MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                           FILED
Memorandum Decision shall not be
                                                                  Jan 11 2017, 6:43 am
regarded as precedent or cited before any
court except for the purpose of establishing                          CLERK
                                                                  Indiana Supreme Court
                                                                     Court of Appeals
the defense of res judicata, collateral                                and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Stanley L. Campbell                                      Curtis T. Hill, Jr.
Fort Wayne, Indiana                                      Attorney General of Indiana
                                                         Larry D. Allen
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana
                                                         LaTonja Anderson
                                                         Graduate Law Clerk
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Fernando J. Alvarez, Jr.,                                January 11, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         02A04-1608-CR-1766
        v.                                               Appeal from the Allen Superior
                                                         Court
State of Indiana,
                                                         The Honorable Wendy W. Davis,
Appellee-Plaintiff.                                      Judge

                                                         Trial Court Cause No.
                                                         02D04-1603-F6-283



Brown, Judge.


Court of Appeals of Indiana | Memorandum Decision 02A04-1608-CR-1766 | January 11, 2017   Page 1 of 9
[1]   Fernando Alvarez, Jr., appeals his sentence for invasion of privacy as a level 6

      felony. Alvarez raises one issue which we restate as whether his sentence is

      inappropriate in light of the nature of the offense and the character of the

      offender. We affirm.


                                        Facts and Procedural History

[2]   Between December 20, 2015, and January 6, 2016, Alvarez knowingly or

      intentionally violated a no contact order issued in cause number 02D06-1507-

      F6-581 (“Cause No. 581”) in the Allen Superior Court as a condition of pretrial

      release, and at the time he had a prior unrelated conviction for invasion of

      privacy in September 2012. 1 On May 24, 2016, he pled guilty to two counts of

      invasion of privacy as level 6 felonies.


[3]   On July 7, 2016, the court held a sentencing hearing at which it observed that a

      probable cause affidavit was attached to the presentence investigation report

      (“PSI”) which outlines the facts and circumstances of the offense to which

      Alvarez pled guilty and asked if the facts and circumstances were true and

      correct, and he responded affirmatively. The probable cause affidavit states

      that, between December 20, 2015 and January 6, 2016, Alvarez contacted K.P.

      via telephone from the Allen County Jail despite an active no contact order,

      that he was prevented from contacting her because of criminal activity wherein

      she was the victim, that he contacted her through the jail telephone system



      1
       According to the presentence investigation report, Alvarez was charged in Cause No. 581 with residential
      entry and invasion of privacy as level 6 felonies and battery and criminal mischief as class B misdemeanors.

      Court of Appeals of Indiana | Memorandum Decision 02A04-1608-CR-1766 | January 11, 2017            Page 2 of 9
      using his phone privileges along with other inmate phone privileges, that he

      made at least seventy-eight phone calls to her with thirty-seven coming directly

      from his inmate phone account, that he identified himself as “Fernando” while

      making these calls, and that calls were placed to K.P. from four different inmate

      phone accounts. The affidavit further states that several phone calls directly

      related to Alvarez’s criminal trial, that Alvarez contacted K.P. six times the day

      before the trial and four times after the first day of the trial, that he discussed his

      trial with her and outlined a defense, and that he told her how her testimony

      may have hurt him and instructed her to take the stand a second time and to say

      she believed the no contact order had been dropped.


[4]   Alvarez’s counsel noted that Alvarez “pled guilty straight up on this case,”

      requested the court to place him on house arrest, asked it to consider his

      acceptance of responsibility and acknowledgment of having made the phone

      calls even before the case was filed, that he obtained his GED in 2007, and that

      the PSI shows that he always had a job, and argued that people make decisions

      how to live their lives and that Alvarez and K.P. have made a decision and are

      “going to be together whenever that day comes.” Sentencing Transcript at 8,

      11. The State argued that the facts and circumstances are egregious, that

      Alvarez “chose to call her that night while in trial,” that the invasion of privacy

      conviction in 2012 related to a different victim, that all prior attempts of

      rehabilitation have failed and he has had his probation revoked, and that it

      viewed the acceptance of responsibility more as an acceptance of reality and

      that the call could not be denied, and the State objected to Alvarez serving his


      Court of Appeals of Indiana | Memorandum Decision 02A04-1608-CR-1766 | January 11, 2017   Page 3 of 9
      sentence on home detention. Id. at 12. Alvarez stated that he knew it was

      wrong to call K.P. when there was a no contact order in place and that he was

      scared and worried of doing time and missing his children and being alone, and

      he apologized to the court and the State and thanked his counsel.


[5]   The court stated that Alvarez had “complete disdain for this entire system” and

      that, in six years, it had “not seen one individual defy me not only inside my

      courtroom but also outside my courtroom.” Sentencing Transcript at 16-17.

      The court found his guilty plea to be a mitigating circumstance and noted that it

      agreed with the State that he pled guilty “because it’s on tape.” Id. at 17. It

      further noted that it observed “an absolute pattern of the same offenses over and

      over and over” and found the facts and circumstances in the case to be

      aggravating. Id. It stated that he continued to show disdain for the court by

      reaching out of the jail to the victim against the court’s order to attempt to have

      her lie under oath, that all attempts at rehabilitation have failed, and that he had

      been to classes and had been given probation. The court found Alvarez’s

      criminal history to be extremely aggravating, noting that he was twenty-seven

      years old and had twelve misdemeanor convictions and five felony convictions,

      including convictions for battery, domestic battery, and invasion of privacy. It

      merged the second count of invasion of privacy with the first count and

      sentenced him to two and one-half years.


                                                  Discussion

[6]   The issue is whether Alvarez’s sentence is inappropriate in light of the nature of

      the offense and his character. Ind. Appellate Rule 7(B) provides that we “may
      Court of Appeals of Indiana | Memorandum Decision 02A04-1608-CR-1766 | January 11, 2017   Page 4 of 9
      revise a sentence authorized by statute 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.” Under this rule, the

      burden is on the defendant to persuade the appellate court that his or her

      sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).

      Relief is available if, after due consideration of the trial court’s sentencing

      decision, this Court finds that in its independent judgment, the sentence is

      inappropriate in light of the nature of the offense and the character of the

      offender. See Hines v. State, 30 N.E.3d 1216, 1225 (Ind. 2015). Sentencing is

      principally a discretionary function in which the trial court’s judgment should

      receive considerable deference. Id. (citation omitted). Whether we regard a

      sentence as appropriate at the end of the day turns on our sense of 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. Id. (citation

      omitted).


[7]   Alvarez contends his sentence was inappropriate and that “[i]t could be argued

      that any discussion between [he and K.P.] concerning testimony at trial would

      have been in violation of the Court’s separation Order” but that he “was not

      charged with Obstruction of Justice, nor Contempt, nor anything to do with the

      trial orders of the Court, or trying to influence [her] testimony” and that “[t]he

      substance of what they talked about was irrelevant to the charge.” Appellant’s

      Brief at 9-10. He asserts “[t]his is not a case in which [he] sought out the

      subject of the Protective Order to harass, intimidate, or otherwise harm her”


      Court of Appeals of Indiana | Memorandum Decision 02A04-1608-CR-1766 | January 11, 2017   Page 5 of 9
      and “[i]t is a case in which the two of them (with history of a long-standing

      relationship) talked by phone in violation of the Protective Orders.” Id. at 10.

      He also argues he graduated from high school, had been continuously

      employed from March 2015 until his incarceration, that he accepted

      responsibility by acknowledging the phone calls even before the case was filed,

      that one of his previous convictions for invasion of privacy involved “a

      situation where [he] went to the residence where [K.P.] was living during a time

      when they were briefly separated,” and another of his convictions for invasion

      of privacy “involved the two (2) of them being together in a car and him

      attempting to hide from the police under a blanket.” Id. at 11. He maintains

      that an appropriate sentence would have been one year.


[8]   The State maintains that Alvarez cannot show his sentence is appropriate, that

      he called K.P. at least seventy-eight times using his own and four other inmates’

      jail phone accounts, that in some calls he instructed her to testify again and lie

      about knowing that there was a no contact order in place, and that his actions

      show he was fully aware of the fact that he was not permitted to contact her,

      ignored this fact, and did so to impact the outcome of a then pending case

      involving her. The State also argues Alvarez was twenty-seven years old when

      he committed the offense, that his criminal record includes five felony and

      twelve misdemeanor convictions, and that he has been convicted of invasion of

      privacy three times.


[9]   With respect to the nature of the offense, the record reveals that Alvarez

      knowingly or intentionally violated a no contact order issued as a condition of

      Court of Appeals of Indiana | Memorandum Decision 02A04-1608-CR-1766 | January 11, 2017   Page 6 of 9
       pretrial release while having a prior unrelated conviction for invasion of privacy

       in September 2012. He was ordered not to contact K.P. because of criminal

       activity wherein she was the victim, and he nevertheless contacted her using the

       jail telephone system at least seventy-eight times using his own and other

       inmates’ phone privileges. Several of the calls related to his criminal trial, six

       calls occurred the day before the trial, and four calls occurred after the first day

       of the trial. He outlined a defense and instructed her to take the stand a second

       time and to say that she believed the no contact order had been dropped.


[10]   With respect to the character of the offender, we observe that Alvarez pled

       guilty without a plea agreement. The presentence investigation report (“PSI”)

       indicates that his juvenile history consists of adjudications for disorderly

       conduct as a class B misdemeanor if committed by an adult in 2004 and

       receiving stolen auto parts as a class D felony if committed by an adult in 2006,

       for which he was unsuccessfully discharged from probation. His adult history

       consists of convictions for leaving the scene of an accident as a misdemeanor in

       May 2008; domestic battery as a misdemeanor in July 2008 for which his

       suspended sentence of 365 days was later revoked and he was ordered to serve a

       sixty-day sentence; minor in possession of alcohol, battery, criminal trespass,

       and criminal mischief as misdemeanors in 2009; furnishing alcohol to a minor

       as a misdemeanor in 2010; residential entry and receiving stolen auto parts as

       class D felonies in 2011, for which his suspended sentence was later revoked;

       unauthorized entry of a motor vehicle as a misdemeanor in August 2012;

       invasion of privacy as a misdemeanor in September 2012; conversion and false


       Court of Appeals of Indiana | Memorandum Decision 02A04-1608-CR-1766 | January 11, 2017   Page 7 of 9
       informing as misdemeanors in 2014; residential entry and invasion of privacy as

       level 6 felonies and criminal mischief as a class B misdemeanor under Cause

       No. 581 in February 2016; and invasion of privacy as a level 6 felony in March

       2016.


[11]   The PSI further indicates that Alvarez reported having four dependent children

       who reside with their mother, A.M., that he is court ordered to pay child

       support and is unsure the amount he owes in arrearages, and that he and K.P.

       were expecting a child. The PSI indicates that Alvarez obtained his GED in

       2007 and was employed from March 2015 through his present incarceration.

       He reported that he first used marijuana at twelve years of age, that his rate of

       consumption increased to using daily when he was fifteen years old, and that

       this rate stayed the same until his present incarceration. The PSI further states

       that, when asked about his feelings toward the present offense, Alvarez

       reported: “Bogus. I understand it’s wrong because of the no contact order, but I

       really feel it’s not fair.” Appellant’s Appendix, Volume II (Confidential), at 22.

       The PSI also indicates that his overall risk assessment score using the Indiana

       risk assessment system places him in the very high risk to reoffend category.


[12]   After due consideration, we conclude Alvarez has not met his burden of

       establishing that his sentence is inappropriate in light of the nature of the

       offense and his character.




       Court of Appeals of Indiana | Memorandum Decision 02A04-1608-CR-1766 | January 11, 2017   Page 8 of 9
                                                   Conclusion

[13]   For the foregoing reasons, we affirm Alvarez’s sentence for invasion of privacy

       as a level 6 felony.


[14]   Affirmed.


       Vaidik, C.J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 02A04-1608-CR-1766 | January 11, 2017   Page 9 of 9
