MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Nov 10 2020, 8:35 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Elizabeth A. Bellin Curtis T. Hill, Jr. Elkhart, Indiana Attorney General of Indiana
Marjorie Lawyer-Smith Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Marvin Jose Maldonado, November 10, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-2478 v. Appeal from the Elkhart Superior Court State of Indiana, The Honorable Stephen R. Appellee-Plaintiff Bowers, Judge Trial Court Cause No. 20D02-1806-F2-27
Altice, Judge.
Case Summary
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2478 | November 10, 2020 Page 1 of 17 [1] Following a jury trial, Marvin Maldonado was convicted of Level 2 felony
burglary, Level 5 felony criminal confinement, Level 5 felony operating a motor
vehicle as a habitual traffic violator (HTV), Level 6 felony resisting law
enforcement, Level 6 felony operating a vehicle while intoxicated (OWI), and
Level 6 felony residential entry. He was also adjudicated as a habitual offender.
The trial court sentenced him to an aggregate sentence of fifty-two and one-half
years in the Indiana Department of Correction (DOC). Maldonado raises four
issues on appeal, which we restate as follows:
1. Did the State present sufficient evidence to support his burglary conviction?
2. Do his convictions for both burglary and residential entry violate double jeopardy protections?
3. Does the aggregate sentence imposed by the trial court violate the limitations for an episode of criminal conduct set out in Ind. Code § 35-50-1-2(d)?
4. Is Maldonado’s aggregate sentence inappropriate in light of the nature of his offenses and his character?
[2] We affirm in part, reverse in part, and remand.
Facts & Procedural History
[3] Maldonado and Margarita Miller were in a relationship for about ten years and
have four minor children together. Sometime in 2016, Miller moved into an
apartment with the children at North Lake Apartments in Elkhart. Maldonado
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2478 | November 10, 2020 Page 2 of 17 was incarcerated shortly thereafter through early 2018. Upon his release,
Maldonado lived about five minutes away from Miller and the children. Miller
was in a new relationship with Travion Harris, which Maldonado was not
happy about. Although Miller permitted Maldonado to come to the apartment
to pick up the children, he was not granted free access to the apartment. Miller
changed the locks to the apartment in May 2018 after Maldonado took her
keys.
[4] On the afternoon of June 19, 2018, Maldonado entered Miller’s unlocked
apartment without her permission. Miller was napping in her bedroom with
their one-year-old daughter when Miller awakened to find Maldonado standing
over her. He said he wanted to talk, and he showed her alcohol that he had
brought. Miller told him to leave and that she was with someone else and did
not want anything to do with Maldonado anymore. The two began arguing,
and Maldonado told Miller, “You’re mine. I’m not going anywhere.”
Transcript Vol. 3 at 117. Miller walked out of the bedroom and told Y.V., her
twelve-year-old babysitter, to gather the kids and prepare to leave. In the
meantime, Maldonado threw Miller’s mattress over the second-floor balcony.
Maldonado eventually ran out of the apartment, as Miller warned that she was
going to call the police.
[5] Late that night, Miller left Y.V. in the apartment with the children as she and a
friend went to the grocery store. Miller provided Y.V. with a phone to call if
anything happened. The deadbolt to the apartment was locked. Two of the
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2478 | November 10, 2020 Page 3 of 17 children slept on the living room couch while Y.V. watched television in the
dark room, with only a hallway light on.
[6] At some point after midnight, Y.V. heard loud bangs at the front door, which
was just down the stairs that were connected to the living room. Maldonado
and another man, Jesus Olvera Duran, had kicked in the front door.
Maldonado came up the stairs first and angrily asked Y.V. where Miller was
before walking to the back bedroom with a fixed-blade knife that Y.V. could see
protruding from his pocket. Duran stood at the top of the stairs with a bandana
over the lower half of his face and blocked the only exit. Y.V. attempted to
retrieve the cellphone from the kitchen island but stopped when Duran warned,
“If you move, I’m gonna shoot you.” Id. at 180. Y.V. then heard something
metal clink against the metal baby gate where Duran was standing, which
caused Y.V. to believe Duran had a gun. Y.V. was scared.
[7] Maldonado came back into the living room and asked where Trey was,
referring to Miller’s boyfriend. He then said angrily, “I was gonna put 66
stitches in him.” Id. at 182. This frightened Y.V. Around this time, four-year-
old D.N.M. awoke and Maldonado picked him up off the couch and left the
apartment with D.N.M. and Duran.
[8] Y.V. went to lock the front door behind them but was unable to do so because
of the severe damage to the door. She watched as the men entered a white
vehicle with D.N.M., and then she went back upstairs and called Miller, who in
turn immediately called 911.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2478 | November 10, 2020 Page 4 of 17 [9] In the meantime, shortly before 1:30 a.m., Officer Adrian Zehr with the Elkhart
County Sheriff’s Department observed a white vehicle being driven with no
taillights illuminated. He caught up with the vehicle, which was speeding and
had crossed the center line. As Officer Zehr followed, the driver of the vehicle,
later identified as Maldonado, turned off the county road and into the North
Lake Apartments. Officer Zehr attempted to initiate a stop, but Maldonado
continued to drive to the back of the complex and parked near Miller’s
apartment. Unaware of the earlier incident inside the apartment, Officer Zehr
called for backup and then approached the vehicle as Maldonado and Duran
switched places inside the vehicle. D.N.M. was unrestrained in the back seat of
the vehicle. As Maldonado exited the vehicle upon Officer Zehr’s command, a
“steak knife” fell to the ground at their feet. Id. at 13. Additionally, Officer
Zehr observed that Maldonado was intoxicated, and there were open alcohol
containers inside the vehicle. Officer Zehr also discovered that Maldonado was
an HTV with a lifetime suspension.
[10] Officer Chad Hoien arrived as backup and detained Duran, as Officer Zehr
handled Maldonado. Miller arrived and parked her van near the scene of the
stop and ran up to Officer Hoien. She was “frantic and upset” and reported
that someone had “kicked in her door.” Id. at 77. Y.V. came out and spoke to
Officer Hoien about what had happened inside the apartment. Miller collected
D.N.M., who was crying and shaking in the backseat of the vehicle, and she
took him inside her apartment. Both Maldonado and Duran were arrested.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2478 | November 10, 2020 Page 5 of 17 [11] On June 22, 2018, the State charged Maldonado 1 with Level 2 felony burglary
while armed with a deadly weapon (Count I), Level 3 felony criminal
confinement while armed with a deadly weapon (Count II), Level 5 felony
operating as a HTV (Count III), Level 6 felony resisting law enforcement
(Count IV), and Level 6 felony OWI with a minor passenger (Count V).
Thereafter, the charges were amended in part and two additional counts were
added, Level 6 felony residential entry (Count VI) and Class B misdemeanor
criminal mischief (Count VII). These new counts related to the events that
occurred on the afternoon of June 19, 2018, while the first five counts addressed
the later incidents on June 20, 2018. The State also filed a habitual offender
enhancement.
[12] Following a jury trial in August 2019, Maldonado was found guilty as charged
of Count I and Counts III through VI, not guilty of Count VII, and guilty of a
lesser included offense of Count II, Level 5 felony criminal confinement of a
child under the age of fourteen rather than Level 3 felony criminal confinement
while armed with a deadly weapon. He was also found to be a habitual
offender.
[13] At the sentencing hearing on September 23, 2019, the trial court sentenced
Maldonado to an aggregate term of fifty-two and one-half years. Specifically,
he received sentences of twenty-five years on Count I, four years on Count II,
1 Duran was also charged with a number of criminal offenses and tried with Maldonado.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2478 | November 10, 2020 Page 6 of 17 five years on Count III, two years on Count IV, and two and one-half years
each on Counts V and VI. All counts were ordered to be served concurrently
except Counts III and V, which were ordered to be served consecutively to
Count I and each other. Additionally, the sentence on Count I was enhanced
by twenty years based on the habitual offender adjudication. Maldonado now
appeals. Additional information will be provided below as needed.
Discussion & Decision
1. Sufficiency
[14] Maldonado initially contends that the State presented insufficient evidence to
support his burglary conviction. Our standard of review for such a claim is well
settled. “Convictions should be affirmed unless no reasonable fact-finder could
find the elements of the crime proven beyond a reasonable doubt.” T.H. v.
State, 92 N.E.3d 624, 626 (Ind. 2018). Thus, when reviewing the sufficiency of
the evidence on appeal, we must consider only the probative evidence and
reasonable inferences supporting the conviction, and we should not assess
witness credibility or weigh the evidence. See Moore v. State, 27 N.E.3d 749, 754
(Ind. 2015).
[15] Level 5 felony burglary is defined as: “A person who breaks and enters the
building or structure of another person, with intent to commit a felony or theft
in it[.]” Ind. Code § 35-43-1-2. The offense is elevated to a Level 2 felony if it
is committed while armed with a deadly weapon. I.C. § 35-43-1-2(3)(a).
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2478 | November 10, 2020 Page 7 of 17 [16] On appeal, Maldonado does not dispute the sufficiency of the evidence
regarding his breaking and entering Miller’s apartment while armed with a
deadly weapon. He argues only that the State failed to establish that he did so
with the intent to commit felony battery inside the apartment. He claims that
his statement to Y.V. that he was going to put sixty-six stitches in Miller’s
boyfriend was an “empty threat” and that “such an act would not necessarily
constitute battery resulting in serious bodily injury.” Appellant’s Brief at 16.
[17] To establish the intent element for burglary, the State must prove beyond a
reasonable doubt the defendant’s intent to commit a felony specified in the
charge. Brown v. State, 64 N.E.3d 1219, 1230 (Ind. Ct. App. 2016), trans. denied.
The intent to commit a given felony may be inferred from the circumstances,
but some fact in evidence must point to an intent to commit a specific felony.
Id.; see also Smith v. State, 671 N.E.2d 910, 912-13 (Ind. Ct. App. 1996) (“The
requisite intent to commit a felony typically can be inferred from the subsequent
conduct of the individual inside the premises or by the manner in which the
crime was committed.”).
[18] Here, the State alleged that Maldonado entered Miller’s apartment with the
intent to commit battery resulting in serious bodily injury while inside. Serious
bodily injury elevates a misdemeanor battery offense to a level 5 felony. Ind.
Code § 35-42-2-1(g)(1). It includes bodily injury that creates a substantial risk of
death or that causes, among other things, unconsciousness, extreme pain, or
protracted loss or impairment of the function of a bodily member or organ.
Ind. Code § 35-31.5-2-292.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2478 | November 10, 2020 Page 8 of 17 [19] The facts most favorable to the verdict establish that Maldonado had a heated
encounter with Miller on the afternoon of June 19, 2018. Miller made it clear
to Maldonado that she was not interested in a relationship with him and that
she had a new boyfriend. This news did not please Maldonado, and he
responded by throwing Miller’s mattress over the balcony. He returned to the
apartment several hours later, after midnight. While armed with a knife and
accompanied by Duran, who attempted to conceal his identity, Maldonado
broke down the door to the apartment and came up the dark staircase. He then
looked throughout the apartment, while Duran kept Y.V. from leaving or
calling for help. Unable to find Miller or her boyfriend inside, Maldonado
angrily told Y.V., “I was gonna put 66 stitches in him.” Id. at 182. The jury
could reasonably infer from the circumstances, including Maldonado’s own
statement, that Maldonado intended to commit battery resulting in serious
bodily injury after forcing his way into the apartment in the middle of the night
while armed with a knife. Thus, sufficient evidence supports his conviction for
burglary as a Level 2 felony.
2. Double Jeopardy
[20] Maldonado claims that his separate convictions for burglary and residential
entry violate principles of double jeopardy. Residential entry is indeed an
inherently lesser included offense of burglary and, thus, convictions for both
cannot stand if based on the same evidence. See Hayden v. State, 19 N.E.3d 831, 842
(Ind. Ct. App. 2014), trans. denied. In this case, however, Maldonado was
charged with and convicted of two entirely separate incidents – residential entry
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2478 | November 10, 2020 Page 9 of 17 on the afternoon of June 19, 2018, and burglary after midnight on June 20,
2019. Under the circumstances, his double jeopardy claim must fail.
3. Consecutive Sentences
[21] Next, Maldonado argues that the consecutive nature of his sentences resulted in
an aggregate sentence in excess of that allowed by I.C. § 35-50-1-2(d). While
his analysis is faulty, he is ultimately correct that the trial court exceeded its
statutory authority in sentencing him.
[22] I.C. § 35-50-1-2 “limits a court’s authority in imposing consecutive sentences if
the convictions are not for ‘crimes of violence’ and the convictions ‘arise out of
an episode of criminal conduct.’” Fight v. State, 768 N.E.2d 881, 881-82 (Ind.
2002). The statute provides in relevant part:
(c) Except as provided in subsection (e) or (f) the court shall determine whether terms of imprisonment shall be served concurrently or consecutively.… However, except for crimes of violence, the total of the consecutive terms of imprisonment [exclusive of habitual offender enhancements] to which the defendant is sentenced for felony convictions arising out of an episode of criminal conduct shall not exceed the period described in subsection (d).
(d) Except as provided in subsection (c), the total of the consecutive terms of imprisonment to which the defendant is sentenced for felony convictions arising out of an episode of criminal conduct may not exceed the following:
****
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2478 | November 10, 2020 Page 10 of 17 (2) If the most serious crime for which the defendant is sentenced is a Level 5 felony, the total of the consecutive terms of imprisonment may not exceed seven (7) years.
(5) If the most serious crime for which the defendant is sentenced is a Level 2 felony, the total of the consecutive terms of imprisonment may not exceed thirty-two (32) years.
I.C. § 35-50-1-2.
[23] Three of Maldonado’s sentences were ordered to be served consecutively – the
sentences for burglary, HTV, and OWI – resulting in an aggregate sentence,
exclusive of the habitual offender enhancement, of thirty-two and one-half
years. On appeal, Maldonado argues that these offenses constituted an episode
of criminal conduct 2 and that the OWI offense was not a crime of violence and
therefore, his aggregate sentence could not exceed thirty-two years under I.C. §
35-50-1-2(d)(5). The State responds by arguing that the OWI offense was
entirely separate from the criminal conduct that occurred inside the apartment
after his forced entry and was not part of a single episode of criminal conduct.
2 An “episode of criminal conduct” is defined as “offenses or a connected series of offenses that are closely related in time, place, and circumstance.” I.C. § 35-50-1-2(b).
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2478 | November 10, 2020 Page 11 of 17 [24] Both parties overlook the fact that burglary as a Level 2 felony is statutorily
defined as a crime of violence. I.C. § 35-50-1-2(a)(15). Thus, it is immaterial
whether the burglary and the OWI constituted an episode of criminal conduct
because, regardless, the statutory limitation would not apply between these
offenses. See Ellis v. State, 736 N.E.2d 731, 737 (Ind. 2000) (“interpret[ing] the
statute to exempt from the sentencing limitation (1) consecutive sentencing
among crimes of violence, and (2) consecutive sentencing between a crime of
violence and those that are not crimes of violence”).
[25] The limitation, however, does apply “between and among those crimes that are
not crimes of violence.” Id. The OWI and HTV offenses are not crimes of
violence, and they were clearly part of an episode of criminal conduct. See
Puckett v. State, 843 N.E.2d 959, 964 (Ind. Ct. App. 2006) (applying limitation to
consecutive sentences for OWI and HTV offenses and concluding that the
sentence imposed by the trial court was “facially defective and in violation of
express statutory authority”). The trial court sentenced Maldonado to a total of
seven and one-half years for these two offenses, the most serious of which was a
Level 5 felony. This was contrary to I.C. § 35-50-1-2(d)(2), which limits the
aggregate sentence for these offenses to seven years. Accordingly, we vacate
the sentence order and remand for resentencing in accordance with the
applicable statutory limits.
4. Inappropriate Sentence
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2478 | November 10, 2020 Page 12 of 17 [26] Finally, Maldonado contends that the aggregate sentence imposed by the trial
court is inappropriate. We may revise a sentence authorized by statute if, after
due consideration of the trial court’s decision, we find the sentence
inappropriate in light of the nature of the offense and the character of the
offender. Ind. Appellate Rule 7(B). Indiana’s flexible sentencing scheme
allows trial courts to tailor an appropriate sentence to the circumstances
presented and the trial court’s judgment “should receive considerable
deference.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008). The principal
role of appellate review is to attempt to “leaven the outliers.” Id. at 1225.
Whether we regard a sentence as inappropriate at the end of the day turns on
“our sense of culpability of the defendant, the severity of the crime, the damage
done to others, and myriad other factors that come to light in a given case.” Id.
at 1224. Deference to the trial court “prevail[s] unless overcome by compelling
evidence portraying in a positive light the nature of the offense (such as
accompanied by restraint, regard, and lack of brutality) and the defendant’s
character (such as substantial virtuous traits or persistent examples of good
character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015). The burden is
on the defendant to persuade us that his sentence is inappropriate. Childress v.
State, 848 N.E.2d 1073, 1080 (Ind. 2006).
[27] The trial court imposed an aggregate sentence of fifty-two and one-half years for
Maldonado’s convictions for one Level 2 felony enhanced for being a habitual
offender, two Level 5 felonies, and three Level 6 felonies. For the burglary
conviction alone with the habitual offender enhancement, he faced a sentence
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2478 | November 10, 2020 Page 13 of 17 of between sixteen and fifty years. See I.C. § 35-50-2-4.5 (sentencing range for a
Level 2 felony is between ten and thirty years, with the advisory sentence being
seventeen and one-half years.); I.C. § 35-50-2-8(i)(1) (enhancement for being a
habitual offender is between six and twenty years for a person convicted of a
Level 2 felony). The trial court imposed forty-five years. Additionally, the
sentencing range for his Level 5 felonies was between one and six years, with an
advisory sentence of three years, and for his Level 6 felonies the range was
between six months and two and one-half years, with an advisory sentence of
one year. I.C. § 35-50-2-6(b); I.C. § 35-50-2-7(b). The trial court imposed a
total sentence of seven and one-half years for these five additional offenses. In
sum, although Maldonado received enhanced and partially consecutive
sentences, the aggregate sentence imposed by the trial court was substantially
below the maximum permitted under the sentencing statutes.
[28] Regarding the nature of his offenses, Maldonado seems to suggest that he was
permitted to be in the apartment on the night of the burglary and was simply
exercising visitation with his children. This assertion flies in the face of the
evidence presented at trial, which establishes that Maldonado, with an
accomplice, violently kicked down the door of Miller’s apartment in the middle
of the night, armed with a knife. While Duran guarded the only exit and
threatened the twelve-year-old babysitter with being shot, Maldonado searched
the apartment for Miller and her boyfriend. He eventually determined that they
were not present and then angrily told the already frightened J.V. that he “was
gonna put 66 stitches in [Miller’s boyfriend].” Transcript Vol. 3 at 182. The fact
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2478 | November 10, 2020 Page 14 of 17 that Maldonado did not commit any physical acts of violence inside the
apartment that night appears to be based only on the fortuitous occurrence of
Miller and/or her boyfriend not being present, not any restraint by Maldonado.
[29] Further, when four-year-old D.N.M. awoke during the commotion occurring
right in front of him, Maldonado picked him up and then left. Maldonado,
who was under the influence of alcohol and otherwise not permitted to be
driving due to being a HTV, drove away with D.N.M. With the child
unrestrained in the back of the vehicle, Maldonado drove at a high rate of
speed, crossed the center line of the roadway, and did not immediately stop
when Officer Zehr attempted to initiate a traffic stop. Additionally, we observe
that the residential entry that occurred only hours before was also committed in
the presence of the children. We do not find that the nature of the offenses
warrants a lesser sentence.
[30] Turning to Maldonado’s character, we find most notable his extensive and
consistent criminal behavior. In addition to a significant juvenile history,
Maldonado has accumulated at least five felony convictions and nine
misdemeanor convictions since becoming an adult in 2005, and he has violated
probation and/or community corrections at nearly every turn. He began with
misdemeanor driving and substance offenses and then escalated to multiple
felony driving offenses (2007, 2009, 2011, and 2016), domestic battery (2008),
false informing (2011), failure to return to lawful detention (2012), and battery
resulting in bodily injury (2015).
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2478 | November 10, 2020 Page 15 of 17 [31] Maldonado displayed his utter disregard for the law while serving his six-year
sentence for his 2011 felony driving offense. He violated community
corrections rules and probation on multiple occasions, committed new crimes
in 2012, 2015, and 2016, and was eventually sent to prison to complete his
sentence. Shortly after being released from prison in March 2018, and while on
probation for the 2016 HTV offense, Maldonado committed the instant
offenses.
[32] After addressing Maldonado’s criminal history in detail, the trial court aptly
observed:
[Y]our behavior in the past suggests that you’re not going to follow the law and you’re not going to follow the orders of this court….
With respect to the mitigating circumstances, I was concerned [] when I heard that you had a difficult childhood, but given your age and given the number of opportunities you’ve had while engaged with the system to address the problems over the course of your childhood, I give that minimal weight.
The fact that this is your first conviction for a violent felony [] rings hollow to me. The fact is it was another violent act. You have demonstrated yourself to be a person who will resort to violence. That may be connected to the abuse of alcohol in this situation, but certainly the expressed intention … was that you went to this residence with the intention of entering and committing a very violent act in cutting somebody.
Transcript Vol. 4 at 67.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2478 | November 10, 2020 Page 16 of 17 [33] In addition to attempting to downplay his criminal history on appeal,
Maldonado notes that he has five minor children, obtained his GED, and
completed several programs while in jail pending trial on these charges.
Maldonado does not explain how his fathering five children speaks well of his
character, especially when he is in significant arrears for payment of child
support and has spent the bulk of their childhood incarcerated. We also note
that Maldonado committed the instant crimes in the presence of some of his
children and put his four-year-old son in imminent danger. Further, the record
shows that he obtained his GED in 2005, yet still continued his criminal
behavior. Like the trial court, we commend Maldonado for making productive
use of his time while in jail, but this does not overshadow his extensive history
of criminal behavior.
[34] We cannot say that the aggregate sentence imposed by the trial court is
inappropriate in light of Maldonado’s character, particularly as represented by
his criminal history, and the nature of his offenses. As set forth above,
however, we remand for resentencing in accordance with I.C. § 35-50-1-2.
[35] Judgment affirmed in part, reversed in part, and remanded for resentencing.
Riley, J. and May, J., concur.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2478 | November 10, 2020 Page 17 of 17