MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                              FILED
regarded as precedent or cited before any                                  May 26 2020, 9:23 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                                  ATTORNEY FOR APPELLEE
Kristin A. Mulholland                                   Caroline G. Templeton
Crown Point, Indiana                                    Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Francisco Antonio Perez,                                May 26, 2020
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        19A-CR-2785
        v.                                              Appeal from the Lake Superior
                                                        Court
State of Indiana,                                       The Honorable Salvador Vasquez,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        45G01-1804-F5-30



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2785 | May 26, 2020                           Page 1 of 6
                                          Statement of the Case

[1]   Francisco Perez (“Perez”) appeals the three-year sentence imposed after he pled

      guilty to Level 5 felony sexual misconduct with a minor.1 Perez argues that his

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

      Concluding that his sentence is not inappropriate, we affirm Perez’s sentence.


[2]   We affirm.


                                                         Issue

                                   Whether Perez’s sentence is inappropriate.


                                                         Facts

[3]   In February 2018, fifteen-year-old M.P., the victim, was babysitting at her

      aunt’s house.2 Twenty-eight-year-old Perez, who was M.P.’s aunt’s boyfriend,

      entered the home. Perez sat next to M.P. on the couch and told her to roll a

      marijuana cigarette, which she did. M.P.’s aunt later returned home with a

      friend, and M.P. smoked marijuana with Perez and the other adults. M.P.’s

      aunt then left to take her friend home.




      1
          IND. CODE § 35-42-4-9.
      2
       We take our facts from the Stipulated Factual Basis that was attached to the guilty plea filed with the trial
      court.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2785 | May 26, 2020                         Page 2 of 6
[4]   After M.P.’s aunt left, M.P. went to bed. Perez joined her and began to caress

      her breast over her clothes and attempted to kiss her while saying that “he was

      going to show her how much her uncle like[d] her.” (App. Vol. 2 at 47). Perez

      then put his hand into M.P.’s pants. M.P. screamed, and Perez stopped

      touching her. M.P. then called her boyfriend and her aunt. When M.P.’s aunt

      returned, Perez admitted to touching M.P. and stated that he had done so as

      “pay-back[.]” (App. Vol. 2 at 47).


[5]   In April 2018, Perez was charged with Level 5 felony sexual misconduct with a

      minor. The State filed an amended charging information in November 2018,

      adding a count of Level 3 felony rape. In July 2019, the State and Perez

      reached an agreement that Perez would plead guilty to the sexual misconduct

      with a minor charge in exchange for the State dismissing the rape charge. The

      parties also agreed to argue the sentence length at the sentencing hearing.


[6]   In October 2019, the trial court held a sentencing hearing. M.P.’s aunt and

      M.P.’s mother testified at the hearing. Perez also made a statement.

      Additionally, M.P. and M.P.’s mother submitted victim impact statements. In

      her victim impact statement, M.P. explained that due to Perez’s actions, she felt

      “violated, manipulated, embarrassed, [and] sad.” (Sentencing Tr. 19). M.P.’s

      mother’s statement detailed the negative effects Perez’s crime had had on M.P.

      and her family. Specifically, M.P.’s mother explained that the “emotional

      turmoil is beyond description.” (Sentencing Tr. 19).




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2785 | May 26, 2020   Page 3 of 6
[7]   When sentencing Perez, the trial court found both mitigating and aggravating

      factors. In mitigation, the trial court acknowledged Perez’s guilty plea but

      found that it was not entitled to much weight because “the more significant

      rape [charge]” had been dismissed by the State. (Sentencing Tr. 44). In

      aggravation, the trial court identified Perez’s: (1) criminal history, which

      includes convictions in Illinois for felony burglary, felony aggravated unlawful

      use of a weapon, misdemeanor trespass, and two episodes of misdemeanor

      possession of cannabis; (2) failure to appreciate the leniency of probation from

      other criminal courts; (3) manipulative and predatory character; and (4)

      violation of a position of trust. The trial court then sentenced Perez to an

      advisory sentence of three (3) years in the Department of Correction. Perez

      now appeals.


                                                  Decision

[8]   Perez’s sole argument is that his advisory three-year sentence is inappropriate.

      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). The principal role of a Rule 7(B) review “should be to attempt to leaven

      the outliers, and identify some guiding principles for trial courts and those

      charged with improvement of the sentencing statutes, but not to achieve a

      perceived ‘correct’ result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225
      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2785 | May 26, 2020   Page 4 of 6
       (Ind. 2008). “Appellate Rule 7(B) analysis is not to determine whether another

       sentence is more appropriate but rather whether the sentence imposed is

       inappropriate.” Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012) (internal

       quotation marks and citation omitted), reh’g denied. 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, 895 N.E.2d at 1224.


[9]    When determining whether a sentence is inappropriate, the advisory sentence is

       the starting point the General Assembly has selected as an appropriate sentence

       for the crime committed. Childress, 848 N.E.2d at 1081. Here, Perez pled guilty

       to Level 5 felony sexual misconduct with a minor. The sentencing range for a

       Level 5 felony is “for a fixed term of between one (1) and six (6) years, with the

       advisory sentence being three (3) years.” I.C. § 35-50-2-6(b). The trial court

       sentenced Perez to three years, which is the advisory sentence.


[10]   An appellate court is “unlikely to consider an advisory sentence inappropriate.”

       Shelby v. State, 986 N.E.2d 345, 371 (Ind. Ct. App. 2013), trans. denied. “[A]

       defendant bears a particularly heavy burden in persuading us that his sentence

       is inappropriate when the trial court imposes the advisory sentence.” Fernbach

       v. State, 954 N.E.2d 1080, 1089 (Ind. Ct. App. 2011), trans. denied. On appeal,

       Perez has not met the particularly heavy burden he faces.


[11]   Regarding the nature of the offense, Perez, who was twenty-eight-years-old at

       the time, encouraged fifteen-year-old M.P. to roll a marijuana cigarette and


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2785 | May 26, 2020   Page 5 of 6
       smoke it. After M.P. returned to bed, Perez joined her and began to touch her

       breast over her clothes. He then attempted to kiss her and put his hand into

       M.P.’s pants. Perez’s offense had a devastating effect on M.P., who, according

       to her own statement and the testimony of her mother, suffers from his actions

       in a variety of ways. See Lasley v. State, 510 N.E.2d 1340, 1342 (Ind. 1987)

       (sexual victimization of children often leaves permanent psychological damage

       that is more devastating than physical injuries).


[12]   Turning to Perez’s character, he emphasizes that he is a “hard-working man

       who supports his family[.]” (Perez’s Br. 6). As the trial court noted, however,

       Perez does have a criminal history. Here, Perez’s prior convictions for felony

       burglary, felony aggravated unlawful use of a weapon, misdemeanor trespass,

       and two episodes of misdemeanor possession of cannabis, reflect poorly on his

       character. See Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct. App. 2007) (any

       criminal history reflects poorly on a person’s character). Furthermore, Perez

       has been afforded leniency of probation by the judicial system many times in

       the past. However, he has shown an inability or unwillingness to conform his

       behavior to the rule of law.


[13]   Accordingly, Perez has not persuaded us that the nature of the offense and his

       character make his sentence inappropriate. Therefore, we affirm the sentence

       imposed by the trial court.


[14]   Affirmed.


       Baker, J., and Bradford, C.J., concur.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2785 | May 26, 2020   Page 6 of 6
