MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any May 26 2020, 9:23 am
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 ATTORNEY FOR APPELLEE Kristin A. Mulholland Caroline G. Templeton Crown Point, Indiana Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Francisco Antonio Perez, May 26, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-2785 v. Appeal from the Lake Superior Court State of Indiana, The Honorable Salvador Vasquez, Appellee-Plaintiff. Judge Trial Court Cause No. 45G01-1804-F5-30
Pyle, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2785 | May 26, 2020 Page 1 of 6 Statement of the Case
[1] Francisco Perez (“Perez”) appeals the three-year sentence imposed after he pled
guilty to Level 5 felony sexual misconduct with a minor.1 Perez argues that his
sentence is inappropriate in light of the nature of his offense and his character.
Concluding that his sentence is not inappropriate, we affirm Perez’s sentence.
[2] We affirm.
Issue
Whether Perez’s sentence is inappropriate.
Facts
[3] In February 2018, fifteen-year-old M.P., the victim, was babysitting at her
aunt’s house.2 Twenty-eight-year-old Perez, who was M.P.’s aunt’s boyfriend,
entered the home. Perez sat next to M.P. on the couch and told her to roll a
marijuana cigarette, which she did. M.P.’s aunt later returned home with a
friend, and M.P. smoked marijuana with Perez and the other adults. M.P.’s
aunt then left to take her friend home.
1 IND. CODE § 35-42-4-9. 2 We take our facts from the Stipulated Factual Basis that was attached to the guilty plea filed with the trial court.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2785 | May 26, 2020 Page 2 of 6 [4] After M.P.’s aunt left, M.P. went to bed. Perez joined her and began to caress
her breast over her clothes and attempted to kiss her while saying that “he was
going to show her how much her uncle like[d] her.” (App. Vol. 2 at 47). Perez
then put his hand into M.P.’s pants. M.P. screamed, and Perez stopped
touching her. M.P. then called her boyfriend and her aunt. When M.P.’s aunt
returned, Perez admitted to touching M.P. and stated that he had done so as
“pay-back[.]” (App. Vol. 2 at 47).
[5] In April 2018, Perez was charged with Level 5 felony sexual misconduct with a
minor. The State filed an amended charging information in November 2018,
adding a count of Level 3 felony rape. In July 2019, the State and Perez
reached an agreement that Perez would plead guilty to the sexual misconduct
with a minor charge in exchange for the State dismissing the rape charge. The
parties also agreed to argue the sentence length at the sentencing hearing.
[6] In October 2019, the trial court held a sentencing hearing. M.P.’s aunt and
M.P.’s mother testified at the hearing. Perez also made a statement.
Additionally, M.P. and M.P.’s mother submitted victim impact statements. In
her victim impact statement, M.P. explained that due to Perez’s actions, she felt
“violated, manipulated, embarrassed, [and] sad.” (Sentencing Tr. 19). M.P.’s
mother’s statement detailed the negative effects Perez’s crime had had on M.P.
and her family. Specifically, M.P.’s mother explained that the “emotional
turmoil is beyond description.” (Sentencing Tr. 19).
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2785 | May 26, 2020 Page 3 of 6 [7] When sentencing Perez, the trial court found both mitigating and aggravating
factors. In mitigation, the trial court acknowledged Perez’s guilty plea but
found that it was not entitled to much weight because “the more significant
rape [charge]” had been dismissed by the State. (Sentencing Tr. 44). In
aggravation, the trial court identified Perez’s: (1) criminal history, which
includes convictions in Illinois for felony burglary, felony aggravated unlawful
use of a weapon, misdemeanor trespass, and two episodes of misdemeanor
possession of cannabis; (2) failure to appreciate the leniency of probation from
other criminal courts; (3) manipulative and predatory character; and (4)
violation of a position of trust. The trial court then sentenced Perez to an
advisory sentence of three (3) years in the Department of Correction. Perez
now appeals.
Decision
[8] Perez’s sole argument is that his advisory three-year sentence is inappropriate.
Indiana 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. The defendant bears the burden of persuading this Court that
his sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind.
2006). The principal role of a Rule 7(B) review “should be to attempt to leaven
the outliers, and identify some guiding principles for trial courts and those
charged with improvement of the sentencing statutes, but not to achieve a
perceived ‘correct’ result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225 Court of Appeals of Indiana | Memorandum Decision 19A-CR-2785 | May 26, 2020 Page 4 of 6 (Ind. 2008). “Appellate Rule 7(B) analysis is not to determine whether another
sentence is more appropriate but rather whether the sentence imposed is
inappropriate.” Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012) (internal
quotation marks and citation omitted), reh’g denied. Whether we regard a
sentence as inappropriate turns on the “culpability of the defendant, the severity
of the crime, the damage done to others, and myriad other factors that come to
light in a given case.” Cardwell, 895 N.E.2d at 1224.
[9] When determining whether a sentence is inappropriate, the advisory sentence is
the starting point the General Assembly has selected as an appropriate sentence
for the crime committed. Childress, 848 N.E.2d at 1081. Here, Perez pled guilty
to Level 5 felony sexual misconduct with a minor. The sentencing range for a
Level 5 felony is “for a fixed term of between one (1) and six (6) years, with the
advisory sentence being three (3) years.” I.C. § 35-50-2-6(b). The trial court
sentenced Perez to three years, which is the advisory sentence.
[10] An appellate court is “unlikely to consider an advisory sentence inappropriate.”
Shelby v. State, 986 N.E.2d 345, 371 (Ind. Ct. App. 2013), trans. denied. “[A]
defendant bears a particularly heavy burden in persuading us that his sentence
is inappropriate when the trial court imposes the advisory sentence.” Fernbach
v. State, 954 N.E.2d 1080, 1089 (Ind. Ct. App. 2011), trans. denied. On appeal,
Perez has not met the particularly heavy burden he faces.
[11] Regarding the nature of the offense, Perez, who was twenty-eight-years-old at
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any May 26 2020, 9:23 am
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 ATTORNEY FOR APPELLEE Kristin A. Mulholland Caroline G. Templeton Crown Point, Indiana Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Francisco Antonio Perez, May 26, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-2785 v. Appeal from the Lake Superior Court State of Indiana, The Honorable Salvador Vasquez, Appellee-Plaintiff. Judge Trial Court Cause No. 45G01-1804-F5-30
Pyle, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2785 | May 26, 2020 Page 1 of 6 Statement of the Case
[1] Francisco Perez (“Perez”) appeals the three-year sentence imposed after he pled
guilty to Level 5 felony sexual misconduct with a minor.1 Perez argues that his
sentence is inappropriate in light of the nature of his offense and his character.
Concluding that his sentence is not inappropriate, we affirm Perez’s sentence.
[2] We affirm.
Issue
Whether Perez’s sentence is inappropriate.
Facts
[3] In February 2018, fifteen-year-old M.P., the victim, was babysitting at her
aunt’s house.2 Twenty-eight-year-old Perez, who was M.P.’s aunt’s boyfriend,
entered the home. Perez sat next to M.P. on the couch and told her to roll a
marijuana cigarette, which she did. M.P.’s aunt later returned home with a
friend, and M.P. smoked marijuana with Perez and the other adults. M.P.’s
aunt then left to take her friend home.
1 IND. CODE § 35-42-4-9. 2 We take our facts from the Stipulated Factual Basis that was attached to the guilty plea filed with the trial court.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2785 | May 26, 2020 Page 2 of 6 [4] After M.P.’s aunt left, M.P. went to bed. Perez joined her and began to caress
her breast over her clothes and attempted to kiss her while saying that “he was
going to show her how much her uncle like[d] her.” (App. Vol. 2 at 47). Perez
then put his hand into M.P.’s pants. M.P. screamed, and Perez stopped
touching her. M.P. then called her boyfriend and her aunt. When M.P.’s aunt
returned, Perez admitted to touching M.P. and stated that he had done so as
“pay-back[.]” (App. Vol. 2 at 47).
[5] In April 2018, Perez was charged with Level 5 felony sexual misconduct with a
minor. The State filed an amended charging information in November 2018,
adding a count of Level 3 felony rape. In July 2019, the State and Perez
reached an agreement that Perez would plead guilty to the sexual misconduct
with a minor charge in exchange for the State dismissing the rape charge. The
parties also agreed to argue the sentence length at the sentencing hearing.
[6] In October 2019, the trial court held a sentencing hearing. M.P.’s aunt and
M.P.’s mother testified at the hearing. Perez also made a statement.
Additionally, M.P. and M.P.’s mother submitted victim impact statements. In
her victim impact statement, M.P. explained that due to Perez’s actions, she felt
“violated, manipulated, embarrassed, [and] sad.” (Sentencing Tr. 19). M.P.’s
mother’s statement detailed the negative effects Perez’s crime had had on M.P.
and her family. Specifically, M.P.’s mother explained that the “emotional
turmoil is beyond description.” (Sentencing Tr. 19).
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2785 | May 26, 2020 Page 3 of 6 [7] When sentencing Perez, the trial court found both mitigating and aggravating
factors. In mitigation, the trial court acknowledged Perez’s guilty plea but
found that it was not entitled to much weight because “the more significant
rape [charge]” had been dismissed by the State. (Sentencing Tr. 44). In
aggravation, the trial court identified Perez’s: (1) criminal history, which
includes convictions in Illinois for felony burglary, felony aggravated unlawful
use of a weapon, misdemeanor trespass, and two episodes of misdemeanor
possession of cannabis; (2) failure to appreciate the leniency of probation from
other criminal courts; (3) manipulative and predatory character; and (4)
violation of a position of trust. The trial court then sentenced Perez to an
advisory sentence of three (3) years in the Department of Correction. Perez
now appeals.
Decision
[8] Perez’s sole argument is that his advisory three-year sentence is inappropriate.
Indiana 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. The defendant bears the burden of persuading this Court that
his sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind.
2006). The principal role of a Rule 7(B) review “should be to attempt to leaven
the outliers, and identify some guiding principles for trial courts and those
charged with improvement of the sentencing statutes, but not to achieve a
perceived ‘correct’ result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225 Court of Appeals of Indiana | Memorandum Decision 19A-CR-2785 | May 26, 2020 Page 4 of 6 (Ind. 2008). “Appellate Rule 7(B) analysis is not to determine whether another
sentence is more appropriate but rather whether the sentence imposed is
inappropriate.” Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012) (internal
quotation marks and citation omitted), reh’g denied. Whether we regard a
sentence as inappropriate turns on the “culpability of the defendant, the severity
of the crime, the damage done to others, and myriad other factors that come to
light in a given case.” Cardwell, 895 N.E.2d at 1224.
[9] When determining whether a sentence is inappropriate, the advisory sentence is
the starting point the General Assembly has selected as an appropriate sentence
for the crime committed. Childress, 848 N.E.2d at 1081. Here, Perez pled guilty
to Level 5 felony sexual misconduct with a minor. The sentencing range for a
Level 5 felony is “for a fixed term of between one (1) and six (6) years, with the
advisory sentence being three (3) years.” I.C. § 35-50-2-6(b). The trial court
sentenced Perez to three years, which is the advisory sentence.
[10] An appellate court is “unlikely to consider an advisory sentence inappropriate.”
Shelby v. State, 986 N.E.2d 345, 371 (Ind. Ct. App. 2013), trans. denied. “[A]
defendant bears a particularly heavy burden in persuading us that his sentence
is inappropriate when the trial court imposes the advisory sentence.” Fernbach
v. State, 954 N.E.2d 1080, 1089 (Ind. Ct. App. 2011), trans. denied. On appeal,
Perez has not met the particularly heavy burden he faces.
[11] Regarding the nature of the offense, Perez, who was twenty-eight-years-old at
the time, encouraged fifteen-year-old M.P. to roll a marijuana cigarette and
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2785 | May 26, 2020 Page 5 of 6 smoke it. After M.P. returned to bed, Perez joined her and began to touch her
breast over her clothes. He then attempted to kiss her and put his hand into
M.P.’s pants. Perez’s offense had a devastating effect on M.P., who, according
to her own statement and the testimony of her mother, suffers from his actions
in a variety of ways. See Lasley v. State, 510 N.E.2d 1340, 1342 (Ind. 1987)
(sexual victimization of children often leaves permanent psychological damage
that is more devastating than physical injuries).
[12] Turning to Perez’s character, he emphasizes that he is a “hard-working man
who supports his family[.]” (Perez’s Br. 6). As the trial court noted, however,
Perez does have a criminal history. Here, Perez’s prior convictions for felony
burglary, felony aggravated unlawful use of a weapon, misdemeanor trespass,
and two episodes of misdemeanor possession of cannabis, reflect poorly on his
character. See Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct. App. 2007) (any
criminal history reflects poorly on a person’s character). Furthermore, Perez
has been afforded leniency of probation by the judicial system many times in
the past. However, he has shown an inability or unwillingness to conform his
behavior to the rule of law.
[13] Accordingly, Perez has not persuaded us that the nature of the offense and his
character make his sentence inappropriate. Therefore, we affirm the sentence
imposed by the trial court.
[14] Affirmed.
Baker, J., and Bradford, C.J., concur.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2785 | May 26, 2020 Page 6 of 6