Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before                  Sep 23 2014, 9:24 am
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.


ATTORNEY FOR APPELLANT:                            ATTORNEYS FOR APPELLEE:

RICHARD WALKER                                     GREGORY F. ZOELLER
Anderson, Indiana                                  Attorney General of Indiana

                                                   JESSE R. DRUM
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

DARIUS HARDIMAN,                                   )
                                                   )
       Appellant-Defendant,                        )
                                                   )
               vs.                                 )        No. 48A02-1311-CR-936
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )


                     APPEAL FROM THE MADISON CIRCUIT COURT
                         The Honorable Dennis D. Carroll, Judge
                             Cause No. 48C06-1303-FA-571


                                       September 23, 2014

                MEMORANDUM DECISION - NOT FOR PUBLICATION

MAY, Judge
        Darius Hardiman was convicted of Class A felony attempted murder,1 Class A felony

robbery resulting in serious bodily injury,2 and Class D felony dealing in marijuana.3 The

court sentenced him to fifty years for attempted murder, fifty years for robbery, and three

years for dealing marijuana,4 with all sentences to be served concurrently. Hardiman raises

two issues on appeal:

        1.      Whether his convictions of attempted murder and Class A felony robbery

                subjected him to double jeopardy; and

        2.      Whether his sentence is inappropriate.

We affirm in part, reverse in part, and remand.

                           FACTS AND PROCEDURAL HISTORY

        On March 17, 2013, during the sale of a pound of marijuana in Anderson, Indiana,

Hardiman shot Antonio McMullen twice. The second shot was to the back of the head while

McMullen was on the ground. McMullen was taken to a hospital where a CT scan showed

two bullet fragments lodged in the back of his skull. They were not removed. He currently

suffers from vision problems and migraines.

        A jury found Hardiman guilty of attempted murder, robbery resulting in serious bodily

injury, and dealing in marijuana. At the sentencing hearing, the trial court found as

aggravating circumstances Hardiman’s multiple offenses and history of criminal and



1
  Ind. Code § 35-42-1-1 (murder); Ind. Code § 35-41-5-1 (attempt).
2
  Ind. Code § 35-42-5-1.
3
  Ind. Code § 35-48-4-10.
4
  The advisory sentence for the Class A felonies was thirty years. Ind. Code § 35-50-2-4.

                                                    2
delinquent activity. It found Hardiman’s youth and upbringing were modest mitigating

circumstances.

                                   DISCUSSION AND DECISION

        1.       Double Jeopardy

        Hardiman argues his convictions of Class A felony attempted murder and Class A

felony robbery subjected him to double jeopardy, and the State concedes they did. At the

time of Hardiman’s offense, robbery was a Class C felony, but could be enhanced to a Class

B felony if committed while armed with a deadly weapon or resulting in bodily injury, and to

a Class A felony if it resulted in serious bodily injury. Owens v. State, 897 N.E.2d 537, 539

(Ind. Ct. App. 2008) (citing Ind. Code § 35-42-5-1). The injury used to enhance Hardiman’s

robbery conviction was the same as that used to support the attempted murder conviction.

        Hardiman asks that his conviction of robbery be reduced to a Class C felony, but the

State contends his conviction should be reduced to only Class B felony robbery. The State is

correct. Hardiman was charged not only with inflicting bodily injury but also with

committing the robbery while armed with a deadly weapon. The jury found Hardiman guilty

of Class A felony robbery after being instructed that to do so, it must find the robbery

resulted in serious bodily injury “and was committed by means of a deadly weapon.”5 (App.

at 118) (emphasis added). The jury therefore must have found Hardiman committed the


5
  That instruction appears incorrect to the extent it required the jury to find both serious bodily injury and use
of a deadly weapon. At the time Hardiman committed his offense, Class A felony robbery required only
“serious bodily injury.” Ind. Code § 35-42-5-1. It did not require use of a deadly weapon. The statute
explicitly provided the offense was a Class B felony if committed while armed with a deadly weapon or
resulted in bodily injury.

                                                        3
robbery while armed with a deadly weapon. We accordingly vacate Hardiman’s Class A

felony robbery conviction and remand so the trial court may reduce Hardiman’s robbery

conviction to a Class B felony and resentence him accordingly.

       2.      Inappropriate Sentence

       Hardiman contends his fifty-year sentence is inappropriate in light of his character and

the nature of his offense. Although a trial court may have acted within its lawful discretion

in determining a sentence, Article VII, Sections 4 and 6 of the Indiana Constitution authorize

independent appellate review and revision of a sentence through Indiana Appellate Rule

7(B), which provides that a 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.” Reid v. State, 876

N.E.2d 1114, 1116 (Ind. 2007). The burden is on the defendant to persuade us that his

sentence is inappropriate. Id.

       Hardiman concentrates on his character, asserting:

       Hardiman was only twenty-one (21) years of age when he was sentenced. He
       only attained the sixth grade of education and never attained a GED. He spent
       time as a patient at Southwestern Indiana Mental Health Center. He lived with
       foster parents during some periods of his upbringing and he had no significant
       father involvement. He suffered from a history of substance abuse.

(Br. of Appellant at 15.)

       That evidence does not require a reduction in his sentence. When considering the

character of the offender, one relevant fact is the defendant’s criminal history. Rutherford v.

State, 866 N.E.2d 867, 874 (Ind. Ct. App. 2007). The significance of a criminal history in

                                                4
assessing a defendant’s character varies based on the gravity, nature, and number of prior

offenses in relation to the current offense. Id. Hardiman had juvenile adjudications and an

adult criminal history. He was placed on juvenile probation in 2006 for an act that would be

criminal mischief if committed by an adult. He violated his probation and was sent to secure

detention. He was found delinquent in 2007 for what would have been Class D felony theft

if committed by an adult. As an adult, his offenses became more serious. He was convicted

of armed robbery in July of 2010 and was on probation when the instant offense occurred.

Hardiman’s character does not warrant a reduction in his sentence.6

        Affirmed in part, reversed in part, and remanded.

VAIDIK, C.J., and FRIEDLANDER, J., concur.




6
  As Hardiman has not demonstrated his sentence is inappropriate based on his character, we need not address
the nature of his offense. See, e.g., Williams v. State, 891 N.E.2d 621, 633 (Ind. Ct. App. 2008) (revision of a
sentence under Indiana Appellate Rule 7(B) requires the appellant to demonstrate that his sentence is
inappropriate in light of both the nature of his offenses and his character).
                                                       5
