Javier Contreras-Garcia 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 16 2020, 9:01 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
Aaron J. Stoll Curtis T. Hill, Jr.
Fort Wayne, Indiana Attorney General of Indiana
Samuel J. Dayton
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Javier Contreras-Garcia, November 16, 2020
Appellant-Defendant, Court of Appeals Case No.
20A-CR-768
v. Appeal from the Allen Superior
Court
State of Indiana, The Honorable David M. Zent,
Appellee-Plaintiff. Judge
Trial Court Cause No.
02D05-1808-F1-13
Altice, Judge.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-768 | November 16, 2020 Page 1 of 11
Case Summary
[1] Following a guilty plea, Javier Contreras-Garcia appeals the twenty-four-year
aggregate sentence that was imposed following his convictions for criminal
confinement, a Level 3 felony, and aggravated battery, a Level 3 felony. Garcia
argues that the trial court abused its discretion by identifying improper
aggravating circumstances, failing to identify a mitigating factor that was
supported by the record, affording only minimal weight to the mitigating factors
that it found, and ordering consecutive sentences.
[2] We affirm.
Facts and Procedural History
[3] Contreras-Garcia and his former girlfriend, L.C., were living together in Fort
Wayne in late July 2018. They had a son together and had been in an eight-
year relationship. Although L.C. had asked Contreras-Garcia to move out six
months earlier, he refused.
[4] On July 29, 2018, at approximately 5:00 a.m., Contreras-Garcia awakened L.C.
by “head butting” her in the forehead. Appellant’s Appendix Vol. II at 26.
Contreras-Garcia accused L.C. of “cheating on [him]” and began slapping her
and punching her in the face. Id. L.C. sustained a black eye, lacerations on her
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lips, and a large contusion on the left corner of her mouth. The contusion
extended through L.C.’s cheek to the inside of her mouth.
[5] At some point, Contreras-Garcia pulled a large kitchen knife from his
waistband, “got on top” of L.C., and threatened to kill her. Id. When
Contreras-Garcia attempted to stab L.C. in the throat, L.C. shouted “no,”
pleaded for him to stop, and lifted her hands to block the knife. Id. at 27. L.C.
grabbed the knife with both hands, cut her fingers, and pushed the knife away
from her neck.
[6] Contreras-Garcia then threatened to kill L.C. if she did not unlock her phone.
L.C. was not able to comply because her hands were covered with blood.
Contreras-Garcia then grabbed the phone from L.C. and demanded the code to
unlock it, which L.C. provided. As L.C. “continued to beg for her life,”
Contreras-Garcia told her that she “should die.” Id. At one point during the
attack, Contreras-Garcia threatened to kill L.C.’s entire family if she told the
police about what he had done to her. Contreras-Garcia stated that he would
allow L.C. to live only if she would “swear on the bible and to God that she
would not tell on him.” Id. L.C. agreed and Contreras-Garcia followed her
into the bathroom to prevent her from escaping.
[7] After L.C. wrapped towels around her hands to stop the bleeding, Contreras-
Garcia ordered L.C. into the shower. L.C. tried to resist because she feared
that Contreras-Garcia would kill her in the bathroom. Id. L.C., however,
showered at Contreras-Garcia’s insistence and he then ordered L.C. back to
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bed. Contreras-Garcia stated that he was “going to make [her his] now,”
removed L.C.’s nightgown, and shoved her onto the bed. Id.
[8] Contreras-Garcia touched L.C.’s bare breasts and “female sex organ” with his
hands and mouth. Id. at 27. When Contreras-Garcia began to perform oral sex
on L.C., she told him to stop. Contreras-Garcia refused and “placed his penis
in L.C.’s vagina and had sex with her against her will.” Id. L.C. was unable to
fight Contreras-Garcia because she felt weak and her bleeding hands were still
wrapped in towels. She also believed that Contreras-Garcia would kill her if
she resisted.
[9] Following the attack, Contreras-Garcia spent the next two hours “cleaning up
the crime scene.” Id. at 28. He mopped up L.C.’s blood and washed her
clothes and the bedding. Contreras-Garcia cleaned his fingerprints from the
knife and eventually drove L.C. to the hospital emergency room. Contreras-
Garcia followed L.C. inside and “waited to make sure she told the false story he
had concocted to [the emergency room] staff.” Id. at 28. Contreras-Garcia had
convinced L.C. “to say that she had been attacked by two women and got cut
fighting them.” Id. After requiring L.C. to “swear again not to ‘disavow’
him,” Contreras-Garcia left the emergency room and did not return. Id. at 28.
At that point, L.C. telephoned her daughter and subsequently told the police
and emergency hospital room staff what had occurred.
[10] On August 15, 2018, the State charged Garcia with two counts of rape, each a
Level 1 felony, criminal confinement, a Level 3 felony, sexual battery, a Level 4
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felony, and two counts of domestic battery, one a Level 5 felony and the other a
Level 6 felony. The State subsequently amended the charging information to
include one count of aggravated battery, a Level 3 felony, and reduce the rape
charges to a Level 3 felony.
[11] On February 18, 2020, Contreras-Garcia pleaded guilty to Level 3 felony
criminal confinement and to Level 3 felony aggravated battery, with no
agreement as to the sentence. At the guilty plea hearing, the deputy prosecutor
read from the probable cause affidavit and discussed the circumstances and
nature of the crimes, and pointed out that while L.C. had undergone surgery on
her fingers, she still had “nerve damage to her hand” and cannot fully function.
Transcript Vol. III at 11. The trial court accepted Contreras-Garcia’s guilty plea,
dismissed the remaining charges, and set the matter for sentencing.
[12] At the sentencing hearing on March 16, 2020, the trial court identified
Contreras-Garcia’s lack of criminal history as a mitigating circumstance. It
afforded “minimal weight” to Contreras-Garcia’s decision to plead guilty and
his alleged remorse as mitigating factors because the jury was “literally waiting
to begin the trial,” and Contreras-Garcia was “about to be sentenced to two
major felonies.” Transcript Vol. III at 14. The trial court then observed that the
“facts and circumstances” of the crime were “very aggravating” and sentenced
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Contreras-Garcia to twelve years on each charge and ordered the sentences
served consecutively to each other. 1 Id. Garcia now appeals.
Discussion and Decision
[13] In addressing Contreras-Garcia’s claims that the trial court erred in sentencing
him, we initially observe that sentencing decisions are within the sound
discretion of the trial court and are reviewed on appeal only for an abuse of
discretion. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g
875 N.E.2d 218 (Ind. 2007); Hudson v. State, 135 N.E.3d 973, 979 (Ind. Ct. App.
2019). A trial court abuses its discretion when it fails to enter a sentencing
statement at all, its stated reasons for imposing the sentence are not supported
by the record, its sentencing statement omits reasons that are clearly supported
by the record and advanced for consideration, or its reasons for imposing the
sentence are improper as a matter of law. Anglemyer, 868 N.E.2d at 490-91;
Hudson, 135 N.E.3d at 979.
[14] We further note that the relative weight assignable to reasons properly found by
the trial court to enhance a defendant’s sentence is not subject to review for
abuse of discretion. Gross v. State, 22 N.E.3d 863, 869 (Ind. Ct. App. 2014),
trans. denied. The determination of mitigating circumstances is within the trial
1
The sentencing range for a Level 3 felony is three to sixteen years, with an advisory sentence of nine years. Ind.
Code § 35-50-2-5(b).
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court’s discretion, and the trial court is under no obligation to explain why a
proposed mitigator does not exist or why the court found it to be insignificant.
Sandleben v. State, 22 N.E.3d 782, 796 (Ind. Ct. App. 2014), trans. denied.
Additionally, a trial court is not obligated to accept the defendant’s argument as
to what constitutes a mitigating factor, and the court is not required to give the
same weight to proffered mitigating factors as does a defendant. Rogers v. State,
878 N.E.2d 269, 272 (Ind. Ct. App. 2007), trans. denied.
[15] Contreras-Garcia’s initial claim is that the trial court abused its discretion
because it improperly considered the facts and circumstances surrounding the
dismissed charges when it sentenced him. Contrary to this contention, our
Supreme Court has determined that when a plea agreement does not prohibit
the consideration of facts that relate to charges that are dismissed, trial courts
need not “turn a blind eye to the incident that brought the defendant before
them.” Bethea v. State, 983 N.E.2d 1134, 1145 (Ind. 2013). In other words, to
the extent that an aggravating circumstance was a material element of one of
the dismissed charges, the trial court may consider it. Hence, the nature and
circumstances of the crime as well as how the offense is committed may be a
valid aggravating circumstance. Id.[16] Additionally, pursuant to Indiana Code § 35-38-1-7.1(a), trial courts are
permitted to consider the harm, injury, loss, or damage suffered by the victim
that was significant and greater than the elements necessary to prove the
commission of the offense when imposing the sentence. The statute also allows
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a trial court to identify as an aggravating factor the defendant’s threat of harm
to the victim if he or she told anyone about the offense. Id.
[17] To prove criminal confinement as a Level 3 felony, the State was required to
show that Contreras-Garcia knowingly or intentionally confined L.C. without
L.C.’s consent while he was armed with a deadly weapon. Ind. Code § 35-42-3-
3(a). To prove the commission of aggravated battery as a Level 3 felony, the
State was required to demonstrate that Contreras-Garcia knowingly or
intentionally inflicted injury on L.C. that created a substantial risk of death,
caused serious permanent disfigurement, or caused protracted loss or
impairment of the function of a bodily member or organ. Ind. Code § 35-42-2-
1.5(1).
[18] The record establishes that Contreras-Garcia’s brutal attack on L.C. far
exceeded the elements that the State was required to prove for criminal
confinement and aggravated battery as Level 3 felonies. Contreras-Garcia
entered L.C.’s bedroom armed with a large kitchen knife, head butted her, and
repeatedly threatened to kill her. For over an hour, L.C. begged for her life to
be spared. Contreras-Garcia repeatedly tried to stab L.C.’s neck, but she
grabbed the knife with both hands to protect herself. Contreras-Garcia twisted
the knife when L.C. grabbed it that resulted in severe damage to her fingers.
L.C. required surgery and multiple stitches, and her fingers did not regain their
normal function.
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[19] Because L.C.’s hands were covered in blood, she was not able to unlock her
phone as Contreras-Garcia had ordered. Rather than allowing L.C. to attend to
her injuries, Contreras-Garcia continued to strike her, call her names, and tell
her that she “deserved to die.” Appellant’s Appendix Vol. II at 27. Contreras-
Garcia then forced L.C. to engage in oral sex and sexual intercourse against her
will. Contreras-Garcia spent hours “cleaning up the crime scene” and allowed
L.C. to go to the hospital only after she swore “not to turn him in.” Id. at 26-
28. Contreras-Garcia demanded that L.C. lie to the police and others about
how she was injured, and L.C. was unable to tell the truth until Contreras-
Garcia left her alone at the hospital.
[20] While the facts and circumstances surrounding the offenses readily support the
sentence that the trial court imposed, Contreras-Garcia claims that the trial
court erred in not affording greater mitigating weight to his decision to plead
guilty, his show of remorse, or his lack of criminal history. He fails to
recognize, however, that these claims are not subject to appellate review. See
Anglemeyer, 868 N.E.2d at 493-94. Even so, a defendant’s acceptance of
responsibility and his agreement to plead guilty “may not be significantly
mitigating when [they] do not demonstrate the defendant’s acceptance of
responsibility . . . or when the defendant receives a substantial benefit in return
for the plea.” Anglemeyer, 875 N.E.2d at 221 (citing Sensback v. State, 720 N.E.2d
1160, 1165 (Ind. 1999)).
[21] Here, Contreras-Garcia avoided conviction and lengthy sentences on several
serious criminal offenses, including two Level 3 felony rape charges in light of
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his decision to plead guilty to the two lesser offenses. The trial court could
reasonably conclude that Contreras-Garcia’s decision to plead guilty reflects an
appreciation for the substantial benefits of the plea rather than a genuine
acceptance of responsibility.
[22] As for Contreras-Garcia’s expressions of remorse, it has long been established
that the trial court is in the best position to evaluate the importance of such
evidence for sentencing. Gibson v. State, 856 N.E.2d 142, 148 (Ind. Ct. App.
2006). As in other credibility determinations, we do not reweigh a trial court’s
assessment of a defendant’s expressions of remorse. Pickens v. State, 767 N.E.2d
530, 535 (Ind. 2002).
[23] We also reject Contreras-Garcia’s claim that the trial court erred in not
identifying the impact that his incarceration will have on his dependent son as a
mitigating circumstance. Before such an impact may be considered a mitigating
circumstance, it must be established that the hardship is “undue.” Ind. Code §
35-38-1-7.1(b)(10); Dowdell v. State, 720 N.E.2d 1146, 1154 (Ind. 1999).
Contreras-Garcia’s son was almost nine years old at the time of the sentencing
hearing, and Contreras-Garcia had not been ordered to pay child support.
There is nothing in the record to suggest that Contreras-Garcia has ever
provided for his child. Thus, Contreras-Garcia’s claim fails.
[24] Finally, we reject Contreras-Garcia’s claim that the trial court abused its
discretion in ordering consecutive sentences. There is no prohibition against a
trial court’s reliance upon the same aggravating circumstances both to enhance
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a sentence and to order it served consecutively. Blanche v. State, 690 N.E.2d
709, 716 (Ind. 1998). There is also no requirement that a trial court must
identify the factors that support an enhanced sentence separately from those
that support consecutive sentences. Moore v. State, 907 N.E.2d 179, 181 (Ind.
Ct. App. 2009), trans. denied. That said, the facts and circumstances
demonstrating the overwhelming, brutal, and callous violence that Contreras-
Garcia advanced against L.C. support both the enhanced and consecutive
sentences that the trial court imposed. See Bethea, 983 N.E.2d at 1145 (citing
Anglemeyer, 868 N.E.2d at 492) (observing that the nature and circumstances of
the crime as well as the manner in which the crime is committed is a valid
aggravating factor). Thus, the trial court did not abuse its discretion in
sentencing Contreras-Garcia. 2
[25] Judgment affirmed.
Riley, J. and May, J., concur.
2
As an aside, we note that Contreras-Garcia asserts in his statement of the issues that his sentence was
“inappropriate in light of the nature of the offense and the character of the offender.” Appellant’s Brief at 4.
Contreras-Garcia, however, does not make any arguments related to why his sentence is inappropriate and only
focuses on the aggravators and mitigators identified by the trial court. Thus, he has waived his unsupported claim
that his sentence is inappropriate. See Sandleben v. State, 29 N.E.3d 126, 136 (Ind. Ct. App. 2015)(concluding that
the defendant waived an inappropriate sentence argument by failing to advance cogent argument on that
issue), trans. denied; see also Gentry v. State, 835 N.E.2d 569, 575-76 (Ind. Ct. App. 2005) (holding that the
defendant’s failure to offer more than a mere conclusory statement that his sentence should be reduced waives his
opportunity for appellate review).
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