Dec 26 2013, 5:25 am Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
KEVIN T. MCNAMARA GREGORY F. ZOELLER Law Office of Kevin T. McNamara, LLC Attorney General of Indiana Saint John, Indiana MICHAEL GENE WORDEN Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
ESTEBAN GONZALEZ, ) ) Appellant/Cross-Appellee--Defendant, ) ) vs. ) No. 79A02-1303-CR-279 ) STATE OF INDIANA, ) ) Appellee/Cross-Appellant--Plaintiff. )
APPEAL FROM THE TIPPACANOE CIRCUIT COURT The Honorable Donald L. Daniel, Judge Cause No. 79C01-1205-FC-13 Cause No. 79C01-0505-FB-11
December 26, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
BAILEY, Judge Case Summary
Esteban Gonzalez (“Gonzalez”) appeals his ten-year aggregate sentence for Operating
a Motor Vehicle While Privileges are Forfeited for Life, as a Class C felony,1 and Operating
a Vehicle While Intoxicated, as a Class A misdemeanor;2 the sentence was enhanced due to
his status as an Habitual Substance Offender.3 He also appeals an order in a separate cause
reinstating four of nine previously-suspended years of an eighteen-year sentence as a result of
a probation violation.
We affirm.
Issues
Gonzalez presents one issue for our review, which we revise and restate as the
following two issues:
I. Whether Gonzalez’s sentence is inappropriate; and
II. Whether the trial court abused its discretion when it imposed sanctions
following the revocation of his probation.
The State presents one issue on cross-appeal:
1 Ind. Code § 9-30-10-17 (2012). The relevant code section was modified, effective July 1, 2013. We apply the version in force at the time of the commission of the offenses.
2 I.C. § 9-30-5-2.
3 I.C. § 35-50-2-10.
2 I. Whether Gonzalez preserved his right to appellate review of his
sentence and of the order imposing sanctions following the revocation
of his probation.
Facts and Procedural History
On January 11, 2013, Gonzalez pleaded guilty in cause FC-13 to Operating a Motor
Vehicle While Privileges are Forfeited for Life, as a Class C felony, and Operating a Vehicle
While Intoxicated, as a Class A misdemeanor; he also admitted to being an Habitual
Substance Offender. The same day, Gonzalez admitted that he had violated his probation in
cause FB-11.
On February 8, 2013, the trial court entered judgments of conviction in cause FC-13,
and found Gonzalez to be an Habitual Substance Offender. The court sentenced Gonzalez to
six years imprisonment for Operating a Motor Vehicle While Privileges are Forfeited for
Life, as a Class C felony, and one year imprisonment for Operating a Vehicle While
Intoxicated, as a Class A misdemeanor. The court imposed a five-year sentence
enhancement due to Gonzalez’s status as an Habitual Substance Offender, and suspended
two years of the resulting twelve-year sentence to probation, yielding a ten-year aggregate
sentence.
The same day, the trial court revoked Gonzalez’s probation in cause FB-11, and
reinstated four of nine previously-suspended years of an eighteen-year sentence for
3 Possession of Cocaine, as a Class B felony,4 increased because of a separate Habitual
Substance Offender enhancement.
On March 5, 2013, Gonzalez, pro se, filed a “Motion to File an Appeal for
Sentencing” in both causes. The trial court found that Gonzalez’s motions did not meet the
requirements for a Notice of Appeal, and noted that Motions to Correct Error had not been
filed. The court also purportedly extended the deadline by which Gonzalez could file a
Notice of Appeal in both causes to April 5, 2013.
On March 19, 2013, Gonzalez, by counsel, filed a Notice of Appeal in cause FC-13.5
And on May 8, 2013, Gonzalez filed a motion to consolidate causes FC-13 and FB-11 for
purposes of appeal, which this court granted.
Discussion and Decision
Timeliness of Notice of Appeal
We first address the threshold issue of whether Gonzalez preserved his right to
appellate review. The State contends that Gonzalez failed to file a timely Notice of Appeal.
“Unless [a] Notice of Appeal is timely filed, the right to appeal shall be forfeited[.]”
Ind. Appellate Rule 9(A)(5). “A party initiates an appeal by filing a Notice of Appeal with
the Clerk (as defined in Rule 2(D)) within thirty (30) days after the entry of a Final Judgment
is noted in the Chronological Case Summary.” App. R. 9(A)(1). And, until January 1, 2014,
“if an appellant timely files the Notice of Appeal with the trial court clerk . . . instead of the
4 I.C. § 35-48-4-6 (2005).
5 Gonzalez filed with the trial court a purported Notice of Appeal in cause FB-11 on March 23, 2013. However, the trial court, noting that it was unable to determine what action Gonzalez requested in his Notice of Appeal, took no action.
4 Clerk [of the Indiana Supreme Court, Court of Appeals and Tax Court,] as required by App.
R. 9(A)(1), the Notice of Appeal will be deemed timely filed and the appeal will not be
forfeited.” App. R. 9(A).
“The [Supreme Court and the Court of Appeals] may, upon the motion of a party or
the Court’s own motion, permit deviation from these Rules.” App. R. 1. But, a trial court
has no authority to extend the deadline by which a Notice of Appeal must be filed. Tarrance
v. State, 947 N.E.2d 494, 496 (Ind. Ct. App. 2011) (citing Sewell v. State, 939 N.E.2d 686,
687 (Ind. Ct. App. 2010)).
On March 5, 2013, Gonzalez filed motions indicating his desire to appeal the
sentencing order and the order imposing sanctions following the revocation of his probation.
The trial court found that the March 5 motions were defective as notices of appeal. The
State contends that Gonzalez forfeited his right to pursue the instant appeal, because the
timely notices of appeal were found by the trial court to be defective and the compliant
notices Gonzalez subsequently filed were untimely.
Yet the State has failed to properly support its appeal because it has not provided
copies of either of Gonzalez’s motions before the trial court. Some form of notice of an
intent to appeal was timely filed; and because this Court, not the trial court, determines
whether that notice complied with Appellate Rule 9, we choose to address the merits of
Gonzalez’s appeal.
5 Appropriateness of Sentence
A Class C felony carries a sentencing range between two and eight years with an
advisory sentence of four years. I.C. § 35-50-2-6. A Class A misdemeanor carries a
sentencing range of up to one year. I.C. § 35-50-3-2. Adjudication as an Habitual Substance
Offender carries a sentence enhancement of between three and eight years. I.C. § 35-50-2-
10(f).6
In sentencing Gonzalez, the trial court found as aggravating circumstances his
criminal history, his history of illegal drug use, his failure at prior rehabilitation
opportunities, and the nature and circumstances of the offenses. The trial court found as
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Dec 26 2013, 5:25 am Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
KEVIN T. MCNAMARA GREGORY F. ZOELLER Law Office of Kevin T. McNamara, LLC Attorney General of Indiana Saint John, Indiana MICHAEL GENE WORDEN Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
ESTEBAN GONZALEZ, ) ) Appellant/Cross-Appellee--Defendant, ) ) vs. ) No. 79A02-1303-CR-279 ) STATE OF INDIANA, ) ) Appellee/Cross-Appellant--Plaintiff. )
APPEAL FROM THE TIPPACANOE CIRCUIT COURT The Honorable Donald L. Daniel, Judge Cause No. 79C01-1205-FC-13 Cause No. 79C01-0505-FB-11
December 26, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
BAILEY, Judge Case Summary
Esteban Gonzalez (“Gonzalez”) appeals his ten-year aggregate sentence for Operating
a Motor Vehicle While Privileges are Forfeited for Life, as a Class C felony,1 and Operating
a Vehicle While Intoxicated, as a Class A misdemeanor;2 the sentence was enhanced due to
his status as an Habitual Substance Offender.3 He also appeals an order in a separate cause
reinstating four of nine previously-suspended years of an eighteen-year sentence as a result of
a probation violation.
We affirm.
Issues
Gonzalez presents one issue for our review, which we revise and restate as the
following two issues:
I. Whether Gonzalez’s sentence is inappropriate; and
II. Whether the trial court abused its discretion when it imposed sanctions
following the revocation of his probation.
The State presents one issue on cross-appeal:
1 Ind. Code § 9-30-10-17 (2012). The relevant code section was modified, effective July 1, 2013. We apply the version in force at the time of the commission of the offenses.
2 I.C. § 9-30-5-2.
3 I.C. § 35-50-2-10.
2 I. Whether Gonzalez preserved his right to appellate review of his
sentence and of the order imposing sanctions following the revocation
of his probation.
Facts and Procedural History
On January 11, 2013, Gonzalez pleaded guilty in cause FC-13 to Operating a Motor
Vehicle While Privileges are Forfeited for Life, as a Class C felony, and Operating a Vehicle
While Intoxicated, as a Class A misdemeanor; he also admitted to being an Habitual
Substance Offender. The same day, Gonzalez admitted that he had violated his probation in
cause FB-11.
On February 8, 2013, the trial court entered judgments of conviction in cause FC-13,
and found Gonzalez to be an Habitual Substance Offender. The court sentenced Gonzalez to
six years imprisonment for Operating a Motor Vehicle While Privileges are Forfeited for
Life, as a Class C felony, and one year imprisonment for Operating a Vehicle While
Intoxicated, as a Class A misdemeanor. The court imposed a five-year sentence
enhancement due to Gonzalez’s status as an Habitual Substance Offender, and suspended
two years of the resulting twelve-year sentence to probation, yielding a ten-year aggregate
sentence.
The same day, the trial court revoked Gonzalez’s probation in cause FB-11, and
reinstated four of nine previously-suspended years of an eighteen-year sentence for
3 Possession of Cocaine, as a Class B felony,4 increased because of a separate Habitual
Substance Offender enhancement.
On March 5, 2013, Gonzalez, pro se, filed a “Motion to File an Appeal for
Sentencing” in both causes. The trial court found that Gonzalez’s motions did not meet the
requirements for a Notice of Appeal, and noted that Motions to Correct Error had not been
filed. The court also purportedly extended the deadline by which Gonzalez could file a
Notice of Appeal in both causes to April 5, 2013.
On March 19, 2013, Gonzalez, by counsel, filed a Notice of Appeal in cause FC-13.5
And on May 8, 2013, Gonzalez filed a motion to consolidate causes FC-13 and FB-11 for
purposes of appeal, which this court granted.
Discussion and Decision
Timeliness of Notice of Appeal
We first address the threshold issue of whether Gonzalez preserved his right to
appellate review. The State contends that Gonzalez failed to file a timely Notice of Appeal.
“Unless [a] Notice of Appeal is timely filed, the right to appeal shall be forfeited[.]”
Ind. Appellate Rule 9(A)(5). “A party initiates an appeal by filing a Notice of Appeal with
the Clerk (as defined in Rule 2(D)) within thirty (30) days after the entry of a Final Judgment
is noted in the Chronological Case Summary.” App. R. 9(A)(1). And, until January 1, 2014,
“if an appellant timely files the Notice of Appeal with the trial court clerk . . . instead of the
4 I.C. § 35-48-4-6 (2005).
5 Gonzalez filed with the trial court a purported Notice of Appeal in cause FB-11 on March 23, 2013. However, the trial court, noting that it was unable to determine what action Gonzalez requested in his Notice of Appeal, took no action.
4 Clerk [of the Indiana Supreme Court, Court of Appeals and Tax Court,] as required by App.
R. 9(A)(1), the Notice of Appeal will be deemed timely filed and the appeal will not be
forfeited.” App. R. 9(A).
“The [Supreme Court and the Court of Appeals] may, upon the motion of a party or
the Court’s own motion, permit deviation from these Rules.” App. R. 1. But, a trial court
has no authority to extend the deadline by which a Notice of Appeal must be filed. Tarrance
v. State, 947 N.E.2d 494, 496 (Ind. Ct. App. 2011) (citing Sewell v. State, 939 N.E.2d 686,
687 (Ind. Ct. App. 2010)).
On March 5, 2013, Gonzalez filed motions indicating his desire to appeal the
sentencing order and the order imposing sanctions following the revocation of his probation.
The trial court found that the March 5 motions were defective as notices of appeal. The
State contends that Gonzalez forfeited his right to pursue the instant appeal, because the
timely notices of appeal were found by the trial court to be defective and the compliant
notices Gonzalez subsequently filed were untimely.
Yet the State has failed to properly support its appeal because it has not provided
copies of either of Gonzalez’s motions before the trial court. Some form of notice of an
intent to appeal was timely filed; and because this Court, not the trial court, determines
whether that notice complied with Appellate Rule 9, we choose to address the merits of
Gonzalez’s appeal.
5 Appropriateness of Sentence
A Class C felony carries a sentencing range between two and eight years with an
advisory sentence of four years. I.C. § 35-50-2-6. A Class A misdemeanor carries a
sentencing range of up to one year. I.C. § 35-50-3-2. Adjudication as an Habitual Substance
Offender carries a sentence enhancement of between three and eight years. I.C. § 35-50-2-
10(f).6
In sentencing Gonzalez, the trial court found as aggravating circumstances his
criminal history, his history of illegal drug use, his failure at prior rehabilitation
opportunities, and the nature and circumstances of the offenses. The trial court found as
mitigating circumstances that Gonzalez took responsibility for his actions by pleading guilty,
that he expressed remorse, that his three children were dependent upon him, and his history
of employment.
Gonzalez claims that his sentence is inappropriate and asks that we revise it under
Appellate Rule 7(B).
The authority granted to this Court by Article 7, § 6 of the Indiana Constitution
permitting appellate review and revision of criminal sentences is implemented through
Appellate Rule 7(B), which provides: “The 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
6 To the extent Gonzalez argues that modifications to Indiana’s criminal sentencing statutes that will take effect on July 1, 2014, provide guidance as to what constitutes an appropriate sentence, we observe that the sentencing statutes in effect at the time of the commission of the offense govern our review. Upton v. State, 904 N.E.2d 700, 702 (Ind. Ct. App. 2009), trans. denied.
6 offender.” Under this rule, and as interpreted by case law, appellate courts may revise
sentences after due consideration of the trial court’s decision, if the sentence is found to be
inappropriate in light of the nature of the offense and the character of the offender. Cardwell
v. State, 895 N.E.2d 1219, 1222-25 (Ind. 2008); Serino v. State, 798 N.E.2d 852, 856-57
(Ind. 2003). The principal role of such review is to attempt to leaven the outliers. Cardwell,
895 N.E.2d at 1225.
We turn first to the nature of the offenses. Intoxicated, Gonzalez drove a motor
vehicle while his driving privileges were suspended for life. This was sufficient to complete
the acts of Operating a Motor Vehicle While Privileges are Forfeited for Life and Operating a
Vehicle While Intoxicated. However, during the same course of conduct, Gonzalez collided
with another vehicle. Gonzalez’s actions thus went beyond the acts of Operating a Motor
Vehicle While Privileges are Forfeited for Life and Operating a Vehicle While Intoxicated.
We turn next to the character of the offender. Gonzalez has a criminal record
spanning almost three decades, including several convictions in other states for controlled
substance offenses, several traffic and alcohol-related convictions in Indiana, and a
conviction for Possession of Cocaine. Further, he has been arrested numerous times, and his
probation in several cases has been revoked. Gonzalez’s behavior indicates that he harbors a
general disregard for the law, an unwillingness to conform his behavior to acceptable
standards, and an unwillingness to rehabilitate himself.
Therefore, having reviewed the matter, we conclude that the trial court did not impose
an inappropriate sentence under Appellate Rule 7(B), and the sentence does not warrant
7 appellate revision. Accordingly, we decline to disturb the sentence imposed by the trial
court.
Probation Revocation
Probation is a matter of grace left to trial court discretion, not a right to which a
criminal defendant is entitled. Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007). The trial
court determines the conditions of probation, and if the conditions are violated, the trial court
may impose three types of sanction: (1) continue the person on probation with no
modifications to the probationary conditions; (2) extend the probationary period; or (3) order
execution of all or part of the sentence that was suspended at the time of the initial
sentencing. I.C. § 35-38-2-3(h); Prewitt, 878 N.E.2d at 188.
In challenging the trial court’s reinstatement of four of nine previously-suspended
years of an eighteen-year sentence, Gonzalez argues that the sanction is inappropriate under
Appellate Rule 7(B). However, we review sanctions imposed following revocation of
probation for an abuse of discretion. Prewitt, 878 N.E.2d at 188. An abuse of discretion
occurs where the decision is clearly against the logic and effect of the facts and
circumstances. Id.
Gonzalez violated his probation by committing the offenses of Operating a Motor
Vehicle While Privileges are Forfeited for Life and Operating a Vehicle While Intoxicated.
In addition, Gonzalez has an extensive criminal record and several probation violations, and
has displayed an unwillingness to rehabilitate himself. Therefore, we conclude that the trial
8 court did not abuse its discretion in reinstating four of nine previously-suspended years of
Gonzalez’s eighteen-year sentence.
Conclusion
We do not conclude that Gonzalez forfeited his right to appeal. Gonzalez’s sentence
was not inappropriate, and the trial court did not abuse its discretion in imposing sanctions
following the revocation of Gonzalez’s probation.
Affirmed.
FRIEDLANDER, J., and KIRSCH, J., concur.