Jason Leonardo v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: November 21, 2017
• Docket: 49A05-1704-CR-768
• Status: Published

Opinion

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as Nov 21 2017, 9:39 am

precedent or cited before any court except for the CLERK purpose of establishing the defense of res judicata, Indiana Supreme Court Court of Appeals collateral estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Susan D. Rayl Curtis T. Hill, Jr. Smith Rayl Law Office, LLC Attorney General of Indiana Indianapolis, Indiana Jesse R. Drum Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Jason Leonardo, November 21, 2017

Appellant-Defendant, Court of Appeals Cause No. 49A05-1704-CR-768 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Lisa F. Borges, Judge Appellee-Plaintiff. Trial Court Cause No. 49G04-1507- F3-25888

Riley, Judge.

Court of Appeals of Indiana | Memorandum Decision 49A05-1704-CR-768 | November 21, 2017 Page 1 of 13 STATEMENT OF THE CASE [1] Appellant-Defendant, Jason Leonardo (Leonardo), appeals his conviction and

sentence for armed robbery, a Level 3 felony, Ind. Code § 35-45-5-1(1).

[2] We affirm.

ISSUES [3] Leonardo presents two issues on appeal, which we restate as:

(1) Whether the trial court abused its discretion by failing to find Leonardo’s

former unsuccessful guilty plea to the armed robbery offense as a mitigating

factor; and

(2) Whether Leonardo’s sentence is inappropriate in light of the nature of the

offense and his character.

FACTS AND PROCEDURAL HISTORY [4] On July 21, 2015, sixteen-year-old Leonardo sent a message through “kick

messenger” to eighteen-year-old Miguel Mundo (Mundo) to be picked up from

his residence in Indianapolis, Indiana. (Transcript p. 9). At the time, Mundo

drove a silver Impala, and according to Mundo, he was going to pick up

Leonardo so that they could “meet up with some girl.” (Tr. p. 9). When

Mundo arrived at Leonardo’s residence, Leonardo was in the company of

another unidentified “Black [M]ale.” (Tr. p. 10). Leonardo sat in the front

passenger seat, and the Black Male sat in the back. Leonardo directed Mundo

to drive to an apartment complex that was “about two lights down.” (Tr. p.

Court of Appeals of Indiana | Memorandum Decision 49A05-1704-CR-768 | November 21, 2017 Page 2 of 13 11). When they arrived, Leonardo instructed Mundo to reverse into a covered

carport, and Leonardo indicated that they were waiting on the girls. After a

few minutes, Leonardo told Mundo to “look back” and noticed that “the

[B]lack [M]ale had a gun” aimed at the back of his head. (Tr. p. 13). The Black

Male was laughing. Mundo returned to face forward, and Leonardo instructed

Mundo to put up his hands and close his eyes. Leonardo threatened Mundo by

stating “something bad was going to happen” if he opened his eyes. (Tr. p. 13).

Notwithstanding the instruction, Mundo opened his eyes, and he saw Leonardo

holding a gun to the side of his head. Leonardo then ripped from Mundo’s

neck, “two gold chains with gold medallions.” (Tr. p. 15). Leonardo

additionally took Mundo’s diamond earrings. Leonardo afterwards exited the

vehicle and ordered Mundo to get out of his vehicle. While still armed with a

gun, Leonardo directed Mundo to undress. Leonardo took Mundo’s clothes, as

well as Mundo’s Tommy Hilfiger wallet, Ray Ban prescription eye glasses, a

gray iPhone 6, and an LG Android phone. After stealing from Mundo,

Leonardo and the Black Male drove away in Mundo’s silver Impala. As soon

they were gone, Mundo knocked on the door of an apartment and a woman

answered. The woman called the police and gave Mundo clothes to wear.

When the Indianapolis Metropolitan Police Department officers arrived,

Mundo stated that Leonardo had robbed him at gunpoint. Leonardo was

thereafter arrested.

[5] Leonardo was waived into adult court, and on July 23, 2015, the State filed an

Information, charging him with Count I, armed robbery, a Level 3 felony, I.C.§

Court of Appeals of Indiana | Memorandum Decision 49A05-1704-CR-768 | November 21, 2017 Page 3 of 13 35-45-5-1(1); and Count II, intimidation, a Level 5 felony, I.C. § 35-45-21(a)(1).

On June 29, 2016, pursuant to a plea agreement, Leonardo agreed to plead

guilty to Level 3 felony armed robbery, and the State agreed to dismiss the

intimidation charge. On August 10, 2016, a guilty plea hearing was conducted.

In attempt to establish the factual basis for Leonardo’s armed robbery offense,

the State read the charging information, and thereafter gave an account of the

robbery. Specifically, the State alleged that Leonardo pointed a gun at Mundo

and subsequently took Mundo’s gold chains, diamond earrings, clothes,

phones, wallet, and eye glasses. The State further alleged that Leonardo drove

away in Mundo’s silver Impala. Following the State’s narration, the following

exchange occurred between the trial court and Leonardo:

[TRIAL COURT]: Alright. Is that the truth about what you did?

[LEONARDO]: Some of it.

[TRIAL COURT]: Tell me what you did?

[LEONARDO]: Like, I didn’t call [Mundo], and that day he called me. He told me he wanted to go get some marijuana so he came and picked me up. And then we pulled in Chapel Hill, . . . I was just in the car, . . . [Mundo] like did pick up the phone and [was] calling [someone] to come outside. Then he got mad and I just told him[] like “man, we can come back later”. And then he gets angry with me, he pull out - - he pulled it out - - he pulled the gun out first ‘cause (sic) he call me a little. . . bitch. And I was like, “man, why you calling me that, watch your mouth”. And then he got mad and told me to watch my mouth, he pulled it out. I just out of reflex[,] I brought a gun and just moved it and Court of Appeals of Indiana | Memorandum Decision 49A05-1704-CR-768 | November 21, 2017 Page 4 of 13 got to wrestling him and we got to fighting, that’s when like the jewelry came off and I kicked him - - and I like opened the door, he fell out the car. And that’s why I came over there. I seen he had a knife in his (inaudible) pocket, so I told him to take off his pants cause I ain’t know what kind of weapons he had. Other than that, I left with the car and his phone, ‘cause I ain’t have no phone at that time. So I called my friend to come over to his house, then I drove to his house.

[TRIAL COURT]: Drove to who’s house?

[LEONARDO]: My friend, Chris.

[TRIAL COURT]: And you drove. . .

[LEONARDO]: (Inaudible)

[TRIAL COURT]: Whose car?

[LEONARDO]: [Mundo’s]. . . . I got in the driver[’s] seat and took off when I . . . got him out of the car.

[TRIAL COURT]: Well, that’s a different way of looking at things. That looks more like an auto theft.

(Guilty Plea. Tr. pp. 19-20). Because Leonardo’s version of events differed

from the State’s, the trial court was unable to establish a factual basis for

Leonardo’s armed robbery charge. As such, the trial court rejected the parties’

proposed plea agreement and set the matter for a trial.

Court of Appeals of Indiana | Memorandum Decision 49A05-1704-CR-768 | November 21, 2017 Page 5 of 13 [6] Leonardo waived jury trial and on February 24, 2017, the trial court conducted

a bench trial. At the close of the evidence, the trial court found Leonardo guilty

of Level 3 felony armed robbery, but not guilty of Level 5 felony intimidation.

On March 15, 2017, the trial court held a sentencing hearing, and it

subsequently sentenced Leonardo to an executed nine-year sentence with three

years suspended to probation.

[7] Leonardo now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION I. Sentencing

[8] Leonardo initially claims that the trial court abused its discretion by failing to

consider his initial guilty plea to the Level 3 felony armed robbery, as a

significant mitigating factor.

[9] Sentencing decisions “rest within the sound discretion of the trial court and are

reviewed on appeal only for an abuse of discretion.” Anglemyer v. State, 868

N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007). “An

abuse of discretion occurs if the decision is clearly against the logic and effect of

the facts and circumstances before the court, or the reasonable, probable, and

actual deductions to be drawn therefrom.” Id. (internal quotations and citation

omitted). A trial court may abuse its discretion by failing to enter a sentencing

statement, entering findings of aggravating and mitigating factors unsupported

by the record, omitting factors clearly supported by the record and advanced for

consideration, or giving reasons that are improper as a matter of law. Id. at

Court of Appeals of Indiana | Memorandum Decision 49A05-1704-CR-768 | November 21, 2017 Page 6 of 13 490-91. “Under those circumstances, remand for resentencing may be the

appropriate remedy if we cannot say with confidence that the trial court would

have imposed the same sentence had it properly considered reasons that enjoy

support in the record.” Id. at 491.

[10] Leonardo contends that the trial court should have considered his prior

unsuccessful guilty plea for armed robbery, as a mitigating factor. In response,

the State argues that Leonardo waives this issue on appeal since he failed to

raise it during the sentencing hearing. When a defendant does not propose a

mitigating factor at sentencing, the trial court “‘presume[s] that the factor is not

significant and the defendant is precluded from advancing it as a mitigating

circumstance for the first time on appeal.’” Hollin v. State, 877 N.E.2d 462, 465

(Ind. 2007) (quoting Spears v. State, 735 N.E.2d 1161, 1167 (Ind. 2000)). There

is an exception to the waiver rule when a defendant pleads guilty. Anglemyer,

875 N.E.2d at 220. First, we find that the waiver exception does not apply to

Leonardo because his guilty plea was rejected, and he was convicted following

a bench trial. Secondly, although Leonardo did testify during his sentencing

hearing that the trial court should consider that he had a one-month old son as

a mitigating circumstance, Leonardo did not seek the trial court’s consideration

of his former unsuccessful guilty plea at sentencing. Therefore, Leonardo

waives this issue on appeal. In light of the foregoing, we conclude that the trial

court did not abuse its discretion while sentencing Leonardo.

Court of Appeals of Indiana | Memorandum Decision 49A05-1704-CR-768 | November 21, 2017 Page 7 of 13 II. Inappropriate Sentence

[11] Leonardo claims that his nine-year sentence with three years suspended to

probation is inappropriate in light of the nature of the offense and his character.

Indiana Appellate Rule 7(B) empowers us to independently review and revise

sentences authorized by statute if, after due consideration, we find the trial

court’s decision inappropriate in light of the nature of the offense and the

character of the offender. Reid v. State, 876 N.E.2d 1114, 1116 (Ind. 2007). The

“nature of offense” compares the defendant’s actions with the required showing

to sustain a conviction under the charged offense, while the “character of the

offender” permits a broader consideration of the defendant’s character.

Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008); Douglas v. State, 878

N.E.2d 873, 881 (Ind. Ct. App. 2007). An appellant bears the burden of

showing that both prongs of the inquiry favor a revision of his sentence.

Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). Whether we regard a

sentence as appropriate at the end of the day turns on our sense of the

culpability of the defendant, the severity of the crime, the damage done to

others, and a myriad of other considerations that come to light in a given case.

Cardwell, 895 N.E.2d at 1224. Our court focuses on “the length of the aggregate

sentence and how it is to be served.” Id.

[12] The advisory sentence is the starting point the legislature has selected as an

appropriate sentence for the crime committed. Abbott v. State, 961 N.E.2d 1016,

1019 (Ind. 2012). For his Level 3 felony armed robbery, Leonardo faced a

sentencing range of three years to sixteen years with the advisory sentence being

Court of Appeals of Indiana | Memorandum Decision 49A05-1704-CR-768 | November 21, 2017 Page 8 of 13 nine years. I.C. § 35-50-2-5(b). Here, the trial court imposed the advisory

sentence.

[13] Considering the nature of the offense, Leonardo convinced Mundo to give him

a ride with the ruse that they were going to meet some girls. When they arrived

at an apartment complex, Leonardo directed Mundo to reverse into a carport to

wait for the girls. A few minutes later, Leonardo told Mundo to turn around,

and when he did, Leonardo’s accomplice was pointing a gun at Mundo’s head.

Leonardo directed Mundo to put his hands up and close his eyes or “something

bad was going to happen,” and he also aimed a gun at Mundo’s head. (Tr. p.

13). Leonardo then snatched Mundo’s gold chains and diamond earrings.

While armed with a gun, Leonardo ordered Mundo get out of his vehicle and

remove his clothes. Leonardo proceeded to take Mundo’s clothes, including

Mundo’s wallet, eye glasses, a gray iPhone 6, and an LG Android phone. After

stealing from Mundo, Leonardo and his accomplice left a half-naked Mundo in

the parking lot, and drove away in Mundo’s silver Impala. We are not

persuaded that anything about the nature of Leonardo’s offense permits a

reduction of the advisory nine-year sentence.

[14] As for Leonardo’s character, we acknowledge that he was only sixteen-years-

old at the time of his offense. However, between the age of fifteen and the

crime at issue here, Leonardo had three contacts with the juvenile justice

system. In April of 2014, Leonardo was adjudicated as a delinquent for

dangerous possession of a firearm and auto theft. In November of 2014, he was

arrested for auto theft, but no action was taken against him. In April of 2015, a

Court of Appeals of Indiana | Memorandum Decision 49A05-1704-CR-768 | November 21, 2017 Page 9 of 13 true finding was issued against Leonardo for resisting law enforcement and he

was put on probation. At the time Leonardo robbed Mundo at gunpoint, he

was still on probation for the resisting law enforcement offense. In addition,

while Leonardo was out on bail for the instant offense, he committed another

offense. Specifically, Leonardo stole his mother’s vehicle and was arrested for

driving without a license. The presentence report shows that Leonardo had

been expelled from school multiple times, and he eventually stopped attending

altogether and did not pursue education or employment opportunities

thereafter. Leonardo’s drug use also reflects poorly on his character. Leonardo

admittedly stated that he began using marijuana at age twelve, and he uses it

“like once a month.” (Appellant’s App. Vol. II. Conf. p. 85). Leonardo’s

character shows disrespect for the judicial process and disregard of the law. For

all of the above reasons, Leonardo has failed to meet his burden in persuading

us that his sentence is inappropriate in light of his character. Accordingly, we

cannot say that Leonardo’s nine-year sentence is inappropriate in light of the

nature of the offense and his character.

CONCLUSION [15] In sum, we conclude that the trial court did not abuse its sentencing discretion

while sentencing Leonardo, and Leonardo’s sentence is not inappropriate in

light of the nature of the offense and his character.

[16] Affirmed.

[17] Pyle, J. concurs

Court of Appeals of Indiana | Memorandum Decision 49A05-1704-CR-768 | November 21, 2017 Page 10 of 13 [18] Robb, J. concurs with concurring separate opinion

Court of Appeals of Indiana | Memorandum Decision 49A05-1704-CR-768 | November 21, 2017 Page 11 of 13 IN THE COURT OF APPEALS OF INDIANA

Jason Leonardo, Court of Appeals Case No. 49A05-1704-CR-768 Appellant-Defendant,

v.

State of Indiana, Appellee-Plaintiff.

Robb, Judge, concurring.

[19] I concur, but write separately to point out an additional reason for denying

Leonardo’s claim regarding his guilty plea as a mitigating factor. Not only did

Leonardo not raise the guilty plea issue to the trial court at the sentencing

hearing, he did not actually plead guilty. Leonardo’s plea was rejected by the

trial court, but not because the trial court thought the penalty was too light or

for some other reason within the trial court’s prerogative but through no fault of

Leonardo’s. Rather, the plea was rejected because when the trial court

attempted to confirm the factual basis for the plea, Leonardo failed to

acknowledge his guilt of the crimes to which he was allegedly pleading guilty.

He did not express remorse; he did not take responsibility for his actions; and

he did not save the State and the court the time and expense of trying him, all

Court of Appeals of Indiana | Memorandum Decision 49A05-1704-CR-768 | November 21, 2017 Page 12 of 13 factors which contribute to a guilty plea being deserving of some mitigating

weight. See McSchooler v. State, 15 N.E.3d 678, 685 (Ind. Ct. App. 2014). Even

if Leonardo had proffered his unsuccessful guilty plea to the trial court as a

potential mitigating factor, the trial court would not have abused its discretion

in failing to find this a mitigating factor when in fact there was no guilty plea.

Court of Appeals of Indiana | Memorandum Decision 49A05-1704-CR-768 | November 21, 2017 Page 13 of 13