Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before May 07 2012, 8:50 am any court except for the purpose of establishing the defense of res judicata, CLERK of the supreme court, collateral estoppel, or the law of the case. court of appeals and tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
DARREN BEDWELL GREGORY F. ZOELLER Marion County Public Defender Office Attorney General of Indiana Indianapolis, Indiana ERIC P. BABBS Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
LUIS RAMOS, ) ) Appellant-Defendant, ) ) vs. ) No. 49A04-1103-CR-138 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT The Honorable Lisa F. Borges, Judge Cause No. 49G04-1002-MR-7964
May 7, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
MAY, Judge Luis Ramos appeals his sentence for murder, a felony,1 and Class A misdemeanor
possession of a handgun without a license.2 The State cross-appeals, requesting remand for
correction of an error in the sentencing statement. We affirm and remand.
FACTS AND PROCEDURAL HISTORY
On January 31, 2010, while at a public park, Ramos shot Brett Reinert six times in the
back. Ramos shot Reinert because Ramos was upset about a fight his brother had with
Reinert the night before. Several bystanders under the age of eighteen were present. Reinert
died from his injuries. After a short investigation, Ramos was arrested for the crime.
The State charged Ramos with murder, a felony, and Class A misdemeanor possession
of a handgun without a license. A jury convicted Ramos of both counts. At his sentencing
hearing on March 2, 2011, the trial court sentenced Ramos to sixty years for murder, and one
year suspended for Class A misdemeanor possession of a handgun without a license.
DISCUSSION AND DECISION
1. Appropriateness of Sentence
We may revise a sentence if it is inappropriate in light of the nature of the offense and
the character of the offender. Williams v. State, 891 N.E. 2d 621, 633 (Ind. Ct. App. 2008)
(citing Ind. Appellate Rule 7(B)). We consider not only the aggravators and mitigators found
by the trial court, but also any other factors appearing in the record. Roney v. State, 872
N.E.2d 192, 206 (Ind. Ct. App. 2007), trans. denied. The appellant bears the burden of
1 Ind. Code § 35-42-1-1. 2 Ind. Code § 35-47-2-1. 2 demonstrating the sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind.
2006).
When considering the nature of the offense, the advisory sentence is the starting point
to determine the appropriateness of a sentence. Anglemyer v. State, 868 N.E.2d 482, 494
(Ind. 2007), clarified on reh’g 878 N.E.2d 218 (Ind. 2007). The advisory sentence3 for
murder is fifty-five years. Ind. Code § 35-50-2-3. One factor we consider when determining
the appropriateness of a deviation from the advisory sentence is whether there is anything
more or less egregious about the offense committed by the defendant that makes it different
from the “typical” offense accounted for by the legislature when it set the advisory sentence.
Rich v. State, 890 N.E.2d 44, 54 (Ind. Ct. App. 2008), trans. denied. Ramos shot Reinert six
times in the back. The shooting occurred in a park in the presence of multiple bystanders,
some of whom were under the age of eighteen. The trial court also noted the murder seemed
to be a “planned offense . . . in retaliation for some sort of imagined slight the night before,”
(Tr. at 408), and evidence suggested the incident was gang-related. Based on the nature of
his crime, we cannot say Ramos’ sentence was inappropriate. See Groves v. State, 787
N.E.2d 401, 409-10 (Ind. Ct. App. 2003) (appellate court affirmed sixty year sentence for
gang-related murder), trans. denied.
When considering the character of the offender, one relevant fact is the defendant’s
criminal history. Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct. App. 2007). The
3 There is no advisory sentence for misdemeanor crimes. Creekmore v. State, 853 N.E.2d 523, 527 (Ind. Ct. App. 2006), trans. denied.
3 significance of a criminal history in assessing a defendant’s character varies based on the
gravity, nature, and number of prior offenses in relation to the current offense. Id. Ramos’
juvenile record indicates an increase in the severity and violence of his criminal activity, as
he was adjudicated for battery, criminal recklessness, carrying a handgun without a license,
burglary, and theft. When sentencing Ramos, the court took into consideration his “prior
failures on probation or suspended commitments in the various and sundry attempts to try to
get him back on some sort of straight path all failed.” (Tr. at 407.) In addition, Ramos stated
after committing the crime that he “didn’t feel anything.” (Id. at 408.) Based on Ramos’
criminal record and lack of remorse for his crimes, we cannot say his sentence was
inappropriate.4
2. Sentencing Statement
Pursuant to Indiana Appellate Rules 7(A) and 9(D), the State appeals the
inconsistency between the oral and written iterations of Ramos’ sentence. In reviewing a
sentence, we examine both the oral and written sentencing statements to discern the intent of
the trial court. McElroy v. State, 865 N.E.2d 584, 589 (Ind. 2007). We have the option of
adopting the statement that accurately pronounces the sentence the trial court intended to
impose or remanding for resentencing. Id.
During the sentencing hearing, the trial court stated:
I think the appropriate sentence is sixty-one years and I’m going to order that one year be suspended, that’s the year in the Marion County Jail. The reason
4 Ramos also argues the trial court should have given more mitigating weight to his youth when sentencing him. As we no longer review the weight a factor is given by the trial court when determining a sentence, we need not address this argument. See Anglemyer, 868 N.E.2d at 491. 4 I’m suspending that is because – and I know this doesn’t make sense to some folks and I can understand that and I honor the fact you may not understand this. I think that in every sentence there has to be a portion of the sentence that is meant for rehabilitation. The Defendant is so young that there is a possibility that he will be released in the future and with that I have a responsibility to try to allow for some rehabilitation. If I leave the year in the Marion County Jail as executed time, the Defendant will not be allowed into any rehabilitative programs while at the Department of Corrections [sic] and I believe it’s important that he be allowed to take part in those programs, that he will avail himself of.
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Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before May 07 2012, 8:50 am any court except for the purpose of establishing the defense of res judicata, CLERK of the supreme court, collateral estoppel, or the law of the case. court of appeals and tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
DARREN BEDWELL GREGORY F. ZOELLER Marion County Public Defender Office Attorney General of Indiana Indianapolis, Indiana ERIC P. BABBS Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
LUIS RAMOS, ) ) Appellant-Defendant, ) ) vs. ) No. 49A04-1103-CR-138 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT The Honorable Lisa F. Borges, Judge Cause No. 49G04-1002-MR-7964
May 7, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
MAY, Judge Luis Ramos appeals his sentence for murder, a felony,1 and Class A misdemeanor
possession of a handgun without a license.2 The State cross-appeals, requesting remand for
correction of an error in the sentencing statement. We affirm and remand.
FACTS AND PROCEDURAL HISTORY
On January 31, 2010, while at a public park, Ramos shot Brett Reinert six times in the
back. Ramos shot Reinert because Ramos was upset about a fight his brother had with
Reinert the night before. Several bystanders under the age of eighteen were present. Reinert
died from his injuries. After a short investigation, Ramos was arrested for the crime.
The State charged Ramos with murder, a felony, and Class A misdemeanor possession
of a handgun without a license. A jury convicted Ramos of both counts. At his sentencing
hearing on March 2, 2011, the trial court sentenced Ramos to sixty years for murder, and one
year suspended for Class A misdemeanor possession of a handgun without a license.
DISCUSSION AND DECISION
1. Appropriateness of Sentence
We may revise a sentence if it is inappropriate in light of the nature of the offense and
the character of the offender. Williams v. State, 891 N.E. 2d 621, 633 (Ind. Ct. App. 2008)
(citing Ind. Appellate Rule 7(B)). We consider not only the aggravators and mitigators found
by the trial court, but also any other factors appearing in the record. Roney v. State, 872
N.E.2d 192, 206 (Ind. Ct. App. 2007), trans. denied. The appellant bears the burden of
1 Ind. Code § 35-42-1-1. 2 Ind. Code § 35-47-2-1. 2 demonstrating the sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind.
2006).
When considering the nature of the offense, the advisory sentence is the starting point
to determine the appropriateness of a sentence. Anglemyer v. State, 868 N.E.2d 482, 494
(Ind. 2007), clarified on reh’g 878 N.E.2d 218 (Ind. 2007). The advisory sentence3 for
murder is fifty-five years. Ind. Code § 35-50-2-3. One factor we consider when determining
the appropriateness of a deviation from the advisory sentence is whether there is anything
more or less egregious about the offense committed by the defendant that makes it different
from the “typical” offense accounted for by the legislature when it set the advisory sentence.
Rich v. State, 890 N.E.2d 44, 54 (Ind. Ct. App. 2008), trans. denied. Ramos shot Reinert six
times in the back. The shooting occurred in a park in the presence of multiple bystanders,
some of whom were under the age of eighteen. The trial court also noted the murder seemed
to be a “planned offense . . . in retaliation for some sort of imagined slight the night before,”
(Tr. at 408), and evidence suggested the incident was gang-related. Based on the nature of
his crime, we cannot say Ramos’ sentence was inappropriate. See Groves v. State, 787
N.E.2d 401, 409-10 (Ind. Ct. App. 2003) (appellate court affirmed sixty year sentence for
gang-related murder), trans. denied.
When considering the character of the offender, one relevant fact is the defendant’s
criminal history. Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct. App. 2007). The
3 There is no advisory sentence for misdemeanor crimes. Creekmore v. State, 853 N.E.2d 523, 527 (Ind. Ct. App. 2006), trans. denied.
3 significance of a criminal history in assessing a defendant’s character varies based on the
gravity, nature, and number of prior offenses in relation to the current offense. Id. Ramos’
juvenile record indicates an increase in the severity and violence of his criminal activity, as
he was adjudicated for battery, criminal recklessness, carrying a handgun without a license,
burglary, and theft. When sentencing Ramos, the court took into consideration his “prior
failures on probation or suspended commitments in the various and sundry attempts to try to
get him back on some sort of straight path all failed.” (Tr. at 407.) In addition, Ramos stated
after committing the crime that he “didn’t feel anything.” (Id. at 408.) Based on Ramos’
criminal record and lack of remorse for his crimes, we cannot say his sentence was
inappropriate.4
2. Sentencing Statement
Pursuant to Indiana Appellate Rules 7(A) and 9(D), the State appeals the
inconsistency between the oral and written iterations of Ramos’ sentence. In reviewing a
sentence, we examine both the oral and written sentencing statements to discern the intent of
the trial court. McElroy v. State, 865 N.E.2d 584, 589 (Ind. 2007). We have the option of
adopting the statement that accurately pronounces the sentence the trial court intended to
impose or remanding for resentencing. Id.
During the sentencing hearing, the trial court stated:
I think the appropriate sentence is sixty-one years and I’m going to order that one year be suspended, that’s the year in the Marion County Jail. The reason
4 Ramos also argues the trial court should have given more mitigating weight to his youth when sentencing him. As we no longer review the weight a factor is given by the trial court when determining a sentence, we need not address this argument. See Anglemyer, 868 N.E.2d at 491. 4 I’m suspending that is because – and I know this doesn’t make sense to some folks and I can understand that and I honor the fact you may not understand this. I think that in every sentence there has to be a portion of the sentence that is meant for rehabilitation. The Defendant is so young that there is a possibility that he will be released in the future and with that I have a responsibility to try to allow for some rehabilitation. If I leave the year in the Marion County Jail as executed time, the Defendant will not be allowed into any rehabilitative programs while at the Department of Corrections [sic] and I believe it’s important that he be allowed to take part in those programs, that he will avail himself of. We must not lose our optimism and our hope for the future, for every individual, and I know how painful that is to hear. But that’ll be my sentence; sixty years to be executed at the Department of Corrections [sic] followed by one year suspended and the Defendant will be on probation for that one year.
(Tr. at 410.) Based on the court’s comments, Ramos’ one-year sentence for the Class A
misdemeanor was intended to run consecutively with his sixty-year sentence for murder, as
the court specifically pronounced the sentence as one for “sixty-one years.” (Id.) In addition,
that year was to be suspended to probation “to allow for some rehabilitation.” (Id.)
However, the Abstract of Judgment erroneously indicates the two sentences are to be served
concurrently.
Ramos does not dispute the discrepancy between the oral and written sentencing
statements, but requests that we remand for resentencing instead of adopting the oral
statement that indicates the trial court’s intent. We decline his request, as it is clear from the
trial court’s oral sentencing statement the intent was for the sentences to be served
consecutively, as evidenced by the court’s pronouncement of the sentence as “sixty-one
years,” (id.), and its explanation why the misdemeanor sentence was suspended and intended
to occur after the sixty-year sentence. Accordingly, we remand for correction of the clerical
5 error in the Abstract of Judgment, and order the sentences to be served consecutively,
consistent with the trial court’s stated intent.
CONCLUSION
We hold Ramos’ sentence is not inappropriate based on his character and the nature of
his offense. However, the court’s intent was that his sentences be served consecutively, not
concurrently as listed on the Abstract of Judgment. Therefore, we affirm Ramos’ sentence
and remand to the trial court for correction of the Abstract of Judgment to reflect the court’s
intent the two sentences be served consecutively.
Affirmed and remanded.
CRONE, J., and BROWN, J., concur.