MEMORANDUM DECISION                                                                FILED
                                                                           Apr 02 2019, 10:18 am
Pursuant to Ind. Appellate Rule 65(D), this                                        CLERK
Memorandum Decision shall not be regarded as                                   Indiana Supreme Court
                                                                                  Court of Appeals
precedent or cited before any court except for the                                  and Tax Court

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



ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Benjamin S. Loheide                                       Curtis T. Hill, Jr.
Columbus, Indiana                                         Attorney General of Indiana
                                                          Samantha M. Sumcad
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Eloy Salinas, Jr.,                                        April 2, 2019

Appellant-Defendant,                                      Court of Appeals Cause No.
                                                          18A-CR-2558
        v.                                                Appeal from the Bartholomew
                                                          Superior Court
State of Indiana,                                         The Honorable James D. Worton,
                                                          Judge
Appellee-Plaintiff.
                                                          Trial Court Cause No. 03D01-1804-
                                                          F4-1896




Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2558| April 2, 2019                           Page 1 of 7
                                STATEMENT OF THE CASE
[1]   Appellant-Defendant, Eloy Salinas Jr (Salinas), appeals his sentence following

      his guilty plea to unlawful possession of a firearm by a serious violent felon

      (SVF), a Level 4 felony, Ind. Code § 35-47-4-5(c).


[2]   We affirm.


                                                    ISSUE
[3]   Salinas presents a single issue on appeal, which we restate as: Whether Salinas’

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


                      FACTS AND PROCEDURAL HISTORY
[4]   On April 6, 2018, while inside a Wal-Mart in Bartholomew County, Indiana, a

      loss prevention employee saw Salinas. The loss prevention employee knew

      Salinas from previous encounters and knew that Salinas had an active warrant

      for his arrest. The loss prevention employee contacted the Columbus Police

      Department before Salinas left the store. When the officers arrived, they

      approached Salinas and requested to see his identification. While the officers

      ran Salinas’ information through dispatch to confirm the warrant, they asked

      him to put his hands over his head. The officers saw that Salinas had a knife in

      his front pocket, and a black 9 mm handgun tucked in his front pocket. When

      the officers asked Salinas if he had a license to carry the firearm, Salinas

      indicated that he did not have a permit. After they secured Salinas in

      handcuffs, they directed him to the loss prevention office. Upon further

      investigation, inside Salinas’ jacket pocket, the officers located $1,768 in cash.
      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2558| April 2, 2019   Page 2 of 7
      Additionally, his wallet contained a folded up $100 bill containing a clear rock

      substance, which was later determined to be methamphetamine. At the time

      Salinas was taken into custody, he had previously been convicted of Level 5

      felony robbery, and he was disqualified from possessing a firearm.


[5]   On April 9, 2018, the State filed an Information, charging Salinas with Level 4

      felony unlawful possession of a firearm by a SVF, and Level 6 felony possession

      of methamphetamine. On August 28, 2018, Salinas pleaded guilty to the Level

      4 felony unlawful possession of a firearm by a SVF. Also, pursuant to the plea

      agreement, the State dismissed the Level 6 felony possession of

      methamphetamine, and a pending petition to revoke probation for the Level 5

      felony robbery under a separate Cause. On September 25, 2018, the trial court

      conducted a sentencing hearing and sentenced Salinas to a term of ten years in

      the Department of Correction (DOC).


[6]   Salinas now appeals. Additional facts will be provided as necessary.


                              DISCUSSION AND DECISION
[7]   Salinas claims that his ten-year sentence is inappropriate in light of the nature of

      the offense and his character. Indiana Appellate Rule 7(B) empowers us to

      independently review and revise sentences authorized by statute if, after due

      consideration, we find the trial court’s decision inappropriate in light of the

      nature of the offense and the character of the offender. Reid v. State, 876 N.E.2d

      1114, 1116 (Ind. 2007). The “nature of the offense” compares the defendant’s

      actions with the required showing to sustain a conviction under the charged

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2558| April 2, 2019   Page 3 of 7
      offense, while the “character of the offender” permits a broader consideration of

      the defendant’s character. Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008);

      Douglas v. State, 878 N.E.2d 873, 881 (Ind. Ct. App. 2007). An appellant bears

      the burden of showing that both prongs of the inquiry favor a revision of his

      sentence. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). 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 a myriad of other considerations that come to light in a given case.

      Cardwell, 895 N.E.2d at 1224. Our court focuses on “the length of the aggregate

      sentence and how it is to be served.” Id.


[8]   The advisory sentence is the starting point the legislature has selected as an

      appropriate sentence for the crime committed. Abbott v. State, 961 N.E.2d 1016,

      1019 (Ind. 2012). For his Level 4 felony unlawful possession of a firearm by a

      SVF, Salinas faced a sentencing range of two to twelve years, with the advisory

      sentence being six years. I.C. § 35-50-2-5.5. Salinas was sentenced to ten years.


[9]   We first examine the nature of Salinas’ offense. Salinas argues that “he had the

      weapon tucked in the waist of his pants and he had just purchased it prior to his

      arrest because of fear for his life.” (Appellant’s Br. p. 9). He also argues that

      “there is nothing particularly heinous or egregious about the way the firearm

      was possessed.” (Appellant’s Br. p. 9). Salinas had a prior conviction in 2015

      for a Level 5 felony robbery, which was the predicate offense for the underlying

      SVF charge. Despite his status as a convicted felon and his knowledge that he



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2558| April 2, 2019   Page 4 of 7
       was prohibited from possessing firearms, Salinas was carrying a loaded 9mm

       handgun in his waistband.


[10]   When considering the character of the offender, one relevant fact is the

       defendant’s criminal history. Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct.

       App. 2007). The significance of a criminal history in assessing a defendant’s

       character varies based on the gravity, nature, and number of prior offenses in

       relation to the current offense. Id. While a record of arrests may not be used as

       evidence of criminal history, it can be “relevant to the trial court’s assessment of

       the defendant’s character in terms of the risk that he will commit another

       crime.” Cotto v. State, 829 N.E.2d 520, 526 (Ind. 2005).


[11]   Salinas’ juvenile criminal history involves five prior adjudications between 2009

       and 2011 in Kentucky for possession of marijuana, assault with minor injury,

       public intoxication, domestic violence, and burglary. As an adult, in 2014,

       Salinas was charged and convicted in Bartholomew County for Class C

       misdemeanor illegal consumption of alcohol. In 2015, he was charged with

       Class A misdemeanor conversion, however, the State later dismissed that

       charge. In 2015, Salinas was convicted of Level 5 felony robbery. Pursuant to

       a guilty plea, Salinas was sentenced to five years in the DOC with one year

       suspended to probation. At the time Salinas committed the instant offense, he

       was on probation for the Level 5 felony robbery conviction, and was prohibited

       from carrying a firearm. Salinas’ violation of probation conditions suggests that

       he is not a person who respects either the law or the court’s authority.



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2558| April 2, 2019   Page 5 of 7
[12]   Salinas’ alcohol and substance abuse also reflects poorly on his character. In

       the presentencing investigation report, Salinas admittedly stated that he began

       abusing drugs at age fourteen. Salinas indicated that his first choice of daily

       drug is marijuana and his second choice is methamphetamine. Salinas added

       that in the past, he had also used and experimented with the following drugs:

       alcohol, LSD, heroin, cocaine, valium, Ecstasy, and OxyContin. As for

       alcohol, Salinas began drinking alcohol at age fourteen and his last reported use

       was in 2015.


[13]   Salinas claims that the trial court should have recognized his addiction to drugs

       as a mitigating factor, and on appeal, he is requesting a reduction of his

       sentence because he was aware of his drug problem and had previously

       attempted to receive treatment. This court has recognized that a history of

       substance abuse may be a mitigating circumstance; however, when a defendant

       is aware of the problem but has not taken appropriate steps to treat it, the trial

       court can properly reject substance abuse as a mitigating circumstance. Hape v.

       State, 903 N.E.2d 977, 1002 (Ind. Ct. App. 2009). The facts show that Salinas

       had previously received substance abuse treatment during one of the many

       times he was imprisoned through the purposeful incarceration program. When

       the trial court questioned Salinas about the substance abuse treatment he

       received through the purposeful incarceration program, Salinas testified as

       follows:


               I mean it was a good program, but I got out, I was doing good
               for a while and think the main thing [that] happened was, I

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2558| April 2, 2019   Page 6 of 7
               wasn’t following through with treatment. Like, after I got out of
               . . . of the program it’s all about . . . if you don’t want help
               nothing is going to help you, but if you honestly want a change
               then you can.


       (Sent. Tr. p. 28). Despite being offered drug treatment through the purposeful

       incarceration program, Salinas failed to follow through with his treatment and

       he returned to his former drug habits and only stopped after he was incarcerated

       for his current offense.


[14]   In light of the foregoing, we decline to find that Salinas’ ten-year sentence is

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


                                             CONCLUSION
[15]   In sum, we conclude that Salinas’ sentence is not inappropriate in light of the

       nature of the offense and his character.


[16]   Affirmed.


[17]   Bailey, J. and Pyle, J. concur




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