MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Jul 24 2019, 6:20 am
regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Bruce W. Graham Curtis T. Hill, Jr. Lafayette, Indiana Attorney General of Indiana Henry A. Flores Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Jose E. Santiago-Vazquez, July 24, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-2680 v. Appeal from the Tippecanoe Superior Court State of Indiana, The Honorable Steven P. Meyer, Appellee-Plaintiff. Judge Trial Court Cause No. 79D02-1710-F3-23 79D02-1802-F3-5
Tavitas, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2680 | July 24, 2019 Page 1 of 20 Case Summary
[1] In this consolidated appeal, 1 Jose E. Santiago-Vazquez appeals his convictions
and thirty-two-year aggregate sentence for two counts of aggravated battery,
Level 3 felonies, in separate causes. We affirm.
Issues
[2] Santiago-Vazquez raises two issues on appeal, which we restate as follows:
I. Whether Santiago-Vazquez’s sentences run afoul of the prohibition against double jeopardy.
II. Whether the trial court abused its sentencing discretion in identifying aggravating and mitigating circumstances.
III. Whether the trial court abused its sentencing discretion by imposing consecutive sentences.
IV. Whether Santiago-Vazquez’s sentences are inappropriate in light of the nature of his offenses and his character.
Facts
[3] This matter arose from two incidents of domestic violence against the same
victim, D.M. Santiago-Vazquez, who is originally from the U.S. territory of
Puerto Rico, and D.M. met in California. Santiago-Vazquez moved to
Tippecanoe County, Indiana, to be in a romantic relationship with D.M.
1 This is a consolidated appeal from Causes 79D02-1802-F3-5 and 79D02-1710-F3-23.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2680 | July 24, 2019 Page 2 of 20 [4] Over the span of several hours on the night of August 28, 2017, and into the
following morning, Santiago-Vazquez brutally beat D.M. in an unprovoked
attack (the “August 2017 incident”). Afterwards, D.M. begged Santiago-
Vazquez to take her to a hospital; he complied only after he ordered D.M. to
shower and change her clothes. Santiago-Vazquez then drove D.M. to the
hospital in her vehicle and left her at the hospital. Without her permission,
Santiago-Vazquez fled the hospital in D.M.’s vehicle, which he abandoned in a
parking lot. As a result of the attack, D.M. sustained “an orbital blowout
fracture and a broken nose”; D.M. also suffered extreme pain, and her injuries
resulted in serious permanent disfigurement. Tr. Vol. II p. 20.
[5] After the August 2017 incident, Santiago-Vazquez returned to Puerto Rico.
While Santiago-Vazquez was in Puerto Rico, Hurricane Maria struck the island
and displaced him. Santiago-Vazquez subsequently returned to the U.S.
mainland and resumed living with D.M.
[6] On October 2, 2017, the State charged Santiago-Vazquez, under seal, in Cause
Number 79D02-1710-F3-23, with the following offenses stemming from the
August 2017 incident: Count I, aggravated battery, a Level 3 felony; Count II,
criminal confinement, a Level 3 felony; Count III, criminal confinement while
armed with a deadly weapon, a Level 3 felony; Count IV, battery resulting in
serious bodily injury, a Level 5 felony; Count V, intimidation by drawing or
using a deadly weapon, a Level 5 felony; Count VI, battery resulting in
moderate bodily injury, a Level 6 felony; Count VII, strangulation, a Level 6
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2680 | July 24, 2019 Page 3 of 20 felony; Count VIII, auto theft, a Level 6 felony; and Count IX, interference
with the reporting of a crime, a Class A misdemeanor.
[7] On the afternoon of February 22, 2018, Santiago-Vazquez brutally attacked
D.M. (the “February 2018 incident”) after D.M. returned from walking her
dog. This time, D.M. suffered “a broken nose, broken ribs, [ ] a broken orbital
socket,” as well as “several facial fractures, a dislocated elbow[,]” and “a
broken bone in her neck.” Id. at 22, 34. Afterwards, D.M. was “in and out of
consciousness”; had “substantial swelling, bruising, obvious deformities to her
face and arms”; suffered “collapsed teeth, a fractured jaw, sinus impaction, . . .
severe nerve damage . . . to the areas of her face” and required “reconstructive
surgery, including a metal plate in her face[.]” Id. at 34, 61.
[8] On February 28, 2018, the State charged Santiago-Vazquez in Cause Number
79D02-1802-F3-5, with the following offenses stemming from the February
2018 incident: Count I, aggravated battery, a Level 3 felony; Count II, criminal
confinement resulting in serious bodily injury, a Level 3 felony; Count III,
domestic battery resulting in serious bodily injury, a Level 5 felony; Count IV,
domestic battery by means of a deadly weapon, a Level 5 felony; and Count V,
strangulation, a Level 6 felony. That same day, the trial court entered a no-
contact order barring Santiago-Vazquez from contacting D.M.
[9] On July 2, 2018, Santiago-Vazquez mailed a letter to D.M. See Ex. 29.
Enclosed in the letter was “a handmade cross necklace” that belonged to
Santiago-Vazquez. Id. at 36.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2680 | July 24, 2019 Page 4 of 20 [10] On August 10, 2018, Santiago-Vazquez entered guilty pleas to the following
offenses: in Cause 79D02-1710-F3-23, Count I, aggravated battery, a Level 3
felony; and Count VIII, auto theft, a Level 6 felony; and in Cause 79D02-1802-
F3-5, Count I, aggravated battery, a Level 3 felony; and Count IV domestic
battery by means of a deadly weapon, a Level 5 felony. In exchange for
Santiago-Vazquez’s guilty pleas, the State agreed to dismiss all remaining
counts. The State left sentencing to the discretion of the trial court.
[11] At his sentencing hearing on October 12, 2018, Santiago-Vazquez expressed
remorse, asked for forgiveness, and promised to “find help.” Tr. Vol. II at 51.
Defense counsel argued that Santiago-Vazquez’s “minimal criminal history”
and remorse were mitigating factors and asked the trial court to “keep[ ] in
mind [Santiago-Vazquez’s] age[ 2] and his prospects for rehabilitation in
imposing the sentence.” Id. at 53.
[12] Defense counsel also engaged in the following discussion with the trial court
regarding double jeopardy implications of the judgment:
THE COURT: I understand you’re saying they’re not consecutive, but can the Court enter two separate convictions [for aggravated battery and domestic battery]?
[DEFENSE COUNSEL]: Oh, yeah. They can enter two separate convictions, yes.
2 Santiago-Vasquez was fifty-five years of age at the time of sentencing.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2680 | July 24, 2019 Page 5 of 20 THE COURT: Probation is recommending they run concurrent.
[DEFENSE COUNSEL]: Correct.
THE COURT: So you’re simply arguing against the consecutive part?
[DEFENSE COUNSEL]: The consecutive nature part.
THE COURT: So you’re not saying that they merge?
[DEFENSE COUNSEL]: I’m not saying that.
THE COURT: The Court can, in fact, enter convictions on both counts?
[DEFENSE COUNSEL]: Right.
THE COURT: I just wanted to clarify your point. All right.
Id. at 60-61.
[13] The State argued that “[t]he facts of this case are extremely aggravating” and
sought “a fully executed sentence on each and every count and each and every
case” and that “all counts [should] be run consecutively and both cases [should]
run consecutively.” Id. at 57. Then, the trial court made the following
sentencing statement:
THE COURT: * * * * * What you did to this poor woman is disgusting, and it exceeds all bounds of humanity. It was brutal.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2680 | July 24, 2019 Page 6 of 20 It was vicious. You tortured this woman for no reason and for extended periods of time. [Y]ou barricaded the doors to the house, keeping the victim from leaving, and you had set a countdown indicating you would kill her at a certain point in time. And then you’d move that time a little further . . . all the while tormenting her, where she was led to believe that at any moment . . . you would end her life.
As a result of that incident - and this was the first incident – she . . . had to undergo surgery[.] * * * * * And on that occasion, after she begged and pleaded, you finally let her leave the house only after she would shower and clean up. Then you took her [ ] to the hospital, but then ran right out and took her car and fled. You didn’t want to get caught. * * * * *
And the second offense, . . . you beat her through the evening hours and into the morning. You were punching her, kicking her, pulling her hair, dragging her by the hair. At one point, she was on the bed, and you tied her hands and feet together just so that you could continue to beat her. You used objects to beat her, including a broom handle and a candlestick. And you made statements that you wanted to bash her skull in. That does not sound like the statements I heard here today of any regret or remorse you’re expressing. I’m looking at what you did to this woman then. On that occasion, she was not sure if she lost consciousness, but she just remembered trying to keep breathing, trying to keep breathing just to stay alive. At one point, you stood on her elbow and jerked it out backwards, and her arm just snapped and was bending the wrong way.
One of the most horrific things I read in the police report . . . . [D.M.] specifically remembered you telling her, “I may go to jail for a little bit, but you’ll be ugly forever because of me.” It’s awfully hard for this Court to find any truth in the fact that you’re expressing remorse today . . . .
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2680 | July 24, 2019 Page 7 of 20 You know, attorneys often say in here that in arguing against a maximum or an aggravated sentence, that the Court should just reserve the maximum or most of a maximum sentence for the worst of the worst. In this Court’s eyes, Mr. Vazquez, you’ve hit that mark. This is one of the worst of the worst domestic violence cases I have seen . . . . [ ]
On the aggravating factors, I find that you do have a criminal history, the one felony, that case which, for the record, was the sexual assault - no, you were convicted of obstructing a court order. It was a fourth-degree felony in Camden County, New Jersey in 1992. You were sentenced to serve 180 days in Camden County jail and three years on probation. The overall seriousness of this offense, which I think I’ve already described and has been described by others, is certainly an aggravator both cases - in both cases. The fact that this victim suffered unimaginable injuries well and beyond what’s necessary to establish the elements of this offense, the overall brutality of these offenses. The fact that you fled and attempted to avoid prosecution or accountability for these offenses is an aggravator. Again, you were more worried about what might happen to you instead of the broken, beaten, bleeding woman that you left.
You violated a no-contact order by trying to reach out to her, again for your own selfish reasons, which is to rekindle or establish some kind of contact with her, never once thinking about the impact that might have on her, never once thinking about the authority of this Court and the rule that you were not to have any contact with her. The repetitive nature of this offense and the fact that you committed it once and then six months later you came back and did it just as brutal[ly] and severe[ly] as you did it the first time.
Id. at 61-63.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2680 | July 24, 2019 Page 8 of 20 [14] Finding that the “aggravators outweigh the mitigators and that an aggravated
sentence is justified in this case,” the trial court issued the following sentence:
in Cause 79D02-1710-F3-23, for aggravated battery, a Level 3 felony, fifteen
years; and for auto theft, a Level 6 felony, two years, with the sentences ordered
to be served consecutively; in Cause 79D02-1802-F3-5, for aggravated battery, a
Level 3 felony, fifteen years; and for domestic battery with a deadly weapon, a
Level 5 felony, six years, to be served concurrently with the fifteen-year
sentence for aggravated battery. The court ordered the fifteen-year and
seventeen-year sentences to be fully executed and served consecutively, for an
aggregate sentence of thirty-two years in the Department of Correction.
Santiago-Vazquez now appeals.
Analysis
I. Double Jeopardy
[15] First, Santiago-Vazquez argues that his convictions in Cause 79D02-1802-F3-5
for aggravated battery, a Level 3 felony, and domestic battery with a deadly
weapon, Level 5 felony, run afoul of Indiana’s prohibition against double
jeopardy. Specifically, he argues that “his dual convictions violate the double
jeopardy ‘actual evidence test[,]’” and that “there was but one battery, at one
time, inflicted upon one victim. Thus, only one crime was committed.”
Appellant’s Br. p. 24. The State counters that Santiago-Vazquez waived his
double jeopardy claim by pleading guilty.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2680 | July 24, 2019 Page 9 of 20 [16] We first address the question of whether Santiago-Vazquez waived his right to
assert his double jeopardy claims because he pleaded guilty. In general, a
defendant who pleads guilty pursuant to an agreement with the State waives the
right to raise a double jeopardy claim on appeal. Mapp v. State, 770 N.E.2d 332,
334 (Ind. 2001). We have repeatedly held, however, that when a defendant
pleads guilty without a plea agreement, the defendant may raise a double
jeopardy claim because he or she did not receive the benefit of a bargain with
the State. See Kunberger v. State, 46 N.E.3d 966 (Ind. Ct. App. 2015); Wharton v.
State, 42 N.E.3d 539 (Ind. Ct. App. 2015); Graham v. State, 903 N.E.2d 538
(Ind. Ct. App. 2009); McElroy v. State, 864 N.E.2d 392 (Ind. Ct. App. 2007),
trans. denied.
[17] Here, Santiago-Vazquez entered into a plea agreement and received a
significant tangible benefit when the State dismissed the remaining pending
charges against him in exchange for his guilty plea. Moreover, defense counsel
explicitly stated, at sentencing, that no double jeopardy issue would attach
regarding the entry of judgments for both aggravated battery, a Level 3 felony,
and domestic battery with a deadly weapon, a Level 5 felony. We agree with
the State that this issue is waived.
II. Abuse of Sentencing Discretion
[18] Sentencing decisions rest within the sound discretion of the trial court.
McElfresh v. State, 51 N.E.3d 103, 107 (Ind. 2016). As long as the sentence is
within the statutory range, it is subject to review only for an abuse of discretion.
Id. An abuse of discretion will be found where the decision is clearly against Court of Appeals of Indiana | Memorandum Decision 18A-CR-2680 | July 24, 2019 Page 10 of 20 the logic and effect of the facts and circumstances before the court or the
reasonable, probable, and actual deductions to be drawn therefrom. Id.
[19] A trial court may abuse its discretion in a number of ways, including: (1) failing
to enter a sentencing statement at all; (2) entering a sentencing statement that
includes aggravating and mitigating factors that are unsupported by the record;
(3) entering a sentencing statement that omits reasons that are clearly supported
by the record; or (4) entering a sentencing statement that includes reasons that
are improper as a matter of law. Id. (citing Anglemyer v. State, 868 N.E.2d 482,
490-91 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007)).
1. Improper Aggravating Factors
[20] Santiago-Vazquez argues that the trial court abused its sentencing discretion by
identifying improper aggravating factors. 3 A single aggravating circumstance
may support the imposition of an enhanced sentence. McNew v. State, 822
N.E.2d 1078, 1082 (Ind. Ct. App. 2005). If a trial court abuses its discretion by
improperly considering an aggravating circumstance, we need to remand for
resentencing only “if we cannot say with confidence that the trial court would
3 Here the trial court found the following aggravating circumstances: (1) Santiago-Vasquez’s criminal history; (2) the “overall seriousness of th[e] offense” and “that this victim suffered unimaginable injuries well and beyond what's necessary to establish the elements of this offense, the overall brutality of these offenses”; (3) that Santiago-Vasquez fled “and attempted to avoid prosecution or accountability”; (4) that Santiago- Vasquez violated a no-contact order; and (5) “[t]he repetitive nature of this offense and the fact that you committed it once and then six months later [he] came back and did it just as brutal and severe as [he] did it the first time.” Tr. Vol. II p. 63.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2680 | July 24, 2019 Page 11 of 20 have imposed the same sentence had it properly considered reasons that enjoy
support in the record.” Anglemyer, 868 N.E.2d at 491.
A. Criminal History
[21] Santiago-Vazquez argues that the trial court “committed an [a]buse of
[d]iscretion in finding a significant aggravating criminal history” where the pre-
sentence investigation report: (1) shows that he has no juvenile criminal history;
(2) “refer[s] in 1992 to Sexual Assault and Obstructing a Court Order”;
however, Santiago-Vazquez alleges he “was not convicted of Sexual Assault –
but was convicted of Obstructing a Court Order”; and (3) “demonstrates an
arrest in Puerto Rico in November of 2011 for conjugal abuse”; however, “[n]o
disposition was available” and “there was no factual support to demonstrate the
nature of the charges[.]” Appellant’s Br. p. 15.
[22] It is well-settled that it is proper for a trial court to consider a criminal history to
be an aggravating circumstance. See Ind. Code § 35-38-1-7.1(a)(2) (a
defendant’s history of criminal or delinquent behavior is an appropriate
aggravating circumstance). Our review of the record reveals that, in imposing
the sentence, the trial court acknowledged that Santiago-Vazquez has a prior
felony conviction in New Jersey for violating a court order, for which Santiago-
Vazquez served six months of jail time and three years of probation. His prior
felony conviction is evidence that Santiago-Vazquez has a history of criminal
delinquent behavior, upon which a trial court may properly rely to justify a
sentence greater than the advisory sentence. See Gomilia v. State, 13 N.E.3d 846,
853 (Ind. 2014). The trial court did not abuse its sentencing discretion in Court of Appeals of Indiana | Memorandum Decision 18A-CR-2680 | July 24, 2019 Page 12 of 20 identifying Santiago-Vazquez’s prior criminal history as an aggravating
circumstance.
B. Material Elements of the Crimes
[23] Santiago-Vazquez also argues that “[t]he next three[ 4] aggravating
circumstances cited by the court seemed to be little more than a re-hash of the
charged offenses” and contends that the “[t]rial [c]ourt’s reason for imposing a
sentence greater than the advisory sentence includes material elements of the
offense” and, therefore, those aggravating circumstances are “improper as a
matter of law.” Appellant’s Br. p. 16.
[24] “[A] material element of a crime may not be used as an aggravating factor to
support an enhanced sentence.” McElroy v. State, 865 N.E.2d 584, 589 (Ind.
2007). In evaluating the nature of the offense, however, the trial court “may
properly consider the particularized circumstances of the factual elements as
aggravating factors.” McCarthy v. State, 749 N.E.2d 528, 539 (Ind. 2001). Such
is the case here.
[25] In the trial court’s words, during Santiago-Vazquez’s “brutal” attacks on D.M.,
he “tortured [her] for no reason and for extended periods of time”; he “set a
countdown [and] indicated [he] would kill her at a certain point in time . . .
then [he would] move that time . . . all the while tormenting her, where she was
4 The next three aggravating circumstances identified by the trial court were the “overall seriousness of th[e] offense” and “that this victim suffered unimaginable injuries well and beyond what's necessary to establish the elements of this offense, [and] the overall brutality of these offenses”. Tr. Vol. II p. 63.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2680 | July 24, 2019 Page 13 of 20 led to believe that any moment in time [he] would end her life.” Tr. Vol. II p.
61. As the trial court further recounted:
One of the most horrific things [the trial court] read in the police report regarding the first incident, [D.M.] reported waking up on the ground after choking only because [Santiago-Vazquez] w[as] kicking her to wake up. And she specifically remembered [Santiago-Vazquez] telling her, “I may go to jail for a little bit, but you’ll be ugly forever because of me.”
Id. at 62.
[26] These particularized circumstances go beyond the material elements needed to
establish that Santiago-Vazquez committed aggravated battery. Stated
differently, Santiago-Vazquez’s conduct would have satisfied the statutory
elements of the crimes without his offenses being as nearly brutal. Thus, we
conclude that the trial court did not rely on the elements of the offenses but,
rather, on the particularized facts of the crimes when it considered the brutality
of Santiago-Vazquez’s crimes. Accordingly, the trial court did not abuse its
discretion when it identified, as aggravating circumstances, the “overall
seriousness of th[e] offense”; “that [D.M.] suffered unimaginable injuries well
and beyond what’s necessary to establish the elements of this offense, [and] the
overall brutality of these offenses[.]” See id. at 63.
C. Repeated Offense Aggravator
[27] Without citation to authority, Santiago-Vazquez also challenges as improper,
the trial court’s finding that he committed “similar acts of brutality against the
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2680 | July 24, 2019 Page 14 of 20 same victim [ ] within six months of each other”; because, he argues, “the
Court should not enhance a sentence based on an additional charge for which a
sentence is imposed.” Appellant’s Br. p. 17. We disagree, in light of the fact
that other valid aggravating circumstances exist to support the enhancement of
Santiago-Vazquez’s sentence. See McNew, 822 N.E.2d at 1082. Moreover, we
have previously found that the serial nature of offenses committed against a
victim may be a valid aggravating circumstance. See Stout v. State, 834 N.E.2d
707, 711 (Ind. Ct. App. 2005), trans. denied.
D. Violation of No Contact Order
[28] Lastly, Santiago-Vazquez asserts that he “does not dispute that violation of a no
contact order is an aggravating circumstance pursuant to Ind. Code 35-38-1-
7.1(5)”; however, he certainly implies that the trial court abused its discretion in
finding, as aggravating, that he “contacted the victim while he was
incarcerated,” in violation of a no-contact order, because “the contact did not
involve any threatening communications.” Appellant’s Br. p. 17.
[29] We disagree and direct Santiago-Vazquez’s attention to the testimony of
domestic violence expert, Caryn Burton of the Indiana Coalition Against
Domestic Violence, at his sentencing hearing regarding the impact of Santiago-
Vazquez’s letter and enclosed necklace. Burton testified that Santiago-
Vazquez’s act of mailing the necklace to D.M. after, as reported by D.M., he
used the necklace to strangle D.M. during the February 2018 incident “could be
taken as a direct threat, or could at least be perceived” as such by a domestic
violence victim. Tr. Vol. II p. 49. Court of Appeals of Indiana | Memorandum Decision 18A-CR-2680 | July 24, 2019 Page 15 of 20 III. Consecutive Sentences
[30] Next, Santiago-Vazquez argues that the trial court abused its sentencing
discretion by imposing consecutive sentences. It is within the trial court’s
discretion to impose consecutive sentences, but the trial court must find at least
one aggravating factor before imposing consecutive sentences. Owens v. State,
916 N.E.2d 913, 917 (Ind. Ct. App. 2009). We may review both the written
and oral sentencing statements in order to identify the findings of the trial court.
McElroy v. State, 865 N.E.2d 584, 589 (Ind. 2007); see McBride v. State, 992
N.E.2d 912, 919-20 (Ind. Ct. App. 2013) (holding that we will affirm an order
of consecutive sentences if it is supported by a statement of the trial court’s
reasoning and at least one aggravating circumstance), trans. denied.
[31] Here, the trial court made a detailed sentencing statement in which it identified
various aggravating circumstances that we have deemed valid in the above
discussion. The aggravating circumstances identified by the trial court amply
support its imposition of consecutive sentences, and we find no abuse of the
trial court’s discretion.
IV. Inappropriateness of Sentence
[32] Lastly, we turn to Santiago-Vazquez’s claim that his sentences are
inappropriate. Indiana Appellate Rule 7(B) provides that this court 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 to
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2680 | July 24, 2019 Page 16 of 20 persuade this court that his or her sentence is inappropriate. Wilson v. State, 966
N.E.2d 1259, 1266 (Ind. Ct. App. 2012) (citing Childress v. State, 848 N.E.2d
1073, 1080 (Ind. 2006)), trans. denied.
[33] In Indiana, trial courts can tailor an appropriate sentence to the circumstances
presented; the trial court’s judgment receives “considerable deference.” Sanders
v. State, 71 N.E.3d 839, 844 (Ind. 2017) (quoting Cardwell v. State, 895 N.E.2d
1219, 1222 (Ind. 2008)). In conducting our review, we do not look to see
whether the defendant’s sentence is appropriate or “if another sentence might
be more appropriate; rather, the question is whether the sentence imposed is
inappropriate.” Sanders, 71 N.E.3d at 844 (citing King v. State, 894 N.E.2d 265,
268 (Ind. Ct. App. 2008)). When determining whether a sentence is
inappropriate, the advisory sentence is the starting point the legislature has
selected as an appropriate sentence for the crime committed. Childress, 848
N.E.2d at 1081.
[34] Here, Santiago-Vazquez was convicted in separate causes of two counts of
aggravated battery, Level 3 felonies; one count of auto theft, a Level 6 felony;
and one count of domestic battery by means of a deadly weapon, a Level 5
felony. The sentencing range for a Level 3 felony is three to sixteen years, with
an advisory sentence of nine years. I.C. § 35-50-2-5(b). The trial court imposed
fifteen-year sentences on each of Santiago-Vazquez’s convictions for aggravated
battery, Level 3 felonies. The sentencing range for a Level 6 felony is six
months to two-and-one-half years, with an advisory sentence of one year. See
I.C. § 35-50-2-7. The trial court sentenced Santiago-Vazquez to two years for
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2680 | July 24, 2019 Page 17 of 20 auto theft, a Level 6 felony. Additionally, the sentencing range for a Level 5
felony is one to six years, with an advisory sentence of three years. See I.C. §
35-50-2-6. Here, the trial court sentenced Santiago-Vazquez to six years for
domestic battery by means of a deadly weapon, a Level 5 felony. The trial
court, thus, imposed sentences in excess of the advisory sentence on each
conviction; however, the court imposed less than the statutory maximum on
three of Santiago-Vazquez’s four convictions. Had the trial court imposed the
statutory maximum sentences on all counts, Santiago-Vazquez faced a
maximum aggregate sentence of forty and one-half years; here, he received an
aggregate sentence of thirty-two years.
[35] Regarding the nature of the offenses, the August 2017 and February 2018
attacks each spanned multiple days, during which time Santiago-Vazquez
“tortured” and brutalized D.M. with his fists, a broom handle, and a metal
candle stand. Tr. Vol. II p. 61. According to the record, the August 2017
incident occurred because “D.M. returned home . . . [and] indicated [she] was
tired and wanted to rest.” App. Vol. II p. 34. The February 2018 incident
occurred after D.M. returned home from walking her dog, purportedly because
Santiago-Vazquez did not want her to leave her house. As a result of the
beatings, D.M. required reconstructive surgery including a metal plate in her
face and suffered permanent disfigurement. D.M. also suffered orbital blowout
fractures, a broken nose, broken ribs, a broken orbital socket, facial fractures, a
dislocated elbow, a broken bone in her neck, collapsed teeth, a fractured jaw,
sinus impaction, and nerve damage. After the August 2017 incident, Santiago-
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2680 | July 24, 2019 Page 18 of 20 Vazquez took D.M. to the hospital, and fearing arrest, drove away from the
hospital in D.M.’s vehicle without her permission.
[36] As to Santiago-Vazquez’s character, the record reveals that, after the August
2017 attack, Santiago-Vazquez fled in D.M.’s car, without her permission, and
traveled home to Puerto Rico, likely to evade impending arrest. Only when
Hurricane Maria displaced him, did he return to Indiana, resume living with
D.M., and repay D.M.’s generosity in allowing him to reside with her with the
February 2018 attack. The fact that, within six months of the horrific August
2017 attack, Santiago-Vazquez could not refrain from waging another brutal
attack on D.M., gives us insight into his character. See Stout, 834 N.E.2d at 711
(a finding of serial offenses against a victim constitutes a valid aggravating
circumstance). We glean even further insight into Santiago-Vazquez’s
fathomless cruelty from his sending D.M. the offending necklace and his
remarks to D.M., after the August 2017 incident, that: “I may go to jail for a
little bit, but you’ll be ugly forever because of me.” Tr. Vol. II p. 62.
[37] As we have noted, Santiago-Vazquez did not receive a maximum sentence
here. Given the trial court’s explicit finding that Santiago-Vazquez’s offenses
and character are “the worst of the worst,” we would not have deemed its
imposition of maximum and consecutive sentences—as the State requested—to
be inappropriate on appellate review. See Tr. Vol II p. 57 (The State requested
“a fully executed sentence on each and every count and each and every case”
and that “all counts [should] be run consecutively and both cases [should] run
consecutively.”).
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2680 | July 24, 2019 Page 19 of 20 [38] From the trial court’s sentencing statement, we surmise that the trial court
afforded significant mitigating weight to Santiago-Vazquez’s mitigating entry of
a guilty plea, which “spared [D.M.] having to come to court . . . and having to
go to trial.” Id. at 64. Santiago-Vazquez should regard highly the trial court’s
extension of grace, given that we, too, regard the instant offenses as being
“among the very worst offenses” and regard him as “among the very worst
offenders, thus justifying the maximum sentence.” See Brown v. State, 760
N.E.2d 243, 247 (Ind. Ct. App. 2002), trans. denied; see Buchanan v. State, 767
N.E.2d 967, 974 (Ind. 2002) (holding that in general, the maximum possible
sentences should be reserved for the worst offenders and offenses). Here, we
are constrained to find that Santiago-Vazquez’s thirty-two-year sentence is not
inappropriate.
Conclusion
[39] Santiago-Vazquez waived his double jeopardy claim because he entered a guilty
plea. The trial court did not abuse its sentencing discretion in identifying
aggravating circumstances or by its imposition of consecutive sentences. Nor is
Santiago-Vazquez’s sentence inappropriate in light of the nature of his offenses
and his character. We affirm.
[40] Affirmed.
Crone, J., and Bradford, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2680 | July 24, 2019 Page 20 of 20