Fernando Contreras v. State of Indiana ( 2012 )

Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
FILED
regarded as precedent or cited before Jan 19 2012, 8:22 am
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establishing the defense of res judicata, CLERK
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ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
THOMAS W. VANES GREGORY F. ZOELLER
Office of the Public Defender Attorney General of Indiana
Crown Point, Indiana
JAMES B. MARTIN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
FERNANDO CONTRERAS, )
)
Appellant-Defendant, )
)
vs. ) No. 45A03-1106-CR-255
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE LAKE SUPERIOR COURT
The Honorable Clarence D. Murray, Judge
Cause Nos. 45G02-1101-FB-3, 45G02-1101-FC-3
January 19, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
BRADFORD, Judge
In this consolidated appeal, Appellant/Defendant Fernando Contreras appeals
following his guilty pleas to and convictions for Class B felony Burglary1 and Class C felony
Escape,2 challenging the appropriateness of his aggregate twelve-year sentence. We affirm.
FACTS AND PROCEDURAL HISTORY
The stipulated factual basis entered during the March 7, 2011 guilty plea hearing
provides as follows:
With respect to the burglary charge, on or about January 3, 2011, Contreras broke into
the home of William Haddad through the back door, causing damage to the door frame, and
took multiple items of heirloom jewelry. Contreras’s fingerprints were recovered from the
jewelry box where the items were kept. Contreras did not have Haddad’s permission to enter
the home or take the jewelry.
With respect to the escape charge, on or about January 8, 2011, Contreras was taken
into custody for possession of cocaine and resisting law enforcement after leading officers on
a “highspeed” chase that ended when Contreras crashed his vehicle. Appellant’s App. p. 18.
Upon being apprehended, Contreras became ill, telling police that he had swallowed three
ounces of heroin. Contreras was taken to the hospital, from which he knowingly or
intentionally fled from lawful detention by “fle[eing] the hospital naked and br[eaking] into a
camper.” Appellant’s App. p. 19.
On January 11, 2011, the State charged Contreras with Class C felony escape, two
1
Ind. Code § 35-43-2-1 (2010).
2
Ind. Code § 35-44-3-5 (2010).
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counts of Class D felony possession of cocaine, Class D felony resisting law enforcement,
Class A misdemeanor resisting law enforcement, Class B misdemeanor false informing, and
Class C misdemeanor operating a vehicle after never receiving a license under cause number
45G02-1101-FC-3 (“Cause No. FC-3”). On January 12, 2011, the State charged Contreras
with Class B felony burglary under cause number 45G02-1101-FB-3 (“Cause No. FB-2”).
On March 7, 2011, Contreras pled guilty to Class B felony burglary under Cause No. FB-2
and Class C felony escape under Cause No. FC-2.
Pursuant to the terms of his plea agreement, the parties were “free to fully argue their
respective positions as to the sentence to be imposed” for each charge, but agreed that “said
sentences shall be served concurrently.” Appellant’s App. p. 16. In addition, in exchange for
Contreras’s plea, the State agreed to dismiss certain other charges, including the remaining
charges levied against Contreras under Cause No. FC-3. The trial court accepted Contreras’s
guilty plea, and on May 16, 2011, imposed a twelve-year sentence in Cause No. FB-2, and a
six-year sentence in Cause No. FC-3. The trial court ordered the sentences to be served
concurrently to one another. This consolidated appeal follows.
DISCUSSION AND DECISION
On appeal, Contreras challenges the appropriateness of his twelve-year sentence.
Indiana Appellate Rule 7(B) provides that “The Court may revise a sentence authorized by
statute if, after due consideration of the trial court’s decision, the Court finds 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 us that his sentence is
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inappropriate. Sanchez v. State, 891 N.E.2d 174, 176 (Ind. Ct. App. 2008). We cannot,
however, agree that Contreras’s sentence is inappropriate.
With respect to the nature of his offenses, Contreras argues that the imposition of
aggravated twelve- and six-year sentences was inappropriate because the nature of the
actions leading to his burglary and escape convictions was unremarkable, and, as such,
warranted advisory sentences.3 In making this argument, Contreras claims that the
aggravated twelve-year-sentence imposed under Cause No. FB-3 was inappropriate because
the burglary “was a standard home burglary,” as there was nothing in the record suggesting
that Haddad was present when Contreras broke into the home and took the jewelry.
Appellant’s Br. p. 4. Contreras also claims that the aggravated six-year-sentence imposed
under Cause No. FC-3 was inappropriate because “there is nothing which indicates [that the
escape] was accomplished by force or violence or with particular cunning or planning.”
Appellant’s Br. p. 4. While it is certainly possible that one could envision more egregious
circumstances surrounding a potential burglary or escape, we cannot agree that Contreras’s
actions were wholly unremarkable.4
3
Indiana Code section 35-50-2-5 (2010) provides that “[a] person who commits a Class B felony shall
be imprisoned for a fixed term of between six (6) and twenty (20) years, with the advisory sentence being ten
(10) years.” Indiana Code section 35-50-2-6 (2010) provides that “[a] person who commits a Class C felony
shall be imprisoned for a fixed term of between two (2) and eight (8) years, with the advisory sentencing being
four (4) years.”
4
Contreras also argues that the aggravated sentences were inappropriate because the trial court
erroneously relied on facts relating to the dismissed resisting law enforcement charge, i.e., the “highspeed”
chase, in determining that the nature of his actions warranted an aggravated sentence. In support, Contreras
relies on this court’s conclusion in Farmer v. State, 772 N.E.2d 1025, 1027 (Ind. Ct. App. 2002), in which this
court concluded that a trial court cannot circumvent a plea agreement by sentencing a defendant using facts
that relate to a dismissed charge as an aggravating factor. At sentencing, the trial court found that with respect
to the nature of the escape charge, Contreras endangered public safety. While this could, and indeed likely did,
4
In any event, even assuming that Contreras’s actions were unremarkable, we cannot
conclude that his aggregate twelve-year sentence is inappropriate in light of his character.
The record reveals that Contreras has had repeated contact with the criminal justice system as
both a juvenile and an adult. Contreras has been arrested at least sixteen times for actions
including auto theft, possession of a controlled substance or marijuana, theft, robbery, and
driving without ever receiving a license, and has a prior felony conviction for assault with a
deadly weapon. In addition, Contreras is a Mexican citizen who resides in the United States
illegally, and, despite being twice deported to Mexico, continues to return to the United
States. Contreras’s substantial arrest record, prior conviction, and recurring illegal re-entry
into the United States demonstrates a complete lack of regard for the laws of both this
country and this State. As such, we cannot say that the aggregate twelve-year sentence
imposed by the trial court is inappropriate.
The judgment of the trial court is affirmed.
KIRSCH, J., and BARNES, J., concur.
include consideration of the “highspeed” chase, it could also have included consideration of Contreras’s act of
breaking into a camper after fleeing the hospital, as any act of breaking into the potential dwelling or resting
place of another contains the potential for public endangerment. Because we cannot say that the trial court
enhanced Contreras’s sentence solely because of facts relating to a dismissed charge, we conclude that
Contreras’s reliance on Farmer is misplaced.
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