MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                     FILED
this Memorandum Decision shall not be                                 Sep 21 2018, 5:49 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Danielle L. Gregory                                      Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         Ian McLean
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Mauricio Palomino,                                       September 21, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-324
        v.                                               Appeal from the Decatur Superior
                                                         Court
State of Indiana,                                        The Honorable Matthew D.
Appellee-Plaintiff.                                      Bailey, Judge
                                                         Trial Court Cause No.
                                                         16D01-1610-F1-898



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-324 | September 21, 2018              Page 1 of 5
                                          Case Summary
[1]   Mauricio Palomino (“Palomino”) challenges his forty-year sentence imposed

      upon his plea of guilty to one count of Child Molesting, as a Level 1 felony. 1

      He presents the sole issue of whether his sentence is inappropriate. We affirm.



                                Facts and Procedural History
[2]   In 2014 and 2015, Palomino lived in Westport, Indiana with his boyfriend, his

      boyfriend’s former wife, and her son, L.T.W. Palomino provided child care for

      L.T.W. on a regular basis. In late 2016, L.T.W. reported to his mother that

      Palomino had touched him inappropriately.


[3]   L.T.W. alleged that Palomino had forced L.T.W. to anally penetrate Palomino,

      had fondled L.T.W., and had compelled L.T.W. to submit to fellatio. On

      October 21, 2016, Palomino was charged with a single count of child molesting.

      On December 20, 2017, Palomino pled guilty pursuant to a plea agreement that

      capped his sentence at forty years, with the executed portion not to exceed

      thirty-five years. Palomino was free to argue for a lesser sentence. Palomino

      admitted that he had “knowingly or potentially [sic] performed or submitted to

      sexual intercourse or other sexual conduct with [L.T.W.],” who had been born

      in 2005. (Tr. at 26.)




      1
          Ind. Code § 35-42-4-3(a)(1).


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-324 | September 21, 2018   Page 2 of 5
[4]   The trial court conducted a sentencing hearing on January 23, 2018. As

      aggravating circumstances, the trial court found that Palomino was in a

      position of trust as to L.T.W., L.T.W. was less than twelve years old, and

      L.T.W. had suffered harm. As mitigating circumstances, the trial court found

      that Palomino pled guilty and accepted responsibility, he lacked a criminal

      history, he confessed early and was cooperative with law enforcement, he

      expressed remorse, and he had suffered sexual abuse as a child. The trial court

      imposed upon Palomino a sentence of forty years, with five years suspended to

      supervised probation. Palomino appeals.



                                 Discussion and Decision
[5]   Pursuant to Indiana Code Section 35-50-2-4, a person who commits Level 1

      felony child molesting by committing an act defined in Indiana Code Section

      35-31.5-2-72(1) or (2) is subject to a sentencing range of twenty years to fifty

      years, with an advisory sentence of thirty years.


[6]   Under Indiana Appellate Rule 7(B), this “Court may revise a sentence

      authorized by statute if, after due consideration of the trial court’s decision, the

      Court finds that the sentence is inappropriate in light of the nature of the offense

      and the character of the offender.” In performing our review, we assess “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 v.

      State, 895 N.E.2d 1219, 1224 (Ind. 2008). The principal role of such review is

      to attempt to leaven the outliers. Id. at 1225. The “considerable deference”

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-324 | September 21, 2018   Page 3 of 5
      given to the trial court’s sentencing judgment “should prevail unless overcome

      by compelling evidence portraying in a positive light the nature of the offense

      (such as accompanied by restraint, regard, and lack of brutality) and the

      defendant’s character (such as substantial virtuous traits or persistent examples

      of good character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015) (citing

      Cardwell, 895 N.E.2d at 1222).


[7]   As for the nature of the offense, Palomino violated a position of trust he had

      been given as L.T.W.’s child care provider. He molested L.T.W. on multiple

      occasions and procured L.T.W.’s lengthy silence by warning L.T.W. not to tell

      his parents and promising that each instance would be the last.


[8]   As to the character of the offender, Palomino pled guilty and was cooperative

      with law enforcement. However, he received a substantial benefit from his

      guilty plea, as the executed portion of his sentence was capped at thirty-five

      years. To the extent that Palomino argues that the trial court “minimized the

      significance of his guilty plea,” Appellant’s Brief at 14, and suggests reweighing,

      we cannot provide the requested relief. The weight given to the trial court’s

      reasons for imposing a sentence is not subject to appellate review. Anglemyer v.

      State, 868 N.E.2d 482, 491 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218.

      Palomino did not have a formal criminal history. However, he had not

      remained a law-abiding citizen up until the current offense. He had used

      methamphetamine and marijuana.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-324 | September 21, 2018   Page 4 of 5
[9]    Having reviewed the matter, we conclude that the trial court did not impose an

       inappropriate sentence under Appellate Rule 7(B), and the sentence does not

       warrant appellate revision. Accordingly, we decline to disturb the sentence

       imposed by the trial court.



                                               Conclusion
[10]   The sentence imposed upon Palomino is not inappropriate.


[11]   Affirmed.


       Mathias, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-324 | September 21, 2018   Page 5 of 5
