Pursuant to Ind.Appellate Rule 65(D),

                                                                FILED
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of                           Jan 10 2013, 8:30 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
                                                                     CLERK
                                                                   of the supreme court,
                                                                   court of appeals and
                                                                          tax court




ATTORNEY FOR APPELLANT:                           ATTORNEYS FOR APPELLEE:

KRISTINA J. JACOBUCCI                             GREGORY F. ZOELLER
Newby, Lewis, Kaminski & Jones, LLP               Attorney General of Indiana
LaPorte, Indiana
                                                  GEORGE P. SHERMAN
                                                  Deputy Attorney General
                                                  Indianapolis, Indiana




                              IN THE
                    COURT OF APPEALS OF INDIANA

MIGUEL CASTILLO,                                  )
                                                  )
       Appellant-Defendant,                       )
                                                  )
              vs.                                 )       No. 46A03-1204-CR-158
                                                  )
STATE OF INDIANA,                                 )
                                                  )
       Appellee-Plaintiff.                        )


                    APPEAL FROM THE LAPORTE SUPERIOR COURT
                         The Honorable Kathleen B. Lang, Judge
                            Cause No. 46D01-1006-FB-131



                                       January 10, 2013


                MEMORANDUM DECISION - NOT FOR PUBLICATION


NAJAM, Judge
                             STATEMENT OF THE CASE

       Miguel Castillo appeals his convictions and sentence after a jury found him guilty

of criminal confinement, as a Class B felony; battery, as a Class C felony; strangulation,

as a Class D felony; and for being an habitual offender. Castillo raises the following four

issues for our review:

       1.     Whether the trial court abused its discretion when it denied
              Castillo’s mid-trial request for a competency evaluation;

       2.     Whether the trial court abused its discretion when it granted
              Castillo’s mid-trial request to proceed pro se;

       3.     Whether his sentence is inappropriate in light of the nature of the
              offenses and his character; and

       4.     Whether the trial court committed reversible error when it did not
              specify to which conviction Castillo’s habitual offender adjudication
              attached.

       We affirm.

                         FACTS AND PROCEDURAL HISTORY

       In the late evening hours of June 10, 2010, Castillo restrained, severely beat, and

strangled his girlfriend, V.M., with whom he was living. After he had beaten V.M.,

Castillo sat on the front porch while V.M. called 9-1-1. When police arrived, Castillo

told the officer, “You might as well cuff me. . . . I beat the shit out of her.” Transcript at

115.

       V.M. was transported to the emergency room at St. Anthony’s Hospital in

Michigan City, where she was treated for facial trauma. Her face was bruised and

swollen. There was also bruising around her neck, and she had a nasal fracture.



                                              2
       On June 18, 2010, the State charged Castillo with criminal confinement, as a Class

B felony; battery, as a Class C felony; and strangulation, as a Class D felony. The State

later alleged Castillo to be an habitual offender.

       The trial court held Castillo’s jury trial between January 17, 2012, and January 19,

2012. After the State rested, Castillo moved to have his counsel withdrawn so Castillo

could proceed pro se. Before the court ruled on Castillo’s motion, Castillo’s counsel

moved to have Castillo evaluated for competency. The court, outside the presence of the

jury, heard testimony from an officer regarding Castillo’s recent behavior. The court

then denied Castillo’s motion for a competency evaluation, stating as follows:

       During the entire proceeding, the Defendant has been taking notes. He has
       had conversations at counsel table . . . about his defense. He may not agree
       with the strategy. The strategy may be in conflict, and he has represented
       to the Court that there are questions that have not been . . . asked that he felt
       . . . should have been asked.

             He was able to tell me in response to my questions what a habitual
       criminal count was, what it might mean to him in terms of his sentence. He
       told me what his three charges were correctly, and what class felony they
       were. There is not any evidence on the record that Mr. Castillo does not
       understand these proceedings or what’s going on.

Id. at 259. The court then granted Castillo’s motion to proceed pro se.

       Following the trial, the jury found Castillo guilty as charged. The court entered its

judgment of conviction and sentenced Castillo to an aggregate term of thirty-five years

executed. This appeal ensued.




                                              3
                                 DISCUSSION AND DECISION

                                      Issue One: Competency

        Castillo first argues that the trial court abused its discretion when it denied his

mid-trial request for a competency evaluation. As we have explained:

        The trial and conviction of one without adequate competence is a denial of
        federal due process and a denial of a state statutory right as well. However,
        . . . the right to a competency hearing pursuant to Ind. Code § 35-36-3-1 is
        not absolute. Such a hearing is required only when a trial judge is
        confronted with evidence creating a reasonable or bona fide doubt as to a
        defendant’s competency, which is defined as whether a defendant currently
        possesses the ability to consult rationally with counsel and factually
        comprehend the proceedings against him. Whether reasonable grounds
        exist to order evaluation of competency is a decision that will be reversed
        only if we find that the trial court abused its discretion. A trial judge’s
        observations of a defendant in court are an adequate basis for determining
        whether a competency hearing is necessary; such a determination will not
        be lightly disturbed. Furthermore, predictable stress from facing one’s own
        felony trial does not warrant a competency hearing. Finally, when the
        circumstances do not indicate that a trial court should sua sponte order a
        competency hearing, the defendant has the burden of establishing that
        reasonable grounds for such a hearing exist.

Campbell v. State, 732 N.E.2d 197, 202 (Ind. Ct. App. 2000) (emphasis added; citations

and footnote omitted).1         When we review a trial court’s decision for an abuse of

discretion, we consider the evidence favorable to the decision and we will not reweigh

the evidence. Collins v. State, 822 N.E.2d 214, 218 (Ind. Ct. App. 2005), trans. denied.

        As stated above, the trial court denied Castillo’s request for a competency

evaluation largely based on the court’s own observations of Castillo in court. On appeal,

        1
          We note that the trial court held a “competency hearing of sorts” when it permitted Castillo’s
counsel to call an officer as a witness. See Campbell, 732 N.E.2d at 202 n.1. But this evidentiary hearing
“was not a hearing in accordance with I.C. § 35-36-3-1, which requires the appointment of professionals
to examine a defendant and testify as to their opinion regarding competency.” Id. Nonetheless, the
court’s hearing “does indicate an effort by the trial court to ascertain all of the information . . . before
deciding that a hearing under I.C. § 35-36-3-1 was unnecessary. Such an inquiry further validates the trial
court’s conclusion.” Id.
                                                     4
Castillo’s arguments emphasize his own statements during his trial2 and seek to have this

court credit those statements above the trial court’s observations. This is, in effect, a

request for this court to reweigh the evidence, which we will not do. Id.

       Further, the court’s observations of Castillo in court were “an adequate basis for

determining” that a competency hearing was unnecessary. Campbell, 732 N.E.2d at 202.

As the court observed, Castillo took notes throughout the proceeding and engaged his

counsel in determining the best strategy for his defense. And Castillo was both aware of

and understood the charges against him. Accordingly, based on the evidence most

favorable to the court’s decision, Castillo cannot demonstrate a reasonable or bona fide

doubt as to his competency. See id. Therefore, the trial court did not abuse its discretion

when it denied Castillo’s request for a competency evaluation.

                                 Issue Two: Pro Se Representation

       Castillo next asserts that the trial court abused its discretion when it granted his

mid-trial request to proceed pro se.3 The crux of Castillo’s argument here is his claim

that “[t]he right of self-representation must be asserted within a reasonable time prior to

the day on which trial begins.” Appellant’s Br. at 17 (emphasis original) (discussing

Russell v. State, 270 Ind. 55, 383 N.E.2d 309, 313-15 (1978)). That is, Castillo asserts

that his request to proceed pro se was an unlawful request. But Indiana law plainly




       2
         We also note that Castillo had been declared competent to stand trial prior to the
commencement of his trial.
       3
           The State does not suggest that this issue is precluded by the invited error doctrine.

                                                      5
allows a defendant to proceed pro se mid-trial if that is his choice. E.g., Minneman v.

State, 466 N.E.2d 438, 440-41 (Ind. 1984). Accordingly, this issue is without merit.4

                                Issue Three: Appellate Rule 7(B)

        Castillo also contends that his thirty-five year aggregate sentence is inappropriate

in light of the nature of the offenses and his character. Although a trial court may have

acted within its lawful discretion in determining a sentence, Article VII, Sections 4 and 6

of the Indiana Constitution “authorize[] independent appellate review and revision of a

sentence imposed by the trial court.” Roush v. State, 875 N.E.2d 801, 812 (Ind. Ct. App.

2007) (alteration original). This appellate authority is implemented through Indiana

Appellate Rule 7(B). Id. Revision of a sentence under Appellate Rule 7(B) requires the

appellant to demonstrate that his sentence is inappropriate in light of the nature of his

offenses and his character. See Ind. Appellate Rule 7(B); Rutherford v. State, 866 N.E.2d

867, 873 (Ind. Ct. App. 2007). We assess the trial court’s recognition or non-recognition

of aggravators and mitigators as an initial guide to determining whether the sentence

imposed was inappropriate. Gibson v. State, 856 N.E.2d 142, 147 (Ind. Ct. App. 2006).

However, “a defendant must persuade the appellate court that his or her sentence has met

th[e] inappropriateness standard of review.”              Roush, 875 N.E.2d at 812 (alteration

original).




        4
            Castillo does not argue that his request to proceed pro se was not made knowingly, voluntarily,
or intelligently. Indeed, the record shows that the trial court advised Castillo of the perils of self-
representation, and in granting Castillo’s request the court appointed Castillo’s counsel as stand-by
counsel. See Minneman, 466 N.E.2d at 440. In addition, insofar as Castillo’s argument on this issue is
premised on his request for a competency evaluation, for the reasons stated in Issue One we affirm the
trial court’s decision.
                                                    6
       Moreover, “sentencing is principally a discretionary function in which the trial

court’s judgment should receive considerable deference.” Cardwell v. State, 895 N.E.2d

1219, 1222 (Ind. 2008). Indiana’s flexible sentencing scheme allows trial courts to tailor

an appropriate sentence to the circumstances presented. See id. at 1224. 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 the

culpability of the defendant, the severity of the crime, the damage done to others, and

myriad other facts that come to light in a given case.” Id. at 1224.

       In sentencing Castillo, the trial court stated as follows:

       This case involves a vicious incident of domestic violence. . . .

                                            ***

       There are numerous aggravating factors. This is a crime of violence
       resulting in serious physical injury to the victim. The harm suffered by the
       victim was not only significant, it was greater than the elements necessary
       to prove the commission of the charged offense. The numerous injuries to
       the [v]ictim’s face and throat are far greater than what is required to prove a
       conviction for Battery. Defendant has a significant criminal history with
       previous convictions for Armed Robbery and Burglary, as a Class B
       Felony. According to the Presentence Investigation, Defendant was on
       probation . . . when he committed this offense.

March 8, 2012, Transcript at 4, 6. Again, the trial court ordered Castillo to serve thirty-

five years. In particular, the court ordered Castillo to serve twenty years on his Class B

felony conviction, with an additional fifteen years for being an habitual offender. The

trial court imposed eight years for the additional convictions, but ordered those years to

run concurrent with Castillo’s sentence for the Class B felony.




                                              7
         On appeal, Castillo asserts that the nature of the offenses is mitigated by his quick

surrender and his expressions of remorse.5 Castillo further states that he “suffers from

antisocial personality disorder that contributes to his episodes of physical aggression and

violence.”6      Appellant’s Br. at 20.          We cannot agree that Castillo’s sentence is

inappropriate.

         Regarding the nature of the offenses, Castillo was convicted of a Class B felony, a

Class C felony, and a Class D felony, and he was found to be an habitual offender. His

convictions arose from an argument he had with his girlfriend, which ended after Castillo

confined, restrained, severely beat, and strangled her. As a result of the attack, V.M.’s

eyes were almost swollen shut and she sustained a nasal fracture.

         Regarding his character, Castillo has an extensive history of violent crime. He has

prior felony convictions for armed robbery and burglary, as well as several prior charges

of battery. Further, he committed the instant offenses while on probation in another

cause.

         We cannot say that Castillo’s thirty-five year sentence is inappropriate. And

insofar as Castillo argues for additional mitigating circumstances, we note that the trial

court ordered eight years of Castillo’s sentence to run concurrent with Castillo’s sentence

on the Class B felony. We affirm Castillo’s sentence.




         5
           We do not consider Castillo’s assertions, based on his own statements and contrary to the jury’s
verdict, that V.M. struck him before he battered her.
         6
          We disagree with the State’s assertion that Castillo has not argued both prongs of Indiana
Appellate Rule 7(B).
                                                    8
                     Issue Four: Habitual Offender Enhancement

       Finally, Castillo argues that the trial court committed reversible error when it did

not specify to which of his three convictions the habitual offender enhancement attached.

It is true that, “[i]n the event of simultaneous multiple felony convictions and a finding of

habitual offender status, trial courts must impose the resulting penalty enhancement upon

only one of the convictions and must specify the conviction to be so enhanced.” Carter v.

State, 686 N.E.2d 834, 839 (Ind. 1997). But when a defendant’s convictions are affirmed

on appeal, and the sentences for those convictions are to run concurrently, we will not

remand for resentencing to apply an habitual offender enhancement to a specific offense.

See id.; see also Webster v. State, 628 N.E.2d 1212, 1214 (Ind. 1994), abrogated on other

grounds, Richardson v. State, 717 N.E.2d 32 (Ind. 1999).

       Here, as explained above, we affirm Castillo’s convictions. And, again, the trial

court’s sentences for each of the underlying felonies were ordered to run concurrently.

But while the trial court committed a “technical error” when it did not specify to which

conviction the habitual offender enhancement attached, see Webster, 628 N.E.2d at 1214,

it is clear from the trial court’s sentencing order that it attached the habitual offender

enhancement to Castillo’s Class B felony conviction. The court ordered a thirty-five year

executed term.    That term can only consist of the sentence on the Class B felony

conviction, twenty years, enhanced by fifteen years for being an habitual offender. Thus,

remand on this issue is not necessary.




                                             9
                                       Conclusion

       In sum, we affirm the trial court’s denial of Castillo’s motion for a competency

evaluation and its grant of his motion to proceed pro se. We further hold that Castillo’s

sentence is not inappropriate, and that the trial court’s technical error in its sentencing

statement is not reversible error.

       Affirmed.

FRIEDLANDER, J., and BRADFORD, J., concur.




                                            10
