the advisory on one count, two years above the

       advisory on the other count, and an aggregate sentence which was one year

       above the aggregate term had she received consecutive advisory sentences.


[15]   Our review of the nature of the offenses reveals that Pullins struck D.D. in the

       face while she was a passenger in his car, struck him with her smartphone on

       the right side of his face with enough force that she broke the phone in the

       process, and caused pain and lacerations to his face and his right eye to bulge

       from the eye socket. After he pulled into a parking lot to call for help, she

       moved into the driver’s seat of the vehicle, drove away, and later crashed the

       vehicle. As a result of his injuries, D.D. underwent two surgeries related to his

       eye. Less than two weeks later, Pullins obstructed the airway of her one-year-

       old son, L.D., and sent a video of it to D.D., his father, along with threats to

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2527 | May 6, 2020   Page 15 of 18
       kill the child. The video depicted Pullins, standing in front of a bathroom

       mirror, “completely covering the mouth and nose” of a small child, and

       “pressing so hard with her right hand that the child’s entire body weight was

       supported by the force of her grip against the child’s face, pressing his head back

       against her body.” Transcript Volume II at 13-14.


[16]   Our review of character of the offender reveals that Pullins pled guilty pursuant

       to a plea agreement and that, as part of the agreement, the State dismissed

       charges of attempted murder and battery resulting in serious bodily injury.

       After she filmed herself obstructing the airway of their one-year-old son, Pullins

       sent D.D. a copy of the video footage along with a message stating “told you,

       get him,” sent D.D. a second video of her suffocating the child, and sent a

       myriad of additional emails “saying things like, I can’t wait for L.D. to die, get

       your baby before I kill him, he deserves to die, he has nobody, Imma just stab

       him, Imma just stab him to death, I’m stabbing L.D. to death tonight, I hate

       him, I wish you never gave him to me, I don’t love him or you.” Id. at 15.

       Pullins was on bond when she committed the instant offenses and was involved

       as a suspect in assaults while in jail in September 2018 and January 2019 where

       the alleged victims indicated they did not wish to prosecute. The presentence

       investigation (“PSI”) reports reveals: Pullins’s delinquent history consisted of

       twenty-four juvenile incidences and included eight true findings of delinquent

       adjudication; her adult criminal history consisted of six arrests, a guilty plea for

       misdemeanor theft in 2015, and an incident in May 2017 involving D.D. which

       resulted in charges for domestic battery committed in the presence of a child


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2527 | May 6, 2020   Page 16 of 18
       less than sixteen years old, criminal recklessness, resisting law enforcement, and

       disorderly conduct; and her overall risk assessment score using the Indiana Risk

       Assessment System places her in the high risk to reoffend category. According

       to the PSI, Pullins reported first drinking alcohol and smoking marijuana in

       middle school and first using methamphetamine when she was seventeen years

       old. We recognize the evidence of Pullins’s diagnoses, mental illness, and

       history of substance use as set forth above and in the record. After due

       consideration, we conclude that Pullins has not sustained her burden of

       establishing her aggregate sentence is inappropriate.


[17]   Regarding the trial court’s condition restricting Pullins’s contact with any minor

       child, we note that at sentencing Sergeant McAllister indicated Pullins’s three

       children were examined by medical staff and stated that “[n]one of them were

       gravely injured or – or hurt at that moment.” Id. at 46. In asserting that

       limiting Pullins’s access to minor children as a condition of her probation is in

       the best interest of public safety, the State does not cite authority that supports

       the imposition of this condition and likens Pullins to an offender convicted of

       child molestation. See Appellee’s Brief at 18 (quoting Smith v. State, 779 N.E.2d

       111, 117 (Ind. Ct. App. 2002) (“[C]hild molesters molest children to whom they

       have access.”), trans. denied). It does not point to evidence demonstrating a

       long-term order affords necessary relief or that Pullins posed a threat to any

       child other than L.D. We find the condition as imposed to be overbroad and

       accordingly remand with instructions to delete this condition except as to L.D.

       See Waters v. State, 65 N.E.3d 613, 619 (Ind. Ct. App. 2016) (finding trial court


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2527 | May 6, 2020   Page 17 of 18
       erred in imposing a probation condition that defendant shall have no contact

       with any person under the age of sixteen and noting that “without any evidence

       that [the defendant] poses a particular threat to children, [the probation

       conditions, including the aforementioned condition prohibiting contact] cannot

       be said to be reasonably related to the treatment of the defendant and the

       protection of public safety.”).


[18]   For the foregoing reasons, we affirm Pullins’s sentences, reverse the imposition

       of the probation condition, and remand to delete the condition except as to

       L.D.


[19]   Affirmed in part, reversed in part, and remanded.


       Najam, J., and Kirsch, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2527 | May 6, 2020   Page 18 of 18
