Jesse Velez v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Apr 13 2015, 11:30 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any 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
Patricia Caress McMath Gregory F. Zoeller
Marion County Public Defender Agency Attorney General of Indiana
Indianapolis, Indiana
Jesse R. Drum
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jesse Velez, April 13, 2015
Appellant-Defendant, Court of Appeals Case No.
49A02-1409-CR-660
v. Appeal from the Marion Superior
Court
The Honorable David Certo, Judge
State of Indiana, Cause Nos. 49F12-1206-FD-38368,
Appellee-Plaintiff 49F12-1208-FD-57410, 49F12-1208-
CM-57502, 49F12-1208-FD-60304,
49F12-1305-FD-31844, 49G12-1405-
FD-25741
Bradford, Judge.
Case Summary
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[1] Over the course of a nearly two-year time period, Appellant-Defendant Jesse
Velez was arrested for numerous criminal offenses, including theft, possession
of drug paraphernalia, prostitution, public indecency, resisting law
enforcement, and conversion. He was charged for these criminal offenses under
six different cause numbers. Velez eventually pled guilty to all but one of the
charges levied against him. The remaining charge was dismissed. Following
Velez’s guilty pleas, the trial court sentenced Velez to an aggregate eight and
one-half year term, with six and one-half years executed in the Department of
Correction (“DOC”) and two years served in community corrections.
[2] On appeal, Velez challenges his sentence, arguing both that the trial court
abused its discretion in sentencing him and that his sentence is inappropriate.
Concluding otherwise, we affirm.
Facts and Procedural History
I. Cause Number 49F12-1206-FD-38368 (“Cause No.
FD-38368”)
[3] On June 6, 2012, Velez visited a Marsh Supermarket. While at the Marsh
Supermarket, Velez placed three bottles of vodka in a backpack. He then
attempted to leave the store without paying for the bottles. Velez was stopped
outside the store by two Marsh employees who then notified the police. Later
that day, Appellee-Plaintiff the State of Indiana (the “State”) charged Velez
with Class D felony theft. On March 4, 2013, the State amended the charging
information to include a charge of Class A misdemeanor conversion.
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II. Cause Number 49F12-1208-FD-57410 (“Cause No.
FD-57410”)
[4] On August 19, 2012, Indianapolis Metropolitan Police Department (“IMPD”)
Officer John Schweers observed Velez walking in an alley with a glass pipe in
his left hand. Based on Officer Schweers’s training and experience as a police
officer, he immediately recognized the glass pipe to be a “crack pipe.”
Appellant’s App. p. 48. When Velez saw Officer Schweers’s marked police
vehicle, Velez put his left hand in his front pants pocket. Officer Schweers then
asked Velez to show his hands. Velez initially complied, before shoving his left
hand back into his pocket. Fearing that Velez may be armed with a weapon,
Officer Schweers patted Velez down and found a crack pipe with steel wool
pushed into one end in Velez’s pants pocket. Officer Schweers also found a
“wad” of steel wool and an ink stick, both of which are commonly used in
smoking cocaine. Appellant’s App. p. 49. The next day, on August 20, 2012,
the State charged Velez with Class A misdemeanor possession of paraphernalia
and Class D felony possession of paraphernalia.
III. Cause Number 49F12-1208-CM-57502 (“Cause No.
CM-57502”)
[5] At approximately 6:50 a.m. on August 20, 2012, Velez “got into” a vehicle and
told the driver that he likes to give fellatio and would do so for $25.00.
Appellant’s App. p. 79. Velez “fondled [the driver’s] genitals” and asked,
“You’re not a cop are you?” Appellant’s App. p. 79. As it turns out, he was.
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Later that day, the State charged Velez with Class A misdemeanor prostitution
and Class A misdemeanor public indecency.
IV. Cause Number 49F12-1208-FD-60304 (“Cause No.
FD-60304”)
[6] On August 30, 2012, IMPD Officer Kenneth Greer responded to a report that a
man was attempting to “flag cars down” and was “looking into parked cars.”
Appellant’s App. p. 107. When Officer Greer arrived at the location, he
observed Velez, who matched the description of the individual in question,
walking on the sidewalk. Officer Greer approached Velez and “stated that [he]
needed to talk to him.” Appellant’s App. p. 107. Officer Greer then observed
Velez “with his left closed fist throw something down on the sidewalk that
made a sound of broken glass.” Appellant’s App. p. 107. The item in question
was subsequently identified to be a broken “crack pipe.” Appellant’s App. p.
107. In addition to the burnt glass from the pipe, Officer Greer also located a
“burnt piece of brillo pad.” Appellant’s App. p. 107. Later that day, the State
charged Velez with Class A misdemeanor possession of paraphernalia and
Class D felony possession of paraphernalia.
V. Cause Number 49F12-1305-FD-31844 (“Cause No.
FD-31844”)
[7] At approximately 1:45 a.m. on May 15, 2013, IMPD Officers Keith Albert,
Jean Burkert, and Jeremy Lee responded to a request for assistance from a CVS
Store. Upon arriving at the CVS, the officers learned that Velez had left a CVS
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with an unusual bulk in his midsection. The store manager chased after and
apprehended Velez. Officer Albert approached and “lifted Velez’s shirt and
pulled two bottles of tide liquid detergent and a Lysol spray can that were inside
Velez’s waistband and placed them on the ground.” Appellant’s App. p. 137.
When Officer Albert attempted to detain Velez by placing him in handcuffs,
Velez “tensed up his arms and began to pull away.” Appellant’s App. p. 137.
Although Velez continued to resist and disobeyed the officers’ orders, he was
subsequently brought under control by the officers. Later that day, the State
charged Velez with Class D felony theft and Class A misdemeanor resisting law
enforcement. On January 17, 2014, the State amended the charging
information to include a charge of Class A misdemeanor conversion.
VI. Velez Placed in Mental Health Diversion Program
[8] On January 16, 2013, Velez was placed in PAIR, a mental health diversion
program. On December 16, 2013, the State filed a motion seeking to terminate
Velez’s placement in the program. In making this motion, the State alleged that
Velez had violated the terms of his participation in the PAIR program by being
arrested for and charged with new criminal offenses, testing positive for
cocaine, failing to appear for drug screens as ordered by the court, misleading
the court as to his residence, and failing to attend sessions with his mental
health treatment provider.
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VII. Cause Number 49F12-1405-FD-25741 (“Cause No.
FD-25741”)
[9] On May 16, 2014, IMPD officers were dispatched to a Walmart store in
reference to a shoplifter running from the store. Officers observed an individual
matching the description provided by Walmart employees running northbound
away from the store. The individual was subsequently identified to be Velez.
After detaining Velez, officers recovered a tool set and four pairs of gloves, all
of which had been reported stolen by a Walmart employee who observed Velez
take the items “off the shelf and walk past all points of purchase without paying
for the merchandise.” Appellant’s App. p. 164. Later that day, the State
charged Velez with Class D felony theft.
VIII. Velez’s Guilty Pleas
[10] With exception to the charge of Class D felony theft that was charged under
Cause No. FD-31844, on August 25, 2014, Velez pled guilty to all of the
charged crimes that are set forth above. Under Cause No. FD-38368, the trial
court accepted Velez’s guilty plea and merged Velez’s conviction for Class A
misdemeanor conversion into his conviction for Class D felony theft. Under
Cause No. FD-57410, the trial court accepted Velez’s guilty plea and merged
Velez’s conviction for Class A misdemeanor possession of paraphernalia into
his conviction for Class D felony possession of paraphernalia. Under Cause
No. CM-57502, the trial court accepted Velez’s guilty plea. Under Cause FD-
60304, the trial court accepted Velez’s guilty plea and merged Velez’s
conviction for Class A misdemeanor possession of paraphernalia into his
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conviction for Class D felony possession of paraphernalia. Under Cause No.
FD-31844, the trial court dismissed the Class D felony theft charge and
accepted Velez’s guilty plea for the remaining charges. The trial court also
accepted Velez’s guilty plea under Cause No. FD-25741.
IX. Sentencing Following Velez’s Guilty Pleas
[11] After accepting Velez’s guilty pleas, the trial court sentenced Velez as follows:
(1) one and one-half years under Cause No. FD-38368; (2) one and one-half
years under Cause No. FD-57410; (3) one year in community corrections under
Cause No. CM-57502; (4) one and one-half years under Cause No. FD-60304;
(5) one year in community corrections under Cause No. FD-31844; and (6) two
years under Cause No. FD-25741. The trial court ordered each of the sentences
to run consecutive to one another, for an aggregate term of six and one-half
years executed in the DOC, followed by two years in community corrections.
This appeal follows.
Discussion and Decision
[12] Velez challenges his sentence on appeal, claiming both that the trial court
abused its discretion in sentencing him and that his aggregate eight and one-
half-year sentence is inappropriate in light of the nature of his offenses and his
character.
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I. Abuse of Discretion
[13] Sentencing decisions rest 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), modified on other grounds on reh’g, 875 N.E.2d 218(Ind. 2007). “An abuse of discretion occurs 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.” Id.(quotation omitted).
One way in which a trial court may abuse its discretion is failing to
enter a sentencing statement at all. Other examples include entering a
sentencing 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 sentencing 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.
Under those circumstances, remand for resentencing may be the
appropriate remedy if we cannot say with confidence that the trial
court would have imposed the same sentence had it properly
considered reasons that enjoy support in the record.
Id. at 490-91.
[14] Velez claims that the trial court abused its discretion in sentencing him because
the trial court failed to find his mental illness to be a mitigating factor at
sentencing. The finding of mitigating factors is discretionary with the trial
court. Fugate v. State, 608 N.E.2d 1370, 1374 (Ind. 1993) (citing Graham v. State,
535 N.E.2d 1152, 1155 (Ind. 1989)). The trial court is not required to find the
presence of mitigating factors. Id. (citing Graham, 535 N.E.2d at 1155).
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Further, if the trial court does not find the existence of a mitigating factor after
it has been argued by counsel, the trial court is not obligated to explain why it
has found that the factor does not exist. Id. (citing Hammons v. State, 493
N.E.2d 1250, 1254-55 (Ind. 1986)).
[15] In sentencing Velez, the trial court made a lengthy oral statement setting forth
Velez’s sentence and explaining the trial court’s reasons for imposing the
particular sentence. The trial court made multiple references to Velez’s mental
illness in making this statement, and concluded by stating the following:
Your attitude towards whatever your sentence may be is going to be
the determining factor in how successful you are; okay? And, that’s
easy for me to say from up here. It’s not necessarily easy for someone
to do, regardless of where they are. But, I hope you know that I
believe wholeheartedly that you and your attitude toward your mental
illness and your drug addiction is in the place now where as long as
you keep on the same road that you’re going you can conquer them
and you can make the life that you want to make; okay? Regardless of
what I’m doing today, you can make your life better. All right? And,
I hope that you meant that and I hope that you will continue to do
that.
Tr. pp. 96-97. Although the trial court did not specifically explain why it did
not find Velez’s mental illness to be a mitigating factor, the trial court’s oral
sentencing statement indicates that the trial court did consider Velez’s mental
illness in sentencing Velez.
[16] Furthermore, even if we were to find that the trial court did not consider Velez’s
mental illness, we conclude that the trial court did not abuse its discretion in
declining to find that Velez’s mental illness was a mitigating factor.
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The mitigating weight to be afforded a defendant’s mental impairment
depends on: 1) the extent of the defendant’s inability to control his or
her behavior due to the impairment; 2) overall limitations on
functioning; 3) the duration of the mental illness; and 4) the extent of
any nexus between the impairment and the commission of the crime.
Williams v. State, 840 N.E.2d 433, 439 (Ind. Ct. App. 2006).
Smith v. State, 929 N.E.2d 255, 259 (Ind. Ct. App. 2010).
[17] Velez has not established that the effect his mental illness impacted his ability to
control his behavior or limited his ability to function. More importantly, Velez
failed to establish that there was a nexus between his mental condition and his
crimes. Rather than being impacted by his mental illness, Velez’s actions
appear to be largely impacted by his drug addiction. We therefore cannot say
the trial court abused its discretion in declining to find Velez’s mental illness to
be a mitigating factor.
II. Appropriateness of Sentence
[18] Indiana Appellate Rule 7(B) provides that “The Court may revise a sentence
authorized by statute 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.” In analyzing such claims, we “‘concentrate
less on comparing the facts of [the case at issue] to others, whether real or
hypothetical, and more on focusing on the nature, extent, and depravity of the
offense for which the defendant is being sentenced, and what it reveals about
the defendant’s character.’” Paul v. State, 888 N.E.2d 818, 825 (Ind. Ct. App.
2008) (quoting Brown v. State, 760 N.E.2d 243, 247 (Ind. Ct. App. 2002), trans.
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denied). The defendant bears the burden of persuading us that his sentence is
inappropriate. Sanchez v. State, 891 N.E.2d 174, 176 (Ind. Ct. App. 2008).
[19] In challenging the appropriateness of his sentence, Velez argues that a
minimum sentence was appropriate in light of the nature of his offenses. We
cannot agree. While the nature of each of Velez’s individual offenses was not
particularly egregious when considered in isolation, the quantity and
consistency of his criminal actions justify an enhanced sentence. The record
demonstrates that Velez was convicted of eight criminal offenses stemming
from six unrelated episodes of criminal conduct, all of which he committed over
the course of a less than two years. Velez’s criminal offenses include theft,
conversion, possession of paraphernalia, prostitution, public indecency, and
resisting law enforcement. We find it troubling that Velez continued to commit
these crimes despite his participation in the court-supervised mental health
diversion PAIR program.
[20] With respect to Velez’s character, the record demonstrates that Velez suffers
from an addiction to drugs. However, the record further demonstrates that, to-
date, he has been unwilling to complete treatment that is aimed to help him
overcome his addiction. Velez also has a substantial criminal history which
dates back to when he was a juvenile. As a juvenile, he was found to be a
delinquent for committing what would be the following crimes if committed by
an adult: conversion, failure to stop at an accidence causing injury, operating a
vehicle without ever receiving a license. Velez’s adult criminal history includes
numerous convictions for battery, resisting law enforcement, theft/receiving
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stolen property, conversion, and possession of drug paraphernalia. Velez has
also repeatedly violated the terms of prior placements on probation and in
community corrections. Velez’s criminal history indicates an unwillingness to
conform his behavior to the rules of society. In light of the nature of Velez’s
offenses and his character, we conclude that Velez has failed to meet his burden
of persuading us that his aggregate eight and one-half-year sentence is
inappropriate.
Conclusion
[21] In sum, we conclude that the trial court acted within its discretion in sentencing
Velez and that Velez failed to meet his burden of proving that his aggregate
eight and one-half-year sentence is inappropriate.
[22] The judgment of the trial court is affirmed.
Vaidik, C.J., and Kirsch, J., concur.
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