MEMORANDUM DECISION                                                                    FILED
                                                                                 09/15/2017, 10:42 am
Pursuant to Ind. Appellate Rule 65(D),
                                                                                       CLERK
this Memorandum Decision shall not be                                              Indiana Supreme Court
                                                                                      Court of Appeals
regarded as precedent or cited before any                                               and Tax Court

court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Leanna Weissmann                                         Curtis T. Hill, Jr.
Lawrenceburg, Indiana                                    Attorney General of Indiana

                                                         Henry Flores, Jr.
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Kurt Muzquiz,                                            September 15, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         69A04-1703-CR-457
        v.                                               Appeal from the Ripley Circuit
                                                         Court
State of Indiana,                                        The Honorable Ryan J. King,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         69C01-1601-F5-2



Barnes, Judge.




Court of Appeals of Indiana | Memorandum Decision 69A04-1703-CR-457 | September 15, 2017         Page 1 of 7
                                             Case Summary
[1]   Kurt Muzquiz appeals his sentence after he pled guilty to Level 5 felony corrupt

      business influence and being an habitual offender. We affirm.


                                                     Issue
[2]   The sole issue Muzquiz raises is whether his ten-year sentence is inappropriate

      in light of the nature of the offense and his character.


                                                     Facts
[3]   In February of 2015, Muzquiz opened a banking account and made a single

      five-dollar deposit. The account subsequently was closed. After the account

      was closed, Muzquiz used the account to write unfunded checks. Specifically,

      on June 30, 2015, Muzquiz wrote an invalid check to Truck Country of

      Indianapolis, Stoops Freightliner, for a 2015 Freightliner cargo van valued at

      $44,940.00. On July 8, 2015, Musquiz wrote an invalid check to Plainfield

      Auto Sales for a 2003 Hummer H2 valued at $17,256.16. On July 13, 2015,

      Muzquiz wrote an invalid check to I-69 Trailer Center for an enclosed trailer

      valued at $10,732.10. The next day, Muzquiz wrote invalid checks to Quality

      Auto Mart for two golf carts for a combined value of $7,490.00 and to

      Tommy’s Diesel Shop for services valued at $700.00.


[4]   On January 6, 2016, the State charged Muzquiz with corrupt business influence

      as a Level 5 felony, fraud on a financial institution as a Level 5 felony, check

      fraud as a Level 6 felony, and theft as a Level 6 felony. Additionally, the State

      alleged that Muzquiz was an habitual offender. One day before his jury trial,
      Court of Appeals of Indiana | Memorandum Decision 69A04-1703-CR-457 | September 15, 2017   Page 2 of 7
      Muzquiz accepted a plea agreement and pled guilty to corrupt business

      influence as a Level 5 felony and to being an habitual offender. All other

      counts were dismissed. The plea agreement set the maximum sentence for the

      corrupt business influence conviction at five years and the habitual offender

      enhancement at five years, with a maximum aggregate sentence exposure of ten

      years. The trial court accepted the plea agreement and sentenced Muzquiz to

      five years for the felony conviction and enhanced the sentence by five years for

      an aggregate term of ten years executed in the Department of Correction.

      Muzquiz now appeals.


                                                  Analysis
[5]   Muzquiz argues that his ten-year sentence is inappropriate in light of the nature

      of the offense and his character. According to Muzquiz, he should be

      “resentence[e]d to no more than three years imprisonment” because his “crime

      caused no personal injury [or] large pecuniary losses.” Appellant’s Br. pp. 8,

      10. Regarding his character, Muzquiz emphasizes that he has a daughter with

      special needs; he “battles mental illness” – specifically, ADHD, manic

      depression, and bipolar disorder; his incarceration will cause a hardship upon

      his mother who cares for one of his two children; he is remorseful; and by

      pleading guilty, he has accepted responsibility for his crimes. Id. at 8.


[6]   We may revise a sentence if it is “inappropriate in light of the nature of the

      offense and the character of the offender.” Ind. Appellate Rule 7(B). Whether

      the reviewing court regards a sentence as inappropriate turns on a “sense of the

      culpability of the defendant, the severity of the crime, the damage done to
      Court of Appeals of Indiana | Memorandum Decision 69A04-1703-CR-457 | September 15, 2017   Page 3 of 7
      others, and myriad other factors that come to light in a given case.” Cardwell v.

      State, 895 N.E.2d 1219, 1224 (Ind. 2008). This Court “must give ‘deference to a

      trial court’s sentencing decision, both because Rule 7(B) requires us to give due

      consideration to that decision and because we understand and recognize the

      unique perspective a trial court brings to its sentencing decisions.’” Gil v. State,

      988 N.E.2d 1231, 1237 (Ind. Ct. App. 2013) (quoting Stewart v. State, 866

      N.E.2d 858, 866 (Ind. Ct. App. 2007)). Muzquiz bears the burden of

      persuading us that his sentence is inappropriate. Reid v. State, 876 N.E.2d 1114,

      1116 (Ind. 2007).


[7]   The advisory sentence is the starting point to determine the appropriateness of a

      sentence. See Anglemyer v. State, 868 N.E.2d 482, 494 (Ind. 2007), clarified on

      reh’g, 875 N.E.2d 218 (Ind. 2007). Muzquiz pled guilty to Level 5 felony

      corrupt business influence and an habitual offender enhancement. The

      sentencing range for a Level 5 felony is “a fixed term of between one (1) and six

      (6) years, with the advisory sentence being three (3) years.” Ind. Code § 35-50-

      2-6(b). The sentencing range for a person found to be an habitual offender is

      between “two (2) years and six (6) years, for a person convicted of a Level 5 . . .

      felony.” I.C. § 35-50-2-8(i)(2). Here, the trial court found as aggravating

      circumstances Muzquiz’s extensive criminal history that was similar in nature

      to the instant offense, his “substantial history of violating . . . [p]robation,” and

      that the State needed only to provide evidence of two predicate offenses to

      prove Muzquiz committed corrupt business influence, but Muzquiz admitted to

      committing five predicate offenses. Tr. p. 54. The trial court found no


      Court of Appeals of Indiana | Memorandum Decision 69A04-1703-CR-457 | September 15, 2017   Page 4 of 7
       mitigating circumstances. The court imposed a five-year-sentence for the felony

       conviction and enhanced the sentence by five years for the habitual offender

       finding. Both the sentence and the enhancement were above the advisory

       sentence but below the maximum provided by the General Assembly.


[8]    Looking at the nature of Muzquiz’s corrupt business influence offense, we are

       not persuaded that his sentence is inappropriate. Muzquiz opened a banking

       account and deposited only five dollars in the account. After the account was

       closed, Muzquiz presented himself as a business owner and wrote a series of

       invalid checks to various businesses in an amount that totaled over $80,000.00,

       depriving the businesses of goods and services. We conclude that the nature of

       Muzquiz’s offense did not render his sentence inappropriate.


[9]    Our review of the character of the offender reveals that Muzquiz’s criminal

       history is substantial and spans from 1993 until present. His prior offenses

       included check deception, forgery, fraud, and theft – crimes of dishonesty. His

       twelve prior felony convictions and thirteen prior probation violations show a

       clear disregard for the law.


[10]   The trial court took into consideration Muzquiz’s guilty plea, his alleged

       remorse, his argument regarding undue hardship, and his mental health issues

       and found none of the circumstances to be mitigating. Per the trial court:




       Court of Appeals of Indiana | Memorandum Decision 69A04-1703-CR-457 | September 15, 2017   Page 5 of 7
           So your guilty plea here is not a [mitigating circumstance
           because] it’s already been contemplated by the plea agreement.[ ]
                                                                                                   1


           And then I’m hearing you say “Judge, I’m remorseful” but I
           don’t see any evidence of that. I mean you’re remorseful right
           now because [you are sitting] here looking at up to ten years. I
           mean, I don’t see anything before today that indicates in any
           way, sort or fashion that you’re remorseful. . . . The undue
           hardship that is argued it’s apparent throughout the Pre-Sentence
           Investigation and your testimony that you’ve been in and out of
           the children’s life since they were born. And both children, right
           now are subject to [g]uardianships for that reason or as part of
           that reason. . . . [W]hen you have someone come in that has sole
           custody of the children and is providing for the children, taking
           care for the children, working a job, then it is a mitigator. But, in
           the circumstances you present before the Court when you don’t
           even have custody of them because they are both under
           guardianships from two different people, there’s no mitigator
           there. And then as far as your mental health, . . . I mean, there is
           nothing in the record, everything in the record suggests your
           mental health issues haven’t effected your ability to understand
           the proceedings going on. . . . [For you] to then show up today
           and say well my understanding and my impulsivity caused me to
           commit these offenses lacks any uh, creditability to me.


Id. at 55-57. We agree with the trial court’s observation. Based upon the

foregoing, Muzquiz’s character does not persuade us to modify his sentence.




1
    The trial court explained,

         [T]he Court is bound by that plea agreement, I’ve previously accepted it, but for instance on the
         underlying offense you, you would technically be looking at a [six-year] sentence um, but the
         Court can only go to five, under the plea agreement so you’ve secured a mitigated sentence in
         my eyes already, even before you know, I even start. And I think when you point out that your
         guilty plea then should be considered as a mitigator over and above . . . the mitigated sentence
         you’ve already secured[,] I think you’ve already been compensated sentencing wise.
Tr. p. 55.

Court of Appeals of Indiana | Memorandum Decision 69A04-1703-CR-457 | September 15, 2017               Page 6 of 7
       We find that Muzquiz’s ten-year sentence is not inappropriate in light of the

       nature of the offense and his character.


                                                 Conclusion
[11]   Muzquiz’s sentence is not inappropriate. We affirm.


[12]   Affirmed.


       May, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 69A04-1703-CR-457 | September 15, 2017   Page 7 of 7
