Carlos Humberto Prieto v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: December 14, 2018
• Docket: 18A-CR-1672
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Dec 14 2018, 10:29 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 Alexander L. Hoover Curtis T. Hill, Jr. Law Office of Christopher G. Attorney General Walter, P.C. Jesse R. Drum Nappanee, Indiana Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Carlos Humberto Prieto, December 14, 2018 Appellant-Defendant, Court of Appeals Case No. 18A-CR-1672 v. Appeal from the Marshall Superior Court State of Indiana, The Honorable Robert O. Bowen Appellee-Plaintiff Trial Court Cause No. 50D01-1612-F1-6

Vaidik, Chief Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1672 | December 14, 2018 Page 1 of 5 Case Summary [1] Carlos Prieto appeals his thirty-year sentence for Level 1 felony child molesting,

arguing that it is inappropriate in light of the nature of his offense and his

character. We disagree and affirm.

Facts and Procedural History [2] The following facts are taken from the Affidavit of Probable Cause, which

Prieto stipulated is accurate. In December 2016, forty-five-year-old Prieto was

living in Culver with his girlfriend and her five-year-old daughter, L.S. Prieto

had known L.S. since she was a toddler, and he had been living with her and

her mother since at least July 2016. On December 17, L.S.’s mother went out

and left L.S. at home with Prieto. When L.S.’s mother returned, L.S. asked,

“[I]s it okay if Carlos licks my vagina, again?” Appellant’s App. Vol. II p. 17.

L.S. went on to say that Prieto had “licked her vagina today” and “licked her

vagina another time[.]” Id. L.S.’s mother confronted Prieto, who initially

denied the allegations but later said, “I should’ve told you about this.” Id. He

added that he “licked L.S.’s vagina . . . at L.S.’s request.” Id. Prieto was taken

into custody the same night, and he admitted that he had “kissed [L.S.’s]

vagina” three or four weeks earlier. Id. at 18.

[3] The State charged Prieto with four counts: Count I, Level 1 felony child

molesting (“other sexual conduct” on December 17, 2016); Count II, Level 4

felony child molesting (“fondling or touching” on December 17, 2016); Count

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1672 | December 14, 2018 Page 2 of 5 III, Level 1 felony child molesting (“other sexual conduct” between November

1 and December 16, 2016); and Count IV, Level 4 felony child molesting

(“fondling or touching” between November 1 and December 16, 2016). Id. at

22-23. In November 2017, Prieto and the State entered into a plea agreement

under which Prieto would plead guilty to Count I and the State would dismiss

the remaining counts, with sentencing left to the discretion of the trial court.

[4] At the sentencing hearing, the trial court heard statements from both Prieto and

L.S.’s mother. Prieto said that he “was just trying to be a father” and that he

“just gave [L.S.] a kiss. That’s all.” Tr. pp. 16, 20. The trial court explained

that it was finding two mitigating circumstances: (1) the fact that Prieto pled

guilty, “saving the victim’s family and victim from going through a trial,” and

(2) Prieto’s lack of criminal history. Id. at 24. The court also found three

aggravating circumstances: (1) L.S.’s age “was significantly less than what was

required for a conviction of a Level 1 Felony,” (2) Prieto violated the trust of

both L.S. and her mother, and (3) Prieto failed to show “a lot of remorse.” Id.

at 24-25. The court found that “the aggravating circumstances do outweigh the

mitigating” but nonetheless sentenced Prieto to serve the advisory sentence of

thirty years with the Indiana Department of Correction. Id. at 25-26. In a

written sentencing order issued the same day, the court omitted the third

aggravator (lack of remorse) and stated that “[t]he aggravating and mitigating

circumstances balance,” but it reiterated the thirty-year sentence. Appellant’s

App. Vol. II pp. 119-20.

[5] Prieto now appeals.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1672 | December 14, 2018 Page 3 of 5 Discussion and Decision [6] Prieto argues that his sentence is inappropriate and asks us to revise it pursuant

to Indiana Appellate Rule 7(B), which provides that an appellate 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.” “Whether a sentence is

inappropriate ultimately turns on the culpability of the defendant, the severity

of the crime, the damage done to others, and a myriad of other factors that

come to light in a given case.” Thompson v. State, 5 N.E.3d 383, 391 (Ind. Ct.

App. 2014) (citing Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008)).

Because we generally defer to the judgment of trial courts in sentencing matters,

defendants have the burden of persuading us that their sentences are

inappropriate. Schaaf v. State, 54 N.E.3d 1041, 1044-45 (Ind. Ct. App. 2016).

[7] Before addressing Prieto’s arguments, we note that he was facing a much longer

potential sentence. The sentencing range for Level 1 felony child molesting

involving a defendant who is twenty-one or older and a victim under twelve is

twenty to fifty years, with an advisory sentence of thirty years. Ind. Code § 35-

50-2-4(c). Prieto received the advisory sentence, despite the trial court having

found two (or three) aggravating circumstances. Moreover, Prieto easily could

have been convicted of a second Level 1 felony. L.S. reported that he had

“licked her vagina another time,” and Prieto admitted to police that he “kissed

[L.S.’s] vagina” three or four weeks before December 17. Therefore, the

dismissal of Count III was a significant benefit to Prieto.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1672 | December 14, 2018 Page 4 of 5 [8] Still, Prieto contends that his advisory sentence of thirty years is inappropriate.

He first emphasizes his lack of criminal history. This is no doubt an important

consideration. However, that fact must be weighed against the disturbing

circumstances of Prieto’s offense. As the trial court noted, L.S. was only five

years old, much younger than required for a child-molesting conviction, and

Prieto was in a position of trust with both L.S. and her mother. L.S.’s mother

stated at the sentencing hearing that Prieto’s abuse has necessitated extensive

counseling for L.S. Prieto also notes that he made expressions of remorse at the

sentencing hearing. That is true, but those expressions are belied by other

statements he made, i.e., that he “was just trying to be a father” and that he

“just gave [L.S.] a kiss. That’s all.” He also deflected blame early on,

explaining to L.S.’s mother that he acted at five-year-old L.S.’s “request.”

Given the troubling nature of Prieto’s crime and his failure to truly accept

responsibility, Prieto has not carried his burden of persuading us that the

advisory sentence of thirty years is inappropriate.

[9] Affirmed.

Mathias, J., and Crone, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1672 | December 14, 2018 Page 5 of 5