Fernando Sanchez 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 26 2020, 12:19 pm
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
Jerry T. Drook Curtis T. Hill, Jr.
Marion, Indiana Attorney General of Indiana
Tiffany A. McCoy
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Fernando Sanchez, June 26, 2020
Appellant-Defendant, Court of Appeals Case No.
20A-CR-86
v. Appeal from the Grant Superior
Court
State of Indiana, The Honorable Jeffrey D. Todd,
Appellee-Plaintiff. Judge
Trial Court Cause No.
27D01-1301-FA-2
Riley, Judge.
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STATEMENT OF THE CASE
[1] Appellant-Defendant, Fernando Sanchez (Sanchez), appeals the trial court’s
sentence following his guilty plea to dealing in cocaine, a Class A felony, Ind.
Code § 35-48-4-1(b)(1).
[2] We affirm.
ISSUE
[3] Sanchez presents one issue on appeal, which we restate as: Whether Sanchez’s
sentence is inappropriate in light of his character and the nature of the offense.
FACTS AND PROCEDURAL HISTORY
[4] In December 2006, Sanchez entered into a deferred adjudication in Texas,
where he pled guilty to aggravated assault with a deadly weapon and was
placed on community supervision for eight years. Pursuant to the terms of the
deferred adjudication, Sanchez’s charge would be dismissed upon successful
completion of the program. At some point during the program, Sanchez moved
from Texas to Indiana. On February 4, 2010, a notice to show cause was
issued by the Texas court and on March 19, 2010, Sanchez’s community
supervision was revoked and a bench warrant for his arrest was issued.
[5] In early January 2013, Sanchez sold an ounce of cocaine to a confidential
informant. When officers of the Grant County Joint Effort Against Narcotics
team arrested Sanchez following the transaction, they located two baggies that
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contained a white substance—which later tested positive for cocaine—weighing
at least 28 grams. Officers also determined that Sanchez was driving with a
false license plate. After he was taken into custody, he refused to give officers
any identifying information. Eventually, a search warrant was obtained for
Sanchez’s apartment, where officers recovered approximately 42.5 grams of
cocaine and 429.15 grams of marijuana.
[6] On January 15, 2013, the State filed an Information, charging Sanchez with
two Counts of dealing in cocaine, Class A felonies, and one Count of
possession of marijuana, a Class D felony. A month later, on February 12,
2013, Sanchez was released on bond and permitted to travel out of state to San
Marcos to visit his mother in a hospital. On September 18, 2014, Sanchez
entered into a plea agreement with the State, in which he agreed to plead guilty
to one Count of dealing in cocaine, a Class A felony. As part of the plea
agreement, Sanchez consented to waive his right to appeal the sentence
imposed by the trial court. On November 12, 2014, Sanchez filed a motion to
withdraw his plea agreement, alleging that he did not enter into the plea
knowingly and voluntarily because he “was unaware of a non-suspendable 20-
year prison sentence for a prior felony conviction, [and] [h]e had a prior felony
conviction in Texas that he thought had been dismissed.” (Appellant’s App.
Vol. II, p. 24). The trial court granted Sanchez’s motion and set the matter for
trial for February 2, 2015. However, prior to trial, on January 27, 2015, a
modified plea agreement was filed in which Sanchez pled guilty to one Count
of dealing in cocaine as a Class A felony but which omitted the waiver
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provision regarding sentencing. The trial court set the matter for sentencing on
April 10, 2015.
[7] On March 13, 2015, a capias warrant from Texas was executed and Sanchez’s
participation in the deferred adjudication program was revoked, which resulted
in Sanchez being ordered to serve a six-year sentence in the Texas cause. As a
result of his incarceration in Texas, Sanchez failed to appear for sentencing in
the current cause in Indiana and a warrant was issued for his arrest.
[8] Sanchez was released from prison in Texas on April 12, 2019, and the arrest
warrant in the instant cause was executed four days later. On May 9, 2019,
Sanchez filed another motion to withdraw his guilty plea alleging that he would
not have pled guilty if he had been aware that his felony in Texas would not be
converted to a misdemeanor, as a felony would increase his executed sentence
in the current Indiana cause. The trial court denied his motion, concluding that
while the crime was committed in 2005, Sanchez’s conviction and sentence did
not commence until April 30, 2015, and therefore his conviction did not qualify
as a prior unrelated felony.
[9] On September 24, 2019, the trial court conducted a sentencing hearing. At
sentencing, Sanchez testified that he possessed and sold the drugs under duress
because he had received notice that the Mexican drug cartel was watching his
family in Mexico. At the close of the evidence, the trial court identified the
following aggravating circumstances: (1) Sanchez violated the terms of his
deferred adjudication in Texas; (2) his criminal history; and (3) a sentence less
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than the advisory would depreciate the seriousness of the crime. As mitigating
circumstances, the trial court found: (1) Sanchez pled guilty without the benefit
of a sentencing agreement; (2) he was remorseful; and (3) a long period of
incarceration would result in undue hardship to his minor children. Finding
that the mitigating factors outweighed the aggravating circumstances, the trial
court sentenced Sanchez to twelve years, with two years suspended to
probation. The trial court ordered the sentence to run consecutively to the
sentence received in Texas. On September 26, 2019, the trial court corrected its
imposed sentence due to the sentencing guidelines in place at the time the crime
was committed and imposed a twenty-year sentence with ten years suspended
to probation.
[10] Sanchez now appeals. Additional facts will be provided if necessary.
DISCUSSION AND DECISION
[11] Sanchez requests that we independently review the appropriateness of his
sentence. 1 “Even when a trial court imposes a sentence within its discretion,
the Indiana Constitution authorizes independent appellate review and revision
of this sentencing decision.” Hoak v. State, 113 N.E.3d 1209, 1209 (Ind. 2019).
1 In his appellate brief, Sanchez also addresses the trial court’s imposition of consecutive
sentences and credit time calculation. However, as Sanchez notes that “the Indiana court
could not order the Indiana sentence to be served concurrently with the Texas sentence, nor
could the Indiana court give Sanchez credit time towards his Indiana sentence for the time he
spent incarcerated in Texas before he was sentenced in Indiana,” he appears to concede the
argument and therefore we will not review it. (Sanchez Br. p. 15).
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Thus, we may alter a sentence 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. Id. The principal role of such review
is to attempt to leaven the outliers. Cardwell v. State, 895 N.E.2d 1219, 1225
(Ind. 2008). The defendant bears the burden to persuade the reviewing court
that the sentence imposed is inappropriate. Robinson v. State, 91 N.E.3d 574,
577 (Ind. 2018).
[12] At the time Sanchez pled guilty to Class A felony dealing in cocaine, the
sentencing range was twenty to fifty years, with an advisory sentence of thirty
years. I.C. § 35-50-2-4. The trial court sentenced Sanchez to the minimum
sentence allowed pursuant to the statute—twenty years—with ten years
suspended to probation.
[13] With respect to the nature of the crime, we do not turn a blind eye to “facts of
the incident that brought the defendant before” us or the “nature and
circumstances of the crime as well as the manner in which the crime is
committed.” Bethea v. State, 893 N.E.2d 1134, 1145 (Ind. 2013). Here, Sanchez
possessed approximately 28.08 grams of cocaine, which is nine times more than
what is required under the statute for a Class A felony. Additionally, in his
apartment, officers recovered an additional 42.5 grams of cocaine and 429.15
grams of marijuana. During these proceedings, Sanchez’s explanation for his
dealings was inconsistent. At sentencing, Sanchez testified that he was placed
under duress by the Mexican drug cartel who threatened to harm his family.
During his PSI investigation, Sanchez stated that he was “trying to hire a
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Coyote to transport his sister out of Mexico” but instead of bringing his sister to
Indiana, they told Sanchez “he had to do a job for them or they would hold his
sister.” (Appellant’s App. Vol. II, p. 58). Sanchez’s statements are nothing
more than inconsistent, self-serving statements that are otherwise unsupported
by the record and which the trial court was not obligated to believe. See
Fitzgerald v. State, 26 N.E.3d 105, 110 (Ind. Ct. App. 2015).
[14] Likewise, Sanchez’s character does not warrant a downward revision of his
sentence. A defendant’s willingness to continue committing crimes is relevant
for analysis of his character under Appellate Rule 7(B). Garcia v. State, 47 N.E.
3d 1249, 1251 (Ind. Ct. App. 2015), trans. denied. Independent of the present
conviction, Sanchez has one felony conviction for aggravated assault with a
deadly weapon in Texas, and one misdemeanor conviction for operating a
motor vehicle without a license in Indiana. Sanchez violated his deferred
adjudication in Texas when he moved to Indiana.
[15] Sanchez argues that his good character is shown by his good behavior while out
on bond, his trip to Texas to address his pending matter, his gainful
employment, and his support for his family and children. However, the record
reflects that Sanchez avoided the petition to revoke in Texas for years by
moving to Indiana and only returned to Texas when he was arrested and
charged with the instant crime. Similarly, Sanchez’s employment does not
warrant a revision of his sentence. Many people are gainfully employed such
that this would not require employment being noted as something unusual or be
afforded more weight. See Newsome v. State, 797 N.E.2d 293, 301 (Ind. Ct. App.
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2003) (where we evaluated employment as a mitigating factor). Moreover, the
trial court already took Sanchez’s support of his family in consideration when
finding that a long period of incarceration would result in undue hardship to
Sanchez’s minor children. Although Sanchez pled guilty, he received a
significant benefit by pleading guilty to only one of three Counts. Even though
the trial court noted he expressed remorse, Sanchez does not appear to accept
responsibility for his criminal actions and has not only blamed others for his
current offense, but also blamed the officer conducting the PSI investigation for
his troubles in Texas. Therefore, in light of the facts before us, we conclude that
trial court’s imposed sentence is not inappropriate.
CONCLUSION
[16] Based on the foregoing, we hold that Sanchez’s sentence is not inappropriate in
light of the offense and his character.
[17] Affirmed.
[18] Mathias, J. and Tavitas, J. concur
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