Tito Aguilar Sanabria v. State of Indiana (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Mar 18 2019, 10:21 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
James D. Crum Curtis T. Hill, Jr.
Coots Henke & Wheeler, P.C. Attorney General of Indiana
Carmel, Indiana
Lauren A. Jacobsen
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Tito Aguilar Sanabria, March 18, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-2105
v. Appeal from the Hamilton
Superior Court
State of Indiana, The Honorable Steven R. Nation,
Appellee-Plaintiff. Judge
Trial Court Cause No.
29D01-1704-F2-2786
Bradford, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2105 | March 18, 2019 Page 1 of 6
Case Summary
[1] In August of 2018, Tito Aguilar Sanabria pled guilty to Level 4 felony dealing
in methamphetamine. After being arrested while transporting 141 grams of
methamphetamine while his wife and child were in the car, the trial court
sentenced him to eight years of incarceration. Sanabria challenges his sentence
on appeal. We restate his contentions as whether (1) the trial court abused its
discretion in finding his criminal history to be an aggravating factor, and (2) his
sentence is inappropriate. We affirm.
Facts and Procedural History
[2] On April 19, 2018, Fishers Police Officer Greg Weesner stopped Sanabria’s
vehicle for following another vehicle too closely and failing to properly signal
three lane changes. Sanabria was driving with his wife in the passenger seat and
his ten-year-old son in the backseat. Officer Weesner approached the vehicle
and requested driver’s licenses from both adults. Sanabria and his wife
produced international driver’s permits1. Officer Weesner observed that
Sanabria and his wife both appeared nervous, and that the glove compartment
1
An international driver’s permit (IDP), often referred to incorrectly as an international driver’s license, is a
document that translates a person’s home driver’s license into a different language so that they may drive
legally in another country. International Driver Permits, DMV, https://www.dmv.org/international-driver-
permits.php (last visited Feb. 28, 2019). In Indiana, travelers cannot use a foreign language driver’s license
for identification purposes without an IDP. BMV, New Indiana Residents, IN.GOV,
https://www.dmv.org/international-driver-permits.php (last visited Feb. 28, 2019).
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2105 | March 18, 2019 Page 2 of 6
contained a CD entitled Narcos Cultura, which, based on his training, Officer
Weesner knew to glorify “the narcotic lifestyle[,]” and that many individuals
who sell or transport narcotics listen to it. Appellant’s Vol. II p. 16. Sanabria
complied with Officer Weesner’s request to exit the vehicle and to sit in the
backseat of Officer Weesner’s police cruiser. Sanabria and his wife gave Officer
Weesner conflicting stories about where they were going. Sanabria consented
to a K9 sniff of the vehicle, which rendered a positive alert. Officers searched
the vehicle and found a 141-gram rock of methamphetamine in a storage area
behind the back seat. After Sanabria’s arrest, it was discovered that he is an
undocumented immigrant, and United States Immigration and Customs
Enforcement placed an active detainer and immigration hold on Sanabria.
[3] Pursuant to the terms of a plea agreement, Sanabria pled guilty to Level 4
felony dealing in methamphetamine. In exchange, the State agreed to dismiss
the Level 3 felony possession of methamphetamine and Class C misdemeanor
operating a vehicle without a license charges. The parties also agreed that
Sanabria’s sentence would be capped at twelve years. During sentencing, the
trial court considered Sanabria’s criminal history, the remoteness of his prior
convictions and Sanabria’s choice to involve his family in dangerous criminal
activity. The trial court sentenced Sanabria to eight years of incarceration.
Discussion and Decision
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2105 | March 18, 2019 Page 3 of 6
I. Abuse of Discretion
[4] Sanabria contends that the trial court erred in failing to consider the remoteness
of his previous convictions to be a mitigating factor. We review the trial court’s
finding of an aggravating or mitigating circumstance for an abuse of discretion.
Spiller v. State, 740 N.E.2d 1270, 1274 (Ind. Ct. App. 2001), trans. denied. “An
abuse of discretion exists 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.” Lewis v. State, 31 N.E.3d 539, 541–
42 (Ind. Ct. App. 2015). We do not review the trial court’s decision concerning
the relative weight or value of aggravating or mitigating circumstances.
Anglemyer v. State, 868 N.E.2d 482, 490–91 (Ind. 2007), modified on other grounds
on reh’g, 875 N.E.2d 218 (Ind 2007).
[5] The record indicates that the trial court acknowledged the remoteness of
Sanabria’s previous criminal convictions yet still found his criminal history to
be an aggravating factor. It was within the trial court’s discretion to do so. See
Buchanan v. State, 767 N.E.2d 967, 972 (Ind. 2002) (“The remoteness of prior
criminal history does not preclude the trial court from considering it as an
aggravating circumstance.”). To the extent that Sanabria argues that the trial
court should have found the remote nature of his criminal history to be
mitigating rather than aggravating, Sanabria’s argument is merely an invitation
to reweigh the aggravating and mitigating circumstances, which we will not do.
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See Anglemyer, 868 N.E.2d at 490–91. Sanabria has failed to establish that the
trial court abused its discretion in sentencing him.
II. Appropriateness
[6] Sanabria also contends that his eight-year sentence is inappropriate. We may
revise a sentence 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.” Ind. App. Rule 7(B). “[S]entencing is
principally a discretionary function in which the trial court’s judgment should
receive considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind.
Ct. App. 2008) (internal citations omitted). The defendant bears the burden of
proving that his sentence is inappropriate. Gil v. State, 988 N.E.2d 1231, 1237
(Ind. Ct. App. 2013). Sanabria pled guilty to Level 4 felony dealing in
methamphetamine, and received a sentence of eight years, which is above the
advisory of six years but below the maximum of twelve years. See Ind. Code §
35-48-4-1.1.
[7] The nature of Sanabria’s crime does not support a reduction of his sentence.
Sanabria transported 141 grams of methamphetamine in a car while his wife
and son were passengers. Further, Sanabria planned to sell the
methamphetamine while his wife and son were present, potentially
compromising their safety. The nature of Sanabria’s actions demonstrated a
clear disregard for the well-being of his family and his community.
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[8] Sanabria’s character also does not support a reduction of his sentence.
Sanabria’s criminal history includes one felony conviction for illegal possession
of a narcotic substance and three misdemeanor convictions. These convictions
are a poor reflection on Sanabria’s character. In addition, Sanabria’s illegal
entry into this country and his use of various aliases to hide his identity indicate
a disregard for the laws of this state and country. Sanabria has failed to establish
that his sentence is inappropriate.
[9] The judgment of the trial court is affirmed.
Bailey, J., and Brown, J., concur.
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