Ricardo Montanez v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any Oct 15 2015, 9:51 am
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
Marce Gonzalez, Jr, Gregory F. Zoeller
Dyer, Indiana Attorney General of Indiana
Katherine Modesitt Cooper
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Ricardo Montanez, October 15, 2015
Appellant-Defendant, Court of Appeals Case No.
45A03-1504-CR-130
v. Appeal from the Lake Superior
Court
State of Indiana, The Honorable Clarence D.
Appellee-Plaintiff Murray, Judge
Trial Court Cause No.
45G02-1407-F5-3
Vaidik, Chief Judge.
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Case Summary
[1] Ricardo Montanez appeals the six-year sentence imposed after he pled guilty to
Level 5 felony burglary. Montanez specifically argues that his sentence is
inappropriate in light of the nature of the offense and his character.
Facts and Procedural History
[2] On July 20, 2014, Montanez broke into his neighbor Claudia Bussey’s garage
and took tools and other items belonging to Bussey and Cal Haddad. When
officers from the Hammond Police Department arrived at the scene in response
to an alarm from Bussey’s garage, Montanez fled from the officers. The State
charged Montanez with Level 5 felony burglary, Class A misdemeanor theft,
and Class A misdemeanor resisting law enforcement. The State later filed an
habitual offender sentence enhancement against him.
[3] Pursuant to a plea agreement, Montanez pled guilty to Level 5 felony burglary.
In exchange for his guilty plea, the State agreed to dismiss the misdemeanors
and habitual offender enhancement. In addition, the parties left sentencing to
the trial court’s discretion. The evidence presented at the sentencing hearing
reveals that forty-nine-year-old Montanez has amassed thirteen felony
convictions and twenty-six misdemeanor convictions over the past thirty years.
The offense in this case is Montanez’s ninth felony burglary conviction. In the
past, he has also violated both probation and parole.
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[4] After the State presented evidence of his prior convictions, Montanez
apologized and told the trial court that this would be his last offense. The trial
court responded as follows:
Your record just flies in the face of anything you could say this
morning in terms of any request for leniency. You continue to
commit these offenses. You’ve got no one to blame but yourself.
You make these decisions to commit these crimes, and it doesn’t
stop. . . . The State, correctly, points out that Mr. Montanez
received a significant benefit from the plea agreement. There’s
absolutely no basis for leniency here. The Court will impose six
years in the Department of Correction.
Tr. p. 27. Montanez appeals his sentence.
Discussion and Decision
[5] Montanez argues that his six-year sentence is inappropriate in light of the
nature of the offense and his character. Indiana Appellate Rule 7(B) provides
that we may revise a sentence authorized by statute if, after due consideration
of the trial court’s decision, we find that the sentence is inappropriate in light of
the nature of the offense and the character of the offender. The defendant bears
the burden of persuading this Court that his sentence is inappropriate. Childress
v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). Whether we regard a sentence as
inappropriate turns on the “culpability of the defendant, the severity of the
crime, the damage done to others, and myriad other factors that come to light
in a given case.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008).
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[6] As to the nature of the offense, the advisory sentence is the starting point that
the legislature has selected as an appropriate sentence for the crime committed.
Childress, 848 N.E.2d at 1081. Montanez pleaded guilty to Level 5 felony
burglary. Pursuant to Indiana Code section 35-50-2-6(b), a person who
commits a Level 5 felony shall be imprisoned for a fixed term of between one
and six years, with the advisory sentence being three years. Here, the trial court
sentenced Montanez to the maximum sentence.
[7] Montanez argues that “this is a rather average burglary offense, of the type
likely anticipated by the legislature in crafting the statute and advisory sentence
. . . . Hence, under the nature of the offense, the advisory sentence appears to
be the appropriate starting point.” Appellant’s Br. p. 6. We acknowledge that
the nature of Montanez’s offense was not particularly aggravating and alone
might not support the sentence imposed.
[8] It is Montanez’s character, however, that is significantly aggravating.
Specifically, Montanez has amassed thirteen felony and twenty-six
misdemeanor convictions over the past three decades. The offense in this case
is his ninth felony burglary conviction. He has also violated both probation and
parole. His former contacts with the law have not caused him to reform
himself. See Jenkins v. State, 909 N.E.2d 1080, 1086 (Ind. Ct. App. 2009), trans.
denied. Montanez has failed to persuade this Court that his six-year sentence is
inappropriate.
[9] We affirm.
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Robb, J., and Pyle, J., concur.
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