MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                              FILED
regarded as precedent or cited before any                                   Jan 17 2020, 10:26 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                                   ATTORNEYS FOR APPELLEE
Peter D. Todd                                            Curtis T. Hill, Jr.
Elkhart, Indiana                                         Attorney General of Indiana

                                                         Samantha M. Sumcad
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Luis H. Jaquez,                                          January 17, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-1324
        v.                                               Appeal from the Elkhart Circuit
                                                         Court
State of Indiana,                                        The Honorable Michael A.
Appellee-Plaintiff.                                      Christofeno, Judge

                                                         Trial Court Cause No.
                                                         20C01-1611-F2-23



Bradford, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1324 | January 17, 2020                     Page 1 of 5
                                          Case Summary
[1]   In August of 2016, a confidential informant purchased over 140 grams of

      methamphetamine from Luis H. Jaquez. Jaquez was subsequently charged

      with and convicted of two counts of Level 2 felony dealing in

      methamphetamine and one count of Level 5 felony corrupt business influence.

      The trial court sentenced him to an aggregate thirty-six-year sentence. Jaquez

      contends that the trial court abused its discretion in sentencing him. Because

      we conclude otherwise, we affirm.



                            Facts and Procedural History
[2]   In August 2016, local, state, and federal law enforcement officers worked with

      confidential informant CS6891 on drug interdiction cases. CS6891 completed

      numerous controlled buys, two of which involved Jaquez. On each occasion,

      law enforcement officers searched CS6891 both prior to and after the controlled

      buys, fitted him with a recording/transmitting device prior to the controlled

      buys, and provided him with necessary funds to complete the controlled buys.

      On two separate occasions, Jaquez agreed to sell CS6891 methamphetamine.

      During the first controlled buy, Jaquez sold CS6891 approximately twenty-eight

      grams of methamphetamine in exchange for $800. In the second, Jaquez sold

      CS6891 approximately 114 grams of methamphetamine in exchange for $3200.


[3]   On November 8, 2016, Jaquez was charged with two counts of Level 2 felony

      dealing in methamphetamine and one count of Level 5 felony corrupt business


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1324 | January 17, 2020   Page 2 of 5
      influence. Following trial, a jury found Jaquez guilty as charged. The trial

      court sentenced Jaquez to an aggregate thirty-six-year sentence.



                                 Discussion and Decision
[4]   Jaquez contends that the trial court abused its discretion in sentencing him.

      Sentencing decisions rest within the sound discretion of the trial court and are

      reviewed on appeal only for an abuse of discretion. Anglemyer v. State, 868

      N.E.2d 482, 490 (Ind. 2007), modified on other grounds on reh’g, 875 N.E.2d 218

      (Ind. 2007). “An abuse of discretion occurs if the decision is clearly against the

      logic and effect of the facts and circumstances before the court, or the

      reasonable, probable, and actual deductions to be drawn therefrom.” Id.

      (quotation omitted).


              We review for an abuse of discretion the court’s finding of
              aggravators and mitigators to justify a sentence, but we cannot
              review the relative weight assigned to those factors. When
              reviewing the aggravating and mitigating circumstances
              identified by the trial court in its sentencing statement, we will
              remand only if the record does not support the reasons, or the
              sentencing statement omits reasons that are clearly supported by
              the record, and advanced for consideration, or the reasons given
              are improper as a matter of law.… A single aggravating
              circumstance may be sufficient to enhance a sentence. When a
              trial court improperly applies an aggravator but other valid
              aggravating circumstances exist, a sentence enhancement may
              still be upheld. The question we must decide is whether we are
              confident the trial court would have imposed the same sentence
              even if it had not found the improper aggravator.



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1324 | January 17, 2020   Page 3 of 5
      Baumholser v. State, 62 N.E.3d 411, 416–17 (Ind. Ct. App. 2016) (internal

      citations and quotations omitted).


[5]   In challenging his sentence, Jaquez contends that the trial court abused its

      discretion in finding that he has not accepted responsibility for his actions to be

      an aggravating factor. Jaquez argues that this factor indicates that “the court

      relied on Jaquez’s assertion of his right to trial and his right to remain silent as a

      reason to give a man who had no prior criminal history the maximum possible

      sentence.” Appellant’s Br. p. 7. In support, Jaquez relies on our prior

      conclusion that “[t]o hold that the denial of guilt is an aggravating factor, in

      light of the right of a defendant to maintain his innocence through sentencing,

      and in the knowledge that the defendant is going to appeal upon the sufficiency

      of the evidence to sustain the conviction, would be unfair to the defendant.”

      Kien v. State, 782 N.E.2d 398, 413 (Ind. Ct. App. 2003), trans. denied. We agree

      that the trial court abused its discretion in finding Jaquez’s failure to take

      responsibility for his actions to be an aggravating factor. However, given the

      other aggravating factors relied on by the trial court, we cannot say that the trial

      court abused its discretion in sentencing Jaquez.


[6]   Again, when a trial court improperly applies an aggravating factor but other

      valid aggravating factors exist, an enhanced sentence may be upheld if the

      reviewing court is confident the trial court would have imposed the same

      sentence if it did not consider the improper aggravator. See Baumholser, 62

      N.E.3d at 417. We are confident that in this case the trial court would have

      imposed the same sentence even if it had not considered the challenged

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1324 | January 17, 2020   Page 4 of 5
      aggravating factor. In addition to the challenged aggravating factor, the trial

      court also found the following to be significant aggravating factors: (1) Jaquez

      delivered an amount of methamphetamine which was much greater than the

      statutory amount required for the level of the felony charged; (2) he was a major

      drug dealer who moved a major amount of methamphetamine in Elkhart

      County; and (3) he subjected the community to a level of harm, injury, or

      danger much greater than the level considered by the legislature. The trial court

      explicitly stated that any one of these factors would support an enhanced

      sentence. The trial court’s statement convinces us that the trial court would

      have imposed the same sentence had it not considered Jaquez’s alleged failure

      to accept responsibility for his actions. We therefore conclude that the trial

      court did not abuse its discretion in sentencing Jaquez.


[7]   The judgment of the trial court is affirmed.


      Robb, J., and Altice, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1324 | January 17, 2020   Page 5 of 5
