Michael Reyes v. State of Indiana (mem. dec.) ( 2017 )


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  • MEMORANDUM DECISION
    Pursuant to Ind. Appellate Rule 65(D),
    this Memorandum Decision shall not be                                FILED
    regarded as precedent or cited before any                       Aug 10 2017, 8:55 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
    Jeffery A. Earl                                          Curtis T. Hill, Jr.
    Danville, Indiana                                        Attorney General of Indiana
    Jodi Kathryn Stein
    Deputy Attorney General
    Indianapolis, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    Michael Reyes,                                           August 10, 2017
    Appellant-Defendant,                                     Court of Appeals Case No.
    32A01-1701-CR-101
    v.                                               Appeal from the Hendricks
    Superior Court
    State of Indiana,                                        The Honorable Karen M. Love,
    Appellee-Plaintiff.                                      Judge
    Trial Court Cause No.
    32D03-1603-F4-11
    Barnes, Judge.
    Case Summary
    Court of Appeals of Indiana | Memorandum Decision 32A01-1701-CR-101 | August 10, 2017    Page 1 of 8
    [1]   Michael Reyes appeals his ten-year sentence for Level 4 felony child
    molestation and Class A misdemeanor invasion of privacy. We affirm.
    Issue
    [2]   The sole issue on appeal is whether the sentence imposed was inappropriate in
    light of the nature of the offense and the character of the offender.
    Facts
    [3]   On March 8, 2016, M.P., mother of eleven-year-old M.M. and wife of Reyes,
    invited Reyes over to her house in Hendricks County to spend time with their
    son.1 A protective order had previously been established, which prohibited
    Reyes from entering M.P.’s home. Reyes violated the order on multiple
    occasions. While M.P. was in her bedroom upstairs, Reyes removed his jeans
    and touched M.M. on her breast and her vagina. M.P. came downstairs and
    saw Reyes kissing M.M.’s neck and rubbing her vagina. M.P. screamed at
    Reyes to stop and then told him to leave. Reyes asked M.P. not to contact the
    police. M.P. then took M.M. upstairs to her bedroom. While in M.P.’s room,
    M.P. asked M.M. why she did not scream, and M.M. told her it was because
    Reyes had threatened to kill M.P. M.P. reported the crime to police.
    [4]   On March 10, 2016, the State charged Reyes with Level 4 felony child
    molesting, fondling or touching a child under fourteen, and Class A
    1
    M.M. is Reyes’s step-daughter.
    Court of Appeals of Indiana | Memorandum Decision 32A01-1701-CR-101 | August 10, 2017   Page 2 of 8
    misdemeanor invasion of privacy. Reyes pled guilty to both counts. A
    sentencing hearing was held on December 20, 2016. During the hearing, M.P.
    testified that, since the incident, “[M.M.]’s a totally different child. … She says
    she doesn’t care about life anymore. She doesn’t like to take baths. And her
    grades have gone down.” Tr. p. 34. M.P. testified that M.M. liked school
    before this incident and made A’s and B’s. Now M.M. makes C’s, D’s, and
    F’s. She stated that M.M. would go days without bathing because she did not
    want to look good and that she is afraid that she will attract the attention of
    men. M.P. stated that M.M. is currently receiving counseling, and M.M.’s
    counselor suggested M.M. should not attend the hearing.
    [5]   Reyes testified during the hearing and admitted to touching M.M. on her breast
    and vagina. He denied ever threatening M.M. or M.P. Reyes stated,
    I am very sorry about what happened and I’m really embarrassed
    about what happened. I have learned the lesson and I wish she
    was here so I could ask for her forgiveness. I am sure this is not
    going to happen again and I want to tell the Court that I am
    sorry. I want to apologize to the court.
    Id. at 46.
    [6]   At the conclusion of the hearing, the trial court found Reyes’s guilty plea,
    acceptance of responsibility, and Reyes’s refusal to allow M.M. or his wife to be
    deposed as mitigating circumstances. The trial court also acknowledged
    Reyes’s working to support his son, prior to this incident, as a mitigating
    circumstance. The trial court found Reyes’s relationship to M.M., as her step-
    father, as an aggravating circumstance. The trial court noted that Reyes not
    Court of Appeals of Indiana | Memorandum Decision 32A01-1701-CR-101 | August 10, 2017   Page 3 of 8
    only violated a protective order by being in the house at the time the incident
    occurred, but also violated his position of trust. The trial court also found that
    the incident taking place in M.M.’s home, while her mother was in the home,
    was an aggravating circumstance. Although the State asked the trial court to
    consider M.M.’s age as aggravating, the trial court was reluctant to do so
    because the age of the victim is an element of the crime. 2 The trial court stated
    Reyes needs rehabilitation and that the Department of Correction (“DOC”) has
    a good program available for sex offenders. The trial court sentenced Reyes to
    ten years in the DOC with 545 days suspended to probation for the Level 4
    felony child molesting conviction, and a concurrent sentence of 286 days for the
    Class A misdemeanor invasion of privacy conviction. Reyes now appeals.
    Analysis
    [7]   Reyes contends that his sentence is inappropriate in light of the nature of the
    offense and his character. However, there are arguments in his brief that
    reference an abuse of discretion standard. Specifically, Reyes argues that the
    trial court improperly considered M.M.’s age and his criminal history as
    aggravating factors and that the trial court improperly weighed other factors.
    Our supreme court, however, has made clear that inappropriate sentence and
    2
    The trial court stated, “It’s true the child is age 11, that’s under 12, however in a certain sense that’s part of
    the statute itself that makes this a felony because it’s –a Level 4 felony because its—she’s under 14 so I give
    that some weight.” Tr. p. 64.
    Court of Appeals of Indiana | Memorandum Decision 32A01-1701-CR-101 | August 10, 2017                    Page 4 of 8
    abuse of discretion claims are to be analyzed separately. 3 See Anglemyer v. State,
    
    868 N.E.2d 482
    , 490-491 (Ind. 2007), clarified on reh’g, 
    875 N.E.2d 218
     (Ind.
    2007). An inappropriate sentence analysis does not involve an argument that
    the trial court abused its discretion in sentencing the defendant. King v. State,
    
    894 N.E.2d 265
    , 267 (Ind. Ct. App. 2008); see also Harman v. State, 
    4 N.E.3d 209
    , 218 (Ind. Ct. App. 2014), trans. denied. An inappropriate sentence analysis
    includes only whether Reyes’s sentence is inappropriate in light of the nature of
    the offense and the character of the offender. See Ind. Appellate Rule 7(B); see
    also Anglemyer, 868 N.E.2d at 491. Because Reyes does not cite the proper
    authority or fully develop his arguments concerning the trial court’s assessment
    of aggravating and mitigating factors, we will only consider whether the
    sentence is inappropriate in light of the offense and the character of the
    defendant. See Keller v. State, 
    987 N.E.2d 1099
    , 1121 n. 11 (Ind. Ct. App. 2013),
    trans. denied.
    [8]   Although Rule 7(B) does not require us to be “extremely” deferential to a trial
    court’s sentencing decision, we still must give due consideration to that
    decision. Rutherford v. State, 
    866 N.E.2d 867
    , 873 (Ind. Ct. App. 2007). We
    also understand and recognize the unique perspective a trial court brings to its
    3
    A trial court can be said to have abused its discretion by “failing to enter a sentencing statement at all …
    entering a statement that explains reasons for imposing a sentence—including a finding of aggravating and
    mitigating factors if any—but the record does not support the reasons, or the sentence statement omits
    reasons that are clearly supported by the record and advanced for consideration, or the reasons given are
    improper as a matter of law.” Anglemyer, 868 N.E.2d at 490-491.
    Court of Appeals of Indiana | Memorandum Decision 32A01-1701-CR-101 | August 10, 2017                Page 5 of 8
    sentencing decisions. Id. “Additionally, a defendant bears the burden of
    persuading the appellate court that his or her sentence is inappropriate.” Id.
    [9]    The principal role of Rule 7(B) review “should be to attempt to leaven the
    outliers, and identify some guiding principles for trial courts and those charged
    with improvement of the sentencing statutes, but not to achieve a perceived
    ‘correct’ result in each case.” Cardwell v. State, 
    895 N.E.2d 1219
    , 1225 (Ind.
    2008). We “should focus on the forest—the aggregate sentence—rather than
    the trees—consecutive or concurrent, number of counts, or length of the
    sentence on any individual count.” 
    Id.
     Whether a sentence is inappropriate
    ultimately turns on the culpability of the defendant, the severity of the crime,
    the damage done to others, and a myriad of other factors that come to light in a
    given case. Id. at 1224. When reviewing the appropriateness of a sentence
    under Rule 7(B), we may consider all aspects of the penal consequences
    imposed by the trial court in sentencing the defendant, including whether a
    portion of the sentence was suspended. Davidson v. State, 
    926 N.E.2d 1023
    ,
    1025 (Ind. 2010).
    [10]   The advisory sentence is the starting point to determine the appropriateness of
    the sentence. See Anglemyer, 868 N.E.2d at 494. The sentencing range for a
    Level 4 felony conviction is between two and twelve years, with the advisory
    sentence being six years. 
    Ind. Code § 35-50-2-5
    .5. The sentencing range for a
    Class A misdemeanor is not more than one year. I.C. § 35-50-3-2. Reyes
    received a sentence that was higher than the advisory sentence but lower than
    Court of Appeals of Indiana | Memorandum Decision 32A01-1701-CR-101 | August 10, 2017   Page 6 of 8
    the maximum sentence available for the Level 4 felony, and he received lower
    than the advisory sentence for the Class A misdemeanor.
    [11]   In regard to the nature of the offense, Reyes contends that “aside from the fact
    that [he] was in a position of trust with respect to M.M., there is nothing in the
    record to show that [his] crimes were particularly atrocious or deserving of a
    sentence 4 years higher than the advisory sentence for his crime.” Appellant’s
    Br. p. 9. The nature of the offense reveals, however, that Reyes molested his
    eleven-year-old step-daughter, by touching M.M. on her breast and vagina,
    while his wife and son were in the home. As Reyes was committing these
    offenses, he threatened to kill his wife if his step-daughter said anything. M.P.
    witnessed Reyes kissing M.M. on her neck and touching her vagina, and Reyes
    only stopped touching M.M. after being caught by his wife. After the incident,
    M.M.’s grades fell, she refused to bathe, and she felt threatened by men. M.M.
    was also unable to attend the hearing because her counselor was concerned it
    would be too much for her to handle. The nature of the offense was egregious.
    [12]   The character of the offender reveals that Reyes was previously convicted of
    distribution of cocaine in Puerto Rico. Reyes committed the instant offense at
    M.M.’s home, which violated a long-standing protective order, and a position
    of trust, as M.M’s step-father. He also admitted to intentionally violating the
    protective order on multiple occasions, prior to this incident. Although we
    acknowledge Reyes’s guilty plea and acceptance of responsibility, he has not
    persuaded us that his character warrants a revised sentence.
    Court of Appeals of Indiana | Memorandum Decision 32A01-1701-CR-101 | August 10, 2017   Page 7 of 8
    [13]   Given the nature of the offense and Reyes’s character, we find that the sentence
    imposed was appropriate, especially considering the trial court imposed
    concurrent sentences and suspended one-and-one-half years to probation.
    Conclusion
    [14]   The sentence imposed was not inappropriate in light of the nature of the offense
    and Reyes’s character. We affirm.
    [15]   Affirmed.
    Baker, J., and Crone, J., concur.
    Court of Appeals of Indiana | Memorandum Decision 32A01-1701-CR-101 | August 10, 2017   Page 8 of 8
    

Document Info

Docket Number: 32A01-1701-CR-101

Filed Date: 8/10/2017

Precedential Status: Precedential

Modified Date: 8/10/2017