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
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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.
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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
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(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
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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.
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[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
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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.
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[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.
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Baker, J., and May, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-198 | November 16, 2018 Page 10 of 10
Mickell Biggs v. State of Indiana (mem. dec.)
Combined Opinion