MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Nov 30 2015, 5:39 am 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 Matthew D. Barrett Gregory F. Zoeller Matthew D. Barrett, P.C. Attorney General of Indiana Logansport, Indiana Angela N. Sanchez Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Luis Torres-Reynoso, November 30, 2015 Appellant-Defendant, Court of Appeals Case No. 79A02-1412-CR-867 v. Appeal from the Tippecanoe Circuit Court State of Indiana, The Honorable Donald L. Daniel, Appellee-Plaintiff. Judge Trial Court Cause No. 79C01-1311-FA-11
Kirsch, Judge.
Court of Appeals of Indiana | Memorandum Decision 79A02-1412-CR-867 | November 30, 2015 Page 1 of 21 [1] Luis Torres-Reynoso pleaded guilty to conspiracy to commit dealing in cocaine1
as a Class A felony, six counts of dealing in cocaine,2 each as a Class A felony,
and eight additional drug-related offenses.3 The trial court accepted Torres-
Reynoso’s plea of guilty and sentenced him to an executed term of thirty-five
years for each of the seven Class A felony convictions, ordering those sentences
to run concurrently. The trial court did not impose a sentence for the remaining
convictions. The trial court denied Torres-Reynoso’s motion to correct error.
Torres-Reynoso raises the following restated issues on appeal:
I. Whether Torres-Reynoso was denied the effective assistance of trial counsel;
II. Whether the trial court abused its sentencing discretion by relying on improper aggravating factors; and
III. Whether Torres-Reynoso’s aggregate thirty-five-year executed sentence is inappropriate in light of the nature of the offense and the character of the offender.
[2] We affirm.
1 See Ind. Code §§ 35-48-4-1(a)(2), 35-41-5-2. 2 See Ind. Code § 35-48-4-1(a)(2). 3 We note that, effective July 1, 2014, the Indiana General Assembly enacted a new version of each of the criminal statutes under which Torres-Reynoso was charged. Because Torres-Reynoso committed his offenses before July 1, 2014, we will apply the appropriate statute in effect at that time.
Court of Appeals of Indiana | Memorandum Decision 79A02-1412-CR-867 | November 30, 2015 Page 2 of 21 Facts and Procedural History [3] This case arises from a criminal investigation of Torres-Reynoso by the
Lafayette Police Department and the Federal Drug Enforcement
Administration (“DEA”). Between May and November 2013, Torres-Reynoso
delivered approximately twelve ounces of cocaine and over three pounds of
marijuana, in seven separate buys, to Lafayette Police Department Detective
Jason Walters, who was acting undercover. In the first six buys, Detective
Walters bought a total of eight ounces of cocaine and over one pound of
marijuana and paid Torres-Reynoso $9,100.4 In the final buy on November 21,
2013, Torres-Reynoso delivered four ounces of cocaine and two pounds of
marijuana. No payment was made; instead, Detective Walters arrested Torres-
Reynoso and his accomplice, Saul Muñoz.
[4] Torres-Reynoso was interviewed by the police that same night. After initially
denying involvement, he admitted that he sold drugs to Detective Walters and,
later, consented to a search of his home; during that search, the police found
more cocaine. Torres-Reynoso identified his drug suppliers as Muñoz and a
man named Peña. A search of Muñoz’s home uncovered two pounds of
cocaine. With the help of Torres-Reynoso, police arranged to purchase cocaine
from Peña the following day. When police arrived at the designated location,
4 Torres-Reynoso was charged with multiple counts of dealing in cocaine in an amount greater than three grams. During the guilty plea hearing, Torres-Reynoso pleaded guilty to having repeatedly sold Detective Walters about one ounce of cocaine. Guilty Plea Hr’g at 26. The State, however, clarified that one ounce is equal to roughly 28 grams of cocaine. Id.
Court of Appeals of Indiana | Memorandum Decision 79A02-1412-CR-867 | November 30, 2015 Page 3 of 21 Peña fled in his car and, subsequently, on foot. When Peña was finally
apprehended, police found no cocaine on his person.
[5] On November 27, 2013, and as later amended, Torres-Reynoso was charged
with the following fifteen drug-related counts: (1) seven Class A felonies (one
count of conspiracy to commit dealing in at least three grams of cocaine and six
counts of dealing in in at least three grams of cocaine); (2) two Class C felonies
(one count of possession of cocaine5 and one count of dealing in a substance
represented to be a controlled substance6); (3) five Class D felonies (one count
of conspiracy to commit dealing in marijuana,7 two counts of dealing in
marijuana,8 one count of maintaining a common nuisance,9 and one count of
“dealing in a substance represented to be cocaine,” Guilty Plea Hr’g at 18), and
(4) one Class A misdemeanor (dealing in marijuana10). In January 2014,
attorney Jim Brugh (“Brugh”) filed an appearance as counsel for Torres-
Reynoso.
[6] On August 4, 2014, Torres-Reynoso pleaded guilty, without a written plea
agreement, to all fifteen counts. About a month and a half later, and in
5 See Ind. Code § 35-48-4-6(b)(1)(A). 6 See Ind. Code §§ 35-48-4-4.5, -4.6. 7 See Ind. Code §§ 35-48-4-10(b)(1)(B), 35-41-5-2. 8 See Ind. Code § 35-48-4-10(b)(1)(B). 9 See Ind. Code § 35-48-4-13(b). 10 See Ind. Code §35-48-4-10(a)(1)(c).
Court of Appeals of Indiana | Memorandum Decision 79A02-1412-CR-867 | November 30, 2015 Page 4 of 21 preparation for the impending sentencing hearing, Brugh filed a motion to
shorten the time for the State to respond to Torres-Reynoso’s request for
production of documents that revealed the identities of any officers involved in
or reports related to the investigation and arrest of Peña. Specifically, Brugh
intended to argue as a mitigating factor at sentencing that Torres-Reynoso had
been cooperative with police, identified Peña as a drug dealer, and helped
arrange the controlled drug buy that lead to Peña’s arrest. Brugh argued that
“[e]vidence of [Torres-Reynoso’s] cooperation with law enforcement on the day
of his arrest . . . and his cooperation with the Drug Task Force to set up drug
dealer [Peña for a controlled drug buy] . . . is relevant to sentencing.”
Appellant’s App. at 41.
[7] During a hearing, the State urged the court to deny the motion to shorten time
on the basis that Brugh had every report the State had, the reports relating to
Peña were not relevant to Torres-Reynoso’s sentencing, the State never denied
that Torres-Reynoso provided helpful information, and Brugh had already
subpoenaed officers involved in the case to testify at Torres-Reynoso’s
sentencing hearing. The trial judge, Judge Donald L. Daniel (“Judge Daniel”)
asked Brugh why he needed additional information if the State agreed that
Torres-Reynoso’s cooperation with police was a mitigator. Brugh responded
that police reports might provide a fuller picture of Torres-Reynoso’s
participation and, “if there is one more kernel of detail that I can add out of the
police report I have a duty to my client in good representation.” Status Hr’g at
6. Noting the State’s agreement that Torres-Reynoso was “entitled to a
Court of Appeals of Indiana | Memorandum Decision 79A02-1412-CR-867 | November 30, 2015 Page 5 of 21 mitigator” for the help he had given police, the trial court denied his motion to
shorten time. Id. at 5.
[8] On October 15, 2014, the trial court held a sentencing hearing, at which Torres-
Reynoso, his fiancée, his father, and his pastor all testified. Brugh also offered
testimony from two DEA agents and three police officers regarding the
assistance Torres-Reynoso’s provided law enforcement to arrange the
controlled drug buy from Peña. One officer and two DEA agents were allowed
to testify. During the testimony of the fourth law enforcement witness, West
Lafayette Police Officer Jonathan Eager, Judge Daniel stated that he had heard
“three witnesses testify for more than a half an hour . . . as to cooperation by
[Torres-Reynoso].” Sentencing Hr’g at 69. Noting that the State had previously
agreed that Torres-Reynoso’s cooperation with law enforcement was a
mitigating factor, Judge Daniel stated that another witness, testifying to Torres-
Reynoso’s cooperation, was not necessary. Even so, Judge Daniel indicated,
“If you have some area to get into which you believe would influence this
Court I would be happy to hear about it.” Id.
[9] In response, Brugh revealed his intention to have Officer Eager and another
officer testify because they “were physically present when [Torres-Reynoso]
was using his cell phone to communicate with Peña. I simply want the Court
to know specifically how that worked.” Id. Officer Eager and the other witness
did not testify; however, Officer Eager was allowed to say that he saw Torres-
Reynoso communicate with Peña using his cell phone to text and speak once.
Brugh made an offer of proof as to the testimony of the other officer, stating
Court of Appeals of Indiana | Memorandum Decision 79A02-1412-CR-867 | November 30, 2015 Page 6 of 21 that she speaks Spanish and, with Torres-Reynoso’s assistance, she had sent
some texts to Peña to arrange the controlled buy. Id. at 71.
[10] At the sentencing hearing, Brugh requested a sentence of twenty years with
fourteen years suspended. The State requested a forty-year executed sentence,
and the Tippecanoe County Probation Department recommended a sentence of
thirty-five years in the Department of Correction. Brugh argued at length in
support of a reduced sentence, identifying multiple specific mitigating
circumstances for the trial court to consider. The trial court found the following
to be aggravating factors in determining Torres-Reynoso’s sentence: his
criminal history of two prior misdemeanors and a pending felony case; his past
illegal drug use, notwithstanding that it “was not as significant as frequently
happens”; his use of an alias at work; the nature and circumstances of the
crime; and the number of transactions and the amount of illegal drugs involved
in those transactions. Id. at 97; Appellant’s App. at 97. Mitigating factors found
by the trial court included the facts that Torres-Reynoso had taken
responsibility for his actions by pleading guilty and expressing remorse; had
cooperated with law enforcement; has minor children, including one with
special needs, that depend on him; has a history of being employed, including
nine consecutive years with one employer; and had family and friends
supporting him in court. The trial court accepted Torres-Reynoso’s pleas of
guilty and entered convictions on the seven Class A felonies and six of the
Court of Appeals of Indiana | Memorandum Decision 79A02-1412-CR-867 | November 30, 2015 Page 7 of 21 remaining counts.11 Noting that the advisory sentence for a Class A felony was
thirty years, Judge Daniel found that the aggravating factors outweighed the
mitigating factors and sentenced Torres-Reynoso to thirty-five years for each of
the seven Class A felony convictions, to be served concurrently—the same
sentence recommended by the Probation Department. Judge Daniel did not
sentence Torres-Reynoso for the remaining six convictions, all of which were
deemed to be subsumed under the Class A felony convictions.
[11] About two weeks after sentencing, Torres-Reynoso filed a motion to correct
error, alleging that Judge Daniel had been antagonistic toward and biased
against him and requesting a new sentencing hearing before an impartial judge.
As evidence of bias, Torres-Reynoso cited to the actions of the Judge Daniel:
denying the motion to shorten time; expressing irritation at Brugh for having
called Officer Eager as a fourth witness to testify about Torres-Reynoso’s
cooperation with law enforcement; allowing the prosecutor to reopen the court
record just moments after it had been closed so that she could ensure that the
trial court said “that the aggravators outweighed the mitigators”; and calling
Brugh into chambers after sentencing to question why he had presented the
testimony of so many law enforcement officers. Appellant’s App. at 106-07.
11 Amended count 11 and count 15 each alleged “dealing in a substance represented to be a controlled substance.” Guilty Plea Hr’g at 12, 18. At the sentencing hearing, the trial court chose not to enter convictions for these two counts, stating, “The Court takes no action at this time as to amended count 11 or count 15.” Sentencing Hr’g at 96-97, 98.
Court of Appeals of Indiana | Memorandum Decision 79A02-1412-CR-867 | November 30, 2015 Page 8 of 21 [12] Brugh submitted an affidavit verifying each of the allegations in the motion,
and providing his version of what occurred during the in-chambers meeting. In
that meeting, Judge Daniel asked Brugh, “Why did we need to spend so much
time on your client’s cooperation with police?” Appellant’s App. at 111. Brugh
responded that the testimony was important to show that Torres-Reynoso had
provided an unusually high degree of cooperation. Judge Daniel then
remarked, “But there [were] so many officers [in the courtroom] who could
have been out on the street.” Id. Defending his strategy, Brugh argued that the
State had made it difficult to discover Torres-Reynoso’s cooperation.
Apparently unconvinced, Judge Daniel inquired whether Brugh was “trying to
get back at the Prosecutor.” Id. Brugh denied any such motivation, saying, “I
[personally] have nothing in this.” Id. Brugh closed his affidavit by noting that
“[a]fter a cordial exchange,” Judge Daniel excused him from chambers. Id.
[13] Without holding a hearing, the trial court denied Torres-Reynoso’s motion to
correct error in a written order. Judge Daniel provided the following reasoning:
the sentencing hearing lasted more than two hours and eight witnesses were
called, all by the defense; four of the witnesses were law enforcement officers,
called to talk about the mitigating factor of Torres-Reynoso’s cooperation with
police; the State agreed that Torres-Reynoso was entitled to a finding that his
cooperation was a mitigator; notwithstanding defense counsel’s desire to elicit
more testimony regarding Torres-Reynoso’s cooperation, “no further testimony
along that line was necessary; the trial court entered the sentence recommended
by the Probation Department; Brugh’s version of what happened in chambers,
Court of Appeals of Indiana | Memorandum Decision 79A02-1412-CR-867 | November 30, 2015 Page 9 of 21 after sentencing, “is not substantially incorrect”; the in-chambers meeting
reflected the trial court’s view that “a calm discussion with counsel of divergent
views as to procedure can be educational and helpful to both counsel and to the
Court to promote the efficient administration of justice”; and Brugh’s tactics
were not negatively reflected in Torres-Reynoso’s sentence. Id. at 112-13.
Torres-Reynoso now appeals.
Discussion and Decision
I. Ineffective Assistance of Counsel [14] Torres-Reynoso asserts that his trial counsel was ineffective, and therefore, the
trial court erred in denying his motion to correct error. Specifically, he asserts
that his trial counsel’s performance was deficient because he did not: (1)
request that a recording be made of the in-chamber discussion; (2) request a
change of judge; and (3) recognize that the nature and circumstances of his
admitted crimes (i.e., the number of transactions and the amount of illegal drugs
involved) would be a significant aggravating factor.12 The right to effective
counsel is rooted in the Sixth Amendment to the United States Constitution.
Taylor v. State, 840 N.E.2d 324, 331 (Ind. 2006). “‘The Sixth Amendment
recognizes the right to the assistance of counsel because it envisions counsel’s
12 Torres-Reynoso also suggests that his plea was not knowingly and intentionally made because Brugh “was under a mistaken belief that the nature and circumstances of all the charges would not be treated as an aggravating factor because these matter related to elements of the charges and could not be considered.” Appellant’s Br. at 17, 18. In essence, Torres-Reynoso is challenging his conviction. Because it is well-settled in Indiana that a person who pleads guilty cannot challenge his convictions by means of direct appeal, we do not address this issue. Robey v. State, 7 N.E.3d 371, 383 (Ind. Ct. App. 2014), trans. denied
Court of Appeals of Indiana | Memorandum Decision 79A02-1412-CR-867 | November 30, 2015 Page 10 of 21 playing a role that is critical to the ability of the adversarial system to produce
just results.’” Id. (quoting Strickland v. Washington, 466 U.S. 668, 685 (1984)).
“‘The benchmark for judging any claim of ineffectiveness must be whether
counsel’s conduct so undermined the proper function of the adversarial process
that the trial court cannot be relied on as having produced a just result.’” Id.
(quoting Strickland, 466 U.S. at 686).
[15] To prevail on a claim of ineffective assistance of counsel, a party must
demonstrate both that his or her counsel’s performance was deficient and that
the party was prejudiced by the deficient performance. Gallien v. State, 19
N.E.3d 303, 307 (Ind. Ct. App. 2014), trans. denied. A counsel’s performance is
deficient if it falls below an objective standard of reasonableness based on
prevailing professional norms, i.e., committing errors so serious that defendant
did not have the counsel guaranteed by the Sixth Amendment. Id. To meet the
appropriate test for prejudice, the petitioner must show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different. Id. “‘A reasonable probability is a
probability sufficient to undermine confidence in the outcome.’” Id. (quoting
Strickland, 466 U.S. at 694). Failure to satisfy either prong will cause the claim
to fail. Id. Most ineffective assistance of counsel claims can be resolved by a
prejudice inquiry alone. Id. We find the prejudice inquiry in this case to be
dispositive; therefore, we do not address the alleged deficiencies in trial
counsel’s performance.
Court of Appeals of Indiana | Memorandum Decision 79A02-1412-CR-867 | November 30, 2015 Page 11 of 21 [16] Torres-Reynoso claims that he was prejudiced when Brugh did not ask Judge
Daniel to record the in-chambers meeting, which occurred immediately after
sentencing. He argues that a defendant’s right to appeal errors allegedly
committed by the trial court, includes the requirement that the defendant
present a complete record to the reviewing court. Appellant’s Br. at 13. Torres-
Reynoso maintains, “Without an actual recording, this Court is left with two
vastly different versions of what allegedly occurred.” Id. at 15. We disagree.
[17] Failure to have the in-chamber conference recorded resulted in no prejudice to
Torres-Reynoso because the parties do not dispute what occurred during that
conference. Brugh attached his affidavit to the motion to correct error, which
stated that the trial judge had: called him into chambers; asked why Brugh had
so many law enforcement witnesses testify as to Torres-Reynoso’s cooperation
with police; noted how many of the law enforcement witnesses could have been
patrolling the streets; and asked if Brugh was trying to get back at the
prosecutor. Brugh responded: he wanted witnesses to testify regarding Torres-
Reynoso’s “unusual degree of cooperation” with police; the State had made it
difficult to prove Torres-Reynoso’s cooperation; and he personally, “[had]
nothing in this.” Appellant’s App. at 111. In his order denying Torres-Reynoso’s
motion to correct error, Judge Daniel specifically stated, “Mr. Brugh’s version
of what happened in chambers is not substantially incorrect.” 13 Id. at 113.
13 Torres-Reynoso misquotes this statement saying, “Judge Daniel stated that Brugh’s version of what happened in the chambers was ‘not substantially correct.’” Appellant’s Br. at 7 (citing Appellant’s App. at 113).
Court of Appeals of Indiana | Memorandum Decision 79A02-1412-CR-867 | November 30, 2015 Page 12 of 21 Instead of being left with what Torres-Reynoso describes as two vastly different
versions of what allegedly occurred, we find that Brugh and Judge Daniel
essentially agreed about the issues discussed during the in-chamber meeting.
Torres-Reynoso has not met his burden of proving that he was prejudiced by
the lack of a recording; accordingly, Brugh’s failure to request that the meeting
be recorded did not constitute ineffective assistance of counsel.
[18] Torres-Reynoso also asserts that Brugh was ineffective when he did not file a
motion for change of judge pursuant to Criminal Rule 12. He contends that the
following revealed that Judge Daniel was biased: ongoing antagonism toward
the defense; the denial of Torres-Reynoso’s motion to shorten time; irritation at
Brugh having called Officer Eager as a fourth witness to testify regarding
Torres-Reynoso’s cooperation; allowing the prosecutor to reopen the record
moments after it had been closed to ensure that the trial court said, “the
aggravators outweigh the mitigators or they balance each other out in the
sentence or the advisory”; and his having calling Brugh into chambers after
sentencing. Sentencing Hr’g at 98. Regardless of whether any of this reveals that
Brugh was ineffective, Torres-Reynoso has failed to show how he was
prejudiced by these actions.
[19] Torres-Reynoso contends that, had Brugh filed a motion invoking Criminal
Rule 12 for a change of judge, Judge Daniel would have had to: (1) treat the
facts in Brugh’s affidavit as true; and (2) hold a hearing to further develop the
record prior to ruling on the motion. Appellant’s Br. at 11, 12. Here, Judge
Daniel did take the facts of Brugh’s affidavit as true. In fact, he stated that
Court of Appeals of Indiana | Memorandum Decision 79A02-1412-CR-867 | November 30, 2015 Page 13 of 21 Brugh’s version of what occurred was “not substantially incorrect.” Appellant’s
App. at 113. Further, Torres-Reynoso has failed to show how his sentencing
was prejudiced by the lack of a hearing. In fact, Torres-Reynoso admits that
“because the sentence was discretionary, there is no way to know if he was
otherwise prejudiced.” Appellant’s Br. at 12. Torres-Reynoso has not met his
burden of proving that he was prejudiced by Brugh’s failure to request a change
of judge; accordingly, this was not evidence that Brugh was ineffective.
[20] Finally, Torres-Reynoso argues that Brugh was ineffective for not
understanding that the nature and circumstances of the seven controlled buys
were the “biggest aggravator.” Id. at 16. Torres-Reynoso maintains that he was
prejudiced because Brugh should have crafted a plea agreement that prohibited
the trial court “from considering the enhanced circumstances from all of the
charges.” Id. at 18. Torres-Reynoso pleaded guilty to thirteen drug-related
crimes, seven of which were Class A felonies; yet, he received a sentence that
was only five years greater than the advisory sentence for having committed just
one Class A felony. Torres-Reynoso was not prejudiced by trial counsel’s
representation; accordingly, we cannot say that Brugh was ineffective in his
representation of Torres-Reynoso.
II. Improper Aggravators [21] Torres-Reynoso asserts that the trial court abused its discretion by finding that
his criminal history, his prior use of illegal drugs, and his use of an alias at work
were all aggravating factors. Sentencing decisions rest within the sound
Court of Appeals of Indiana | Memorandum Decision 79A02-1412-CR-867 | November 30, 2015 Page 14 of 21 discretion of the trial court and are reviewed 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. Trial
courts must enter a sentencing statement whenever imposing a sentence for a
felony offense, and the statement must include a reasonably detailed recitation
of the court’s reasons for imposing a particular sentence. Id. We will find an
abuse of discretion if the trial court fails to enter a sentencing statement, enters a
finding of aggravating and mitigating factors that are unsupported by the
record, omits reasons that are clearly supported by the record and are advanced
for consideration, or includes reasons that are improper as a matter of law.
Gomillia v. State, 13 N.E.3d 846, 849 (Ind. 2014).
[22] Under circumstances when a trial court has abused its discretion, we will
remand for resentencing “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.” Anglemyer, 868 N.E.2d at 491. The relative
weight or value assignable to reasons properly found, or those which should
have been found, is not subject to review for abuse of discretion. Id.
[23] Torres-Reynoso contends that it was improper for the trial court to combine his
pending Class A felony charge (in another county) with his two Class C
misdemeanor convictions (for operating a motor vehicle while never having
received a license) and conclude that Torres-Reynoso’s criminal history was an
Court of Appeals of Indiana | Memorandum Decision 79A02-1412-CR-867 | November 30, 2015 Page 15 of 21 aggravating factor. Torres-Reynoso does not deny that, even without the
pending felony charge, his Class C misdemeanor convictions “remained for the
trial court to consider as an aggravating factor. However, whether and to what
extent a sentence should be enhanced based upon an individual’s criminal
history hinges on the weight of the history.” Appellant’s Br. at 20 (citing Bryant
v. State, 841 N.E.2d 1154, 1156 (Ind. 2006)). Torres-Reynoso argues that his
“minor, far-removed offenses do not merit great aggravating weight.” Id. at 21.
Because this argument concerns the relative weight, rather than validity of the
aggravating factor, it is not subject to review for abuse of discretion. Anglemyer,
868 N.E.2d at 491. The trial court properly considered Torres-Reynoso’s
criminal history as an aggravating circumstance.
[24] In his Presentence Investigation (“PSI”) Report, Torres-Reynoso admitted that
he had used marijuana and cocaine in the past. Appellant’s App. at 21. On
appeal, he concedes that a trial court may find a history of substance abuse to
be an aggravating factor for purposes of sentencing. Appellant’s Br. at 22; see
Iddings v. State, 772 N.E.2d 1006, 1018 (Ind. Ct. App. 2002) (“Indeed, a history
of substance abuse is sometimes found by trial courts to be an aggravator, not a
mitigator.”), trans. denied. Instead, Torres-Reynoso argues that his “admission
to a history of drug use prior to the commission of the present charges, in and of
itself, does not merit aggravating weight.” Appellant’s Br. at 22. Again, this
argument concerns the relative weight rather than validity of the aggravating
factor and is not subject to review for abuse of discretion. Anglemyer, 868
Court of Appeals of Indiana | Memorandum Decision 79A02-1412-CR-867 | November 30, 2015 Page 16 of 21 N.E.2d at 491. The trial court properly considered Torres-Reynoso’s use of
illegal drugs as an aggravating circumstance.
[25] Torres-Reynoso’s PSI Report listed an alias. When questioned by the trial
court as to the nature of the alias, Brugh stated that Torres-Reynoso had used
that alias during the seven years he worked at a hog slaughtering plant. Brugh
explained that the alias is “what Latinos who are illegal called in work [sic]
name.” Sentencing Hr’g at 86. Torres-Reynoso does not deny using an alias;
instead, he argues that the alias was used for strictly employment-related
purposes, and therefore, its use as an aggravator is not supported by the record.
Appellant’s Br. at 23.
[26] Indiana Code section 35-38-1-7.1(a) specifies eleven aggravating circumstances
that a trial court may consider during sentencing. While use of an alias is not
among the named circumstances, the trial court was not limited to considering
only those eleven specified factors. See Ind. Code § 35-38-1-7.1 (criteria listed to
determine aggravators and mitigators “do not limit the matters that the court
may consider in determining the sentence.”). Torres-Reynoso provides no
authority for his suggestion that a trial court cannot consider a defendant’s alias
unless that alias was used in the commission of a crime. Here, the trial court
heard the manner in which Torres-Reynoso used his alias. Accordingly,
Torres-Reynoso’s argument concerns the relative weight rather than validity of
the aggravating factor and is not subject to review for abuse of discretion.
Anglemyer, 868 N.E.2d at 491. The trial court properly considered Torres-
Reynoso’s use of an alias as an aggravating circumstance.
Court of Appeals of Indiana | Memorandum Decision 79A02-1412-CR-867 | November 30, 2015 Page 17 of 21 [27] Anglemyer makes it clear that when imposing a sentence, a trial court “no longer
has any obligation to ‘weigh’ aggravating and mitigating factors against each
other,” and thus “a trial court cannot now be said to have abused its discretion
in failing to ‘properly weigh’ such factors.” Anglemyer, 868 N.E.2d at 491.
“[T]his is so because once the trial court has entered a sentencing statement,
which may or may not include the existence of aggravating and mitigating
factors, it may then ‘impose any sentence that is . . . authorized by statute; and .
. . permissible under the Constitution of the State of Indiana.’” Ind. Code § 35-
38-1-7.1(d). Here, the trial court set forth mitigating factors and aggravating
factors, the latter of which consisted of criminal history, prior drug use, use of
an alias, the nature and circumstances of the crime, and the number of
transactions and amount of drugs involved in those transactions. Because each
of those is a valid aggravator, we cannot judge the weight that the trial court
assigned to each factor. Here, the trial court determined that the aggravating
factors outweighed the mitigating factors. The trial court cannot be said to have
abused its discretion in so doing.
III. Inappropriate Sentence [28] Finally, Torres-Reynoso contends that his thirty-five-year aggregate sentence is
inappropriate. Under Indiana Appellate Rule 7(B), “we may revise any
sentence authorized by statute if we deem it to be inappropriate in light of the
nature of the offense and the character of the offender.” Corbally v. State, 5
N.E.3d 463, 471 (Ind. Ct. App. 2014). Although Rule 7(B) does not require us
to be “extremely” deferential to a trial court’s sentencing decision, we still must
Court of Appeals of Indiana | Memorandum Decision 79A02-1412-CR-867 | November 30, 2015 Page 18 of 21 give due consideration to that decision. Id. We also understand and recognize
the unique perspective a trial court brings to its sentencing decisions. Id. The
“question under Appellate Rule 7(B) is not whether another sentence is more
appropriate; rather, the question is whether the sentence imposed is
inappropriate.” King v. State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008)
(emphasis in original). 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” allows for a broader consideration
of the defendant’s character. Anderson v. State, 989 N.E.2d 823, 827 (Ind. Ct.
App. 2013), trans. denied. It is the defendant’s burden on appeal to persuade the
reviewing court that the sentence imposed by the trial court is inappropriate.
Chappell v. State, 966 N.E.2d 124, 133 (Ind. Ct. App. 2012), trans. denied.
[29] A person who commits a Class A felony shall be imprisoned for a fixed term of
between twenty and fifty years, with the advisory sentence being thirty years.
Ind. Code § 35-50-2-4. In the present case, Torres-Reynoso was sentenced to an
executed term of thirty-five years for each of his seven cocaine-related Class A
felony convictions. The trial court ordered the sentences to be served
concurrent with each other, resulting in a thirty-five-year aggregate sentence.
[30] As to the nature of the offense, Torres-Reynoso was charged with Class A
felony dealing in cocaine for having sold three or more grams of cocaine to
Detective Walters not just once or twice, but on six separate dates over a span
Court of Appeals of Indiana | Memorandum Decision 79A02-1412-CR-867 | November 30, 2015 Page 19 of 21 of seven months.14 See Ind. Code § 35-48-4-1 (the offense of dealing cocaine in
an amount of three grams or more is a Class A felony). During that time,
Torres-Reynoso had more than enough time to rethink his decision to sell
illegal drugs. Torres-Reynoso admitted during his guilty plea hearing that he
sold Detective Walters about one ounce of cocaine on four of the six dates and
that he knew that an ounce was equal to approximately 28 grams. Guilty Plea
Hr’g at 24-26. Accordingly, on four separate occasions, Torres-Reynoso sold
Detective Walters more than nine times the amount of cocaine required to
commit the offense for which he was convicted. Torres-Reynoso sold not only
cocaine to Detective Walters, but also marijuana in an aggregate weight of
more than three pounds. Further, cocaine was found during a search of Torres-
Reynoso’s home—a home that he shared with his fiancée and three children. A
thirty-five-year aggregate sentence was not inappropriate in light of the nature
of the offense.
[31] As to the character of the offender, Torres-Reynoso focuses on his long-term
employment and his ability to financially take care of his children, some of
whom live in the United States and others in Mexico. He offers that he was
targeted by police in the seven controlled drug buys and that his profit for the
sales was no more than $1,000. Further, he argues that he cooperated with
police by setting up a controlled buy with Peña. We remind Torres-Reynoso
14 The charging information alleged that Torres-Reynoso delivered more than three grams of cocaine on May 10, 2013, May 24, 2013, June 10, 2013, July 16, 2013, September 29, 2013, and November 21, 2013. Appellant’s App. at 13, 20, 22, 23, 24, and 25.
Court of Appeals of Indiana | Memorandum Decision 79A02-1412-CR-867 | November 30, 2015 Page 20 of 21 that the burden rests with him to prove to this court that the sentence is
inappropriate in light of his character. Chappell, 966 N.E.2d at 133. Regardless
of whether he was targeted by police, made little money from this enterprise,
and cooperated with police, Torres-Reynoso willingly sold cocaine and
marijuana, repeatedly, over a period of seven months, financially benefitted
from selling these illegal drugs, and only cooperated with police after he was
arrested. His criminal history, while not remarkable, consists of two Class C
misdemeanor convictions for driving without being licensed, plus, at the time of
sentencing, he had a pending Class A felony charge in Clinton County for
dealing in cocaine. Evidence presented during the sentencing hearing revealed
that Torres-Reynoso had used illegal drugs in the past, and he had used an alias
while working for one of his employers. Sentencing Hr’g at 86, 88. Torres-
Reynoso has not met his burden of proving to this court that a sentence of
thirty-five years, only five years greater than the advisory sentence for just one
of his seven Class A felony convictions, is inappropriate in light of the nature of
the offense and the character of the offender.
[32] We conclude that the trial court did not abuse its discretion in denying Torres-
Reynoso’s motion to correct error.
[33] Affirmed.
Najam, J., and Barnes, J., concur.
Court of Appeals of Indiana | Memorandum Decision 79A02-1412-CR-867 | November 30, 2015 Page 21 of 21