                                                             FILED
Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before                     May 07 2012, 8:51 am
any court except for the purpose of
establishing the defense of res judicata,
                                                                 CLERK
collateral estoppel, or the law of the                         of the supreme court,
                                                               court of appeals and
                                                                      tax court
case.


ATTORNEY FOR APPELLANT:                          ATTORNEYS FOR APPELLEE:

DAVID W. ZENT                                    GREGORY F. ZOELLER
Deputy Public Defender                           Attorney General of Indiana
Leonard, Hammond, Thoma & Terrill
Fort Wayne, Indiana                              JOSEPH Y. HO
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

JUAN DE DIOS OROZCO-MITCHEL,                     )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )      No. 02A04-1107-CR-365
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


                     APPEAL FROM THE ALLEN SUPERIOR COURT
                      The Honorable Kenneth R. Scheibenberger, Judge
                              Cause No. 02D04-0306-FA-32


                                        May 7, 2012

               MEMORANDUM DECISION - NOT FOR PUBLICATION

MAY, Judge
          Juan de Dios Orozco-Mitchel appeals his thirty-five year sentence for Class A

felony conspiracy to deal in cocaine or narcotic drug.1 He argues the trial court abused its

discretion by failing to give credit for mitigating circumstances and by finding improper

aggravating circumstances. He also argues his sentence is inappropriate. We affirm.

                            FACTS AND PROCEDURAL HISTORY

          Between May 2003 and June 16, 2003, Orozco-Mitchel was involved in two

transactions in which a confidential informant (“CI”) transported cocaine from Arizona to

Fort Wayne, Indiana. For both of those transactions, Orozco-Mitchel provided the mini-

van used to transport the cocaine and instructions for delivering the cocaine to a residence

in Fort Wayne.

          Federal Drug Enforcement Agency agents and Kansas State Highway Patrol

officers eventually arrested Orozco-Mitchel at the Fort Wayne residence. During the

subsequent search of the residence, officers uncovered nine individually wrapped bricks

of cocaine with a combined weight of 5.6 kilograms. They also found sealed plastic bags

with just over one kilogram of marijuana, approximately $130,980 in bundles of wrapped

stacks of money, a Beretta 9mm handgun, a Nissan Pathfinder with a hidden

compartment in the gas tank, and bags consistent with those used for packaging and

dealing cocaine.

          On June 23, 2003, the State charged Orozco-Mitchel with Class A felony

conspiracy to commit dealing in cocaine or narcotic drug, Class A felony dealing in

1
    Ind. Code § 35-48-4-1(b)(1); Ind. Code § 35-41-5-2.
                                                     2
cocaine or narcotic drug,2 Class C felony money laundering,3 Class D felony money

laundering,4 and Class D felony possession of marijuana hash oil or hashish. 5                            On

December 8, 2003, pursuant to a plea agreement, Orozco-Mitchel pled guilty as charged

to Class A felony conspiracy to commit dealing in cocaine or narcotic drug, and in

exchange, the State dropped the other charges against him. The plea agreement capped

the amount of time the court could order executed in the Department of Correction at

thirty-five years.

        The pre-sentencing investigation revealed Orozco-Mitchel, an illegal immigrant,

was deported from the United States in 1997 as part of sentencing for a prior drug-related

offense. Orozco-Mitchel has three different identities on record, three different birth

dates, and two prior felony convictions, both for attempted distribution of a controlled

substance.

        At the sentencing hearing, Orozco-Mitchel acknowledged the evidence against

him was “overwhelming.” (Sent. Tr. at 14.) The trial court rejected Orozco-Mitchel’s

argument that he deserved a sentence shorter than the presumptive because he was just an

“unimportant mule”6 and because it would not send a message to other like-minded

individuals. (Id. at 15.) The trial court indicated setting an example is not an appropriate

factor to consider in sentencing. It found aggravating circumstances in Orozco-Mitchel’s

2
  Ind. Code § 35-48-4-1(b)(1).
3
  Ind. Code § 35-45-15-5(a)(3)(A).
4
  Ind. Code § 35-45-15-5(a).
5
  Ind. Code § 35-48-4-11.
6
  The trial court interpreted the term “mules” to refer to individuals recruited to title the vehicles used to
transport the drugs, in order to avoid suspicion in the event of traffic stops. (Sent. Tr. at 8.)
                                                      3
record of prior drug-related offenses, the fact that prior attempts at rehabilitation had

failed, and in Orozco-Mitchel having a large amount of cash at the residence and

thousands of times the amount of cocaine required for a Class A felony charge.7 The trial

court stated such a large amount of cocaine “contributes in a very large way to the violent

crime that we have in our community.” (Id. at 20.) The trial court specifically declined

to find Orozco-Mitchel’s age, twenty-four years, as a mitigating factor because this was

“his third distribution” and “even if there was a mitigator on age, that [would not]

outweigh the aggravators.” (Id.)

        The trial court accordingly accepted the plea agreement, which capped the

possible executed portion of Orozco-Mitchel’s sentence at thirty-five years. In light of

the aggravating factors, the trial court imposed a sentence of thirty-five years executed in

the Department of Correction.

                                 DISCUSSION AND DECISION

         1.     Abuse of Discretion Analysis

        Orozco-Mitchell first asserts the trial court abused its discretion in sentencing him.

We are not convinced an abuse of discretion occurred.

        The trial court sentenced Orozco-Mitchel on December 29, 2003.8 Prior to 2005,


7
  See Ind. Code § 35-48-4-1(b)(1) (elevating the offense of dealing in cocaine or narcotic drug to a Class
A felony if “the amount of the drug involved weighs three (3) grams or more”).
8
  On Feb. 4, 2008, Orozco-Mitchel filed a pro se Verified Petition for Post-Conviction Relief. Thereafter,
a number of different attorneys were assigned to him. On December 10, 2010, Orozco-Mitchel, through
counsel, filed a Verified Motion for Permission to File Belated Notice of Appeal. On July 13, 2011, he
filed a Petition for Authority to File Belated Notice of Appeal, which the trial court granted the following
day. Orozco-Mitchel filed his Notice of Appeal on July 19, 2011.
                                                     4
Indiana’s statutory sentencing framework had a “presumptive” sentence prescribed by the

legislature for each class of crime. Harris v. State, 897 N.E.2d 927 (Ind. 2008). The

presumptive sentence was the starting point for a sentence in that class of crime, and then

a sentencing court had limited discretion to enhance or reduce a sentence based on a

particular defendant’s aggravating circumstances or mitigating circumstances. Id. Under

this framework, the trial court was required to identify significant aggravating and

mitigating circumstances, give a reason why each circumstance was aggravating or

mitigating, and demonstrate balancing of those circumstances. See Gregory v. State, 604

N.E.2d 1240, 1241 (Ind. Ct. App. 1992).

      Following Blakely v. Washington, 542 U.S. 296 (2004), reh’g denied, our Indiana

Supreme Court held Indiana’s presumptive sentencing scheme was unconstitutional.

Smylie v. State, 823 N.E.2d 679, 685 (Ind. 2005). In response, our Indiana General

Assembly amended the sentencing statutes in 2005 by replacing fixed presumptive terms

with “advisory” sentences. Pursuant thereto, a court could impose any sentence within

the statutory range set for the class of crimes, “regardless of the presence or absence of

aggravating circumstances or mitigating circumstances.” Ind. Code § 35-38-1-7.1(d)

(2005). Under this scheme, if aggravating or mitigating circumstances are found, a trial

court must provide a statement including its reasons for imposing a particular sentence.

Harris, 897 N.E.2d at 928.

      The date on which a crime is committed determines the sentencing scheme the

trial court must apply, because the sentencing statute in effect at the time a crime is
                                            5
committed governs the sentence for that crime.         Id. at 928-29.     Orozco-Mitchel

committed his crime before Indiana adopted the new sentencing structure to comply with

Blakely; therefore, the presumptive sentencing scheme applies. See Smith v. State, 675

N.E.2d 693, 695 (Ind. 1996) (sentencing statute in effect at the time of the crime governs

sentencing).

       Under the presumptive sentencing scheme, “sentencing is left to the sound

discretion of the trial court, [and] this court will review sentencing only for abuse of

discretion.”   Id. at 697.   Thus, we give considerable deference to the trial court’s

judgment. Morgan v. State, 675 N.E.2d 1067, 1072 (Ind. 1996). Further, the “trial

court’s discretion includes the ability to determine whether the presumptive sentence for

a crime will be increased or decreased because of aggravating or mitigating

circumstances.” Id. There is no requirement dictating the number of aggravating or

mitigating factors a trial court must consider, nor is there a formula for what specific

aggravating factors may be considered in addition to those appearing in Ind. Code § 35-

38-1-7.1. Id. Further, the court can “enhance a presumptive sentence based upon a

single aggravating circumstance.” Id.

       Ind. Code § 35-50-2-4 (2003) set the presumptive sentence for a Class A felony at

thirty years, with an option to increase up to twenty more years or decrease by up to ten

years. The trial court found three aggravators and no mitigators, weighed the aggravating

and mitigating factors, and imposed thirty-five years executed, which was the maximum

executed time permitted by the plea agreement.
                                            6
       The first aggravating factor found was that prior attempts at rehabilitation had

failed, as evidenced by Orozco-Mitchel’s commission of this crime after being punished

for two prior drug-related offenses. Prior failed attempts at rehabilitation and a prior

arrest record that includes crimes identical to the present offense are legitimate

aggravators, because the trial court may consider them “reflective of the defendant’s

character and as indicative of the risk that the defendant will commit other crimes in the

future.” Cox v. State, 780 N.E.2d 1150, 1157 (Ind. Ct. App. 2002).

       Additionally, although the court did not explicitly consider the particular amount

of drugs found to be an aggravating circumstance, at the sentencing hearing the trial

judge did take special note of the major discrepancy between the three grams of cocaine

required for a conviction of Class A Felony dealing and the nine kilograms -- more than

3,000 times what is necessary for the Class A charge -- that were found here. Regarding

the amount of drugs found at the arrest site, Indiana courts have stated this is an

inappropriate aggravating factor where the amount of cocaine involved is an element of

the offense. Carlson v. State, 716 N.E.2d 469, 472-73 (Ind. Ct. App. 1999) (defendant’s

possession equaling three grams or more “could not be properly used as an aggravator

with which to enhance the defendant’s sentence” where defendant had pled guilty to the

included offense of Class A felony dealing in cocaine).

       However, the “‘nature and circumstances’ of a crime is a proper aggravator.”

Henderson v. State, 769 N.E.2d 172, 180 (Ind. 2002). “While a trial court may not use a

factor constituting a material element of an offense as an aggravating circumstance, . . . a
                                             7
court may look to the particularized circumstances of the criminal act.” Id. See also

Morgan v. State, 975 N.E.2d 1067, 1073 (Ind. 1996) (“particularized circumstances of a

criminal act may constitute separate aggravating circumstances”). Here, the trial court,

when addressing the fact that the amount of cocaine far outweighs what statutorily

constitutes a Class A felony, referred to the particularized circumstances in this case.

This is supported by statements the trial court made in response to the parties’

disagreement over whether the weight of drugs involved may be properly considered an

aggravator. Specifically,

      I’m not sure I even have to go through all these gyrations [regarding
      whether the amount of cocaine is an appropriate aggravating factor,] given
      the fact that there’s a cap of [thirty-five years. But we are dealing with an
      amount that is over the statutory weight by a factor of a thousand and] . . .
      certainly this amount of cocaine contributes in a very large way to the
      violent crime that we have in our community right now.

(Sent. Tr. at 20.) We are not convinced that the trial court abused its discretion by

considering the nature and circumstances of this crime, including the fact that Orozco-

Mitchel was in possession of 3,000 times the amount of cocaine necessary to be charged

with a Class A felony, as an aggravator.

      As to the mitigating factors, “[t]rial courts should be ‘inherently aware of the fact

that a guilty plea is a mitigating circumstance.’” Caraway v. State, 959 N.E.2d 847, 853

(Ind. Ct. App. 2011) (quoting Francis v. State, 817 N.E.2d 235, 237 n.2 (Ind. 2004)).

However, “a guilty plea is not always a significant mitigating circumstance.”           Id.

(emphasis added). At the sentencing hearing, the trial court acknowledged Orozco-

                                            8
Mitchel’s guilty plea by stating “no doubt [Orozco-Mitchel] was . . . finessed . . . to

[admit to his wrongdoings].” (Sent. Tr. at 18.) Thus the court did not overlook this

factor.

          The trial court also considered the possibility of finding a mitigator in Orozco-

Mitchel’s age being twenty-four years, but the court ultimately declined because this was

Orozco-Mitchel’s third conviction of drug distribution. The trial court concluded, “I

don’t find any mitigators and even if there was a mitigator . . . that wouldn’t outweigh the

aggravators.” (Id. at 21.)

          Orozco-Mitchel has not demonstrated the court abused its discretion.

          2.    Inappropriate Sentencing Analysis

          Orozco-Mitchel next argues his sentence was inappropriate in light of the nature of

the offense and his character. We disagree.

          An appellate court “may revise a sentence authorized by statute if, after due

consideration of the trial court’s decision, the Court finds the sentence is inappropriate in

light of the nature of the offense and the character of the offender.” Ind. Appellate Rule

7(B). In our review, “we must and should exercise deference to a trial court’s sentencing

decision . . . .” Stewart v. State, 866 N.E.2d 858, 866 (Ind. Ct. App. 2007). “The

defendant has the burden of persuading us that his sentence is inappropriate.” King v.

State, 894 N.E.2d 265, 267 (Ind. Ct. App. 2008).

          The trial court noted Orozco-Mitchel is an illegal immigrant. Additionally, his

sentence for one of two past convictions involving “drugs, conspiracy to distribute,
                                               9
attempt at distribution or arranging to distribute a controlled substance” included

deportation, which he had violated by returning to the United States. (Sent. Tr. at 18.)

              In Samaniego-Hernandez v. State, we said: “[B]eing an
              illegal alien is itself more properly viewed as an aggravator
              than as a mitigator. See, e.g., Yemson v. United States, 764
              A.2d 816, 819 (D.C. 2001) (in sentencing a criminal
              defendant, court cannot treat defendant more harshly than any
              other citizen solely due to his national origin or alien status,
              but that does not mean that court must close its eyes to
              defendant’s illegal alien status and disregard for the law,
              including immigration laws).”

Sanchez v. State, 891 N.E.2d 174, 176 (Ind. Ct. App. 2008) (emphasis in original)

(quoting Samaniego-Hernandez v. State, 839 N.E.2d 798, 806 (Ind. Ct. App. 2005)).

       Orozco-Mitchel concedes the nature of his offense is serious and states he does not

wish to diminish that fact on appeal. The trial court also stated this offense involves an

amount of drugs that far exceeds what is required to elevate the offense to a Class A

felony and “contributes in a very large way to the violent crime that we have in our

community now.” (Sent. Tr. at 20.)

       Regarding Orozco-Mitchel’s character, we are not convinced his tenth grade

education or his immigrant status justify a more lenient sentence. Orozco-Mitchel is an

illegal immigrant who was previously deported for a crime involving drugs. His illegal

return to the United States, in violation of his probation sentence from a previous drug-

related crime, does not reflect well on his character.

       In light of the above analysis, we cannot find a thirty-five year sentence

inappropriate.
                                             10
                                    CONCLUSION

      The trial court was justified in its enhancement of Orozco-Mitchel’s presumptive

sentence, which remained in accord with the plea agreement.      Further, we are not

convinced Orozco-Mitchel’s sentence is inappropriate in light of his character and the

nature of his offense. Accordingly, we affirm.

      Affirmed.

CRONE, J., and BROWN, J., concur.




                                           11
