Omar Dominguez v. State of Indiana (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Nov 05 2020, 8:46 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
Elizabeth A. Flynn Curtis T. Hill, Jr.
Braje, Nelson & Janes, LLP Attorney General of Indiana
Michigan City, Indiana Angela N. Sanchez
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Omar Dominguez, November 5, 2020
Appellant-Defendant, Court of Appeals Case No.
19A-CR-387
v. Appeal from the
La Porte Circuit Court
State of Indiana, The Honorable
Appellee-Plaintiff. Thomas J. Alevizos, Judge
Trial Court Cause No.
46C01-1603-F4-194
Kirsch, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-387 | November 5, 2020 Page 1 of 7
[1] Omar Dominguez (“Dominguez”) was convicted after a jury trial of one count
of dealing in cocaine or narcotic drug 1 as a Level 4 felony and two counts of
dealing in cocaine or narcotic drug,2 each as a Level 5 felony. He was
sentenced to a nine-years executed. Dominguez appeals and raises two issues
challenging his sentence. Because the sentencing statement is not clear on how
the nine-year sentence is applicable to the three convictions, we remand for
clarification of the sentencing statement.
Facts and Procedural History
[2] On September 9, October 6, and October 28, 2015, law enforcement officers in
La Porte County, who were part of a multi-department anti-drug task force,
utilized confidential informant 692 (“CI 692”) to purchase cocaine from
Dominguez through three separate transactions. Tr. Vol. II at 118-21, 123-42.
Prior to each transaction, law enforcement would meet CI 692 at a
predetermined location, conduct a pre-buy briefing, search CI 692’s vehicle and
person for drugs and money, outfit CI 692 with a disguised video and audio
recording device, and provide CI 692 with pre-recorded U.S. currency for the
drug purchase. Id. at 122-23. For each transaction, CI 692 was followed by law
enforcement from the meeting location to Dominguez’s residence, and CI 692
was under constant surveillance during the entire drive. Id. at 125. Once the
1
See Ind. Code § 35-48-4-1(a), (c)(1).
2
See Ind. Code § 35-48-4-1(a).
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transaction had occurred, and CI 692 had purchased cocaine from Dominguez,
CI 692 would get back into his vehicle and drive back to the same pre-
determined meeting location, at which time he would be searched, the
purchased cocaine would be seized by law enforcement officers, and the
recording device was retrieved so that the footage could be downloaded. Id. at
129, 133-34, 137-38.
[3] At the September 9, 2015 drug buy, CI 692 purchased 3.6 grams of cocaine
from Dominguez. State’s Exs. 2A, 2B; Tr. Vol. II at 139-40. At the October 6,
2015 drug buy, CI 692 purchased 1.0 grams of cocaine from Dominguez.
State’s Exs. 3A, 3B; Tr. Vol. II at 139-40. During the October 28, 2015 drug buy,
CI 692 purchased 1.2 grams of cocaine from Dominguez. State’s Exs. 4A, 4B;
Tr. Vol. II at 139-40. Dominguez was identified as the individual selling
cocaine to CI 692 on each occasion. Tr. Vol. II at 124-42; State’s Exs. 5-8.
[4] On March 1, 2016, the State charged Dominguez with one count of Level 4
felony dealing in cocaine or narcotic drug and two counts of Level 5 felony
dealing in cocaine or narcotic drug. Appellant’s App. Vol. II at 15-17. On March
5 and 6, 2018, a jury trial was held. Id. at 43-47. Dominguez failed to appear at
trial and was tried in absentia. Id. At the conclusion of the jury trial,
Dominguez was found guilty as charged. Tr. Vol. III at 29. A warrant was
issued for Dominguez’s arrest, and he was apprehended on July 24, 2018.
Appellant’s App. Vol. II at 48-51.
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[5] On October 17, 2018, the sentencing hearing was held. The trial court found the
following aggravating circumstances: (1) Dominguez’s prior criminal history;
(2) his recent violation of probation; (3) his commission of subsequent crimes;
and (4) the fact that he was a fugitive and did not attend his trial. Tr. Vol. III at
62. The trial court found no mitigating circumstances and specifically rejected
Dominguez’s proffered mitigation argument that incarceration would be a
hardship on his dependents, reasoning that nothing supported that the burden
was undue and rose to the status of a mitigating circumstance. Id. at 61-62. In
its oral sentencing statement, the trial court stated: “The aggravating factors
outweigh the mitigating factors. The Court sentences the defendant to a
determinant [sic] sentence of nine years in the Indiana Department of
Correction.” Id. at 62. In its written judgment of conviction and sentencing
order, the trial court stated that
Dominguez shall be committed to the custody of the Indiana
Department of Correction for a period of three (3) years on
Count I - Dealing in Cocaine or a Narcotic Drug, Level 4
Felony; [Dominguez] is sentenced to three (3) years on Count II -
Dealing in Cocaine or a Narcotic Drug, Level 5 Felony, and to
three (3) years on Count III - Dealing in Cocaine or a Narcotic
Drug, Level 5 Felony. Said sentence shall be served
consecutively.
Appellant’s App. Vol. II at 75. Dominguez now appeals.
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Discussion and Decision
[6] Dominguez raises two issues regarding his sentence, that his sentence is
inappropriate in light of the nature of the offenses and his character and that the
trial court abused its discretion by not considering certain mitigating
circumstances in sentencing him. As to his inappropriateness argument,
Dominguez poses two different challenges, one of which is that his nine-year
sentence is inappropriate because the trial court ordered his sentences to be
served consecutively, which violated established case law set out in Beno v.
State, 581 N.E.2d 922 (Ind. 1991) and its progeny.
[7] In Beno, our Supreme Court found that, although the trial court properly
sentenced Beno to the maximum term on each count, the trial court
erroneously ordered the sentences to be served consecutively because the Court
noted that, although a trial court has discretion to impose both maximum and
consecutive sentences, where a defendant is enticed by the police to commit
nearly identical crimes as a result of a police sting operation, consecutive
sentences are inappropriate. Id. at 924. Since then, Indiana courts have
repeatedly held that “[c]onsecutive sentences are not appropriate when the State
sponsors a series of virtually identical offenses.” Gregory v. State, 644 N.E.2d
543, 544 (Ind. 1994); see also, Eckelbarger v. State, 51 N.E.3d 169, 170 (Ind.
2016); Davis v. State, 142 N.E.3d 495, 507 (Ind. Ct. App. 2020); Rios v. State, 930
N.E.2d 664, 669 (Ind. Ct. App. 2010); Williams v. State, 891 N.E.2d 621, 635
(Ind. Ct. App. 2008); Hendrickson v. State, 690 N.E.2d 765, 767 (Ind. Ct. App.
1998). Dominguez contends that his sentence is inappropriate because the trial
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court ordered that his sentences be served consecutively for his three
convictions resulting from a State-sponsored series of virtually identical
offenses.
[8] There is a conflict between the oral and written sentencing statements, which
makes the trial court’s intent unclear. In its oral sentencing statement, the trial
court stated as follows: “[T]he aggravating factors outweigh the mitigating
factors. The Court sentences the defendant to a determinant [sic] sentence of
nine years in the Indiana Department of Correction.” Tr. Vol. II at 62. The oral
statement, therefore, did not specify to which counts the nine-year aggregate
sentence would apply. Id. However, in the trial court’s written sentencing
statement, it ordered Dominguez to serve three years on each of his conviction
with the sentences to run consecutively for an aggregate sentence of nine years.
Appellant’s App. Vol. II at 74-75.
[9] When oral and written sentencing statements conflict, we examine them
together to discern the intent of the sentencing court. Vaughn v. State, 13
N.E.3d 873, 890 (Ind. Ct. App. 2014), trans. denied. Rather than presuming the
superior accuracy of the oral statement, we examine it alongside the written
sentencing statement to assess the conclusions of the trial court. Murrell v. State,
960 N.E.2d 854, 859 (Ind. Ct. App. 2012). Here, the oral and written
sentencing statements are in conflict. “Where we find an irregularity in a trial
court’s sentencing decision, we have the option to remand to the trial court for
clarification or new sentencing determination, to affirm the sentence if the error
is harmless, or to reweigh the proper aggravating and mitigating circumstances
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independently at the appellate level.” Clippinger v. State, 54 N.E.3d 986, 992
(Ind. 2016). Here, we choose to remand to allow the trial court to clarify its
sentencing statement as to how it intended the nine-year sentence to be
apportioned between Dominguez’s three convictions.
[10] Remanded with instructions.
Pyle, J., and Tavitas, J., concur.
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