Kurt Muzquiz v. State of Indiana (mem. dec.)

MEMORANDUM DECISION FILED
09/15/2017, 10:42 am
Pursuant to Ind. Appellate Rule 65(D),
CLERK
this Memorandum Decision shall not be Indiana Supreme Court
Court of Appeals
regarded as precedent or cited before any and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Leanna Weissmann Curtis T. Hill, Jr.
Lawrenceburg, Indiana Attorney General of Indiana
Henry Flores, Jr.
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Kurt Muzquiz, September 15, 2017
Appellant-Defendant, Court of Appeals Case No.
69A04-1703-CR-457
v. Appeal from the Ripley Circuit
Court
State of Indiana, The Honorable Ryan J. King,
Appellee-Plaintiff. Judge
Trial Court Cause No.
69C01-1601-F5-2
Barnes, Judge.
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Case Summary
[1] Kurt Muzquiz appeals his sentence after he pled guilty to Level 5 felony corrupt
business influence and being an habitual offender. We affirm.
Issue
[2] The sole issue Muzquiz raises is whether his ten-year sentence is inappropriate
in light of the nature of the offense and his character.
Facts
[3] In February of 2015, Muzquiz opened a banking account and made a single
five-dollar deposit. The account subsequently was closed. After the account
was closed, Muzquiz used the account to write unfunded checks. Specifically,
on June 30, 2015, Muzquiz wrote an invalid check to Truck Country of
Indianapolis, Stoops Freightliner, for a 2015 Freightliner cargo van valued at
$44,940.00. On July 8, 2015, Musquiz wrote an invalid check to Plainfield
Auto Sales for a 2003 Hummer H2 valued at $17,256.16. On July 13, 2015,
Muzquiz wrote an invalid check to I-69 Trailer Center for an enclosed trailer
valued at $10,732.10. The next day, Muzquiz wrote invalid checks to Quality
Auto Mart for two golf carts for a combined value of $7,490.00 and to
Tommy’s Diesel Shop for services valued at $700.00.
[4] On January 6, 2016, the State charged Muzquiz with corrupt business influence
as a Level 5 felony, fraud on a financial institution as a Level 5 felony, check
fraud as a Level 6 felony, and theft as a Level 6 felony. Additionally, the State
alleged that Muzquiz was an habitual offender. One day before his jury trial,
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Muzquiz accepted a plea agreement and pled guilty to corrupt business
influence as a Level 5 felony and to being an habitual offender. All other
counts were dismissed. The plea agreement set the maximum sentence for the
corrupt business influence conviction at five years and the habitual offender
enhancement at five years, with a maximum aggregate sentence exposure of ten
years. The trial court accepted the plea agreement and sentenced Muzquiz to
five years for the felony conviction and enhanced the sentence by five years for
an aggregate term of ten years executed in the Department of Correction.
Muzquiz now appeals.
Analysis
[5] Muzquiz argues that his ten-year sentence is inappropriate in light of the nature
of the offense and his character. According to Muzquiz, he should be
“resentence[e]d to no more than three years imprisonment” because his “crime
caused no personal injury [or] large pecuniary losses.” Appellant’s Br. pp. 8,
10. Regarding his character, Muzquiz emphasizes that he has a daughter with
special needs; he “battles mental illness” – specifically, ADHD, manic
depression, and bipolar disorder; his incarceration will cause a hardship upon
his mother who cares for one of his two children; he is remorseful; and by
pleading guilty, he has accepted responsibility for his crimes. Id. at 8.
[6] We may revise a sentence if it is “inappropriate in light of the nature of the
offense and the character of the offender.” Ind. Appellate Rule 7(B). Whether
the reviewing court regards a sentence as inappropriate turns on a “sense of the
culpability of the defendant, the severity of the crime, the damage done to
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others, and myriad other factors that come to light in a given case.” Cardwell v.
State, 895 N.E.2d 1219, 1224 (Ind. 2008). This Court “must give ‘deference to a
trial court’s sentencing decision, both because Rule 7(B) requires us to give due
consideration to that decision and because we understand and recognize the
unique perspective a trial court brings to its sentencing decisions.’” Gil v. State,
988 N.E.2d 1231, 1237 (Ind. Ct. App. 2013) (quoting Stewart v. State, 866
N.E.2d 858, 866 (Ind. Ct. App. 2007)). Muzquiz bears the burden of
persuading us that his sentence is inappropriate. Reid v. State, 876 N.E.2d 1114,
1116 (Ind. 2007).
[7] The advisory sentence is the starting point to determine the appropriateness of a
sentence. See Anglemyer v. State, 868 N.E.2d 482, 494 (Ind. 2007), clarified on
reh’g, 875 N.E.2d 218 (Ind. 2007). Muzquiz pled guilty to Level 5 felony
corrupt business influence and an habitual offender enhancement. The
sentencing range for a Level 5 felony is “a fixed term of between one (1) and six
(6) years, with the advisory sentence being three (3) years.” Ind. Code § 35-50-
2-6(b). The sentencing range for a person found to be an habitual offender is
between “two (2) years and six (6) years, for a person convicted of a Level 5 . . .
felony.” I.C. § 35-50-2-8(i)(2). Here, the trial court found as aggravating
circumstances Muzquiz’s extensive criminal history that was similar in nature
to the instant offense, his “substantial history of violating . . . [p]robation,” and
that the State needed only to provide evidence of two predicate offenses to
prove Muzquiz committed corrupt business influence, but Muzquiz admitted to
committing five predicate offenses. Tr. p. 54. The trial court found no
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mitigating circumstances. The court imposed a five-year-sentence for the felony
conviction and enhanced the sentence by five years for the habitual offender
finding. Both the sentence and the enhancement were above the advisory
sentence but below the maximum provided by the General Assembly.
[8] Looking at the nature of Muzquiz’s corrupt business influence offense, we are
not persuaded that his sentence is inappropriate. Muzquiz opened a banking
account and deposited only five dollars in the account. After the account was
closed, Muzquiz presented himself as a business owner and wrote a series of
invalid checks to various businesses in an amount that totaled over $80,000.00,
depriving the businesses of goods and services. We conclude that the nature of
Muzquiz’s offense did not render his sentence inappropriate.
[9] Our review of the character of the offender reveals that Muzquiz’s criminal
history is substantial and spans from 1993 until present. His prior offenses
included check deception, forgery, fraud, and theft – crimes of dishonesty. His
twelve prior felony convictions and thirteen prior probation violations show a
clear disregard for the law.
[10] The trial court took into consideration Muzquiz’s guilty plea, his alleged
remorse, his argument regarding undue hardship, and his mental health issues
and found none of the circumstances to be mitigating. Per the trial court:
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So your guilty plea here is not a [mitigating circumstance
because] it’s already been contemplated by the plea agreement.[ ]
1
And then I’m hearing you say “Judge, I’m remorseful” but I
don’t see any evidence of that. I mean you’re remorseful right
now because [you are sitting] here looking at up to ten years. I
mean, I don’t see anything before today that indicates in any
way, sort or fashion that you’re remorseful. . . . The undue
hardship that is argued it’s apparent throughout the Pre-Sentence
Investigation and your testimony that you’ve been in and out of
the children’s life since they were born. And both children, right
now are subject to [g]uardianships for that reason or as part of
that reason. . . . [W]hen you have someone come in that has sole
custody of the children and is providing for the children, taking
care for the children, working a job, then it is a mitigator. But, in
the circumstances you present before the Court when you don’t
even have custody of them because they are both under
guardianships from two different people, there’s no mitigator
there. And then as far as your mental health, . . . I mean, there is
nothing in the record, everything in the record suggests your
mental health issues haven’t effected your ability to understand
the proceedings going on. . . . [For you] to then show up today
and say well my understanding and my impulsivity caused me to
commit these offenses lacks any uh, creditability to me.
Id. at 55-57. We agree with the trial court’s observation. Based upon the
foregoing, Muzquiz’s character does not persuade us to modify his sentence.
1
The trial court explained,
[T]he Court is bound by that plea agreement, I’ve previously accepted it, but for instance on the
underlying offense you, you would technically be looking at a [six-year] sentence um, but the
Court can only go to five, under the plea agreement so you’ve secured a mitigated sentence in
my eyes already, even before you know, I even start. And I think when you point out that your
guilty plea then should be considered as a mitigator over and above . . . the mitigated sentence
you’ve already secured[,] I think you’ve already been compensated sentencing wise.
Tr. p. 55.
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We find that Muzquiz’s ten-year sentence is not inappropriate in light of the
nature of the offense and his character.
Conclusion
[11] Muzquiz’s sentence is not inappropriate. We affirm.
[12] Affirmed.
May, J., and Bradford, J., concur.
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