Sergio Villegas-Solache v. State of Indiana (mem. dec.) ( 2018 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Jun 11 2018, 6:48 am
regarded as precedent or cited before any CLERK
court except for the purpose of establishing 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
Marietto V. Massillamany Curtis T. Hill, Jr.
Massillamany Jeter & Carson LLP Attorney General of Indiana
Fishers, Indiana
Lee M. Stoy, Jr.
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Sergio Villegas-Solache, June 11, 2018
Appellant-Defendant, Court of Appeals Case No.
18A-CR-236
v. Appeal from the Hamilton Circuit
Court
State of Indiana, The Honorable Paul A. Felix,
Appellee-Plaintiff Judge
Trial Court Cause No.
29C01-1404-FC-2797
Baker, Judge.
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[1] Sergio Villegas-Solache appeals the sentence imposed by the trial court after it
revoked his probation. Villegas-Solache argues that the trial court violated the
parties’ plea agreement and that it erred by failing to consider certain mitigating
circumstances. Finding that the plea agreement was not violated and no other
error, we affirm.
Facts
[2] On October 24, 2014, Villegas-Solache pleaded guilty to Class C felony
operating a motor vehicle after forfeiture of license for life. The plea agreement
contained the following sentencing provisions:
Total sentence: Five (5) years in the Indiana Department of
Correction.
Executed: Two (2) years executed with the placement of
the executed term left to the discretion of the
court. However, the portion ordered to be
served directly in the Indiana Department of
Correction (i.e., not on a community
corrections placement) may not exceed six (6)
months.
Suspended: Three (3) years shall be suspended.
***
Probation: Defendant shall be placed on probation for a
period of two (2) years . . . .
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Appellant’s App. Vol. II p. 51 (original emphases omitted). After accepting the
plea, the trial court sentenced Villegas-Solache to five years in the Department
of Correction (DOC), with two years to be served on community corrections
and three years suspended, with two of those years to be served on probation.
[3] On August 31 and September 2, 2015, the State filed a notice of non-
compliance with community corrections and a notice of violation of probation,
respectively, after Villegas-Solache failed a drug test. He admitted to the
violation. On February 2, 2017, Villegas-Solache admitted to a second
probation violation. The trial court ordered him to continue on probation,
added another year to his probation, and revoked one year of his suspended
sentence, ordering that it be served on community corrections.
[4] On September 1, 2017, the State filed a third notice of violation of probation
after Villegas-Solache was charged with committing Level 5 felony operating a
motor vehicle after forfeiture of license for life. He pleaded guilty to the new
criminal charge and admitted to violating probation in this cause.
[5] On January 18, 2018, the trial court revoked his probation in this cause,
ordering that he serve 365 days in the DOC and continue on probation for the
remainder of his sentence. In revoking probation, the trial court took into
account that Villegas-Solache had pleaded guilty and taken responsibility for his
actions quickly. The trial court explained its decision as follows:
here you are again in front of me in this cause number, now not
for a technical violation of a Community Corrections placement
or probation but because you committed the exact same crime
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that you were in front of me for in the first place. I hardly ever
think it’s appropriate, and I’m not convinced or persuaded in this
case that it is, that I should do something more lenient the second
or third time around than I did the first time.
Tr. p. 37. Villegas-Solache now appeals.
Discussion and Decision
[6] Villegas-Solache first argues that the trial court exceeded the terms of the plea
agreement when it ordered him to serve 365 days in the DOC after revoking his
probation. Indiana Code section 35-38-2-3(h) provides that if the trial court
finds that a person has violated probation, it has a number of sentencing
options, including to “[o]rder execution of all or part of the sentence that was
suspended at the time of initial sentencing.” We will reverse a trial court’s
sentencing decision for a probation violation only if it is against the logic and
effect of the facts and circumstances before it. Prewitt v. State, 878 N.E.2d 184,
188 (Ind. 2007).
[7] If a trial court accepts a plea agreement, it is bound by its terms. Ind.
Code § 35-35-3-3(e). If a trial court accepts a plea agreement and then later
revokes the defendant’s probation, the trial court is not free to ignore the plea
agreement: “[a] plea agreement does not disappear after the trial court imposes
its initial sentence.” Cox v. State, 850 N.E.2d 485, 489 (Ind. Ct. App. 2006).
[8] Villegas-Solache contends that his plea agreement prevented the trial court from
ordering him to serve more than six months of his sentence in the DOC. We
disagree. The plea agreement states that his total sentence would be five years
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in the DOC and that, at the time he was originally sentenced, the trial court could
not send him “directly” to the DOC for more than six months. Appellant’s
App. Vol. II p. 51. In other words, the plea agreement spells out how his
sentence would be served initially. For example, the plea agreement also states
that three years of his sentence would be suspended, but that certainly does not
mean that the suspended portion of the sentence could not be modified if he
violated probation. Here, Villegas-Solache violated probation three times, and
the third time was the last straw for the trial court. After revoking his
probation, the trial court did not go beyond the bounds of the plea agreement
by ordering that Villegas-Solache serve 365 days in the DOC.
[9] Next, Villegas-Solache argues that the trial court erred by failing to take certain
mitigators into account when imposing his sentence following the probation
revocation. A trial court is not required to consider mitigating factors when
imposing sanctions for probation revocations. I.C. § 35-38-2-3. Villegas-
Solache directs our attention to authority standing for the proposition that a
trial court must consider mitigating evidence suggesting that a probation
violation does not warrant revocation, see Woods v. State, 892 N.E.2d 637, 640
(Ind. 2008), but that caselaw is inapposite to the case before us. In this case,
Villegas-Solache does not appeal the trial court’s decision to revoke probation;
instead, he appeals the sentence imposed following the revocation. There is no
authority requiring a trial court to consider mitigating circumstances in that part
of the process.
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[10] Moreover, the only mitigating circumstance proposed by Villegas-Solache on
appeal is the fact that he took responsibility for his actions by pleading guilty to
the new criminal charge. The trial court explicitly took note of this fact when
deciding on the sentence. Therefore, although the trial court was not required
to do so, it did, in fact, consider this mitigating evidence. 1
[11] The judgment of the trial court is affirmed.
Kirsch, J., and Bradford, J., concur.
1
Villegas-Solache also suggests briefly that the sentence is inappropriate in light of the nature of the offense
and his character under Indiana Appellate Rule 7(B). It is well established, however, that “[t]he review and
revise remedy of App. R. 7(B) is not available” in a post-sentence probation violation proceeding. Jones v.
State, 885 N.E.2d 1286, 1290 (Ind. 2008). Therefore, we will not consider this argument.
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