Reynaldo Amaro-Perez v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: November 19, 2019
• Docket: 19A-CR-1336
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Nov 19 2019, 7:15 am

court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Mark K. Leeman Curtis T. Hill Leeman Law Office and Cass County Attorney General of Indiana Public Defender Caryn N. Szyper Logansport, Indiana Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Reynaldo Amaro-Perez, November 19, 2019 Appellant-Defendant, Court of Appeals Case No. 19A-CR-1336 v. Appeal from the Cass Superior Court State of Indiana, The Honorable James K. Appellee-Plaintiff. Muehlhausen, Judge Trial Court Cause No. 09D01-1805-F5-29

Brown, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1336 | November 19, 2019 Page 1 of 5 [1] Reynaldo Amaro-Perez appeals his sentence for battery by means of a deadly

weapon as a level 5 felony. We affirm.

Facts and Procedural History

[2] On May 10, 2018, Amaro-Perez argued with Jose Clemente and intentionally

threw a knife that cut Clemente’s arm. On May 11, 2018, the State charged

him with battery by means of a deadly weapon as a level 5 felony and criminal

recklessness as a level 6 felony. On April 10, 2019, he pled guilty to battery by

means of a deadly weapon, and the State dismissed the criminal recklessness

charge.

[3] At the May 16, 2019 sentencing hearing, Amaro-Perez indicated he was

married and that he had three children under the age of five who lived with his

wife at a separate address. He indicated that his work permit expired in March

and that he had to renew it, and answered “[u]m no” when asked “[a]nd so you

have not been working.” 1 Transcript at 46. In asking for a fully-suspended

sentence of three years, his counsel stated Clemente had forgiven Amaro-Perez

and that he had two houses, which “he says that they are making mortgages

on,” and “has children.” Id. at 65. The prosecutor argued for a sentence of

three years, with the first year served in incarceration, the second year in

community corrections, and the third year on probation.

1 His counsel later stated that Amaro-Perez was not working “because he’s not working illegally, he’s trying to obey the law, his work permit expired.” Transcript at 65.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1336 | November 19, 2019 Page 2 of 5 [4] The court found Amaro-Perez’s plea of guilty and lack of criminal history as

mitigating circumstances and the fact that he tested positive for cannabinoids

while awaiting sentence as an aggravating circumstance. After finding that the

mitigating circumstances neutralized the aggravating circumstance, it sentenced

him to three years, with the first two years to be executed in the Cass County Jail

and the third year suspended to probation, with the possibility for the second

executed year to be served on community corrections if he qualified and was

accepted.

Discussion

[5] Amaro-Perez claims that the trial court abused its discretion in failing to

identify as a mitigator that incarceration would result in undue hardship to his

dependents. We review the sentence 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. A trial court

abuses its discretion if it: (1) fails “to enter a sentencing statement at all;” (2)

enters “a sentencing statement that explains reasons for imposing a sentence –

including a finding of aggravating and mitigating factors if any – but the record

does not support the reasons;” (3) enters a sentencing statement that “omits

reasons that are clearly supported by the record and advanced for

consideration;” or (4) considers reasons that “are improper as a matter of law.”

Id. at 490-491. If the trial court has abused its discretion, we will remand for

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1336 | November 19, 2019 Page 3 of 5 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.” Id. 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.

[6] The determination of mitigating circumstances is within the discretion of the

trial court. Rogers v. State, 878 N.E.2d 269, 272 (Ind. Ct. App. 2007), trans.

denied. The trial court is not obligated to accept the defendant’s argument as to

what constitutes a mitigating factor, and a trial court is not required to give the

same weight to proffered mitigating factors as does a defendant. Id. An

allegation that the trial court failed to identify or find a mitigating factor

requires the defendant to establish that the mitigating evidence is both

significant and clearly supported by the record. Anglemyer, 868 N.E.2d at 493.

If the trial court does not find the existence of a mitigating factor after it has

been argued by counsel, it is not obligated to explain why it has found that the

factor does not exist. Id.

[7] Absent special circumstances, trial courts are not required to find that

imprisonment will result in an undue hardship. Dowdell v. State, 720 N.E.2d

1146, 1154 (Ind. 1999). See also Benefield v. State, 904 N.E.2d 239, 247-248 (Ind.

Ct. App. 2009) (recognizing that incarceration “almost always” works a

hardship on others and concluding that the defendant failed to show “special

circumstances” because there were other people who could take care of the

defendant’s mother while she was incarcerated), trans. denied.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1336 | November 19, 2019 Page 4 of 5 [8] At sentencing, Amaro-Perez testified that he had three children who lived with

their mother at a separate address and answered affirmatively when asked if he

supported his children. 2 His counsel merely mentioned in argument that he had

children and that “they are making mortgages on” two houses. Transcript at

65. The presentence investigation report (“PSI”) has a marital status of

“Single” for Amaro-Perez and identifies a contact person, K.B., with a

relationship to him of “Girlfriend.” Appellant’s Appendix at 68-69. The PSI

states in the “Dependents” section that he and K.B. have three children, he

advised that all three children live with him and his girlfriend, and he reported

that he did not owe any child support. The “Financial Situation” section

indicates that he reported that his girlfriend is employed and she provides the

only income for the family. Id. at 71-72. We cannot say that Amaro-Perez has

demonstrated that hardship on his dependents is both significant and clearly

supported by the record or that the trial court abused its discretion.

[9] For the foregoing reasons, we affirm Amaro-Perez’s sentence.

[10] Affirmed.

Altice, J., and Tavitas, J., concur.

2 Through a translator, Amaro-Perez answered affirmatively when asked if he was still married and if the three children live with “their mother and your wife” at an address on Plum Street. Transcript at 46. In explaining why his wife’s Plum Street address differed from the address at which he lived, he indicated “[u]h because we are working on” the house at his wife’s address and “[t]hat she is there and I am here.” Id. at 45.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1336 | November 19, 2019 Page 5 of 5