MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), this Oct 12 2017, 10:17 am Memorandum Decision shall not be regarded as CLERK precedent or cited before any court except for the Indiana Supreme Court Court of Appeals purpose of establishing the defense of res judicata, and Tax Court collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Jeffery A. Earl Curtis T. Hill, Jr. Danville, Indiana Attorney General of Indiana Ellen H. Meilaender Supervising Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Daniel F. Delacruz, October 12, 2017
Appellant-Defendant, Court of Appeals Case No. 32A01-1705-CR-1014 v. Appeal from the Hendricks Superior Court. The Honorable Karen M. Love, State of Indiana, Judge. Appellee-Plaintiff. Trial Court Cause No. 32D03-1601-FC-1
Friedlander, Senior Judge
[1] Daniel F. Delacruz appeals the sentence the trial court imposed upon his
convictions of three counts of sexual misconduct with a minor, all Class C
felonies. We affirm.
Court of Appeals of Indiana | Memorandum Decision 32A01-1705-CR-1014 | October 12, 2017 Page 1 of 7 [2] Delacruz met M.W. through a dating app sometime between August 2011 and
June 2012. At the time, Delacruz was twenty years of age, and M.W. was
fifteen. M.W. told Delacruz online that he was sixteen years old, but when
Delacruz arrived at M.W.’s house in Hendricks County within the next few
days, M.W. admitted he was fifteen. Delacruz engaged in sexual intercourse
with M.W. and continued to have occasional sexual contact with M.W. until
after M.W. turned sixteen.
[3] M.W. introduced Delacruz to A.B. via text message. Between May 1, 2012
and August 31, 2012, Delacruz performed oral sex on A.B. in Hendricks
County. A.B. was fifteen years old at the time.
[4] A.B. introduced Delacruz to E.B. A.B. and E.B. are twin siblings. Between
August 1, 2013 and December 31, 2013, Delacruz had sexual intercourse with
E.B., who was fifteen at the time, in Hendricks County.
[5] Finally, Delacruz met fourteen-year-old A.V. through a dating app. Delacruz
had sex with A.V. at A.V.’s residence in Putnam County even though A.V. told
him he was underage.
[6] In the current case, the State charged Delacruz with three counts of sexual
misconduct with a minor (count 1 for M.W., count 2 for A.B., and count 4 for
E.B.) and one count of child seduction (count 3, as to E.B.), all Class C
felonies. The parties executed a plea agreement, pursuant to which Delacruz
pleaded guilty to three counts of sexual misconduct with a minor. The State
dismissed the count of child seduction. Further, the parties agreed the executed
Court of Appeals of Indiana | Memorandum Decision 32A01-1705-CR-1014 | October 12, 2017 Page 2 of 7 portion of Delacruz’s sentence would be capped at twelve years. Finally, the
State agreed to dismiss a pending case against Delacruz in Putnam County,
where he was charged with sexual misconduct with A.V., if Delacruz admitted
to his criminal conduct against A.V. in the current case.
[7] The court accepted the plea agreement. The court determined that Delacruz’s
lack of a prior criminal history, his guilty plea and acceptance of responsibility,
and his age at the time the crimes were committed were mitigating factors. The
aggravating factors were that Delacruz committed uncharged misconduct with
A.V., as well as the nature and circumstances of the offenses, particularly the
approximate five-year age gap between Delacruz and his victims. The court
further determined that the aggravating and mitigating circumstances balanced.
As a result, the court sentenced Delacruz to four years with two years
suspended on count one and sentenced Delacruz to four years on counts two
and four, to be served consecutively, for an executed sentence of ten years, with
an additional two years suspended to probation. This appeal followed.
[8] Delacruz claims his sentence is inappropriate in light of the nature of the
offenses and his character because a greater proportion of his sentence should
be suspended to probation. In general, sentencing decisions rest within the
sound discretion of the trial court and are reviewed on appeal for an abuse of
discretion. Anglemyer v. State, 868 N.E.2d 482 (Ind. 2007), clarified on reh’g, 875
N.E.2d 218 (2007). Nonetheless, even when a trial court imposes a sentence
within its discretion, the Court retains constitutional authority to review and
revise sentences. Ind. Const. art. 7, § 6. This constitutional authority is
Court of Appeals of Indiana | Memorandum Decision 32A01-1705-CR-1014 | October 12, 2017 Page 3 of 7 implemented through Indiana Appellate Rule 7(B), which provides that we
“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.”
[9] The principal role of sentencing review under Appellate Rule 7(B) is to attempt
to leaven the outliers. Perry v. State, 78 N.E.3d 1 (Ind. Ct. App. 2017). The
appellant bears the burden of demonstrating the sentence is inappropriate. Id.
We may consider not only the aggravators and mitigators found by the trial
court, but also any other factors appearing in the record. Walters v. State, 68
N.E.3d 1097 (Ind. Ct. App. 2017), trans. denied.
[10] The advisory sentence is the starting point in determining the appropriateness of
a sentence. At the time Delacruz committed his offenses, the advisory sentence
for a Class C felony was four years, with a minimum sentence of two years and
a maximum sentence of eight years. Ind. Code § 35-50-2-6 (2005). The court
sentenced Delacruz to four years, with two years suspended, for count one.
The court further imposed the advisory sentence for counts two and four and
ordered all sentences served consecutively for an aggregate executed sentence of
ten years.
[11] The nature of the offense is found in the details and circumstances of the
offenses and the defendant’s participation. Perry, 78 N.E.3d 1. Delacruz used
dating apps to meet underage boys and had sex with them. He also used his
victims to obtain introductions to other potential victims. Delacruz had ample
Court of Appeals of Indiana | Memorandum Decision 32A01-1705-CR-1014 | October 12, 2017 Page 4 of 7 opportunity to end his criminal behavior but chose not to, resulting in him
molesting the four victims discussed in this case. “Whether the counts involve
one or multiple victims is highly relevant to the decision to impose consecutive
sentences.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008).
[12] The harm to some of the victims will be long-lasting. A.B. testified at
sentencing that he suffered from anxiety and depression due to Delacruz’s
criminal conduct and had been in therapy since 2014. He is on multiple
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MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), this Oct 12 2017, 10:17 am Memorandum Decision shall not be regarded as CLERK precedent or cited before any court except for the Indiana Supreme Court Court of Appeals purpose of establishing the defense of res judicata, and Tax Court collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Jeffery A. Earl Curtis T. Hill, Jr. Danville, Indiana Attorney General of Indiana Ellen H. Meilaender Supervising Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Daniel F. Delacruz, October 12, 2017
Appellant-Defendant, Court of Appeals Case No. 32A01-1705-CR-1014 v. Appeal from the Hendricks Superior Court. The Honorable Karen M. Love, State of Indiana, Judge. Appellee-Plaintiff. Trial Court Cause No. 32D03-1601-FC-1
Friedlander, Senior Judge
[1] Daniel F. Delacruz appeals the sentence the trial court imposed upon his
convictions of three counts of sexual misconduct with a minor, all Class C
felonies. We affirm.
Court of Appeals of Indiana | Memorandum Decision 32A01-1705-CR-1014 | October 12, 2017 Page 1 of 7 [2] Delacruz met M.W. through a dating app sometime between August 2011 and
June 2012. At the time, Delacruz was twenty years of age, and M.W. was
fifteen. M.W. told Delacruz online that he was sixteen years old, but when
Delacruz arrived at M.W.’s house in Hendricks County within the next few
days, M.W. admitted he was fifteen. Delacruz engaged in sexual intercourse
with M.W. and continued to have occasional sexual contact with M.W. until
after M.W. turned sixteen.
[3] M.W. introduced Delacruz to A.B. via text message. Between May 1, 2012
and August 31, 2012, Delacruz performed oral sex on A.B. in Hendricks
County. A.B. was fifteen years old at the time.
[4] A.B. introduced Delacruz to E.B. A.B. and E.B. are twin siblings. Between
August 1, 2013 and December 31, 2013, Delacruz had sexual intercourse with
E.B., who was fifteen at the time, in Hendricks County.
[5] Finally, Delacruz met fourteen-year-old A.V. through a dating app. Delacruz
had sex with A.V. at A.V.’s residence in Putnam County even though A.V. told
him he was underage.
[6] In the current case, the State charged Delacruz with three counts of sexual
misconduct with a minor (count 1 for M.W., count 2 for A.B., and count 4 for
E.B.) and one count of child seduction (count 3, as to E.B.), all Class C
felonies. The parties executed a plea agreement, pursuant to which Delacruz
pleaded guilty to three counts of sexual misconduct with a minor. The State
dismissed the count of child seduction. Further, the parties agreed the executed
Court of Appeals of Indiana | Memorandum Decision 32A01-1705-CR-1014 | October 12, 2017 Page 2 of 7 portion of Delacruz’s sentence would be capped at twelve years. Finally, the
State agreed to dismiss a pending case against Delacruz in Putnam County,
where he was charged with sexual misconduct with A.V., if Delacruz admitted
to his criminal conduct against A.V. in the current case.
[7] The court accepted the plea agreement. The court determined that Delacruz’s
lack of a prior criminal history, his guilty plea and acceptance of responsibility,
and his age at the time the crimes were committed were mitigating factors. The
aggravating factors were that Delacruz committed uncharged misconduct with
A.V., as well as the nature and circumstances of the offenses, particularly the
approximate five-year age gap between Delacruz and his victims. The court
further determined that the aggravating and mitigating circumstances balanced.
As a result, the court sentenced Delacruz to four years with two years
suspended on count one and sentenced Delacruz to four years on counts two
and four, to be served consecutively, for an executed sentence of ten years, with
an additional two years suspended to probation. This appeal followed.
[8] Delacruz claims his sentence is inappropriate in light of the nature of the
offenses and his character because a greater proportion of his sentence should
be suspended to probation. In general, sentencing decisions rest within the
sound discretion of the trial court and are reviewed on appeal for an abuse of
discretion. Anglemyer v. State, 868 N.E.2d 482 (Ind. 2007), clarified on reh’g, 875
N.E.2d 218 (2007). Nonetheless, even when a trial court imposes a sentence
within its discretion, the Court retains constitutional authority to review and
revise sentences. Ind. Const. art. 7, § 6. This constitutional authority is
Court of Appeals of Indiana | Memorandum Decision 32A01-1705-CR-1014 | October 12, 2017 Page 3 of 7 implemented through Indiana Appellate Rule 7(B), which provides that we
“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.”
[9] The principal role of sentencing review under Appellate Rule 7(B) is to attempt
to leaven the outliers. Perry v. State, 78 N.E.3d 1 (Ind. Ct. App. 2017). The
appellant bears the burden of demonstrating the sentence is inappropriate. Id.
We may consider not only the aggravators and mitigators found by the trial
court, but also any other factors appearing in the record. Walters v. State, 68
N.E.3d 1097 (Ind. Ct. App. 2017), trans. denied.
[10] The advisory sentence is the starting point in determining the appropriateness of
a sentence. At the time Delacruz committed his offenses, the advisory sentence
for a Class C felony was four years, with a minimum sentence of two years and
a maximum sentence of eight years. Ind. Code § 35-50-2-6 (2005). The court
sentenced Delacruz to four years, with two years suspended, for count one.
The court further imposed the advisory sentence for counts two and four and
ordered all sentences served consecutively for an aggregate executed sentence of
ten years.
[11] The nature of the offense is found in the details and circumstances of the
offenses and the defendant’s participation. Perry, 78 N.E.3d 1. Delacruz used
dating apps to meet underage boys and had sex with them. He also used his
victims to obtain introductions to other potential victims. Delacruz had ample
Court of Appeals of Indiana | Memorandum Decision 32A01-1705-CR-1014 | October 12, 2017 Page 4 of 7 opportunity to end his criminal behavior but chose not to, resulting in him
molesting the four victims discussed in this case. “Whether the counts involve
one or multiple victims is highly relevant to the decision to impose consecutive
sentences.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008).
[12] The harm to some of the victims will be long-lasting. A.B. testified at
sentencing that he suffered from anxiety and depression due to Delacruz’s
criminal conduct and had been in therapy since 2014. He is on multiple
medications. Furthermore, A.B. stated he was having difficulty in forming
genuine relationships with others. A.B.’s sibling E.B. reported that he has been
diagnosed with “generalized anxiety disorder, post-traumatic stress disorder,
panic disorder, and major depression.” Tr. Vol. 2, p. 49. E.B. has been in
counseling and on prescription medication for years. Delacruz’s molestation of
E.B. also damaged E.B.’s ability to form and maintain social relationships.
E.B. indicated at sentencing, some four years after the molestation, that he
thought about Delacruz’s sexual abuse of him every day.
[13] Delacruz argues that he is not a predator, but it is difficult to describe his
conduct here with any other term. He asked A.V., who he met while working
as a substitute teacher, if A.V. knew any other underage boys. Further,
Delacruz encouraged M.W. to introduce him to A.B., through whom he met
E.B. M.W. explained that Delacruz insinuated himself into M.W.’s social
circle to meet other boys of M.W.’s age. The nature of his offenses alone
justifies the consecutive advisory sentences imposed by the trial court.
Court of Appeals of Indiana | Memorandum Decision 32A01-1705-CR-1014 | October 12, 2017 Page 5 of 7 [14] The character of the offender is found in what we learn of the offender’s life and
conduct. Perry, 78 N.E.3d 1 (quotation omitted). Delacruz, who was twenty-
five years old at the time of sentencing, had no prior criminal history. His lack
of a history of convictions is undermined by the uncharged criminal conduct in
the record, specifically his repeated molestations of M.W. until after M.W.
turned sixteen and his molestation of A.V.
[15] In addition, although Delacruz pleaded guilty, his guilty plea is entitled to
minimal weight because he negotiated a much lower sentence than the
maximum. He received only ten years executed when he could have received
twenty-four years if maximum, consecutive sentences had been imposed. See
Swain v. State, 870 N.E.2d 1058, 1060 (Ind. Ct. App. 2007) (guilty plea entitled
to “little, if any, mitigating weight” if defendant receives some benefit).
[16] Delacruz argues that his relatively young age indicates sentence reduction is
appropriate because he was not fully mature and had not yet fully developed an
ability to make rational decisions. We cannot agree. Delacruz was
approximately twenty years of age when he committed his offenses, which is
not particularly young. Further, he committed his crimes over a period of at
least a year, so he had ample time to reflect on his criminal behavior and end it.
[17] Finally, Delacruz argues he would receive more benefit from obtaining sex
offender treatment and general therapy outside of prison rather than from the
services provided by the Indiana Department of Correction. The appropriate
question is not whether another sentence is more appropriate, rather, the
Court of Appeals of Indiana | Memorandum Decision 32A01-1705-CR-1014 | October 12, 2017 Page 6 of 7 question is whether the sentence imposed is inappropriate. Williams v. State,
997 N.E.2d 1154 (Ind. Ct. App. 2013). Delacruz will be eligible for sex
offender treatment in prison. In light of the tragic nature of Delacruz’s offenses
and his uncharged misconduct, he has failed to demonstrate that his sentence is
inappropriate.
[18] For the reasons stated above, we affirm the judgment of the trial court.
[19] Judgment affirmed.
Kirsch, J., and Robb, J., concur.
Court of Appeals of Indiana | Memorandum Decision 32A01-1705-CR-1014 | October 12, 2017 Page 7 of 7