FILED
Oct 18 2017, 9:16 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
P. Jeffrey Schlesinger Curtis T. Hill, Jr.
Office of the Public Defender Attorney General of Indiana
Crown Point, IN
Michael Gene Worden
Deputy Attorney General
Indianapolis, IN
IN THE
COURT OF APPEALS OF INDIANA
Katherine Shuwan Holmes, October 18, 2017
Appellant-Defendant, Court of Appeals Case No.
45A03-1705-CR-1155
v. Appeal from the Lake Superior
Court, Criminal Division IV
State of Indiana, The Honorable Samuel L. Cappas,
Appellee-Plaintiff Judge
Trial Court Cause No.
45G04-1607-F1-0006
Vaidik, Chief Judge.
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Case Summary
[1] Katherine Shuwan Holmes was sentenced to an aggregate term of forty years
for one count of Level 1 felony neglect of a dependent resulting in death and
five counts of Level 6 felony neglect of a dependent. She now appeals, arguing
that the trial court erred by not recognizing three mitigators and that her
sentence is inappropriate. We affirm her sentence.
Facts and Procedural History
[2] The facts, as taken mostly from the stipulated factual basis, show that Holmes is
the mother of all six victims in this case. In 2016, Holmes, Jarod McMillan (the
father of Holmes’s three youngest children), Holmes’s brother, and Holmes’s
six children lived in a one-bedroom apartment in Gary. On March 31, 2016,
twenty-seven-year-old Holmes gave birth to K.M., the youngest of her six
children. K.M. was 5 pounds, 5 ounces at birth. Holmes and K.M. were
discharged from the hospital on April 2, with orders to follow-up with Dr.
Hoess, a pediatrician, in 5-7 days. Holmes, however, did not take K.M. to the
pediatrician as instructed. Instead, Holmes took K.M. to the pediatrician about
two weeks later, on April 21. At the appointment, Dr. Hoess noted K.M.’s low
weight and sent them home with specific feeding instructions. Dr. Hoess said
that if K.M. did not gain any weight by the next day, she would admit him to
the hospital. When Holmes and K.M. returned to the pediatrician the next day,
K.M. had gained 4 ounces. Dr. Hoess told Holmes to continue feeding K.M. as
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instructed and to return on April 26. Holmes, however, did not return for this
appointment.
[3] Over two months later, on Friday, July 1, Holmes spoke with Dr. Hoess on the
phone and said that K.M. was again not gaining any weight. Dr. Hoess told
Holmes to bring K.M. to the clinic on Tuesday, July 5 and to take him to the
emergency room if he had any problems in the meantime.
[4] Holmes did not take K.M. to the emergency room over the weekend, nor did
she take him to the clinic on July 5. Instead, on July 5, Holmes and McMillan
left their apartment around 10:00 a.m. and returned home around 4:30 p.m., at
which point they found K.M. unresponsive. K.M. was taken by ambulance to
the hospital, where he was pronounced dead at 5:37 p.m. K.M., who was three
months old, weighed just 5.9 pounds. According to medical records, K.M.
appeared to be neglected, he had no body fat, his groin and perineum were
burned (mostly likely from urine), and he was covered in dirt. The cause of
death was malnutrition and dehydration.
[5] In addition, the apartment in which Holmes, McMillan, Holmes’s brother, and
the six children lived was roach, flea, and bedbug infested, and there was
garbage littered throughout it. There was not a single bed in the apartment.
When DCS removed Holmes’s other children a few days later, they “reeked of
a foul odor and were all in need of baths.” Appellant’s App. Vol. II p. 53.
[6] The State charged Holmes with one count (Count I) of Level 1 felony neglect of
a dependent resulting in death (K.M.) and seven counts (Counts II-VIII) of
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Level 6 felony neglect of a dependent (two counts for K.M. and one count for
each of the other five children). In March 2017, Holmes and the State entered
into a plea agreement. Id. at 48. Holmes agreed to plead guilty to all of the
charges. In addition, the parties agreed that they were “free to fully argue their
respective positions as to the sentence to be imposed by the Court” and that the
sentence for Count I would run concurrent to the sentences for Counts II-VIII.
Id. at 49. The parties also stipulated to a factual basis. Id. at 50, 52-53. The
court found that a factual basis existed and set the matter for sentencing.
[7] At the April 2017 sentencing hearing, the State admitted twenty-eight
photographs into evidence. Some of the photographs depicted the condition of
Holmes’s apartment when the children were removed, but most of them
showed K.M.’s body. See Exs. 16-28. In short, the photographs are
“disturbing.” Sent. Tr. p. 5. A homicide detective with the Lake County
Sheriff’s Department saw K.M. at the hospital and described the photographs at
the hearing. For example, one of the photographs showed K.M.’s diaper,
which had fungus growing in it. Other photographs showed fungus growing
under K.M.’s armpits and dirt underneath his fingernails. The more disturbing
photographs showed K.M.’s sunken and discolored stomach and his skin
“removed all the way down to the muscle” in his groin and buttocks areas,
including skin “missing from the edge of his phallic area.” Id. at 30, 31. In
addition, the detective said that he spoke with the pathologist, who said that
K.M. likely died 12-16 hours before he was taken to the hospital “due to the
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discoloration of his stomach noting that he had already begun to decay.” Id. at
32.
[8] Holmes’s aunt testified that Holmes grew up in “deplorable conditions” and
compared the conditions Holmes grew up in to those of her apartment. Id. at
39. Holmes’s aunt also testified that Holmes had completed schooling to be a
certified nursing assistant (CNA); however, she had not received her license and
was working two jobs—at “JJ Fish” and Rally’s. Id. at 42, 52; Appellant’s App.
Vol. II p. 90 (PSI). Finally, Holmes testified as follows:
This has been very hard. And I hate myself every day because of
this. I love my kids with everything in me, despite of what
happened. All six of them I love, because they are all I have in
this world. Because I knew that they loved me. That’s all I got.
Now, I probably will never see them again.
And I’m sorry. I thought I was trying my best and I know it was
bad, but I was trying to make it better. This is not something I
intentionally did. I didn’t intentionally try to hurt my baby,
because I loved him just as much as I loved my other kids. I just
don’t want to lose my relationship with . . . my other five kids. I
don’t want them to think that their momma just didn’t care about
them, because of what anybody might say. Because I love them
to death. They’re all I got in this world. And when nobody else
cared, I know they loved me.
Sent. Tr. pp. 67-68.
[9] The trial court found the following aggravating circumstances:
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1. The nature and the circumstances are such that the harm
suffered by the victim in Count I was greater than necessary to
prove the elements of the crime;
2. The State’s photographic exhibits 25, 26 and 27 show the skin
in the groin and buttocks area of the victim in Count I
deteriorated to such a degree that the underlying tissue and
muscle had been exposed, which the Court finds had to have
developed over a significant period of time. The Court finds this
demonstrates malicious and cruel behavior to ignore the child’s
condition and to fail to provide treatment;
3. The Court finds the State’s photographic exhibits illustrate
that the victim in Count I was emaciated to the point where he
almost appeared mummified;
4. The Court finds that the victim in Count I in all likelihood
suffered from lack of food and care on a daily basis such that for
the three (3) months that he lived such treatment amounted to
torture;
5. The defendant received training to be a certified nursing
assistant and failed to apply her training to her children;
6. The Court finds the condition of the victim in Count I to be
horrendous and appalling;
7. The defendant expressed little remorse.
Appellant’s App. Vol. II pp. 64-65. The court found two mitigators: (1) Holmes
had no criminal history and (2) she pled guilty. The trial court found that the
aggravators “substantially” outweighed the mitigators. Id. at 65. The trial
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court found that Counts II and VIII, both of which involved K.M., merged into
Count I. The court then sentenced Holmes to forty years for Count I, with the
final three years to be served on community corrections. The trial court
sentenced Holmes to two and a half years for each of the remaining five counts
(Counts III-VII). The court ordered these sentences to be served consecutive to
each other but concurrent to Count I, for an aggregate term of forty years.
[10] Holmes now appeals.
Discussion and Decision
[11] Holmes challenges her sentence. First, she contends that the trial court erred by
not recognizing three mitigators. Second, she contends that her sentence for
Count I is inappropriate.
I. Mitigators
[12] Holmes contends that the trial court erred by not recognizing the following
mitigators: (1) she was raised in deplorable conditions; (2) she was employed;
and (3) she was remorseful. Sentencing decisions rest within the sound
discretion of the trial court and are reviewed on appeal 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 (Ind. 2007). An abuse of discretion occurs if 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.
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[13] One way that a trial court may abuse its discretion is by not recognizing
mitigators that are clearly supported by the record and advanced for
consideration. Id. at 491. The defendant bears the burden of demonstrating
that “the trial court failed to find or identify a mitigating factor by establishing
that the mitigating evidence is both significant and clearly supported by the
record.” McElfresh v. State, 51 N.E.3d 103, 112 (Ind. 2016) (quotation omitted).
Remand for resentencing may be the appropriate remedy “if we cannot say with
confidence that the trial court would have imposed the same sentence had it
properly considered reasons that enjoy support in the record.” Anglemyer, 868
N.E.2d at 491.
[14] Holmes first argues that the trial court abused its discretion by not recognizing
as a mitigator that she was raised in deplorable conditions, conditions similar to
those of her own apartment.1 The court considered this fact but did not find it
to be mitigating:
[Defense counsel] points out—which I guess would be possibly a
mitigating factor—and he exhibited through testimony that Ms.
Holmes was raised in similar conditions. So the argument for
that is that, that’s what she’s used to and that should be a
mitigator. I guess I would say, being raised in those conditions
might explain this situation, but it doesn’t excuse or justify it. I
mean, she’s 28 years old. She’s an adult. She was 2[7] when this
1
To the extent Holmes also argues that the trial court should have recognized as a separate mitigator that she
had a difficult childhood, she has failed to prove that the mitigating evidence is both significant and clearly
supported by the record. See Appellant’s App. Vol. II p. 88 (PSI providing that Holmes stated her “family life
growing up was good” and that Holmes “denied being abused, molested, or neglected during her formative
years.”).
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took place. She had schooling for being a certified nursing
assistant, which teaches you how to take care of people. She,
apparently, did not transfer those skills to her own situation, so I
don’t find that as being a mitigating factor.
Sent. Tr. p. 69. We are satisfied with the trial court’s explanation for rejecting
as a mitigator that Holmes was raised in deplorable conditions. Accordingly,
the trial court did not abuse its discretion.
[15] Holmes next argues that the trial court abused its discretion by not recognizing
her employment as a mitigator because it demonstrated that she “was making
efforts to provide for her children.” Appellant’s Br. p. 9. Although Holmes’s
aunt testified at the sentencing hearing that she was working two restaurant
jobs, the PSI reveals that Holmes was working only one such job. That is,
Holmes began working at Rally’s in May 2016 and stopped working there in
July 2016 when she was arrested. Appellant’s App. Vol. II p. 90 (PSI); see also
Appellant’s Reply Br. p. 6 (Holmes citing to PSI as evidence of her work
history). In any event, many people are gainfully employed; therefore, a
defendant’s employment is not necessarily a mitigating factor. Newsome v. State,
797 N.E.2d 293, 301 (Ind. Ct. App. 2003), trans. denied. We find that the trial
court did not abuse its discretion by not recognizing as a mitigator that Holmes
had been employed at Rally’s for only a couple months at the time of K.M.’s
death. This is especially so given defense counsel’s concession at the sentencing
hearing that the fact that Holmes was employed was “no excuse” for what
happened. Sent. Tr. p. 62.
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[16] Finally, Holmes argues that the trial court abused its discretion by not
recognizing her remorse as a mitigator (and instead recognizing that she
expressed little remorse as an aggravator). A trial court’s determination of a
defendant’s remorse is similar to a determination of credibility. Stout v.
State, 834 N.E.2d 707, 711 (Ind. Ct. App. 2005), trans. denied. As such, without
evidence of some impermissible consideration by the trial court, we accept its
determination as to remorse. Id. Here, at the conclusion of the sentencing
hearing, the trial court made the following remarks:
And I note, not that it matters at this point, you never said you
were sorry. You said you loved your children and you didn’t
want to be away from them. I didn’t ever hear you say the words
“I am sorry.” I don’t know what that says. Frankly, your
children would be better off without you mothering them, I’m
sorry to say.
Sent. Tr. p. 75. While Holmes did say the words “I’m sorry,” id. at 67, we are
confident that the court would have imposed the same sentence even if it had
found Holmes’s remorse to be a mitigator. This is because the court’s
comments at the sentencing hearing and its sentencing order indicate that the
nature and circumstances of the crime were by far its primary consideration in
sentencing Holmes and that Holmes’s remorse was secondary.
II. Inappropriate Sentence
[17] Holmes next contends that her maximum sentence of forty years for Count I is
inappropriate. See Ind. Code § 35-50-2-4(b). She asks us to reduce it to the
advisory term of thirty years pursuant to Indiana Appellate Rule 7(B), which
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provides that 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.” Because we generally defer to the judgment of trial courts in
sentencing matters, Norris v. State, 27 N.E.3d 333, 335-36 (Ind. Ct. App. 2015),
defendants have the burden of persuading us that their sentences
are inappropriate, Thompson v. State, 5 N.E.3d 383, 391 (Ind. Ct. App. 2014).
“Whether a sentence is inappropriate ultimately turns on the culpability of the
defendant, the severity of the crime, the damage done to others, and a myriad
of other factors that come to light in a given case.” Id. (citing Cardwell v.
State, 895 N.E.2d 1219, 1224 (Ind. 2008)).
[18] Holmes concedes that the nature of the offense is “extremely serious.”
Appellant’s Br. p. 11. As the trial court described this case:
State’s Exhibits 25, 26 and 27 depicted the groin and genital area
and the buttocks of [K.M.] where the skin was peeled and burned
back or deteriorated . . . to the point where the detective says the
underlying tissue and muscle can be seen. There’s nothing so
horrendous and appalling to think that Ms. Holmes . . . could sit
there and let a child waste away to this point. The photographs
of the child almost look like he’s—not to be disrespectful—but it
almost look[s] like he’s mummified. I mean, his bones were
sticking out and his stomach sunken. It’s terrible. The cases I
have seen in here where people are charged with neglect is, you
know, a kid gets beaten, his head banged and they don’t take him
to the doctor, you know, and he passes away through a cerebral
hemorrhage. You know, it’s like a one-time event. But to me,
again, this was like a daily event over, basically, three months
that there was a neglect of dependent charge here.
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It’s even a bigger slap in the face when you find out that she was
training to be a CNA and how to care for people and didn’t do
that for her own children. She could have called 911 at any
point. There are urgent care clinics all over this county, the
emergency room. It should have been obvious that [K.M.]
needed emergency medical care for a significant period of time. .
..
*****
Ma’am, it’s just terrible, terrible circumstances. Every day there
were warning signs that were looking you in the face, and you
chose to ignore those . . . . It’s not that you didn’t know about it.
Anyone who looks at those pictures, it’s clearly obvious the
emergency condition this child was in. As [the prosecutor]
points out, you chose to ignore that. Fungus growing in the
baby’s diaper . . ., how long does that have to have sat there for
that to happen? There was also blood in that baby’s diaper. It’s
appalling. Appalling.
Sent. Tr. pp. 71-72, 74-75.
[19] As for Holmes’s character, she argues that she was raised in deplorable
conditions, had no criminal history before this case, was employed “in an
attempt to provide for her children,” and “appeared to express sincere remorse
at the time of her sentencing.” Appellant’s Br. p. 11. But even considering
these things in Holmes’s favor, they do not overcome the horrific nature of the
offense in Count I, as relayed by the trial court and exhibited by the
photographs in this case. Holmes has failed to persuade us that her forty-year
sentence for Count I is inappropriate.
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[20] Affirmed.
Mathias, J., and Crone, J., concur.
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