MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                        FILED
regarded as precedent or cited before any                               Nov 16 2018, 9:21 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
Stacy R. Uliana                                         Curtis T. Hill, Jr.
Bargersville, Indiana                                   Attorney General of Indiana
                                                        Michael Gene Worden
                                                        Andrew Kobe
                                                        Deputy Attorneys General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Mickell Biggs,                                          November 16, 2018
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        18A-CR-198
        v.                                              Appeal from the Knox Superior
                                                        Court
State of Indiana,                                       The Honorable Gara U. Lee,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        42D01-1204-FA-35



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-198 | November 16, 2018                 Page 1 of 10
                                Case Summary and Issue
[1]   Following a guilty plea, Mickell Biggs was convicted of child molesting, a Class

      A felony, and sentenced to forty years executed at the Indiana Department of

      Correction. Biggs now appeals, raising for our review the sole issue of whether

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

      offense. Concluding his sentence is not inappropriate, we affirm.



                            Facts and Procedural History
[2]   T.M.A. is the step-daughter of Biggs’ wife’s brother, John Treadway, and Biggs

      has known T.M.A. her entire life. Over the years, Biggs and his wife would

      allow Treadway and his children to stay with them after they were evicted from

      different homes.


[3]   During one such period when Treadway was staying with them between March

      30 and April 9, 2012, Biggs twice engaged in sexual intercourse with then

      twelve-year-old T.M.A. T.M.A. told a forensic interviewer that Biggs had

      threatened to hurt her if she told anyone and that she would get in trouble.


[4]   Confronted by police, Biggs initially denied the crimes before admitting his

      involvement. On April 19, 2012, Biggs was charged with two counts of child

      molesting, both Class A felonies. Biggs spent over five years in jail before

      agreeing to an open plea agreement eight days before a scheduled jury trial.

      Pursuant to the plea agreement, Biggs pleaded guilty to one count of child



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-198 | November 16, 2018   Page 2 of 10
      molesting, the State dismissed the remaining charge, and Biggs was subject to

      open sentencing by the trial court.


[5]   At sentencing, the trial court found that Biggs had violated a position of trust

      with the victim and this aggravating factor outweighed the mitigating factors of

      Biggs’ guilty plea or lack of criminal history, stating:


              I’m going to find as an aggravating factor the fact that the
              Defendant was in a position having care, custody, or control of
              the victim of the offense. Mr. Biggs himself in his statement to
              police indicated that [T.M.A.] was like a daughter to him. It was
              just him and her and his young son at home at the time of the
              offense. She was 12 years old.


              I’m going to find as a mitigating factor the fact that the
              Defendant does not have a history of delinquency or criminal
              activity. I am also going to consider, although slightly the
              mitigating factor, that he has pled guilty in this matter, thus
              saving the State and the Court resources in pursuing this matter
              further.


              After balancing those factors, the Court considers the balance
              between aggravating and mitigating factors to be in favor of
              aggravation because the Court finds that the aggravating factors
              do outweigh the mitigating factors. And I have to agree with [the
              State] in this regard. The effects of an offense that took place
              back in 2012 are going to continue on for the rest of this young
              girl’s life, although I believe that at this point she’s already an
              adult, but she’s going to have to suffer those consequences for a
              long time to come.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-198 | November 16, 2018   Page 3 of 10
      Transcript, Volume 2 at 47-48. The trial court then imposed a forty-year

      sentence for the Class A felony, to be executed at the Indiana Department of

      Correction.



                                Discussion and Decision
                                     I. Standard of Review
[6]   Indiana Appellate Rule 7(B) provides that 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.” The defendant bears the burden to persuade

      this court that the sentence is inappropriate. Sandleben v. State, 29 N.E.3d 126,

      136 (Ind. Ct. App. 2015), trans. denied. Whether a sentence is regarded as

      inappropriate turns on “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). Such

      review is “very deferential to the trial court.” Conley v. State, 972 N.E.2d 864,

      876 (Ind. 2012). And this “deference 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). The analysis is

      “not to determine whether another sentence is more appropriate but rather

      whether the sentence imposed is inappropriate.” Conley, 972 N.E.2d at 876

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-198 | November 16, 2018   Page 4 of 10
      (quotation omitted). Additionally, “we may look to any factors appearing in

      the record” in conducting this review. Boling v. State, 982 N.E.2d 1055, 1060

      (Ind. Ct. App. 2013).


                                   II. Nature of the Offense
[7]   We begin with the nature of Biggs’ offense. As always, the advisory sentence is

      the starting point for determining the appropriateness of a sentence. Anglemyer

      v. State, 868 N.E.2d 482, 494 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218

      (2007). The sentencing range for a Class A felony is between twenty and fifty

      years, with an advisory sentence of thirty years. Ind. Code § 35-50-2-4(a).

      Biggs’ forty-year executed sentence is ten years greater than the advisory

      sentence, but still ten years less than the maximum sentence.


[8]   Relying on Hamilton v. State, 955 N.E.2d 723 (Ind. 2011), Biggs argues the

      nature of his offense was neither aggravating nor mitigating. Specifically, Biggs

      contends “placing an instance of sexual misconduct along a spectrum of

      heinous to horrific in no way diminishes the seriousness of any particular

      offense or the suffering of any particular victim. Instead, it is a necessary part of

      maintaining the proportionality between sentences and offenses, and of treating

      like cases alike.” Appellant’s Brief at 9 (quoting Hamilton, 955 N.E.2d at 728).


[9]   In Hamilton, the defendant forced his nine-year-old step-granddaughter to

      perform oral sex on him, which caused her to throw up, and threatened to hurt

      her grandmother if she told anyone. A jury found the defendant guilty of child



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-198 | November 16, 2018   Page 5 of 10
       molesting, a Class A felony, and the trial court imposed the maximum fifty-year

       sentence.


[10]   On appeal, the defendant argued his sentence was inappropriate under Rule

       7(B) and a panel of this court affirmed. Our supreme court granted transfer and

       revised the defendant’s sentence from fifty years to thirty-five years. The court

       concluded:


               Here, Hamilton engaged in a single act of sexual misconduct as
               opposed to a long-term pattern of abuse and violence.
               Hamilton’s criminal history contained only two convictions, both
               far removed in time from his current offense and unrelated to
               sexual misconduct in general. Hamilton’s remaining arrests
               showed no known dispositions one way or the other, thereby
               diminishing their weight for sentencing purposes. Although he
               violated a position of trust, it was not quite one that rose to the
               level of a stepfather who had close, daily contact with a
               stepdaughter, and Hamilton’s victim, although still young, was
               not of tender years. Hamilton’s threat to harm the victim’s
               grandmother did not involve a specific threat but certainly
               warrants some weight.


               We conclude that Hamilton has made out an adequate case for
               revision. We emphasize that placing an instance of sexual
               misconduct along a spectrum of heinous to horrific in no way
               diminishes the seriousness of any particular offense or the
               suffering of any particular victim. Instead, it is a necessary part
               of maintaining the proportionality between sentences and
               offenses, and of treating like cases alike.


       Hamilton, 955 N.E.2d at 728.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-198 | November 16, 2018   Page 6 of 10
[11]   In light of Hamilton, Biggs contends his sentence must also be inappropriate

       because his victim was three years older and he shares a similarly distant

       relationship. Acknowledging the accuracy of Biggs’ assertions, we nevertheless

       find Hamilton distinguishable.


[12]   Our supreme court has repeatedly emphasized that maximum sentences are

       reserved for offenses and offenders that constitute the worst of the worst. See,

       e.g., Buchanan v. State, 767 N.E.2d 967, 973 (Ind. 2002). While Hamilton

       received the maximum fifty-year sentence, Biggs’ forty-year sentence was ten

       years less than maximum and in closer relation to the nature of Biggs’ offense.


[13]   Secondly, as opposed to the single act of sexual misconduct in Hamilton, there

       are two such instances here. Biggs’ conduct, therefore, exceeds the elements

       necessary under the charged offense and this second instance significantly

       reduces the likelihood Biggs’ conduct was an anomaly which he immediately

       regretted.


[14]   Third and finally, we find the nature of Biggs’ direct threat to the victim

       distinguishable from Hamilton’s threat to harm the victim’s grandmother, an

       absent third person. “[T]he nature of a threat to coerce a victim or obtain her

       silence varies based on the target of the threat and the severity of the threatened

       harm.” Hamilton, 955 N.E.2d at 728 (emphasis added); Laster v. State, 918

       N.E.2d 428, 436 (Ind. Ct. App. 2009) (reversing consecutive sentences where,

       in part, defendant threatened to harm absent third person). A harsher sentence

       becomes appropriate as the severity of the threat increases, “especially when the


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-198 | November 16, 2018   Page 7 of 10
       defendant directly threatens the victim or a witness.” Hamilton, 955 N.E.2d at

       728.


[15]   Considering Biggs’ less than maximum sentence, a second instance of sexual

       misconduct, and his direct threat to the victim, we are unpersuaded the nature

       of his offense renders his sentence inappropriate.


                                III. Character of the Offender
[16]   Biggs also argues his character merits a downward revision of his sentence. The

       “character of the offender” portion of the sentence review involves

       consideration of the aggravating and mitigating circumstances and other

       general considerations. Williams v. State, 840 N.E.2d 433, 439-40 (Ind. Ct. App.

       2006).


[17]   The trial court found the aggravating factors, Biggs’ position of care and the

       presence of his young son at the time of the offenses, outweighed the mitigating

       factors of Biggs’ lack of criminal history and guilty plea before imposing a forty-

       year executed sentence.


[18]   The record reveals that Biggs is youngest of nine children from an impoverished

       family. Despite placement in special education classes, Biggs was still required

       to repeat each grade before quitting school at the age of sixteen—only reaching

       the fifth grade. Biggs remains illiterate but was able to obtain a driver’s license

       and maintain steady employment his entire adult life. Forty-two at the time of

       his arrest, Biggs has no criminal history and has maintained good behavior

       while in jail on this matter.
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-198 | November 16, 2018   Page 8 of 10
[19]   Biggs’ lack of criminal history is a substantial mitigating factor, especially in

       light of his older age. Cloum v. State, 779 N.E.2d 84, 91 (Ind. Ct. App. 2002)

       (“[A] thirty-eight-year-old without so much as a single arrest on his record

       should be entitled to even greater mitigation [than a sixteen-year-old without an

       arrest] because he has avoided accumulating a criminal record for an additional

       twenty-two years.”). However, evidence of a “difficult childhood” warrants

       little, if any, mitigating weight. Coleman v. State, 741 N.E.2d 697, 700 (Ind.

       2000), cert. denied, 534 U.S. 1057 (2001). And Biggs received a substantial

       benefit from his guilty plea because the State dismissed an additional count of

       Class A felony child molesting. See Anglemyer, 875 N.E.2d at 221.


[20]   Given Biggs’ particularly unfortunate circumstances, we view his lack of a

       criminal record and steady employment to be significant, if not remarkable.

       And although we commend Biggs on overcoming such adversity, Biggs’ success

       only adds to our confusion regarding his decision to commit such heinous acts

       at the age of forty-two. Having considered the aggravating and mitigating

       circumstances and general considerations of Biggs’ character, we cannot

       conclude his sentence is inappropriate.



                                              Conclusion
[21]   For the reasons set for above, Biggs’ sentence is not inappropriate in light of the

       nature of his offense and his character. Therefore, we affirm.


[22]   Affirmed.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-198 | November 16, 2018   Page 9 of 10
Baker, J., and May, J., concur.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-198 | November 16, 2018   Page 10 of 10
