Ricardo Montanez v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: October 15, 2015
• Docket: 45A03-1504-CR-130
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any Oct 15 2015, 9:51 am 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 Marce Gonzalez, Jr, Gregory F. Zoeller Dyer, Indiana Attorney General of Indiana

Katherine Modesitt Cooper Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Ricardo Montanez, October 15, 2015 Appellant-Defendant, Court of Appeals Case No. 45A03-1504-CR-130 v. Appeal from the Lake Superior Court State of Indiana, The Honorable Clarence D. Appellee-Plaintiff Murray, Judge Trial Court Cause No. 45G02-1407-F5-3

Vaidik, Chief Judge.

Court of Appeals of Indiana | Memorandum Decision 45A03-1504-CR-130| October 15, 2015 Page 1 of 5 Case Summary [1] Ricardo Montanez appeals the six-year sentence imposed after he pled guilty to

Level 5 felony burglary. Montanez specifically argues that his sentence is

inappropriate in light of the nature of the offense and his character.

Facts and Procedural History [2] On July 20, 2014, Montanez broke into his neighbor Claudia Bussey’s garage

and took tools and other items belonging to Bussey and Cal Haddad. When

officers from the Hammond Police Department arrived at the scene in response

to an alarm from Bussey’s garage, Montanez fled from the officers. The State

charged Montanez with Level 5 felony burglary, Class A misdemeanor theft,

and Class A misdemeanor resisting law enforcement. The State later filed an

habitual offender sentence enhancement against him.

[3] Pursuant to a plea agreement, Montanez pled guilty to Level 5 felony burglary.

In exchange for his guilty plea, the State agreed to dismiss the misdemeanors

and habitual offender enhancement. In addition, the parties left sentencing to

the trial court’s discretion. The evidence presented at the sentencing hearing

reveals that forty-nine-year-old Montanez has amassed thirteen felony

convictions and twenty-six misdemeanor convictions over the past thirty years.

The offense in this case is Montanez’s ninth felony burglary conviction. In the

past, he has also violated both probation and parole.

Court of Appeals of Indiana | Memorandum Decision 45A03-1504-CR-130| October 15, 2015 Page 2 of 5 [4] After the State presented evidence of his prior convictions, Montanez

apologized and told the trial court that this would be his last offense. The trial

court responded as follows:

Your record just flies in the face of anything you could say this morning in terms of any request for leniency. You continue to commit these offenses. You’ve got no one to blame but yourself. You make these decisions to commit these crimes, and it doesn’t stop. . . . The State, correctly, points out that Mr. Montanez received a significant benefit from the plea agreement. There’s absolutely no basis for leniency here. The Court will impose six years in the Department of Correction.

Tr. p. 27. Montanez appeals his sentence.

Discussion and Decision [5] Montanez argues that his six-year sentence is inappropriate in light of the

nature of the offense and his character. Indiana Appellate Rule 7(B) provides

that we 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 of persuading this Court that his sentence is inappropriate. Childress

v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). Whether we regard a sentence as

inappropriate turns on the “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.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008).

Court of Appeals of Indiana | Memorandum Decision 45A03-1504-CR-130| October 15, 2015 Page 3 of 5 [6] As to the nature of the offense, the advisory sentence is the starting point that

the legislature has selected as an appropriate sentence for the crime committed.

Childress, 848 N.E.2d at 1081. Montanez pleaded guilty to Level 5 felony

burglary. Pursuant to Indiana Code section 35-50-2-6(b), a person who

commits a Level 5 felony shall be imprisoned for a fixed term of between one

and six years, with the advisory sentence being three years. Here, the trial court

sentenced Montanez to the maximum sentence.

[7] Montanez argues that “this is a rather average burglary offense, of the type

likely anticipated by the legislature in crafting the statute and advisory sentence

. . . . Hence, under the nature of the offense, the advisory sentence appears to

be the appropriate starting point.” Appellant’s Br. p. 6. We acknowledge that

the nature of Montanez’s offense was not particularly aggravating and alone

might not support the sentence imposed.

[8] It is Montanez’s character, however, that is significantly aggravating.

Specifically, Montanez has amassed thirteen felony and twenty-six

misdemeanor convictions over the past three decades. The offense in this case

is his ninth felony burglary conviction. He has also violated both probation and

parole. His former contacts with the law have not caused him to reform

himself. See Jenkins v. State, 909 N.E.2d 1080, 1086 (Ind. Ct. App. 2009), trans.

denied. Montanez has failed to persuade this Court that his six-year sentence is

inappropriate.

[9] We affirm.

Court of Appeals of Indiana | Memorandum Decision 45A03-1504-CR-130| October 15, 2015 Page 4 of 5 Robb, J., and Pyle, J., concur.

Court of Appeals of Indiana | Memorandum Decision 45A03-1504-CR-130| October 15, 2015 Page 5 of 5