MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                        FILED
this Memorandum Decision shall not be                                     Mar 08 2018, 9:06 am
regarded as precedent or cited before any                                     CLERK
court except for the purpose of establishing                              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
Noah T. Williams                                         Curtis T. Hill, Jr.
Monroe Co. Public Defender                               Attorney General of Indiana
Bloomington, Indiana
                                                         Michael Gene Worden
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana




                                          IN THE
    COURT OF APPEALS OF INDIANA

Alejandro Perez-Cortez,                                  March 8, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         53A01-1710-CR-2407
        v.                                               Appeal from the Monroe Circuit
                                                         Court
State of Indiana,                                        The Honorable Marc Kellams,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         53C02-1611-F3-1001



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 53A01-1710-CR-2407 | March 8, 2018              Page 1 of 6
[1]   Alejandro Perez-Cortez appeals his sentence for rape as a level 3 felony. He

      raises one issue which we revise and restate as whether his sentence is

      inappropriate in light of the nature of the offense and his character. We affirm.


                                         Facts and Procedural History

[2]   On or about October 4, 2016, Perez-Cortez was at the home of S.M. and her

      husband and was friends with S.M.’s husband. While Perez-Cortez and S.M.’s

      husband drank together, S.M. went to her bedroom. At some point, Perez-

      Cortez entered the bedroom and, without wearing his pants or shoes, got into

      bed with S.M. and Perez-Cortez attempted to force his penis into S.M.’s anus.


[3]   On November 22, 2016, the State charged Perez-Cortez with: Count I, rape as a

      level 3 felony,1 and Count II, sexual battery as a level 6 felony.2 The State and

      Perez-Cortez entered a plea and sentencing agreement pursuant to which he

      agreed to plead guilty to Count I, the State agreed to dismiss Count II, and the

      parties agreed that his sentence would not exceed five years. Perez-Cortez pled

      guilty as charged pursuant to the plea agreement.3 Perez-Cortez stated, “I was

      drunk, but I never hurt her.” Transcript at 10. He indicated that he was an




      1
        Count I alleged Perez-Cortez “did knowingly or intentionally have other sexual conduct, that is: tried to
      force his penis into the anus of S.M. when such person was compelled by force and/or imminent threat of
      force.” Appellant’s Appendix Volume I at 11.
      2
       Count II alleged Perez-Cortez, “with the intent to arouse or satisfy the sexual desires of himself, did compel
      S.M. to submit to a touching, that is: touched the vagina of S.M. with his fingers by the use of force or
      imminent threat of force.” Appellant’s Appendix Volume I at 11.
      3
        The transcript indicates that Perez-Cortez does not speak English and provided his testimony through an
      interpreter.

      Court of Appeals of Indiana | Memorandum Decision 53A01-1710-CR-2407 | March 8, 2018                Page 2 of 6
      undocumented immigrant. The prosecuting attorney argued that Perez-Cortez

      was not a good candidate for probation due to his immigration status, indicated

      he expected removal proceedings to begin, and requested a sentence of five

      years. Perez-Cortez’s counsel argued that Perez-Cortez was relatively young,

      had no criminal history, pled guilty to the lead charge, did not deny what had

      occurred, told the police that he drank too much to remember what happened,

      and made no effort to flee during the weeks he could have done so, and he

      requested a sentence of three years. The court noted that the advisory sentence

      for a level 3 felony was nine years and stated, “[l]ooking at it that way, the plea

      agreement has already given him four years of mitigation.” Id. at 18. It stated

      that it felt it appropriate that Perez-Cortez be given the five-year sentence that

      was the cap in the plea agreement and sentenced him to five years.


                                                  Discussion

[4]   The issue is whether Perez-Cortez’s sentence is inappropriate in light of the

      nature of the offense and his character. Ind. Appellate Rule 7(B) provides that

      we “may 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).


[5]   Perez-Cortez argues that S.M. did not report physical violence or brutality and

      was not physically injured, that once she ordered him to leave he did so and he

      accidentally leaving his shoes behind, and that he made no threats and used no
      Court of Appeals of Indiana | Memorandum Decision 53A01-1710-CR-2407 | March 8, 2018   Page 3 of 6
      weapons during the brief encounter. He argues that he has no criminal history,

      scored low in all but two domains using the Indiana risk assessment system

      tool, pled guilty to the lead charge and accepted responsibility for his actions,

      promptly reported to the police station for an interview, and did not flee during

      the several weeks leading up to being charged.


[6]   The State maintains that Perez-Cortez received a sentence which is four years

      less than the advisory sentence and two years above the minimum sentence and

      that his sentence is hardly a harsh one for attempting to anally rape his friend’s

      wife. It contends that, while this is his first known conviction, Perez-Cortez has

      not lived a law-abiding life as he entered the country illegally.


[7]   A person who commits a level 3 felony shall be imprisoned for a fixed term of

      between three years and sixteen years with the advisory sentence being nine

      years. Ind. Code § 35-50-2-5. The court sentenced Perez-Cortez to five years,

      which was the maximum sentence permitted under the plea and sentencing

      agreement.


[8]   Our review of the nature of the offense reveals that Perez-Cortez consumed

      alcohol at the home of S.M. and her husband and, at some point after S.M.

      went to bed, Perez-Cortez entered the bedroom, got into the bed without his

      pants or shoes on, and attempted to force his penis into S.M.’s anus.


[9]   Our review of the character of the offender reveals that Perez-Cortez pled guilty

      to rape as a level 3 felony as charged under Count I and the State dismissed

      Count II pursuant to the plea and sentencing agreement. Perez-Cortez was

      Court of Appeals of Indiana | Memorandum Decision 53A01-1710-CR-2407 | March 8, 2018   Page 4 of 6
born on July 8, 1991. The presentence investigation report (“PSI”) does not

include any legal history for Perez-Cortez prior to the instant offense. While he

stated at sentencing that he had been in the United States for two years and

three months, the PSI indicates that he reported that he illegally immigrated to

the United States approximately six months before his arrest. The PSI indicates

that he recalled he made weekly payments as well as performed unspecified odd

jobs for a human smuggler who eventually provided him transport from Mexico

City to Bloomington and that he knew others living in the area who helped him

obtain a job at a local restaurant. He further reported he has two children who

continue to live in Mexico with their mother, he maintains frequent contact

with them, he sends money to them when he is able to do so, and he does not

make enough money through his job to send substantial amounts to his children

or his mother and typically earns only enough to pay for his own local living

expenses. He reported that, prior to his arrest, he worked as a cook and was

typically scheduled to work as many as thirty hours per week. He reported that

he previously consumed alcohol and smoked marijuana, he probably consumed

alcohol once every three to four weeks, his last use of marijuana was eight

months before his interview, and he smoked marijuana no more than three to

four times in total. The PSI indicates that Perez-Cortez scored in the low

category in five domains of the Indiana risk assessment system tool and

moderate in the domain of education, employment, and financial situation and

the domain of substance abuse. It also indicates that his overall risk assessment

score places him in the high risk to reoffend category.



Court of Appeals of Indiana | Memorandum Decision 53A01-1710-CR-2407 | March 8, 2018   Page 5 of 6
[10]   After due consideration, we conclude that Perez-Cortez has not sustained his

       burden of establishing that his five-year sentence for rape as a level 3 felony is

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


                                                   Conclusion

[11]   For the foregoing reasons, we affirm Perez-Cortez’s sentence.


[12]   Affirmed.


       Baker, J., and Riley, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 53A01-1710-CR-2407 | March 8, 2018   Page 6 of 6
