      MEMORANDUM DECISION
                                                                                    FILED
      Pursuant to Ind. Appellate Rule 65(D), this                              Oct 12 2017, 10:17 am
      Memorandum Decision shall not be regarded as
                                                                                    CLERK
      precedent or cited before any court except for the                        Indiana Supreme Court
                                                                                   Court of Appeals
      purpose of establishing the defense of res judicata,                           and Tax Court
      collateral estoppel, or the law of the case.



      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Jeffery A. Earl                                           Curtis T. Hill, Jr.
      Danville, Indiana                                         Attorney General of Indiana
                                                                Ellen H. Meilaender
                                                                Supervising Deputy Attorney General
                                                                Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Daniel F. Delacruz,                                      October 12, 2017

      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               32A01-1705-CR-1014
              v.                                               Appeal from the Hendricks Superior
                                                               Court.
                                                               The Honorable Karen M. Love,
      State of Indiana,                                        Judge.
      Appellee-Plaintiff.                                      Trial Court Cause No.
                                                               32D03-1601-FC-1




      Friedlander, Senior Judge

[1]   Daniel F. Delacruz appeals the sentence the trial court imposed upon his

      convictions of three counts of sexual misconduct with a minor, all Class C

      felonies. We affirm.




      Court of Appeals of Indiana | Memorandum Decision 32A01-1705-CR-1014 | October 12, 2017           Page 1 of 7
[2]   Delacruz met M.W. through a dating app sometime between August 2011 and

      June 2012. At the time, Delacruz was twenty years of age, and M.W. was

      fifteen. M.W. told Delacruz online that he was sixteen years old, but when

      Delacruz arrived at M.W.’s house in Hendricks County within the next few

      days, M.W. admitted he was fifteen. Delacruz engaged in sexual intercourse

      with M.W. and continued to have occasional sexual contact with M.W. until

      after M.W. turned sixteen.


[3]   M.W. introduced Delacruz to A.B. via text message. Between May 1, 2012

      and August 31, 2012, Delacruz performed oral sex on A.B. in Hendricks

      County. A.B. was fifteen years old at the time.


[4]   A.B. introduced Delacruz to E.B. A.B. and E.B. are twin siblings. Between

      August 1, 2013 and December 31, 2013, Delacruz had sexual intercourse with

      E.B., who was fifteen at the time, in Hendricks County.


[5]   Finally, Delacruz met fourteen-year-old A.V. through a dating app. Delacruz

      had sex with A.V. at A.V.’s residence in Putnam County even though A.V. told

      him he was underage.


[6]   In the current case, the State charged Delacruz with three counts of sexual

      misconduct with a minor (count 1 for M.W., count 2 for A.B., and count 4 for

      E.B.) and one count of child seduction (count 3, as to E.B.), all Class C

      felonies. The parties executed a plea agreement, pursuant to which Delacruz

      pleaded guilty to three counts of sexual misconduct with a minor. The State

      dismissed the count of child seduction. Further, the parties agreed the executed

      Court of Appeals of Indiana | Memorandum Decision 32A01-1705-CR-1014 | October 12, 2017   Page 2 of 7
      portion of Delacruz’s sentence would be capped at twelve years. Finally, the

      State agreed to dismiss a pending case against Delacruz in Putnam County,

      where he was charged with sexual misconduct with A.V., if Delacruz admitted

      to his criminal conduct against A.V. in the current case.


[7]   The court accepted the plea agreement. The court determined that Delacruz’s

      lack of a prior criminal history, his guilty plea and acceptance of responsibility,

      and his age at the time the crimes were committed were mitigating factors. The

      aggravating factors were that Delacruz committed uncharged misconduct with

      A.V., as well as the nature and circumstances of the offenses, particularly the

      approximate five-year age gap between Delacruz and his victims. The court

      further determined that the aggravating and mitigating circumstances balanced.

      As a result, the court sentenced Delacruz to four years with two years

      suspended on count one and sentenced Delacruz to four years on counts two

      and four, to be served consecutively, for an executed sentence of ten years, with

      an additional two years suspended to probation. This appeal followed.


[8]   Delacruz claims his sentence is inappropriate in light of the nature of the

      offenses and his character because a greater proportion of his sentence should

      be suspended to probation. In general, sentencing decisions rest within the

      sound discretion of the trial court and are reviewed on appeal for an abuse of

      discretion. Anglemyer v. State, 868 N.E.2d 482 (Ind. 2007), clarified on reh’g, 875

      N.E.2d 218 (2007). Nonetheless, even when a trial court imposes a sentence

      within its discretion, the Court retains constitutional authority to review and

      revise sentences. Ind. Const. art. 7, § 6. This constitutional authority is

      Court of Appeals of Indiana | Memorandum Decision 32A01-1705-CR-1014 | October 12, 2017   Page 3 of 7
       implemented through Indiana Appellate Rule 7(B), which provides that we

       “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.”


[9]    The principal role of sentencing review under Appellate Rule 7(B) is to attempt

       to leaven the outliers. Perry v. State, 78 N.E.3d 1 (Ind. Ct. App. 2017). The

       appellant bears the burden of demonstrating the sentence is inappropriate. Id.

       We may consider not only the aggravators and mitigators found by the trial

       court, but also any other factors appearing in the record. Walters v. State, 68

       N.E.3d 1097 (Ind. Ct. App. 2017), trans. denied.


[10]   The advisory sentence is the starting point in determining the appropriateness of

       a sentence. At the time Delacruz committed his offenses, the advisory sentence

       for a Class C felony was four years, with a minimum sentence of two years and

       a maximum sentence of eight years. Ind. Code § 35-50-2-6 (2005). The court

       sentenced Delacruz to four years, with two years suspended, for count one.

       The court further imposed the advisory sentence for counts two and four and

       ordered all sentences served consecutively for an aggregate executed sentence of

       ten years.


[11]   The nature of the offense is found in the details and circumstances of the

       offenses and the defendant’s participation. Perry, 78 N.E.3d 1. Delacruz used

       dating apps to meet underage boys and had sex with them. He also used his

       victims to obtain introductions to other potential victims. Delacruz had ample


       Court of Appeals of Indiana | Memorandum Decision 32A01-1705-CR-1014 | October 12, 2017   Page 4 of 7
       opportunity to end his criminal behavior but chose not to, resulting in him

       molesting the four victims discussed in this case. “Whether the counts involve

       one or multiple victims is highly relevant to the decision to impose consecutive

       sentences.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008).


[12]   The harm to some of the victims will be long-lasting. A.B. testified at

       sentencing that he suffered from anxiety and depression due to Delacruz’s

       criminal conduct and had been in therapy since 2014. He is on multiple

       medications. Furthermore, A.B. stated he was having difficulty in forming

       genuine relationships with others. A.B.’s sibling E.B. reported that he has been

       diagnosed with “generalized anxiety disorder, post-traumatic stress disorder,

       panic disorder, and major depression.” Tr. Vol. 2, p. 49. E.B. has been in

       counseling and on prescription medication for years. Delacruz’s molestation of

       E.B. also damaged E.B.’s ability to form and maintain social relationships.

       E.B. indicated at sentencing, some four years after the molestation, that he

       thought about Delacruz’s sexual abuse of him every day.


[13]   Delacruz argues that he is not a predator, but it is difficult to describe his

       conduct here with any other term. He asked A.V., who he met while working

       as a substitute teacher, if A.V. knew any other underage boys. Further,

       Delacruz encouraged M.W. to introduce him to A.B., through whom he met

       E.B. M.W. explained that Delacruz insinuated himself into M.W.’s social

       circle to meet other boys of M.W.’s age. The nature of his offenses alone

       justifies the consecutive advisory sentences imposed by the trial court.



       Court of Appeals of Indiana | Memorandum Decision 32A01-1705-CR-1014 | October 12, 2017   Page 5 of 7
[14]   The character of the offender is found in what we learn of the offender’s life and

       conduct. Perry, 78 N.E.3d 1 (quotation omitted). Delacruz, who was twenty-

       five years old at the time of sentencing, had no prior criminal history. His lack

       of a history of convictions is undermined by the uncharged criminal conduct in

       the record, specifically his repeated molestations of M.W. until after M.W.

       turned sixteen and his molestation of A.V.


[15]   In addition, although Delacruz pleaded guilty, his guilty plea is entitled to

       minimal weight because he negotiated a much lower sentence than the

       maximum. He received only ten years executed when he could have received

       twenty-four years if maximum, consecutive sentences had been imposed. See

       Swain v. State, 870 N.E.2d 1058, 1060 (Ind. Ct. App. 2007) (guilty plea entitled

       to “little, if any, mitigating weight” if defendant receives some benefit).


[16]   Delacruz argues that his relatively young age indicates sentence reduction is

       appropriate because he was not fully mature and had not yet fully developed an

       ability to make rational decisions. We cannot agree. Delacruz was

       approximately twenty years of age when he committed his offenses, which is

       not particularly young. Further, he committed his crimes over a period of at

       least a year, so he had ample time to reflect on his criminal behavior and end it.


[17]   Finally, Delacruz argues he would receive more benefit from obtaining sex

       offender treatment and general therapy outside of prison rather than from the

       services provided by the Indiana Department of Correction. The appropriate

       question is not whether another sentence is more appropriate, rather, the


       Court of Appeals of Indiana | Memorandum Decision 32A01-1705-CR-1014 | October 12, 2017   Page 6 of 7
       question is whether the sentence imposed is inappropriate. Williams v. State,

       997 N.E.2d 1154 (Ind. Ct. App. 2013). Delacruz will be eligible for sex

       offender treatment in prison. In light of the tragic nature of Delacruz’s offenses

       and his uncharged misconduct, he has failed to demonstrate that his sentence is

       inappropriate.


[18]   For the reasons stated above, we affirm the judgment of the trial court.


[19]   Judgment affirmed.


       Kirsch, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 32A01-1705-CR-1014 | October 12, 2017   Page 7 of 7
