Jesse Velez v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: April 13, 2015
• Docket: 49A02-1409-CR-660
• Status: Published

Opinion

MEMORANDUM DECISION Apr 13 2015, 11:30 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 Patricia Caress McMath Gregory F. Zoeller Marion County Public Defender Agency Attorney General of Indiana Indianapolis, Indiana Jesse R. Drum Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Jesse Velez, April 13, 2015

Appellant-Defendant, Court of Appeals Case No. 49A02-1409-CR-660 v. Appeal from the Marion Superior Court The Honorable David Certo, Judge State of Indiana, Cause Nos. 49F12-1206-FD-38368, Appellee-Plaintiff 49F12-1208-FD-57410, 49F12-1208- CM-57502, 49F12-1208-FD-60304, 49F12-1305-FD-31844, 49G12-1405- FD-25741

Bradford, Judge.

Case Summary

Court of Appeals of Indiana | Memorandum Decision [Case number] | April 13, 2015 Page 1 of 12 [1] Over the course of a nearly two-year time period, Appellant-Defendant Jesse

Velez was arrested for numerous criminal offenses, including theft, possession

of drug paraphernalia, prostitution, public indecency, resisting law

enforcement, and conversion. He was charged for these criminal offenses under

six different cause numbers. Velez eventually pled guilty to all but one of the

charges levied against him. The remaining charge was dismissed. Following

Velez’s guilty pleas, the trial court sentenced Velez to an aggregate eight and

one-half year term, with six and one-half years executed in the Department of

Correction (“DOC”) and two years served in community corrections.

[2] On appeal, Velez challenges his sentence, arguing both that the trial court

abused its discretion in sentencing him and that his sentence is inappropriate.

Concluding otherwise, we affirm.

Facts and Procedural History I. Cause Number 49F12-1206-FD-38368 (“Cause No. FD-38368”) [3] On June 6, 2012, Velez visited a Marsh Supermarket. While at the Marsh

Supermarket, Velez placed three bottles of vodka in a backpack. He then

attempted to leave the store without paying for the bottles. Velez was stopped

outside the store by two Marsh employees who then notified the police. Later

that day, Appellee-Plaintiff the State of Indiana (the “State”) charged Velez

with Class D felony theft. On March 4, 2013, the State amended the charging

information to include a charge of Class A misdemeanor conversion.

Court of Appeals of Indiana | Memorandum Decision [Case number] | April 13, 2015 Page 2 of 12 II. Cause Number 49F12-1208-FD-57410 (“Cause No. FD-57410”) [4] On August 19, 2012, Indianapolis Metropolitan Police Department (“IMPD”)

Officer John Schweers observed Velez walking in an alley with a glass pipe in

his left hand. Based on Officer Schweers’s training and experience as a police

officer, he immediately recognized the glass pipe to be a “crack pipe.”

Appellant’s App. p. 48. When Velez saw Officer Schweers’s marked police

vehicle, Velez put his left hand in his front pants pocket. Officer Schweers then

asked Velez to show his hands. Velez initially complied, before shoving his left

hand back into his pocket. Fearing that Velez may be armed with a weapon,

Officer Schweers patted Velez down and found a crack pipe with steel wool

pushed into one end in Velez’s pants pocket. Officer Schweers also found a

“wad” of steel wool and an ink stick, both of which are commonly used in

smoking cocaine. Appellant’s App. p. 49. The next day, on August 20, 2012,

the State charged Velez with Class A misdemeanor possession of paraphernalia

and Class D felony possession of paraphernalia.

III. Cause Number 49F12-1208-CM-57502 (“Cause No. CM-57502”) [5] At approximately 6:50 a.m. on August 20, 2012, Velez “got into” a vehicle and

told the driver that he likes to give fellatio and would do so for $25.00.

Appellant’s App. p. 79. Velez “fondled [the driver’s] genitals” and asked,

“You’re not a cop are you?” Appellant’s App. p. 79. As it turns out, he was.

Court of Appeals of Indiana | Memorandum Decision [Case number] | April 13, 2015 Page 3 of 12 Later that day, the State charged Velez with Class A misdemeanor prostitution

and Class A misdemeanor public indecency.

IV. Cause Number 49F12-1208-FD-60304 (“Cause No. FD-60304”) [6] On August 30, 2012, IMPD Officer Kenneth Greer responded to a report that a

man was attempting to “flag cars down” and was “looking into parked cars.”

Appellant’s App. p. 107. When Officer Greer arrived at the location, he

observed Velez, who matched the description of the individual in question,

walking on the sidewalk. Officer Greer approached Velez and “stated that [he]

needed to talk to him.” Appellant’s App. p. 107. Officer Greer then observed

Velez “with his left closed fist throw something down on the sidewalk that

made a sound of broken glass.” Appellant’s App. p. 107. The item in question

was subsequently identified to be a broken “crack pipe.” Appellant’s App. p.

107. In addition to the burnt glass from the pipe, Officer Greer also located a

“burnt piece of brillo pad.” Appellant’s App. p. 107. Later that day, the State

charged Velez with Class A misdemeanor possession of paraphernalia and

Class D felony possession of paraphernalia.

V. Cause Number 49F12-1305-FD-31844 (“Cause No. FD-31844”) [7] At approximately 1:45 a.m. on May 15, 2013, IMPD Officers Keith Albert,

Jean Burkert, and Jeremy Lee responded to a request for assistance from a CVS

Store. Upon arriving at the CVS, the officers learned that Velez had left a CVS

Court of Appeals of Indiana | Memorandum Decision [Case number] | April 13, 2015 Page 4 of 12 with an unusual bulk in his midsection. The store manager chased after and

apprehended Velez. Officer Albert approached and “lifted Velez’s shirt and

pulled two bottles of tide liquid detergent and a Lysol spray can that were inside

Velez’s waistband and placed them on the ground.” Appellant’s App. p. 137.

When Officer Albert attempted to detain Velez by placing him in handcuffs,

Velez “tensed up his arms and began to pull away.” Appellant’s App. p. 137.

Although Velez continued to resist and disobeyed the officers’ orders, he was

subsequently brought under control by the officers. Later that day, the State

charged Velez with Class D felony theft and Class A misdemeanor resisting law

enforcement. On January 17, 2014, the State amended the charging

information to include a charge of Class A misdemeanor conversion.

VI. Velez Placed in Mental Health Diversion Program [8] On January 16, 2013, Velez was placed in PAIR, a mental health diversion

program. On December 16, 2013, the State filed a motion seeking to terminate

Velez’s placement in the program. In making this motion, the State alleged that

Velez had violated the terms of his participation in the PAIR program by being

arrested for and charged with new criminal offenses, testing positive for

cocaine, failing to appear for drug screens as ordered by the court, misleading

the court as to his residence, and failing to attend sessions with his mental

health treatment provider.

Court of Appeals of Indiana | Memorandum Decision [Case number] | April 13, 2015 Page 5 of 12 VII. Cause Number 49F12-1405-FD-25741 (“Cause No. FD-25741”) [9] On May 16, 2014, IMPD officers were dispatched to a Walmart store in

reference to a shoplifter running from the store. Officers observed an individual

matching the description provided by Walmart employees running northbound

away from the store. The individual was subsequently identified to be Velez.

After detaining Velez, officers recovered a tool set and four pairs of gloves, all

of which had been reported stolen by a Walmart employee who observed Velez

take the items “off the shelf and walk past all points of purchase without paying

for the merchandise.” Appellant’s App. p. 164. Later that day, the State

charged Velez with Class D felony theft.

VIII. Velez’s Guilty Pleas [10] With exception to the charge of Class D felony theft that was charged under

Cause No. FD-31844, on August 25, 2014, Velez pled guilty to all of the

charged crimes that are set forth above. Under Cause No. FD-38368, the trial

court accepted Velez’s guilty plea and merged Velez’s conviction for Class A

misdemeanor conversion into his conviction for Class D felony theft. Under

Cause No. FD-57410, the trial court accepted Velez’s guilty plea and merged

Velez’s conviction for Class A misdemeanor possession of paraphernalia into

his conviction for Class D felony possession of paraphernalia. Under Cause

No. CM-57502, the trial court accepted Velez’s guilty plea. Under Cause FD-

60304, the trial court accepted Velez’s guilty plea and merged Velez’s

conviction for Class A misdemeanor possession of paraphernalia into his

Court of Appeals of Indiana | Memorandum Decision [Case number] | April 13, 2015 Page 6 of 12 conviction for Class D felony possession of paraphernalia. Under Cause No.

FD-31844, the trial court dismissed the Class D felony theft charge and

accepted Velez’s guilty plea for the remaining charges. The trial court also

accepted Velez’s guilty plea under Cause No. FD-25741.

IX. Sentencing Following Velez’s Guilty Pleas [11] After accepting Velez’s guilty pleas, the trial court sentenced Velez as follows:

(1) one and one-half years under Cause No. FD-38368; (2) one and one-half

years under Cause No. FD-57410; (3) one year in community corrections under

Cause No. CM-57502; (4) one and one-half years under Cause No. FD-60304;

(5) one year in community corrections under Cause No. FD-31844; and (6) two

years under Cause No. FD-25741. The trial court ordered each of the sentences

to run consecutive to one another, for an aggregate term of six and one-half

years executed in the DOC, followed by two years in community corrections.

This appeal follows.

Discussion and Decision [12] Velez challenges his sentence on appeal, claiming both that the trial court

abused its discretion in sentencing him and that his aggregate eight and one-

half-year sentence is inappropriate in light of the nature of his offenses and his

character.

Court of Appeals of Indiana | Memorandum Decision [Case number] | April 13, 2015 Page 7 of 12 I. Abuse of Discretion [13] 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), modified on other grounds 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.

(quotation omitted).

One way in which a trial court may abuse its discretion is failing to enter a sentencing statement at all. Other examples include entering a sentencing statement that explains reasons for imposing a sentence- including a finding of aggravating and mitigating factors if any-but the record does not support the reasons, or the sentencing statement omits reasons that are clearly supported by the record and advanced for consideration, or the reasons given are improper as a matter of law. 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 490-91.

[14] Velez claims that the trial court abused its discretion in sentencing him because

the trial court failed to find his mental illness to be a mitigating factor at

sentencing. The finding of mitigating factors is discretionary with the trial

court. Fugate v. State, 608 N.E.2d 1370, 1374 (Ind. 1993) (citing Graham v. State,

535 N.E.2d 1152, 1155 (Ind. 1989)). The trial court is not required to find the

presence of mitigating factors. Id. (citing Graham, 535 N.E.2d at 1155).

Court of Appeals of Indiana | Memorandum Decision [Case number] | April 13, 2015 Page 8 of 12 Further, if the trial court does not find the existence of a mitigating factor after

it has been argued by counsel, the trial court is not obligated to explain why it

has found that the factor does not exist. Id. (citing Hammons v. State, 493

N.E.2d 1250, 1254-55 (Ind. 1986)).

[15] In sentencing Velez, the trial court made a lengthy oral statement setting forth

Velez’s sentence and explaining the trial court’s reasons for imposing the

particular sentence. The trial court made multiple references to Velez’s mental

illness in making this statement, and concluded by stating the following:

Your attitude towards whatever your sentence may be is going to be the determining factor in how successful you are; okay? And, that’s easy for me to say from up here. It’s not necessarily easy for someone to do, regardless of where they are. But, I hope you know that I believe wholeheartedly that you and your attitude toward your mental illness and your drug addiction is in the place now where as long as you keep on the same road that you’re going you can conquer them and you can make the life that you want to make; okay? Regardless of what I’m doing today, you can make your life better. All right? And, I hope that you meant that and I hope that you will continue to do that.

Tr. pp. 96-97. Although the trial court did not specifically explain why it did

not find Velez’s mental illness to be a mitigating factor, the trial court’s oral

sentencing statement indicates that the trial court did consider Velez’s mental

illness in sentencing Velez.

[16] Furthermore, even if we were to find that the trial court did not consider Velez’s

mental illness, we conclude that the trial court did not abuse its discretion in

declining to find that Velez’s mental illness was a mitigating factor.

Court of Appeals of Indiana | Memorandum Decision [Case number] | April 13, 2015 Page 9 of 12 The mitigating weight to be afforded a defendant’s mental impairment depends on: 1) the extent of the defendant’s inability to control his or her behavior due to the impairment; 2) overall limitations on functioning; 3) the duration of the mental illness; and 4) the extent of any nexus between the impairment and the commission of the crime. Williams v. State, 840 N.E.2d 433, 439 (Ind. Ct. App. 2006).

Smith v. State, 929 N.E.2d 255, 259 (Ind. Ct. App. 2010).

[17] Velez has not established that the effect his mental illness impacted his ability to

control his behavior or limited his ability to function. More importantly, Velez

failed to establish that there was a nexus between his mental condition and his

crimes. Rather than being impacted by his mental illness, Velez’s actions

appear to be largely impacted by his drug addiction. We therefore cannot say

the trial court abused its discretion in declining to find Velez’s mental illness to

be a mitigating factor.

II. Appropriateness of Sentence [18] Indiana Appellate Rule 7(B) provides that “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 offender.” In analyzing such claims, we “‘concentrate

less on comparing the facts of [the case at issue] to others, whether real or

hypothetical, and more on focusing on the nature, extent, and depravity of the

offense for which the defendant is being sentenced, and what it reveals about

the defendant’s character.’” Paul v. State, 888 N.E.2d 818, 825 (Ind. Ct. App.

2008) (quoting Brown v. State, 760 N.E.2d 243, 247 (Ind. Ct. App. 2002), trans.

Court of Appeals of Indiana | Memorandum Decision [Case number] | April 13, 2015 Page 10 of 12 denied). The defendant bears the burden of persuading us that his sentence is

inappropriate. Sanchez v. State, 891 N.E.2d 174, 176 (Ind. Ct. App. 2008).

[19] In challenging the appropriateness of his sentence, Velez argues that a

minimum sentence was appropriate in light of the nature of his offenses. We

cannot agree. While the nature of each of Velez’s individual offenses was not

particularly egregious when considered in isolation, the quantity and

consistency of his criminal actions justify an enhanced sentence. The record

demonstrates that Velez was convicted of eight criminal offenses stemming

from six unrelated episodes of criminal conduct, all of which he committed over

the course of a less than two years. Velez’s criminal offenses include theft,

conversion, possession of paraphernalia, prostitution, public indecency, and

resisting law enforcement. We find it troubling that Velez continued to commit

these crimes despite his participation in the court-supervised mental health

diversion PAIR program.

[20] With respect to Velez’s character, the record demonstrates that Velez suffers

from an addiction to drugs. However, the record further demonstrates that, to-

date, he has been unwilling to complete treatment that is aimed to help him

overcome his addiction. Velez also has a substantial criminal history which

dates back to when he was a juvenile. As a juvenile, he was found to be a

delinquent for committing what would be the following crimes if committed by

an adult: conversion, failure to stop at an accidence causing injury, operating a

vehicle without ever receiving a license. Velez’s adult criminal history includes

numerous convictions for battery, resisting law enforcement, theft/receiving

Court of Appeals of Indiana | Memorandum Decision [Case number] | April 13, 2015 Page 11 of 12 stolen property, conversion, and possession of drug paraphernalia. Velez has

also repeatedly violated the terms of prior placements on probation and in

community corrections. Velez’s criminal history indicates an unwillingness to

conform his behavior to the rules of society. In light of the nature of Velez’s

offenses and his character, we conclude that Velez has failed to meet his burden

of persuading us that his aggregate eight and one-half-year sentence is

inappropriate.

Conclusion [21] In sum, we conclude that the trial court acted within its discretion in sentencing

Velez and that Velez failed to meet his burden of proving that his aggregate

eight and one-half-year sentence is inappropriate.

[22] The judgment of the trial court is affirmed.

Vaidik, C.J., and Kirsch, J., concur.

Court of Appeals of Indiana | Memorandum Decision [Case number] | April 13, 2015 Page 12 of 12