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
