MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                         FILED
regarded as precedent or cited before any                           Jan 23 2020, 10:33 am

court except for the purpose of establishing                             CLERK
                                                                     Indiana Supreme Court
the defense of res judicata, collateral                                 Court of Appeals
                                                                          and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Ruth Johnson                                             Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         Josiah Swinney
                                                         Deputy Attorney General
                                                         Matthew J. Goldsmith
                                                         Certified Legal Intern
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Raul Ramirez,                                            January 23, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-1640
        v.                                               Appeal from the Greene Superior
                                                         Court
State of Indiana,                                        The Honorable Dena Martin,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         28D01-1807-F4-8



Tavitas, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1640 | January 23, 2020             Page 1 of 7
                                               Case Summary

[1]   Raul Ramirez appeals his sentence, received pursuant to his guilty plea, for

      operating a vehicle with an alcohol concentration equivalent (“ACE”) of at

      least .15 gram of alcohol causing death, a Level 4 felony, and two counts of

      operating a vehicle with ACE of at least .08 gram of alcohol causing serious

      bodily injury, Level 6 felonies. We affirm.


                                                      Issue

[2]   Ramirez raises a single issue, which we restate as whether the trial court abused

      its discretion in using a material element of the offense as an aggravating factor.


                                                      Facts

[3]   On May 18, 2018, Ramirez was driving a vehicle that crashed into a vehicle

      driven by Jeremiah Murphy with passengers Kayla Faubion and S.M.,

      Murphy’s and Faubion’s four-year-old daughter. Murphy lost his life as a result

      of the crash. Faubion and S.M. suffered severe injuries, and S.M. was later

      airlifted to Riley Children’s Hospital due to the severity of her injuries.

      Ramirez’s first blood sample, provided approximately two hours after the crash,

      indicated an ACE of .205 gram per 100ml of blood.


[4]   Ramirez was charged with Count I, operating a vehicle with an ACE of at least

      .15 gram of alcohol causing death, a Level 4 felony; Count II, operating a

      vehicle with an ACE of at least .08 gram of alcohol causing death with a

      previous conviction of operating a vehicle while intoxicated within the ten years

      preceding the offense, a Level 4 felony; Counts III and IV, operating a vehicle

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1640 | January 23, 2020   Page 2 of 7
      with an ACE of at least .08 gram of alcohol causing serious bodily injury,

      Level 6 felonies; Count V, auto theft, a Level 6 felony; and Count VI, operating

      a motor vehicle having never received a license with a prior conviction for the

      same offense, a Class A misdemeanor.


[5]   On May 20, 2019, Ramirez, pursuant to a plea agreement, pleaded guilty to

      Counts I, III, and IV. The State dismissed Counts II, V, and VI; sentencing was

      left to the discretion of the trial court. While released from jail on his own

      recognizance due to medical needs as a result of the crash, Ramirez tested

      positive for drinking alcohol in violation of the trial court’s order, and

      Ramirez’s bond was revoked.


[6]   The trial court held a sentencing hearing on June 17, 2019. After presentation

      of the evidence, the trial court’s oral sentencing statement included, in relevant

      part:


              Also, the harm, injury, loss, or damage suffered by those in this,
              from this offense was significant and greater than that required to
              satisfy the elements of this offense. You have a small child that’s
              lost their eyesight. You had a young lady that had multiple
              fractures. And Mr. Murphy lost his life and I understand that
              Count 1 that is one of the elements that Mr. Murphy died as a
              result of that, but this was a horrific crash, brought about by your
              consumption of alcohol and then operating a motor vehicle.


      Tr. Vol. II pp. 42-43.


[7]   In its written sentencing order, the trial court found as aggravating factors:



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1640 | January 23, 2020   Page 3 of 7
            • The harm, injury, loss or damage suffered by the victims of
              the offense was significant and greater than the elements
              necessary to prove the commission of the offenses. [S.M.]
              suffered a fractured skull and is now almost blind in one
              eye. Kayla Faubion suffered multiple fractured bones [in]
              the crash.


            • The Victim of the offense was less than 12 years of age or
              at least 65 years of age at the time the person committed
              the offense. [S.M.] was only 4 years old.


            • The person has recently violated the conditions of
              probation, parole, community corrections placement, or
              pretrial release granted to the person. The Defendant
              violated the court’s order for pretrial release in that he was
              not to consume any alcoholic beverages but he tested
              positive for alcohol while out on bond. The Defendant
              has also violated conditions of probation numerous times
              during his extensive criminal career.


            • The Defendant has an extensive history of criminal and
              delinquent behavior. The Defendant has among his many
              convictions, 7 convictions for operating while intoxicated
              and 2 findings of delinquency for operating while
              intoxicated. The Defendant has a total of 26 adjudications
              and convictions and continues to violate the law and
              orders of the court.


Appellant’s App. Vol. II pp. 17-18. The trial court found as mitigating factors:

(1) Ramirez’s remorse; (2) Ramirez’s family support and difficult childhood;

and (3) Ramirez accepted responsibility and pleaded guilty.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1640 | January 23, 2020   Page 4 of 7
[8]    Ramirez was sentenced on Count I to the maximum 1 of twelve years in the

       Indiana Department of Correction (“DOC”); and on Counts III and IV, to the

       maximum 2 of two and one-half years each. The sentences were ordered to run

       consecutively for an aggregate sentence of seventeen years in the DOC.

       Ramirez now appeals his sentence.


                                                       Analysis

[9]    Ramirez argues that the trial court abused its discretion by improperly using a

       material element of the offense as an aggravating factor. Sentencing decisions

       rest within the sound discretion of the trial court. McElfresh v. State, 51 N.E.3d

       103, 107 (Ind. 2016). As long as the sentence is within the statutory range, it is

       subject to review only for an abuse of discretion. Id. An abuse of discretion

       occurs where the decision is clearly against the logic and effect of the facts

       before the court or the reasonable, probable, and actual deductions to be drawn

       therefrom. Id.


[10]   A trial court may abuse its discretion in a number of ways, including: (1) failing

       to enter a sentencing statement at all; (2) entering a sentencing statement that

       includes aggravating and mitigating factors that are unsupported by the record;

       (3) entering a sentencing statement that omits reasons that are clearly supported




       1
         The sentencing range for a Level 4 felony is between two and twelve years, with the advisory sentence being
       six years. See Ind. Code § 35-50-2-5.5.
       2
        The sentencing range for a Level 6 felony is between six months and two and one-half years, with the
       advisory sentencing being one year. See Ind. Code § 35-50-2-7.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1640 | January 23, 2020                  Page 5 of 7
       by the record; or (4) entering a sentencing statement that includes reasons that

       are improper as a matter of law. Id. (citing Anglemyer v. State, 868 N.E.2d 482,

       490-91 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007)).


[11]   As to aggravating factors specifically, a single aggravating circumstance may

       support the imposition of an enhanced sentence. Lewis v. State, 31 N.E.3d 539,

       543 (Ind. Ct. App. 2015). If a trial court abuses its discretion by improperly

       considering an aggravating circumstance, we remand for resentencing only “if

       we cannot say with confidence that the trial court would have imposed the

       same sentence had it properly considered reasons that enjoy support in the

       record.” Anglemyer, 868 N.E.2d at 491.


[12]   Ramirez argues that the trial court improperly considered Murphy’s death—an

       element of Count I—as an aggravating factor. First, we disagree with Ramirez

       that the trial court considered Murphy’s death as an aggravating factor while

       sentencing him. Although the trial court’s oral sentencing statement discusses

       Murphy’s death, in context, it appears the trial court was aware it could not

       consider the death an aggravating factor by its statement that it understood that

       the death “is one of the elements. . . .” Tr. Vol. II p. 43. Moreover, the trial

       court’s written sentencing statement clearly omits Murphy’s death as an

       aggravating factor.


[13]   Regardless, even without this factor, we can confidently say the trial court

       would have imposed the same sentence. In issuing its oral sentencing

       statement, the trial court stated that “the greatest aggravating factor” when it


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1640 | January 23, 2020   Page 6 of 7
       came to Ramirez’s sentence was his “atrocious” criminal history. Id. at 43.

       Ramirez’s pre-sentence investigation report (“PSI”) indicates that Ramirez has

       at least twenty-six adjudications or convictions, including two adjudications as

       a delinquent for operating a vehicle while intoxicated, and, excluding the

       instant offenses, seven convictions for operating a vehicle while intoxicated. 3


[14]   While this single aggravating factor would support Ramirez’s sentence, this

       aggravating factor in addition to the others—extensive harm to S.M. and

       Faubion, the age of one of the victims, and Ramirez’s violation of pre-trial

       release conditions—support the trial court’s imposition of an enhanced

       sentence. Ramirez has failed to demonstrate that the trial court abused its

       discretion in sentencing.


                                                     Conclusion

[15]   The trial court did not abuse its discretion in sentencing Ramirez. We affirm.


[16]   Affirmed.


       Najam, J., and Vaidik, J., concur.




       3
           Most of Ramirez’s criminal offenses were committed in Ohio.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1640 | January 23, 2020   Page 7 of 7
