MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                         FILED
this Memorandum Decision shall not be                                    Jun 21 2018, 9:34 am
regarded as precedent or cited before any
court except for the purpose of establishing                                   CLERK
                                                                          Indiana Supreme Court
                                                                             Court of Appeals
the defense of res judicata, collateral                                        and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Michael P. DeArmitt                                      Curtis T. Hill, Jr.
Columbus, Indiana                                        Attorney General of Indiana
                                                         Michael Gene Worden
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Nino M. Pullins,                                         June 21, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-388
        v.                                               Appeal from the Bartholomew
                                                         Superior Court
State of Indiana,                                        The Honorable James D. Worton,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         03D01-1707-F3-3737



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-388 | June 21, 2018                      Page 1 of 6
                                          Case Summary
[1]   Nino M. Pullins (“Pullins”) pleaded guilty to Armed Robbery, as a Level 3

      felony.1 He now appeals, arguing that his sentence is inappropriate.


[2]   We affirm.



                                   Facts and Procedural History
[3]   Based on events that occurred on or about July 4, 2017, the State charged

      Pullins with Armed Robbery, as a Level 3 felony. Pullins and the State reached

      a plea agreement whereby (1) Pullins would plead guilty as charged; (2) the

      executed portion of his sentence would not exceed nine years; and (3) the State

      would not object to the court recommending participation in the Purposeful

      Incarceration program. Pullins pleaded guilty pursuant to the agreement.


[4]   When interviewed for a pre-sentence investigation report—and again at his

      sentencing hearing on January 16, 2018—Pullins described the events leading

      up to the offense. Pullins explained that he and friends were traveling back

      from a college party in Kentucky; Pullins was a passenger in the vehicle. The

      group needed gas money, so they went to a gas station and drove up next to a

      man. Through an open window, a female passenger told the man to give them

      his phone, cards, and money. Pullins then pointed a loaded gun at the man,




      1
          Ind. Code § 35-42-5-1.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-388 | June 21, 2018   Page 2 of 6
      who surrendered his phone and approximately $10. Pullins admitted that he

      was under the influence of Xanax and methamphetamine at the time.


[5]   The trial court ultimately imposed a sentence of nine years executed in the

      Indiana Department of Correction. In orally pronouncing the sentence, the

      court explained that it did not think that participation in the Purposeful

      Incarceration program was appropriate, but that it would consider allowing

      participation in the program upon a future request for sentence modification.


[6]   Pullins now appeals.



                                 Discussion and Decision
[7]   Pursuant to Article 7 of the Indiana Constitution, as implemented by Indiana

      Appellate Rule 7(B), an appellate 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.” Ind. Appellate Rule 7(B). The appropriateness of a

      sentence “turns on ‘myriad . . . factors that come to light in a given case.’”

      Taylor v. State, 86 N.E.3d 157, 165 (Ind. 2017) (quoting Cardwell v. State, 895

      N.E.2d 1219, 1224 (Ind. 2008))). Moreover, the question is not whether a

      different sentence would be more appropriate; the question is whether the

      sentence imposed is inappropriate. Helsley v. State, 43 N.E.3d 225, 228 (Ind.

      2015). As “sentencing is principally a discretionary function,” Cardwell, 895

      N.E.2d at 1222, we must give considerable deference to the court’s decision—


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-388 | June 21, 2018   Page 3 of 6
      and that 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). Ultimately, the principal role of our

      review “is to attempt to leaven the outliers.” McCain v. State, 88 N.E.3d 1066,

      1067 (Ind. 2018) (per curiam).


[8]   Regarding the offense, Pullins received the advisory sentence of nine years. See

      I.C. § 35-50-2-5 (providing that the sentencing range for a Level 3 felony is

      between three years and sixteen years, with an advisory sentence of nine years).

      Because the advisory sentence is the starting point that the legislature “has

      selected as an appropriate sentence for the crime committed,” Childress v. State,

      848 N.E.2d 1073, 1081 (Ind. 2006), the appellant “bears a particularly heavy

      burden in persuading us that his sentence is inappropriate when the trial court

      imposes the advisory sentence,” Fernbach v. State, 954 N.E.2d 1080, 1089 (Ind.

      Ct. App. 2011), trans. denied. Nonetheless, Pullins does not challenge the length

      of his sentence. Rather, he argues that his sentence is inappropriate because the

      court imposed a fully executed sentence. Pullins asserts that he should have

      received a partially suspended sentence and treatment for substance abuse. In

      so arguing, Pullins focuses on his relatively young age—twenty when he

      committed the offense—and his abuse of substances from the age of thirteen.


[9]   As to the nature of the offense, Pullins argues that there is nothing particularly

      egregious “about the actual facts of [the] case that would set it apart as being

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-388 | June 21, 2018   Page 4 of 6
       more heinous or aggravated than any other Armed Robbery.” Appellant’s Br.

       at 9. However, we observe that Pullins was not just armed during the robbery;

       rather, Pullins pointed a loaded gun at the victim while under the influence of

       Xanax and methamphetamine.


[10]   As to the character of the offender, we acknowledge that Pullins is a young

       adult who expressed remorse at sentencing, asked for treatment, and shared

       goals to further his education. However, Pullins admitted that he had never

       previously considered treatment for substance abuse, despite having the benefit

       of a strong family support system. Moreover, although Pullins does not have a

       lengthy criminal record—he has a sole misdemeanor conviction for Illegal

       Consumption of an Alcoholic Beverage—Pullins has had other contacts with

       the criminal justice system. Most notably, Pullins was incarcerated for more

       than two months in 2015 due to serious charges that were later dismissed.

       Despite having had that daily reminder of the potential consequences of

       unlawful behavior—a period during which Pullins claimed he was sober—

       Pullins admitted that he “never thought about treatment even when [he] was in

       jail.” Tr. at 33. After his release, Pullins was not deterred from engaging in

       unlawful behavior; he began using drugs, decided to obtain a gun, and carried

       the gun while under the influence of multiple substances. Pullins then broke

       multiple jail rules during the pendency of this case.


[11]   In imposing the nine-year executed sentence and declining to recommend

       placement in the Purposeful Incarceration program, the court acknowledged

       Pullins’s substance abuse issues, but noted that it did not “believe that substance

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-388 | June 21, 2018   Page 5 of 6
       abuse has caused [him] to pull a gun on someone and commit a robbery against

       them.” Tr. at 39. After due consideration of the trial court’s decision, we are

       not persuaded that the nine-year executed sentence is inappropriate in light of

       the nature of the offense and the character of the offender.


[12]   Affirmed.


       Crone, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-388 | June 21, 2018   Page 6 of 6
