MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Mar 08 2018, 9:06 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Noah T. Williams Curtis T. Hill, Jr. Monroe Co. Public Defender Attorney General of Indiana Bloomington, Indiana Michael Gene Worden Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Alejandro Perez-Cortez, March 8, 2018 Appellant-Defendant, Court of Appeals Case No. 53A01-1710-CR-2407 v. Appeal from the Monroe Circuit Court State of Indiana, The Honorable Marc Kellams, Appellee-Plaintiff. Judge Trial Court Cause No. 53C02-1611-F3-1001
Brown, Judge.
Court of Appeals of Indiana | Memorandum Decision 53A01-1710-CR-2407 | March 8, 2018 Page 1 of 6 [1] Alejandro Perez-Cortez appeals his sentence for rape as a level 3 felony. He
raises one issue which we revise and restate as whether his sentence is
inappropriate in light of the nature of the offense and his character. We affirm.
Facts and Procedural History
[2] On or about October 4, 2016, Perez-Cortez was at the home of S.M. and her
husband and was friends with S.M.’s husband. While Perez-Cortez and S.M.’s
husband drank together, S.M. went to her bedroom. At some point, Perez-
Cortez entered the bedroom and, without wearing his pants or shoes, got into
bed with S.M. and Perez-Cortez attempted to force his penis into S.M.’s anus.
[3] On November 22, 2016, the State charged Perez-Cortez with: Count I, rape as a
level 3 felony,1 and Count II, sexual battery as a level 6 felony.2 The State and
Perez-Cortez entered a plea and sentencing agreement pursuant to which he
agreed to plead guilty to Count I, the State agreed to dismiss Count II, and the
parties agreed that his sentence would not exceed five years. Perez-Cortez pled
guilty as charged pursuant to the plea agreement.3 Perez-Cortez stated, “I was
drunk, but I never hurt her.” Transcript at 10. He indicated that he was an
1 Count I alleged Perez-Cortez “did knowingly or intentionally have other sexual conduct, that is: tried to force his penis into the anus of S.M. when such person was compelled by force and/or imminent threat of force.” Appellant’s Appendix Volume I at 11. 2 Count II alleged Perez-Cortez, “with the intent to arouse or satisfy the sexual desires of himself, did compel S.M. to submit to a touching, that is: touched the vagina of S.M. with his fingers by the use of force or imminent threat of force.” Appellant’s Appendix Volume I at 11. 3 The transcript indicates that Perez-Cortez does not speak English and provided his testimony through an interpreter.
Court of Appeals of Indiana | Memorandum Decision 53A01-1710-CR-2407 | March 8, 2018 Page 2 of 6 undocumented immigrant. The prosecuting attorney argued that Perez-Cortez
was not a good candidate for probation due to his immigration status, indicated
he expected removal proceedings to begin, and requested a sentence of five
years. Perez-Cortez’s counsel argued that Perez-Cortez was relatively young,
had no criminal history, pled guilty to the lead charge, did not deny what had
occurred, told the police that he drank too much to remember what happened,
and made no effort to flee during the weeks he could have done so, and he
requested a sentence of three years. The court noted that the advisory sentence
for a level 3 felony was nine years and stated, “[l]ooking at it that way, the plea
agreement has already given him four years of mitigation.” Id. at 18. It stated
that it felt it appropriate that Perez-Cortez be given the five-year sentence that
was the cap in the plea agreement and sentenced him to five years.
Discussion
[4] The issue is whether Perez-Cortez’s sentence is inappropriate in light of the
nature of the offense and his character. Ind. 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.” Under this rule, the
burden is on the defendant to persuade the appellate court that his or her
sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).
[5] Perez-Cortez argues that S.M. did not report physical violence or brutality and
was not physically injured, that once she ordered him to leave he did so and he
accidentally leaving his shoes behind, and that he made no threats and used no Court of Appeals of Indiana | Memorandum Decision 53A01-1710-CR-2407 | March 8, 2018 Page 3 of 6 weapons during the brief encounter. He argues that he has no criminal history,
scored low in all but two domains using the Indiana risk assessment system
tool, pled guilty to the lead charge and accepted responsibility for his actions,
promptly reported to the police station for an interview, and did not flee during
the several weeks leading up to being charged.
[6] The State maintains that Perez-Cortez received a sentence which is four years
less than the advisory sentence and two years above the minimum sentence and
that his sentence is hardly a harsh one for attempting to anally rape his friend’s
wife. It contends that, while this is his first known conviction, Perez-Cortez has
not lived a law-abiding life as he entered the country illegally.
[7] A person who commits a level 3 felony shall be imprisoned for a fixed term of
between three years and sixteen years with the advisory sentence being nine
years. Ind. Code § 35-50-2-5. The court sentenced Perez-Cortez to five years,
which was the maximum sentence permitted under the plea and sentencing
agreement.
[8] Our review of the nature of the offense reveals that Perez-Cortez consumed
alcohol at the home of S.M. and her husband and, at some point after S.M.
went to bed, Perez-Cortez entered the bedroom, got into the bed without his
pants or shoes on, and attempted to force his penis into S.M.’s anus.
[9] Our review of the character of the offender reveals that Perez-Cortez pled guilty
to rape as a level 3 felony as charged under Count I and the State dismissed
Count II pursuant to the plea and sentencing agreement. Perez-Cortez was
Court of Appeals of Indiana | Memorandum Decision 53A01-1710-CR-2407 | March 8, 2018 Page 4 of 6 born on July 8, 1991. The presentence investigation report (“PSI”) does not
include any legal history for Perez-Cortez prior to the instant offense. While he
stated at sentencing that he had been in the United States for two years and
three months, the PSI indicates that he reported that he illegally immigrated to
the United States approximately six months before his arrest. The PSI indicates
that he recalled he made weekly payments as well as performed unspecified odd
jobs for a human smuggler who eventually provided him transport from Mexico
City to Bloomington and that he knew others living in the area who helped him
obtain a job at a local restaurant. He further reported he has two children who
continue to live in Mexico with their mother, he maintains frequent contact
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Mar 08 2018, 9:06 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Noah T. Williams Curtis T. Hill, Jr. Monroe Co. Public Defender Attorney General of Indiana Bloomington, Indiana Michael Gene Worden Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Alejandro Perez-Cortez, March 8, 2018 Appellant-Defendant, Court of Appeals Case No. 53A01-1710-CR-2407 v. Appeal from the Monroe Circuit Court State of Indiana, The Honorable Marc Kellams, Appellee-Plaintiff. Judge Trial Court Cause No. 53C02-1611-F3-1001
Brown, Judge.
Court of Appeals of Indiana | Memorandum Decision 53A01-1710-CR-2407 | March 8, 2018 Page 1 of 6 [1] Alejandro Perez-Cortez appeals his sentence for rape as a level 3 felony. He
raises one issue which we revise and restate as whether his sentence is
inappropriate in light of the nature of the offense and his character. We affirm.
Facts and Procedural History
[2] On or about October 4, 2016, Perez-Cortez was at the home of S.M. and her
husband and was friends with S.M.’s husband. While Perez-Cortez and S.M.’s
husband drank together, S.M. went to her bedroom. At some point, Perez-
Cortez entered the bedroom and, without wearing his pants or shoes, got into
bed with S.M. and Perez-Cortez attempted to force his penis into S.M.’s anus.
[3] On November 22, 2016, the State charged Perez-Cortez with: Count I, rape as a
level 3 felony,1 and Count II, sexual battery as a level 6 felony.2 The State and
Perez-Cortez entered a plea and sentencing agreement pursuant to which he
agreed to plead guilty to Count I, the State agreed to dismiss Count II, and the
parties agreed that his sentence would not exceed five years. Perez-Cortez pled
guilty as charged pursuant to the plea agreement.3 Perez-Cortez stated, “I was
drunk, but I never hurt her.” Transcript at 10. He indicated that he was an
1 Count I alleged Perez-Cortez “did knowingly or intentionally have other sexual conduct, that is: tried to force his penis into the anus of S.M. when such person was compelled by force and/or imminent threat of force.” Appellant’s Appendix Volume I at 11. 2 Count II alleged Perez-Cortez, “with the intent to arouse or satisfy the sexual desires of himself, did compel S.M. to submit to a touching, that is: touched the vagina of S.M. with his fingers by the use of force or imminent threat of force.” Appellant’s Appendix Volume I at 11. 3 The transcript indicates that Perez-Cortez does not speak English and provided his testimony through an interpreter.
Court of Appeals of Indiana | Memorandum Decision 53A01-1710-CR-2407 | March 8, 2018 Page 2 of 6 undocumented immigrant. The prosecuting attorney argued that Perez-Cortez
was not a good candidate for probation due to his immigration status, indicated
he expected removal proceedings to begin, and requested a sentence of five
years. Perez-Cortez’s counsel argued that Perez-Cortez was relatively young,
had no criminal history, pled guilty to the lead charge, did not deny what had
occurred, told the police that he drank too much to remember what happened,
and made no effort to flee during the weeks he could have done so, and he
requested a sentence of three years. The court noted that the advisory sentence
for a level 3 felony was nine years and stated, “[l]ooking at it that way, the plea
agreement has already given him four years of mitigation.” Id. at 18. It stated
that it felt it appropriate that Perez-Cortez be given the five-year sentence that
was the cap in the plea agreement and sentenced him to five years.
Discussion
[4] The issue is whether Perez-Cortez’s sentence is inappropriate in light of the
nature of the offense and his character. Ind. 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.” Under this rule, the
burden is on the defendant to persuade the appellate court that his or her
sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).
[5] Perez-Cortez argues that S.M. did not report physical violence or brutality and
was not physically injured, that once she ordered him to leave he did so and he
accidentally leaving his shoes behind, and that he made no threats and used no Court of Appeals of Indiana | Memorandum Decision 53A01-1710-CR-2407 | March 8, 2018 Page 3 of 6 weapons during the brief encounter. He argues that he has no criminal history,
scored low in all but two domains using the Indiana risk assessment system
tool, pled guilty to the lead charge and accepted responsibility for his actions,
promptly reported to the police station for an interview, and did not flee during
the several weeks leading up to being charged.
[6] The State maintains that Perez-Cortez received a sentence which is four years
less than the advisory sentence and two years above the minimum sentence and
that his sentence is hardly a harsh one for attempting to anally rape his friend’s
wife. It contends that, while this is his first known conviction, Perez-Cortez has
not lived a law-abiding life as he entered the country illegally.
[7] A person who commits a level 3 felony shall be imprisoned for a fixed term of
between three years and sixteen years with the advisory sentence being nine
years. Ind. Code § 35-50-2-5. The court sentenced Perez-Cortez to five years,
which was the maximum sentence permitted under the plea and sentencing
agreement.
[8] Our review of the nature of the offense reveals that Perez-Cortez consumed
alcohol at the home of S.M. and her husband and, at some point after S.M.
went to bed, Perez-Cortez entered the bedroom, got into the bed without his
pants or shoes on, and attempted to force his penis into S.M.’s anus.
[9] Our review of the character of the offender reveals that Perez-Cortez pled guilty
to rape as a level 3 felony as charged under Count I and the State dismissed
Count II pursuant to the plea and sentencing agreement. Perez-Cortez was
Court of Appeals of Indiana | Memorandum Decision 53A01-1710-CR-2407 | March 8, 2018 Page 4 of 6 born on July 8, 1991. The presentence investigation report (“PSI”) does not
include any legal history for Perez-Cortez prior to the instant offense. While he
stated at sentencing that he had been in the United States for two years and
three months, the PSI indicates that he reported that he illegally immigrated to
the United States approximately six months before his arrest. The PSI indicates
that he recalled he made weekly payments as well as performed unspecified odd
jobs for a human smuggler who eventually provided him transport from Mexico
City to Bloomington and that he knew others living in the area who helped him
obtain a job at a local restaurant. He further reported he has two children who
continue to live in Mexico with their mother, he maintains frequent contact
with them, he sends money to them when he is able to do so, and he does not
make enough money through his job to send substantial amounts to his children
or his mother and typically earns only enough to pay for his own local living
expenses. He reported that, prior to his arrest, he worked as a cook and was
typically scheduled to work as many as thirty hours per week. He reported that
he previously consumed alcohol and smoked marijuana, he probably consumed
alcohol once every three to four weeks, his last use of marijuana was eight
months before his interview, and he smoked marijuana no more than three to
four times in total. The PSI indicates that Perez-Cortez scored in the low
category in five domains of the Indiana risk assessment system tool and
moderate in the domain of education, employment, and financial situation and
the domain of substance abuse. It also indicates that his overall risk assessment
score places him in the high risk to reoffend category.
Court of Appeals of Indiana | Memorandum Decision 53A01-1710-CR-2407 | March 8, 2018 Page 5 of 6 [10] After due consideration, we conclude that Perez-Cortez has not sustained his
burden of establishing that his five-year sentence for rape as a level 3 felony is
inappropriate in light of the nature of the offense and his character.
Conclusion
[11] For the foregoing reasons, we affirm Perez-Cortez’s sentence.
[12] Affirmed.
Baker, J., and Riley, J., concur.
Court of Appeals of Indiana | Memorandum Decision 53A01-1710-CR-2407 | March 8, 2018 Page 6 of 6