MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                              FILED
regarded as precedent or cited before any                                     Jun 26 2020, 12:19 pm

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                                   ATTORNEYS FOR APPELLEE
Jerry T. Drook                                           Curtis T. Hill, Jr.
Marion, Indiana                                          Attorney General of Indiana
                                                         Tiffany A. McCoy
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Fernando Sanchez,                                        June 26, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         20A-CR-86
        v.                                               Appeal from the Grant Superior
                                                         Court
State of Indiana,                                        The Honorable Jeffrey D. Todd,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         27D01-1301-FA-2



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A-CR-86 | June 26, 2020                            Page 1 of 8
                                STATEMENT OF THE CASE
[1]   Appellant-Defendant, Fernando Sanchez (Sanchez), appeals the trial court’s

      sentence following his guilty plea to dealing in cocaine, a Class A felony, Ind.

      Code § 35-48-4-1(b)(1).


[2]   We affirm.


                                                    ISSUE
[3]   Sanchez presents one issue on appeal, which we restate as: Whether Sanchez’s

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


                      FACTS AND PROCEDURAL HISTORY
[4]   In December 2006, Sanchez entered into a deferred adjudication in Texas,

      where he pled guilty to aggravated assault with a deadly weapon and was

      placed on community supervision for eight years. Pursuant to the terms of the

      deferred adjudication, Sanchez’s charge would be dismissed upon successful

      completion of the program. At some point during the program, Sanchez moved

      from Texas to Indiana. On February 4, 2010, a notice to show cause was

      issued by the Texas court and on March 19, 2010, Sanchez’s community

      supervision was revoked and a bench warrant for his arrest was issued.


[5]   In early January 2013, Sanchez sold an ounce of cocaine to a confidential

      informant. When officers of the Grant County Joint Effort Against Narcotics

      team arrested Sanchez following the transaction, they located two baggies that

      Court of Appeals of Indiana | Memorandum Decision 20A-CR-86 | June 26, 2020   Page 2 of 8
      contained a white substance—which later tested positive for cocaine—weighing

      at least 28 grams. Officers also determined that Sanchez was driving with a

      false license plate. After he was taken into custody, he refused to give officers

      any identifying information. Eventually, a search warrant was obtained for

      Sanchez’s apartment, where officers recovered approximately 42.5 grams of

      cocaine and 429.15 grams of marijuana.


[6]   On January 15, 2013, the State filed an Information, charging Sanchez with

      two Counts of dealing in cocaine, Class A felonies, and one Count of

      possession of marijuana, a Class D felony. A month later, on February 12,

      2013, Sanchez was released on bond and permitted to travel out of state to San

      Marcos to visit his mother in a hospital. On September 18, 2014, Sanchez

      entered into a plea agreement with the State, in which he agreed to plead guilty

      to one Count of dealing in cocaine, a Class A felony. As part of the plea

      agreement, Sanchez consented to waive his right to appeal the sentence

      imposed by the trial court. On November 12, 2014, Sanchez filed a motion to

      withdraw his plea agreement, alleging that he did not enter into the plea

      knowingly and voluntarily because he “was unaware of a non-suspendable 20-

      year prison sentence for a prior felony conviction, [and] [h]e had a prior felony

      conviction in Texas that he thought had been dismissed.” (Appellant’s App.

      Vol. II, p. 24). The trial court granted Sanchez’s motion and set the matter for

      trial for February 2, 2015. However, prior to trial, on January 27, 2015, a

      modified plea agreement was filed in which Sanchez pled guilty to one Count

      of dealing in cocaine as a Class A felony but which omitted the waiver


      Court of Appeals of Indiana | Memorandum Decision 20A-CR-86 | June 26, 2020   Page 3 of 8
      provision regarding sentencing. The trial court set the matter for sentencing on

      April 10, 2015.


[7]   On March 13, 2015, a capias warrant from Texas was executed and Sanchez’s

      participation in the deferred adjudication program was revoked, which resulted

      in Sanchez being ordered to serve a six-year sentence in the Texas cause. As a

      result of his incarceration in Texas, Sanchez failed to appear for sentencing in

      the current cause in Indiana and a warrant was issued for his arrest.


[8]   Sanchez was released from prison in Texas on April 12, 2019, and the arrest

      warrant in the instant cause was executed four days later. On May 9, 2019,

      Sanchez filed another motion to withdraw his guilty plea alleging that he would

      not have pled guilty if he had been aware that his felony in Texas would not be

      converted to a misdemeanor, as a felony would increase his executed sentence

      in the current Indiana cause. The trial court denied his motion, concluding that

      while the crime was committed in 2005, Sanchez’s conviction and sentence did

      not commence until April 30, 2015, and therefore his conviction did not qualify

      as a prior unrelated felony.


[9]   On September 24, 2019, the trial court conducted a sentencing hearing. At

      sentencing, Sanchez testified that he possessed and sold the drugs under duress

      because he had received notice that the Mexican drug cartel was watching his

      family in Mexico. At the close of the evidence, the trial court identified the

      following aggravating circumstances: (1) Sanchez violated the terms of his

      deferred adjudication in Texas; (2) his criminal history; and (3) a sentence less


      Court of Appeals of Indiana | Memorandum Decision 20A-CR-86 | June 26, 2020   Page 4 of 8
       than the advisory would depreciate the seriousness of the crime. As mitigating

       circumstances, the trial court found: (1) Sanchez pled guilty without the benefit

       of a sentencing agreement; (2) he was remorseful; and (3) a long period of

       incarceration would result in undue hardship to his minor children. Finding

       that the mitigating factors outweighed the aggravating circumstances, the trial

       court sentenced Sanchez to twelve years, with two years suspended to

       probation. The trial court ordered the sentence to run consecutively to the

       sentence received in Texas. On September 26, 2019, the trial court corrected its

       imposed sentence due to the sentencing guidelines in place at the time the crime

       was committed and imposed a twenty-year sentence with ten years suspended

       to probation.


[10]   Sanchez now appeals. Additional facts will be provided if necessary.


                               DISCUSSION AND DECISION
[11]   Sanchez requests that we independently review the appropriateness of his

       sentence. 1 “Even when a trial court imposes a sentence within its discretion,

       the Indiana Constitution authorizes independent appellate review and revision

       of this sentencing decision.” Hoak v. State, 113 N.E.3d 1209, 1209 (Ind. 2019).




       1 In his appellate brief, Sanchez also addresses the trial court’s imposition of consecutive
       sentences and credit time calculation. However, as Sanchez notes that “the Indiana court
       could not order the Indiana sentence to be served concurrently with the Texas sentence, nor
       could the Indiana court give Sanchez credit time towards his Indiana sentence for the time he
       spent incarcerated in Texas before he was sentenced in Indiana,” he appears to concede the
       argument and therefore we will not review it. (Sanchez Br. p. 15).


       Court of Appeals of Indiana | Memorandum Decision 20A-CR-86 | June 26, 2020         Page 5 of 8
       Thus, we may alter a sentence 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. Id. The principal role of such review

       is to attempt to leaven the outliers. Cardwell v. State, 895 N.E.2d 1219, 1225

       (Ind. 2008). The defendant bears the burden to persuade the reviewing court

       that the sentence imposed is inappropriate. Robinson v. State, 91 N.E.3d 574,

       577 (Ind. 2018).


[12]   At the time Sanchez pled guilty to Class A felony dealing in cocaine, the

       sentencing range was twenty to fifty years, with an advisory sentence of thirty

       years. I.C. § 35-50-2-4. The trial court sentenced Sanchez to the minimum

       sentence allowed pursuant to the statute—twenty years—with ten years

       suspended to probation.


[13]   With respect to the nature of the crime, we do not turn a blind eye to “facts of

       the incident that brought the defendant before” us or the “nature and

       circumstances of the crime as well as the manner in which the crime is

       committed.” Bethea v. State, 893 N.E.2d 1134, 1145 (Ind. 2013). Here, Sanchez

       possessed approximately 28.08 grams of cocaine, which is nine times more than

       what is required under the statute for a Class A felony. Additionally, in his

       apartment, officers recovered an additional 42.5 grams of cocaine and 429.15

       grams of marijuana. During these proceedings, Sanchez’s explanation for his

       dealings was inconsistent. At sentencing, Sanchez testified that he was placed

       under duress by the Mexican drug cartel who threatened to harm his family.

       During his PSI investigation, Sanchez stated that he was “trying to hire a

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-86 | June 26, 2020   Page 6 of 8
       Coyote to transport his sister out of Mexico” but instead of bringing his sister to

       Indiana, they told Sanchez “he had to do a job for them or they would hold his

       sister.” (Appellant’s App. Vol. II, p. 58). Sanchez’s statements are nothing

       more than inconsistent, self-serving statements that are otherwise unsupported

       by the record and which the trial court was not obligated to believe. See

       Fitzgerald v. State, 26 N.E.3d 105, 110 (Ind. Ct. App. 2015).


[14]   Likewise, Sanchez’s character does not warrant a downward revision of his

       sentence. A defendant’s willingness to continue committing crimes is relevant

       for analysis of his character under Appellate Rule 7(B). Garcia v. State, 47 N.E.

       3d 1249, 1251 (Ind. Ct. App. 2015), trans. denied. Independent of the present

       conviction, Sanchez has one felony conviction for aggravated assault with a

       deadly weapon in Texas, and one misdemeanor conviction for operating a

       motor vehicle without a license in Indiana. Sanchez violated his deferred

       adjudication in Texas when he moved to Indiana.


[15]   Sanchez argues that his good character is shown by his good behavior while out

       on bond, his trip to Texas to address his pending matter, his gainful

       employment, and his support for his family and children. However, the record

       reflects that Sanchez avoided the petition to revoke in Texas for years by

       moving to Indiana and only returned to Texas when he was arrested and

       charged with the instant crime. Similarly, Sanchez’s employment does not

       warrant a revision of his sentence. Many people are gainfully employed such

       that this would not require employment being noted as something unusual or be

       afforded more weight. See Newsome v. State, 797 N.E.2d 293, 301 (Ind. Ct. App.

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-86 | June 26, 2020   Page 7 of 8
       2003) (where we evaluated employment as a mitigating factor). Moreover, the

       trial court already took Sanchez’s support of his family in consideration when

       finding that a long period of incarceration would result in undue hardship to

       Sanchez’s minor children. Although Sanchez pled guilty, he received a

       significant benefit by pleading guilty to only one of three Counts. Even though

       the trial court noted he expressed remorse, Sanchez does not appear to accept

       responsibility for his criminal actions and has not only blamed others for his

       current offense, but also blamed the officer conducting the PSI investigation for

       his troubles in Texas. Therefore, in light of the facts before us, we conclude that

       trial court’s imposed sentence is not inappropriate.


                                             CONCLUSION
[16]   Based on the foregoing, we hold that Sanchez’s sentence is not inappropriate in

       light of the offense and his character.


[17]   Affirmed.


[18]   Mathias, J. and Tavitas, J. concur




       Court of Appeals of Indiana | Memorandum Decision 20A-CR-86 | June 26, 2020   Page 8 of 8
