Miguel Garcia v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jun 05 2017, 8:59 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Timothy P. Broden Curtis T. Hill, Jr.
Lafayette, Indiana Attorney General of Indiana
Katherine Modesitt Cooper
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Miguel Garcia, June 5, 2017
Appellant-Defendant, Court of Appeals Case No.
79A04-1610-CR-2290
v. Appeal from the Tippecanoe
Superior Court
State of Indiana, The Honorable Steven P. Meyer,
Appellee-Plaintiff. Judge
Trial Court Cause No.
79D02-1411-F3-2
Mathias, Judge.
[1] Miguel Garcia (“Garcia”) was convicted in Tippecanoe Superior Court of Level
6 felony criminal confinement and two counts of Level 3 felony robbery. The
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trial court sentenced Garcia to two consecutive terms of nine years on the Level
3 felony convictions and a concurrent two and one-half year sentence on the
Level 6 felony conviction. In his first appeal, Garcia claimed that the trial court
erred by failing to explain why Garcia’s sentences should be served
consecutively. A panel of this court agreed and remanded with instructions that
the trial court either enter concurrent sentences or impose consecutive sentences
supported by appropriate findings. On remand, the trial court chose the latter
option and entered findings to support the imposition of consecutive sentences.
From this order, Garcia appeals and claims that the trial court’s sentence is
inappropriate.
[2] We affirm.
Facts and Procedural History
[3] The facts underlying this case were set forth in our memorandum decision in
Garcia’s first appeal as follows:
On November 12, 2014, the State filed an information charging
Garcia with ten counts relating to the armed robberies of a
Speedway gas station and a Village Pantry convenience store in
Lafayette on November 1 and November 5, 2014, respectively.
On November 1, Garcia and Jacob Lumbley took cigarettes,
money, and the store clerk’s cellular telephone from the
Speedway gas station while Lumbl[e]y was armed with a
handgun. On November 5, Garcia, Lumbley, and Tiffany
Mounts took money and merchandise from the Village Pantry
store while Lumbley was armed with a shotgun and Garcia was
armed with a knife. During the course of the Village Pantry
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robbery, the robbers ordered the store clerks to lay on the floor
until the robbers left.
On May 19, 2015, Garcia and the State entered into a plea
agreement under which Garcia pleaded guilty to the following
charges: Count II, robbery as a Level 3 felony, relating to the
November 1 offense; Count VI, robbery as a Level 3 felony,
relating to the November 5 offense; and Count VII, criminal
confinement as a Level 3 felony, relating to the November 5
offense. In exchange, the State dismissed the remaining counts.
Following a sentencing hearing on June 19, the trial court found
the following aggravating factors: “the seriousness of the offense;
offenses committed within five months of entering community;
his criminal history; there were 3 victims; character of
Defendant; and he has been disciplined while incarcerated.” The
court also found the following mitigating factors:
the Defendant pled guilty; he participated in rehabilitative
programs while in custody at the County jail; he has
shown remorse for his victims; he has drug and alcohol
problems and was under the influence of Spice at the time
of the commission of the offenses; he has had a somewhat
good employment history; and his difficult childhood.
The trial court then found that “the aggravating factors and the
mitigating factors balance.”
The trial court imposed the nine year advisory sentence upon
Garcia for both the Count II and Count VI robbery convictions,
with each sentence having eight years executed and one year
suspended on supervised probation. The court reduced the Count
VII criminal confinement conviction to a Level 6 felony and
sentenced Garcia to two and one-half years executed on that
count. The trial court ordered that the sentences on Counts VI
and VII be served concurrent with one another, but consecutive
to the sentence on Count II, for an aggregate sentence of eighteen
years, with sixteen years executed in the Department of
Correction and two years suspended to probation.
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Garcia v. State, No. 79A02-1507-CR-944, slip op. at 1-3 (Garcia I) (Ind. Ct. App.
Mar. 15, 2016) (record citations omitted).
[4] The Garcia I court held that the trial court erred by imposing consecutive
sentences without stating any reasons to support its decision. See id., slip op. at
6 (citing Marcum v. State, 725 N.E.2d 852, 864 (Ind. 2002)). The Garcia I court
chose to remand the case to the trial court “with instructions for the trial court
to reconsider its order of consecutive sentences of eighteen years for the robbery
convictions. On remand, the trial court may either enter concurrent sentences
for the robbery convictions or impose the same consecutive sentences, if the
court supports its sentence with appropriate findings.” Id., slip op. at 7 (citing
Windhorst v. State, 868 N.E.2d 504 (Ind. 2007)).
[5] On remand, the trial court exercised the latter option and entered a new
sentencing order in which it found, with regard to its decision to impose
consecutive sentences, that there were separate offenses committed within a
short period of time from each other, at separate convenience stores, involving a
total of three victims. The trial court then re-imposed its original aggregate
sentence of eighteen years with sixteen years executed and two suspended.
Garcia again appeals.
Discussion and Decision
[6] In this appeal after remand, Garcia claims only that the sentence imposed by
the trial court is inappropriate. Article 7, Sections 4 and 6 of the Indiana
Constitution authorize independent appellate review and revision of a sentence
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imposed by the trial court. Trainor v. State, 950 N.E.2d 352, 355-56 (Ind. Ct.
App. 2011), trans. denied. This authority is implemented through Indiana
Appellate Rule 7(B), which provides that the court on appeal “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.”
[7] Still, we must and should exercise deference to a trial court’s sentencing
decision because Rule 7(B) requires us to give “due consideration” to that
decision and because we recognize the unique perspective a trial court brings to
its sentencing decisions. Id. Although we have the power to review and revise
sentences, the principal role of appellate 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 what
we perceive to be a “correct” result in each case. Fernbach v. State, 954 N.E.2d
1080, 1089 (Ind. Ct. App. 2011), trans. denied (citing Cardwell v. State, 895
N.E.2d 1219, 1225 (Ind. 2008)). The appropriate question is not whether
another sentence is more appropriate; rather, the question is whether the
sentence imposed is inappropriate. Former v. State, 876 N.E.2d 340, 344 (Ind.
Ct. App. 2007). It is the defendant’s burden on appeal to persuade us that the
sentence imposed by the trial court is inappropriate. Childress v. State, 848
N.E.2d 1073, 1080 (Ind. 2006).
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[8] Here, Garcia pleaded guilty to committing two Level 3 felonies.1 The
sentencing range for a Level 3 felony is from three to sixteen years, with the
advisory sentence being nine years. Ind. Code § 35-50-2-5(b). The trial court
also ordered the advisory sentences for the two Level 3 felonies to be served
consecutively, for an aggregate sentence of eighteen years. See Cardwell, 895
N.E.2d at 1225 (holding that “appellate review 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.”). We also
take into account that the court ordered two of these eighteen years suspended
to probation. See Marley v. State, 17 N.E.3d 335, 339 (Ind. Ct. App. 2014)
(holding that appellate courts reviewing the appropriateness of a sentence
should consider not only the aggregate length of a sentence but also whether a
portion of the sentence is ordered suspended).
[9] Regarding the nature of the offenses, Garcia argues that nothing in the record
indicates that his actions during the two robberies consisted of anything more
than what was necessary to commit the offenses. He also argues that his co-
defendant Lumbley was the main actor in the robberies. However, the record
indicates that Garcia was an active participant in both robberies. He admittedly
took property, cigarettes, during the first robbery. He also admitted that, during
1
Garcia also pleaded guilty to Level 5 felony criminal confinement, which the trial court reduced to a Level
6 felony. The trial court also ordered the sentence on this Level 6 felony to be served concurrently with the
two consecutive sentences imposed on the Level 3 felony convictions. Thus, the sentence on the Level 6
felony does not affect the aggregate length of the sentence imposed by the trial court.
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the second robbery, he was armed with a knife and personally took cash directly
from the cash register. Thus, Garcia was an active player in two armed
robberies that were separated by several days, and which involved several
victims. Accordingly, there is little about the nature of the offenses that
persuades us that Garcia’s sentence is inappropriate.
[10] With regard to the character of the offender, we admit that Garcia does not
have a particularly lengthy criminal history. However, he has had numerous
run-ins with the law. In addition to his two prior misdemeanor convictions for
possession of marijuana and criminal trespass, Garcia had been arrested
numerous times in Illinois, though the charges were later dismissed. See Cotto v.
State, 829 N.E.2d 520, 526 (Ind. 2005) (holding that lengthy arrest record may
reveal that defendant has not been deterred even after extensive contact with the
criminal justice system); Vermillion v. State, 978 N.E.2d 459, 468 (Ind. Ct. App.
2012) (noting that lengthy arrest record may be considered as part of the trial
court’s assessment of defendant’s character and the risk that he will reoffend).
[11] Nor can we ignore that Garcia received the advisory sentence for his convictions.
Because the advisory sentence is the starting point our General Assembly has
selected as an appropriate sentence for the crime committed, the defendant bears
a particularly heavy burden in persuading us that his sentence is inappropriate
when the trial court imposes the advisory sentence. Fernbach, 954 N.E.2d at 1089.
We recognize that the trial court ordered Garcia’s sentences to be served
consecutively. However, this simply recognizes that Garcia committed two
completely separate robberies which occurred several days apart and involved
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different stores and different victims. See O’Connell v. State, 742 N.E.2d 943, 952
(Ind. 2001) (noting that the existence of multiple crimes or multiple victims may
justify the imposition of consecutive sentences); see also Myers v. State, 27 N.E.3d
1069, 1082 (Ind. 2015) (holding that defendant’s consecutive sentences were not
inappropriate where there were multiple victims), reh’g denied.
[12] We acknowledge that, in aggregate, Garcia received a relatively severe sentence.
However, this reflects both the serious nature of the crimes Garcia committed,
armed robbery, and the fact that he committed two completely separate
robberies, several days apart, involving different stores and different victims. In
exercising our authority to review and revise sentences, our role is not to achieve
what we perceive to be a “correct” result in each case, Fernbach, 954 N.E.2d at
1089, nor is it our role to decide whether another sentence would be more
appropriate. Former, 876 N.E.2d at 344. Instead, the question before us is only
whether the sentence imposed by the trial court was inappropriate. Id. It was not.
Conclusion
[13] Considering both the nature of the offense and the character of the offender,
and giving due consideration and deference to the trial court sentencing
decision, we are unable to say that Garcia’s sentence of eighteen years, with
two years suspended to probation, is inappropriate.
[14] Affirmed.
Kirsch, J., and Altice, J., concur.
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