Julio Cesar Pina v. State of Indiana (mem. dec.) ( 2018 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jul 12 2018, 10:27 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Carlos I. Carrillo Curtis T. Hill, Jr.
Greenwood, Indiana Attorney General of Indiana
Lee M. Stoy, Jr.
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Julio Cesar Pina, July 12, 2018
Appellant-Defendant, Court of Appeals Case No.
18A-CR-291
v. Appeal from the Tippecanoe
Superior Court
State of Indiana, The Honorable Randy J.
Appellee-Plaintiff. Williams, Judge
Trial Court Cause No.
79D01-1710-F3-27
Brown, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-291 | July 12, 2018 Page 1 of 11
[1] Julio Cesar Pina appeals his sentence for rape as a level 3 felony and certain
conditions of his probation. Pina raises two issues which we revise and restate
as:
I. Whether his sentence is inappropriate in light of the nature
of the offense and his character; and
II. Whether certain conditions of his probation are reasonably
related to his rehabilitation and protecting the public.
We affirm in part, reverse in part, and remand.
Facts and Procedural History
[2] During the early morning hours of October 22, 2017, Pina left his apartment,
walked for about forty-five minutes to Walmart to purchase cigarettes, walked
around Walmart for about an hour, and then left to return home. While on his
way home, he observed D.S., whom he did not know, delivering papers at
Dollar General in Lafayette. Pina forcibly grabbed D.S. and pushed her to the
ground. D.S. began screaming, and Pina threatened that, if she did not stop
screaming, he would hurt her. He removed D.S.’s pants and had sexual
intercourse with her, and D.S. repeatedly asked him not to hurt her. He
ejaculated on the ground and left the area. D.S.’s daughter and her daughter’s
friend were asleep in D.S.’s vehicle during the assault. Pina later gave a
statement to the police in which he admitted to placing his finger in D.S.’s
vagina and having sexual intercourse with her, that the intercourse lasted two
or three minutes, and that he told her to stop screaming or he would hurt her.
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[3] On October 31, 2017, the State charged Pina with two counts of rape as level 3
felonies. Pina and the State entered into a plea agreement pursuant to which
Pina would plead guilty to one count of rape as a level 3 felony and the other
count would be dismissed. On December 12, 2017, the court held a guilty plea
hearing at which Pina pled guilty pursuant to the plea agreement. On January
9, 2018, the trial court held a sentencing hearing. D.S. testified regarding how
the assault has changed her, that she is scared all the time, that Pina took her
sense of well-being and security from her, that her daughter and her daughter’s
friend, who was fourteen years old, were asleep in the car and were devastated
when they learned what had occurred, and that the children have been deeply
affected. Pina stated that he was sexually abused when he was four years old
by his babysitter and when he was eleven by another child. He also stated that
he took full responsibility for his crime, that he made “a very bad mistake,” and
that he harmed an innocent woman. Transcript Volume 2 at 37. The court
found Pina’s guilty plea, that he had taken responsibility, and that he had a
support system to be mitigating circumstances. It found his juvenile and adult
criminal history, substance abuse history, failed attempts at rehabilitation, the
recommendation of the victim, and that the harm, injury, loss, or damage
suffered was significant and greater than the elements necessary to prove the
commission of the offense to be aggravating circumstances. The court found
that the aggravating circumstances outweighed the mitigating circumstances
and sentenced Pina to fifteen years with two years suspended to supervised
probation. It also entered special probation conditions for sex offenders.
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Discussion
I.
[4] The first issue is whether Pina’s sentence is inappropriate in light of the nature
of the offense and his character. Ind. Appellate Rule 7(B) provides that we
“may revise a sentence authorized by statute if, after due consideration of the
trial court’s decision, [we find] that the sentence is inappropriate in light of the
nature of the offense and the character of the offender.” Under this rule, the
burden is on the defendant to persuade the appellate court that his or her
sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).
[5] Pina argues, with respect to the nature of the offense, that he was intoxicated at
the time of the offense, reported a long struggle with alcohol, and would not
have committed the crime if he were sober. With respect to his character, he
asserts that he expressed remorse, took responsibility for his crime, pled guilty,
would not have committed the offense if he had not been intoxicated, had been
the victim of sexual abuse when he was younger, was self-sufficient, had an
extensive work history, and had significant family support. He states that his
criminal history is explained by his long struggle with substance abuse.
[6] The State argues that Pina raped unsuspecting D.S. at random, that he saw an
opportunity to commit a crime and took it, that he knew there were children
nearby, and that he dragged D.S. to the side of the building, knocked her to the
ground, pulled her pants off, penetrated her vagina with his penis, and
threatened her. It argues the manner of Pina’s sexual assault and threats
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demonstrate the particularly egregious nature of his actions. The State also
points out that Pina committed several offenses that would have been felonies if
he had committed them as an adult and, while he attempts to pin his actions on
his drunkenness the night he raped D.S. and the fact he has a drug problem, he
had numerous opportunities to address those problems prior to this offense and
that his illegal drug and alcohol use demonstrates that he has not been living a
law-abiding life.
[7] Pina was convicted of rape as a level 3 felony. Ind. Code § 35-50-2-5 provides
that a person who commits a level 3 felony shall be imprisoned for a fixed term
of between three and sixteen years, with the advisory sentence being nine years.
The court sentenced him to fifteen years with thirteen years executed and two
years suspended to probation.
[8] Our review of the nature of the offense reveals that, in the early morning hours,
Pina forcibly grabbed D.S., pushed her to the ground, threatened to hurt her if
she continued to scream, removed her pants, and had sexual intercourse with
her. He also admitted to placing his finger in her vagina. D.S. testified as to
the impact the assault has had on her, her fourteen-year-old daughter, and her
daughter’s friend. To the extent Pina argues his intoxication at the time of his
crime warrants a reduction of his sentence, we observe that the presentence
investigation report (“PSI”) states that Pina reported, “I was highly intoxicated
on 18+ beers and 2 shots of vodka,” Appellant’s Appendix Volume 3 at 12, and
that the trial court stated at sentencing that it did not believe Pina’s report and
noted that Pina had walked for forty to forty-five minutes to Walmart, walked
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around Walmart for one hour, and then walked for at least one-half hour to
return, and that, in any event, his intoxication was not a defense.
[9] Our review of the character of the offender reveals that Pina, who was born in
October of 1996, pled guilty to rape as a level 3 felony and expressed remorse
and took responsibility for his actions. The PSI indicates that his juvenile
criminal history includes adjudications for leaving home without permission in
September 2008; theft as a class D felony if committed by an adult in June
2010; auto theft as a class D felony if committed by an adult and leaving home
without permission in October 2011; residential entry as a class D felony if
committed by an adult and a delinquency alcohol violation in March 2013; and
escape and theft as class D felonies if committed by an adult in July 2013. The
PSI further indicates that Pina’s adult criminal history includes charges of
operating a vehicle without ever receiving a license as a class C misdemeanor
and possession of marijuana as a class B misdemeanor filed on February 28,
2017, for which Pina failed to appear in March 2017. A warrant was issued but
then recalled, and charges of three counts of theft as class A misdemeanors and
possession of marijuana as a class B misdemeanor were filed on February 24,
2017. Again Pina failed to appear, a warrant was issued, and the case is
pending. The PSI states that Pina received numerous services including
probation, home detention, secure detention, residential placement, and
counseling, that he had seven petitions for modification filed against him of
which at least six were granted, and that he was out on bond in the case filed on
February 24, 2017, when he committed the instant offense.
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[10] In addition, the PSI indicates that Pina’s employment history includes working
as a dish washer, detailer, laborer, and roofer, and that he reported earning
$750 per month. With respect to substance abuse, the PSI states that Pina
reported that he consumed alcohol until intoxicated once per month between
ages fifteen and sixteen and once per week between ages twenty and twenty-
one, that he used marijuana every day between ages fourteen and eighteen and
weekly between ages nineteen and twenty-one, that he used cocaine weekly for
four months between the ages of twenty and twenty-one, and that he used
Xanax twice per week between the ages of eighteen and twenty. He was
ordered to complete a substance abuse evaluation at Wabash Valley in 2011,
reported completing treatment while committed to the Boys’ School in 2014,
and was ordered to complete a drug/alcohol evaluation and all recommended
counseling with court services in 2017. The PSI also indicates that Pina’s
overall risk assessment score using the Indiana risk assessment system places
him in the high risk to reoffend category.
[11] After due consideration, we conclude that Pina has not sustained his burden of
establishing that his sentence of fifteen years with two years suspended to
probation is inappropriate in light of the nature of the offense and his
character.1
1
With respect to the court’s finding that the harm, loss, or damage suffered was significant or greater than
the elements necessary to prove the commission of the offense Pina also argues, that his actions or statements
should not have been used to enhance his sentence. To the extent he argues the court abused its discretion in
sentencing him, we need not address this issue because we find that his sentence is not inappropriate under
Ind. Appellate Rule 7(B). See Chappell v. State, 966 N.E.2d 124, 134 n.10 (Ind. Ct. App. 2012) (noting that
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II.
[12] The next issue is whether certain conditions of Pina’s probation are reasonably
related to his rehabilitation and protecting the public. The special probation
conditions provide in part:
8. You are prohibited from accessing or using certain web sites,
chat rooms, or instant messaging programs frequented by
children. You are prohibited from deleting, erasing, or
tampering with information on your personal computer with
intent to conceal an activity prohibited by this condition. . . .
9. You shall not use a social networking web site or an instant
messaging or chat room program to communicate, directly or
through an intermediary, with a child less than sixteen (16) years
of age. This includes your own child, stepchild, sibling or
another relative. If you want to communicate with your own
child, stepchild, sibling or another relative by using a social
networking web site or an instant messaging or chat room
program, you may only do so with a written order of this court
that specifically names the relative(s) with whom you can
communicate. . . .
*****
27. You shall abide by all the terms of the electronic device user
agreement for sex offenders (see attached).
any error in failing to consider the defendant’s guilty plea as a mitigating factor is harmless if the sentence is
not inappropriate) (citing Windhorst v. State, 868 N.E.2d 504, 507 (Ind. 2007) (holding that, in the absence of
a proper sentencing order, Indiana appellate courts may either remand for resentencing or exercise their
authority to review the sentence pursuant to Ind. Appellate Rule 7(B)), reh’g denied; Mendoza v. State, 869
N.E.2d 546, 556 (Ind. Ct. App. 2007) (noting that, “even if the trial court is found to have abused its
discretion in the process it used to sentence the defendant, the error is harmless if the sentence imposed was
not inappropriate”), trans. denied), trans. denied.
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Appellant’s Appendix Volume 2 at 72, 74. The attached Electronic Device
User Agreement, in the second initialed paragraph, provides:
Client shall obtain prior approval from the Supervising
Officer/Designee to engage in the following activities:
___ Web browsing (including but not limited to surfing).
___ Email (all email accounts must have prior approval).
___ Interpersonal communication (including but not limited to
chatting, texting and instant messaging).
___ Producing web content (including but not limited to a web
site, Facebook, Myspace, and other social networking site
pages, YouTube, Podcasting, blogging, vlogging,
Personals (Craigslist, Backpage, etc..).
___ Participating in social networking activities
___ Internet related telephone communication (including but
not limited to using Voice Over Internet Protocol).
___ File sharing by any method (including, but not limited to
Peer to Peer, Internet Relay Chat, attachments to emails,
iTunes).
Id. at 75. The user agreement also included other paragraphs which prohibited
Pina from using the computer for any purpose which might further sexual
activity including possession or viewing of material that is sexual in nature.
[13] In Weida v. State, the Indiana Supreme Court observed that a court abuses its
discretion when the probation conditions imposed are not reasonably related to
rehabilitating the defendant and protecting the public. 94 N.E.3d 682, 687 (Ind.
2018). The Court noted that certain probation conditions in that case, which
included the same conditions as those in Paragraphs 8 and 9 in this case,
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worked together to limit Weida’s contact or communication with children
through any means including the internet and found that, because Weida
committed a sex crime against a child, it was reasonable to restrict his access to
children through any medium. See id. at 689-690. The Court also noted that
one of the probation conditions prohibited Weida from accessing the internet
without the prior approval of his probation officer and concluded that the
condition’s broad prohibition on internet access but for the court’s or the
probation officer’s permission was not reasonably related to Weida’s
rehabilitation or maintaining public safety. Id. at 691-692.
[14] Pina argues in part that the restrictions in Paragraphs 8, 9, and 27, and the
electronic device user agreement, which he asserts seems to restrict any and all
internet activity without prior approval of the probation officer, are not
reasonably related to his rehabilitation and maintaining public safety, that this
case does not involve a crime against a child, and that his crime did not relate to
any use of the internet.
[15] The State agrees that Pina’s crimes were not perpetrated against a child and that
the conditions in Paragraphs 8 and 9 are not reasonably related to Pina’s
rehabilitation and protecting the public, and it agrees that Pina did not use the
internet to commit his crime and the provision of the electronic device user
agreement set forth above requiring prior approval before accessing the internet
is invalid. It contends that, after striking the problematic provision related to
prior approval from the user agreement, the remainder of the user agreement is
reasonably related to his rehabilitation. The State requests that we remand with
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instructions to remove the conditions in Paragraphs 8 and 9 and to remove that
part of the user agreement which requires Pina to obtain prior approval before
using the internet.
[16] As the State notes, Pina did not commit a sex crime against a child and the
conditions in Paragraphs 8 and 9 relate to children. We also observe that the
electronic device user agreement contains a broad prohibition on internet access
absent prior approval. Based on the language of the special conditions and the
user agreement, and in light of Weida and the State’s agreement that remand is
necessary, we remand for the entry of amended special probation conditions
which do not include the conditions set forth in Paragraphs 8 and 9 as described
above and an amended electronic device user agreement which does not
include a condition that requires Pina to obtain approval prior to using the
internet.
Conclusion
[17] For the foregoing reasons, we affirm Pina’s sentence for rape of fifteen years
with two years suspended as a level 3 felony and remand for entry of amended
special probation conditions and an electronic device user agreement consistent
with this opinion.
[18] Affirmed in part, reversed in part, and remanded.
Bailey, J., and Crone, J., concur.
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