Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before                                         Jun 25 2014, 10:00 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:

VALERIE K. BOOTS                                    GREGORY F. ZOELLER
Marion County Public Defender Agency                Attorney General of Indiana
Indianapolis, Indiana
                                                    LARRY D. ALLEN
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

BRAUNEL MACKEY,                                     )
                                                    )
       Appellant-Defendant,                         )
                                                    )
               vs.                                  )      No. 49A02-1310-CR-873
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Plaintiff.                          )


                     APPEAL FROM THE MARION SUPERIOR COURT
                          The Honorable Steven Eichholtz, Judge
                            Cause No. 49G20-1303-FB-14423


                                          June 25, 2014

                MEMORANDUM DECISION - NOT FOR PUBLICATION

MAY, Judge
          Braunel Mackey appeals his fifteen-year sentence for class B felony unlawful

possession of a firearm by a serious violent felon (“SVF”).1 He asserts that sentence is

inappropriate in light of his character and offense. We affirm.

                             FACTS AND PROCEDURAL HISTORY

          On March 2, 2013, at 1:30 a.m., as Mackey entered Babe’s West, a strip club in

Indianapolis, he attempted to bypass the security pat-down. Melvin Hall, one of the club’s

security guards, stopped him. Hall conducted a routine pat-down on Mackey and felt the

slide of a pistol in Mackey’s crotch area. Hall alerted other security guards while keeping his

hand on the handgun in Mackey’s pants. Mackey struggled with Hall and continuously tried

to reach the handgun. Brandon Levett, another security guard, and Tony Martin, the club

manager, helped Hall handcuff Mackey. While Mackey was handcuffed, Martin retrieved

the handgun from Mackey’s boxers, where Mackey had the grip wedged in between his

buttocks with the barrel pointed toward his penis. Martin handed the handgun to Levett, who

unloaded it and gave it to the police officer who arrived at the scene.

          A jury found Mackey guilty of Class B felony unlawful possession of a firearm by an

SVF. The judge requested a presentence report (PSI). Following the sentencing hearing, the

court found three aggravating factors: Mackey’s criminal and arrest history, Mackey’s failure

to complete past Community Corrections placements, and his pending charges for acts

committed while released on bond in this case. The court found no mitigating factors and

ordered a fifteen-year sentence executed at the Department of Correction.


1
    Ind. Code § 35-47-4-5.
                                               2
                             DISCUSSION AND DECISION

       Mackey asserts his fifteen-year sentence, which is five years more than the advisory

sentence for a Class B felony, see Ind. Code § 35-50-2-5 (stating advisory sentence for a

Class B felony is ten years), is inappropriate in light of his character and the nature of his

offense. We have the constitutional authority to revise a sentence if, after considering the

trial court’s decision, we conclude the sentence is inappropriate in light of the nature of the

offense and character of the offender. Ind. Appellate Rule 7(B). “We recognize, however,

the special expertise of the trial courts in making sentencing decisions; thus, we exercise with

great restraint our responsibility to review and revise sentences.” Scott v. State, 840 N.E.2d

376, 381 (Ind. Ct. App. 2006), trans. denied. Mackey has the burden on appeal of persuading

us his sentence is inappropriate. See Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).

       Regarding the nature of the offense, one factor we may consider in determining the

appropriateness of the deviation from the advisory sentence is “whether there is anything

more or less egregious about the offense committed by the defendant that makes it different

from the typical offense.” Wells v. State, 2 N.E.3d 123, 131 (Ind. Ct. App. 2014), trans.

denied. To commit unlawful possession of a firearm by an SVF, Mackey needed only to

possess a firearm. See Ind. Code § 35-47-4-5 (defining the crime as an SVF who knowingly

and intentionally possesses a firearm). The record reveals Mackey concealed a loaded

handgun in his boxers and tried to enter the club without being searched. Once the security

guard felt the handgun, Mackey struggled with the guards and continuously reached for the

gun. The incident escalated to the point that the guards handcuffed Mackey and called the

                                               3
police. Martin testified the club’s normal procedure when a gun is found involves asking the

patron to return it to his or her car and then searching the patron again on reentry. Mackey’s

offense is more egregious because he tried to avoid being searched and because he reached

for the gun as he struggled with security guards. See Morgan v. State, 934 N.E.2d 1246,

1252 (Ind. Ct. App. 2010) (holding escalating danger to people in the area was an

aggravator).

       As for Mackey’s character, the record reveals that, as a twenty-three-year old man, he

has a history of both juvenile and adult arrests, convictions of misdemeanors and felonies,

and misconduct reports while in the Department of Correction. Mackey completed one

community corrections placement, but did not complete his most recent placement. While

out on bond awaiting trial on this cause, Mackey engaged in acts for which the State charged

him with unlawful possession of a firearm by an SVF, intimidation, residential entry,

pointing a firearm, and unlawful use of body armor. In Mackey’s PSI, the investigator noted

Mackey lied about his drug use and gambling habits. (PSI at 9-11.) At trial, Mackey claimed

to be “one of the main providers” for his children, (Tr. at 142), but the PSI indicates their

mother provides for them financially. (PSI at 9.) Mackey’s history reveals a disregard for

the law and his character does not suggest this sentence is inappropriate. See Morgan, 934

N.E.2d at 1252 (finding an extensive criminal history and arrest record made a fifteen-year

sentence appropriate for a Class B felony).




                                              4
                                    CONCLUSION

      In view of Mackey’s character and the nature of his offense, we cannot hold the

sentence imposed by the trial court was inappropriate. Accordingly, we affirm.

      Affirmed.

KIRSCH, J., and BAILEY, J., concur.




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