Court of Appeals of Indiana | Memorandum Decision 18A-CR-198 | November 16, 2018 Page 1 of 10

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT

Stacy R. Uliana

Bargersville, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Michael Gene Worden

Andrew Kobe

Deputy Attorneys General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Mickell Biggs,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

November 16, 2018

Court of Appeals Case No.

18A-CR-198

Appeal from the Knox Superior 

Court

The Honorable Gara U. Lee, 

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 2 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 fortyyear 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.