Pursuant to Ind.Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any                             Jul 15 2014, 10:25 am
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:

YVONNE FERGUSON-WATKINS                         GREGORY F. ZOELLER
Indianapolis, Indiana                           Attorney General of Indiana

                                                JODI KATHRYN STEIN
                                                Deputy Attorney General
                                                Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

BRANDON HICKS,                                  )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )     No. 49A02-1308-CR-739
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


                    APPEAL FROM THE MARION SUPERIOR COURT
                         The Honorable Sheila A. Carlisle, Judge
                           Cause No. 49G03-1211-MR-77384


                                      July 15, 2014

            MEMORANDUM DECISION – NOT FOR PUBLICATION

RILEY, Judge
                               STATEMENT OF THE CASE

         Appellant-Defendant, Brandon Hicks (Hicks), appeals his conviction for Count I,

voluntary manslaughter, a Class B felony, Ind. Code § 35-42-1-3; Count II, possession of

marijuana, a Class A misdemeanor, I.C. § 35-48-4-11; and his sentence following a jury

trial.

         We affirm.

                                          ISSUES

         Hicks raises two issues on appeal which we restate as follows:

         (1) Whether the trial court abused its discretion when sentencing Hicks; and

         (2) Whether Hicks received ineffective assistance of counsel.

                         FACTS AND PROCEDURAL HISTORY

         During the evening of September 22, 2012, Hicks was at Bubba’s Bar & Grill

(Bubba’s) in Indianapolis, Indiana, with friends. On that night, Josh Bolin (Bolin) was

bartending at the bar. According to Hicks, he and Bolin had known each other for a few

years through their mutual work as drug dealers. After exchanging pleasantries, Bolin

invited Hicks to an after-party at his house and explained that there would be high-end

marijuana there. In response, Hicks stated that he had his own marijuana. This led to

Bolin “sucker-punch[ing]” Hicks in his “mouth and nose area.” (Transcript p. 337).

Hicks then “pulled himself back up to the bar, and [Bolin] hit [him] again and knocked

[him] down to the ground.” (Tr. p. 338). After the altercation, Hicks sat in the parking

lot outside of Bubba’s and called the police.         When Officer Matthew Musselman
                                              2
(Officer Musselman) of the Indianapolis Metropolitan Police Department (IMPD)

arrived, he took several photos of Hicks’ injuries, and Hicks told Officer Musselman that

the altercation was the result of a mistaken identity.            There was no follow-up

conversation with the police about this altercation, and no arrests were made.

       On November 12, 2012, at approximately 10:30PM, Hicks and his friends,

Graham Girgenti (Girgenti) and Misty Girgenti (Misty), went to Krazy Street Bar & Grill

(the Bar) in Indianapolis, Indiana, to watch Monday Night Football. There were about

thirty to thirty-five people at the bar. Shortly after their arrival, Hicks saw Bolin enter the

Bar with friends. According to Hicks, he became afraid when he saw Bolin come in, so

he called his brother, Ronald Hicks (Ronald), to inform him that Bolin was there.

Ronald told Hicks that he was on his way to pick him up.

       Soon after Hicks finished talking to his brother, Bolin approached him. Hicks

stood up and words were exchanged, but no one else could hear what they were saying

because of the noise in the bar. Hicks testified that Bolin told him, “Motherfucker, I will

kill you.” (Tr. p. 352). There was no yelling, but the two men were only one foot away

from each other. Shortly thereafter, Bolin punched Hicks in the face. The punch caused

Hicks to fall back slightly, and he reached for his .40 Smith and Wesson semi-automatic

handgun that was concealed in an inner holster inside his pants. Hicks pointed the gun at

Bolin and fired. Hicks testified that he and Bolin struggled for the gun after the first shot.

Hicks was able to free himself by firing two additional shots at Bolin. In total, Hicks shot

Bolin three times. When Carl Emerson (Emerson), the security guard at the Bar, saw

                                              3
what had happened, he attempted to seize Hicks by placing him in a headlock. During

this time, Hicks uncontrollably fired two more shots, one of which went into his own leg.

Emerson finally managed to subdue Hicks and instructed him to drop his gun.

      When Hicks realized that he had shot himself in the leg, he started wailing and

Emerson helped him sit down. Hicks then removed $1,400.00 in cash and over eight

grams of marijuana from his pocket and gave it to Girgenti. The money and marijuana

were later recovered by the police. Bolin died at the scene as a result of the gunshot

wounds.

      After police officers arrived on the scene, Hicks was transported to Wishard

Hospital and arrested for preliminary charges of murder and possession of marijuana.

When Hicks was released from the hospital, he voluntarily gave a statement to Detective

Gregory Hagan (Detective Hagan) of the IMPD. He told Detective Hagan that he did not

know who Bolin was and that he could not remember anything about the shooting.

      On November 15, 2012, the State filed an Information charging Hicks with Count

I, murder, a Class A felony, I.C. § 35-42-1-1 and Count II, possession of marijuana, a

Class A misdemeanor, I.C. § 35-48-4-11. On July 23 through July 24, 2013, a jury trial

was conducted. At the close of evidence, the jury found Hicks guilty of both voluntary

manslaughter and possession of marijuana.

      On August 7, 2013, the trial court held a sentencing hearing. The trial court

considered the evidence presented and determined that the aggravating circumstances of

Hicks’ crime outweighed the mitigating circumstances.         Consequently, Hicks was

                                            4
sentenced to a term of forty years for voluntary manslaughter, and one year for

possession of marijuana, with the sentence to be served concurrently.

       Hicks now appeals. Additional facts will be provided as necessary.

                                 DISCUSSION AND DECISION

                             I. Abuse of Sentencing Discretion

       Hicks claims that the trial court abused its discretion when it imposed a sentence

of forty years for voluntary manslaughter, a Class A felony. A person who commits a

Class A felony shall be imprisoned for a fixed term of between twenty and fifty years,

with the advisory sentence being thirty years. I.C. § 35-50-2-4. Thus, Hicks’ forty year

sentence exceeds the advisory sentence. He now argues that the trial court abused its

sentencing discretion by using prejudicial testimony as an aggravating circumstance and

by failing to give weight to certain mitigators.

       We note that “[s]entencing decisions rest within the sound discretion of the trial

court and are reviewed on appeal only for an abuse of discretion.” Anglemyer v. State,

868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (2007). We will

find an abuse of discretion where “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. Because the trial court no longer has any

obligation to weigh aggravating and mitigating factors against each other when imposing

a sentence, an abuse of discretion cannot be based upon the trial court’s determination of

the weight to be accorded to such factors. Id. at 491. Indiana Appellate Rule 7(B) gives

                                              5
this court the authority to revise a sentence 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.” It is on this basis alone that a criminal

defendant may now challenge his sentence where the trial court has entered a sentencing

statement that includes a reasonably detailed recitation of its reasons for imposing the

particular sentence that is supported by the record, and the reasons are not improper as a

matter of law. Anglemyer, 868 N.E.2d at 490. The burden is on the defendant to

persuade the appellate court that his sentence is inappropriate. Childress v. State, 848

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

                                       A. Aggravator

       Hicks argues that the trial court abused its discretion by using his testimony about

his drug dealing— uncharged conduct—as an aggravating factor. Specifically, he asserts

that the testimony is prejudiced and should have been excluded pursuant to Indiana

Evidence Rule 404(B), which prohibits evidence of other uncharged crimes to be used to

prove the character of a person. The admission of this evidence is not an issue in this

case. The issue raised is whether the evidence was properly used by the trial court as an

aggravating factor during his sentencing hearing. This court has held that allegations of

prior criminal activity need not be reduced to conviction before they may be properly

considered as aggravating circumstances by a sentencing court. Harlan v. State, 971

N.E.2d 163, 170 (Ind. Ct. App. 2012).



                                              6
       Turning to the facts and circumstances of this case, we note that it was Hicks

himself who admitted at trial that he had worked as a drug dealer. See Fredrick v. State,

755 N.E.2d 1078 (Ind. 2001) (holding that the trial court properly considered the

defendant’s drug dealing as an aggravating factor). Therefore, we find that the trial court

did not abuse its discretion by considering it an aggravating factor at the sentencing

hearing.

                                       B. Mitigator

       As for mitigating factors, Hicks contends that the trial court failed to “give weight

to” his traumatic childhood that caused him to have an extreme fear of physical

altercations. Here, the trial court acknowledged that Hicks’ childhood was traumatic but

gave no weight to this when sentencing him. The trial court specifically stated that in

spite of Hicks’ alleged fear, there were several other and more reasonable choices that

could have been made.      Accordingly we find that the trial court did not abuse its

discretion when it recognized Hicks’ background and alleged fears but did not assign any

weight to them See Anglemyer, 868 N.E.2d at 490.

                                C. Nature and Character

       As stated in Anglemyer, this court is under no obligation to weigh aggravating and

mitigating factors and will only consider whether a sentence is appropriate in light of the

nature of the offense and character of the offender. See Appellate Rule 7(B). With

respect to the nature of Hicks’ offense, we note that Hicks opened fire in a public bar,

shot an unarmed Bolin three times, and fired two additional random shots. His use of the

                                             7
deadly weapon in response to a punch was excessive, and there were many options that

were available to him to avoid an altercation. In light of the foregoing, we find that

Hicks’ sentence is appropriate in light of the nature of the offense.

       As to Hicks’ character, we note that he has a minimal criminal history. However,

we cannot ignore that Hicks admitted during trial that he was a drug dealer, thereby

establishing that he is not a law abiding citizen. Under these circumstances, we find that

Hicks’ sentence is not inappropriate in light of his character. Accordingly, we find that

the trial court did not abuse its sentencing discretion when it sentenced Hicks to forty

years for voluntary manslaughter.

                           II. Ineffective Assistance of Counsel

       Hicks also contends that his trial counsel provided ineffective assistance, thereby

denying his Sixth Amendment right to counsel. In support of his claim, he asserts that his

trial counsel’s conduct undermined the proper functioning of the judicial process and

detrimentally affected the outcome of the trial.

       We review claims of ineffective assistance of counsel under the two-prong test

established in Strickland v. Washington, 466 U.S. 668 (1984). The defendant must show

that trial counsel’s performance fell below an objective standard of reasonableness based

on prevailing professional norms and there is a reasonable probability that, but for

counsel’s errors, the result of the proceeding would have been different. State v. Greene,

2 N.E.3d 737, 740 (Ind. Ct. App. 2013).



                                              8
       Counsel is afforded considerable discretion in choosing strategy and tactics, and

we will accord those decisions deference.        Id.   Counsel’s performance is presumed

effective and a defendant must offer strong and convincing evidence to overcome this

presumption. Smith v. State, 822 N.E.2d 193, 202 (Ind. Ct. App. 2005). We will not

speculate as to what may or may not have been advantageous trial strategy as counsel

should be given deference in choosing a trial strategy which, at the time and under the

circumstances, seems best. Greene, 2 N.E.3d at 740. To establish prejudice, Hicks must

show that there is a reasonable probability that, but for counsel’s errors, the result of the

proceeding would be different. Smith, 689 N.E.2d at 202. We need not approach the

inquiry in the same order or even address both components of the inquiry if the defendant

makes an insufficient showing on one. Strickland, 466 U.S. at 697.

       We note that Hicks brings this claim on direct appeal. While this is not prohibited,

post-conviction proceedings are usually the preferred forum for adjudicating these types

of claims because, on most occasions, they require defendants to present evidence and

develop new facts to support the claims they make. Rogers v. State, 897 N.E.2d 955, 965

(Ind. Ct. App. 2008). On direct appeal, this court only reviews the trial record, and

“when the only record on which a claim of ineffective assistance is based is the trial

record, every indulgence will be given to the possibility that a seeming lapse or error by

defense counsel was in fact a tactical move, flawed only in hindsight.” Id.

       Here, Hicks contends that his trial counsel was ineffective on the following

grounds: (1) counsel argued against the exclusion of prejudicial evidence; (2) counsel

                                             9
failed to present evidence; (3) counsel failed to adequately cross-examine the State’s

witnesses; (4) counsel failed to call a specific witness requested by Hicks; (5) counsel

failed to prepare Hicks and advise him about giving testimony; (6) counsel failed to offer

expert medical testimony on the effects from Bolin’s punch; (7) counsel failed to conduct

an investigation; and (8) counsel failed to argue the elements of self-defense. Only two

of these claims — that counsel argued against the exclusion of prejudicial evidence and

that counsel failed to argue the elements of self-defense — are based upon the direct

appeal record. The remaining six claims are based upon evidence outside of the record

which we will not address.1

                                 A. Admission of Prejudicial Evidence

         Hicks asserts that he received ineffective assistance of counsel because his trial

counsel argued for the admission of prejudicial evidence. Specifically, trial counsel

asked the trial court to allow testimony about Hicks’ previous drug dealing activities even

though the State moved to exclude the testimony because “the prejudicial value

outweigh[ed] the probative value.”                   (Tr. p. 254).         During the trial, trial counsel

acknowledged that admitting testimony about Hicks’ drug dealing would be an admission

against Hicks’ interest; however, counsel reasoned that the relationship between Bolin



1
  On February 18, 2014, the State filed a motion to strike a witness statement and two affidavits from the
Appellant’s Appendix, arguing that they were not part of the record. This court granted the State’s motion on March
14, 2014. In this regard, we will not address the six issues raised by Hicks outside the record. See Rogers v. State,
897 N.E.2d 955 (Ind. Ct. App. 2008) (holding that every indulgence is given to the possibility that a seeming lapse
or error by defense counsel was in fact a tactical move, flawed only in hindsight when the only record that a claim of
ineffective assistance of counsel is based on is the trial record).

                                                         10
and Hicks should be mentioned because there had been a social tension resulting from

Hicks leaving a drug dealing organization in which he and Bolin were members.

       Hicks’ contention on appeal is based on his belief that the testimony regarding his

activities as a drug dealer was irrelevant. Hicks also argues that there is no reasonable

argument to suggest that trial counsel’s argument against exclusion of this evidence was a

part of a strategy and in his best interest. Further, Hicks argues that it is only reasonable

to assume that in a case such as his, allowing testimony regarding his past uncharged

crimes would undermine the mitigating factors regarding his character and have more of

a negative effect than positive.

       This court will not speculate as to what may or may not have been an

advantageous trial strategy. Isolated mistakes, poor strategy, inexperience, and instances

of bad judgment do not necessarily render representation ineffective. Timberlake v.

State, 753 N.E.2d 591, 603 (Ind. 2001).           At the time of the trial and under the

circumstances, counsel acknowledged that the testimony would be against Hicks’ interest

but also noted the value and importance of admitting it as evidence. Hicks cannot

overcome the presumption that counsel performed effectively.            Although counsel’s

decision to have Hicks testify about his drug dealing might be poor strategy, this alone

does not render the representation ineffective.        Because Hicks failed to make an

insufficient showing on the performance prong of the Strickland test, we need not address

the prejudice prong.



                                             11
                                 B. Self-Defense Argument

       Hicks’ second contention for ineffective assistance of trial counsel based on the

record is that his counsel failed to argue the elements of self-defense. He argues that

counsel did not refer to the elements of self-defense “one time during the course of trial,

until her closing argument, at which point she did not explain the elements of self-

defense nor argue said elements.” (Appellant’s Br. p. 30).

       A person is justified in using reasonable force against another person to protect

himself from what he reasonably believes is an imminent use of unlawful force. I.C. §

35-41-3-2(a). When a person raises a self-defense claim, he is required to show three

facts: (1) he was in a place he had the right to be; (2) he acted without fault; and (3) he

had a reasonable fear of death or great bodily harm. Wallace v. State, 725 N.E.2d 837,

840 (Ind.2000). The State has the burden to disprove or rebut at least one element of

self-defense beyond a reasonable doubt when a defendant claims that he acted in self-

defense. Carroll v. State, 744 N.E.2d 432, 433-34 (Ind. 2001). “The State may meet this

burden by rebutting the defense directly, by affirmatively showing the defendant did not

act in self-defense, or by simply relying upon the sufficiency of its evidence in chief.”

Miller v. State, 720 N.E.2d 696, 700 (Ind. 1999). At the close of the evidence, the jury

was given written instructions by the trial court, which restate the self-defense statute and

require that the force used in self-defense is reasonable.

       Hicks now argues that trial counsel was ineffective because the State failed to

disprove any of the elements of his self-defense claim and trial counsel failed to address

                                             12
this issue diligently at trial. The State had the burden of rebutting at least one element of

self-defense.   A review of the State’s evidence shows that Bolin was unarmed and

attacked Hicks by punching him with his fist. The State’s primary argument was that

Hicks’ use of a gun to defend himself against Bolin, who was unarmed, was excessive

and thus unreasonable. The self-defense statute requires that the force used to protect

oneself is reasonable and “the [jury] is not precluded from finding that a defendant used

unreasonable force simply because the victim was the initial aggressor.” Birdsong v.

State, 685 N.E.2d 42, 45 (Ind. 1997). Hence, the State provided evidence to rebut at least

one element of Hicks’ self-defense claim and the jury could reasonably decide that Hicks

did not act in self-defense. Because the State did not fail to rebut at least one element of

self-defense at trial, trial counsel was not ineffective by not addressing it as thoroughly as

Hicks wanted her to.

       In sum, Hicks fails to overcome the presumption that his trial counsel’s

performance was effective. Thus, he failed to satisfy his burden of showing that his trial

counsel’s performance fell below an objective standard of reasonableness and that there

is a reasonable possibility that the result of the proceeding would have been different if

his counsel had not made the alleged errors. We therefore find that Hicks was not denied

the right to effective assistance of trial counsel.

                                       CONCLUSION

       Based on the foregoing, we conclude that trial court did not abuse its sentencing

discretion, and Hicks did not receive ineffective assistance of trial counsel.

                                               13
ROBB, J. and BRADFORD, J. concur




                                   14
