MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                  FILED
regarded as precedent or cited before any                         May 10 2019, 9:33 am

court except for the purpose of establishing                           CLERK
the defense of res judicata, collateral                            Indiana Supreme Court
                                                                      Court of Appeals
                                                                        and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
David L. Joley                                          Curtis T. Hill, Jr.
Fort Wayne, Indiana                                     Attorney General of Indiana
                                                        Samantha M. Sumcad
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Billy J. Gonzales,                                      May 10, 2019
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        18A-CR-2676
        v.                                              Appeal from the Allen Superior
                                                        Court
State of Indiana,                                       The Honorable Frances Gull,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause Nos.
                                                        02D05-1807-F6-797
                                                        02D06-1806-F6-658



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2676 | May 10, 2019               Page 1 of 8
                                 Case Summary and Issue
[1]   Following two separate incidents, Billy Gonzales was charged in two separate

      causes with Level 6 possession of a synthetic drug, pleaded guilty in each

      matter, and entered into a drug court program. After violating the conditions of

      the program, Gonzales was convicted and sentenced to one and one-half years

      in each matter, to be served consecutively.1 Gonzales appeals his sentences,

      presenting the sole issue of whether his sentence of one and one-half years in

      each case is inappropriate in light of his character and his offenses. Concluding

      his sentences are not inappropriate, we affirm.



                             Facts and Procedural History
[2]   On June 3, 2018, Officer K. Hill of the Fort Wayne Police Department

      responded to a traffic accident in which a pedestrian had possibly been struck.

      Upon Officer Hill’s arrival, he found Gonzales in a “kneeling position leaning

      forward clinched in the fetal position and unresponsive.” Appendix of

      Appellant, Volume 2 at 24. A person on the scene stated Gonzales had not

      been struck by a vehicle but might be having a seizure. Gonzales appeared to

      be clutching “white rolling paper with a burnt end” in his hand. Id. Officer Hill

      recognized the chemical odor from the “roach” as synthetic spice. Id.

      Gonzales was transported to the hospital and was arrested shortly thereafter.




      1
       Pursuant to Indiana Code section 35-50-1-2, Gonzales was required to serve the sentence imposed in these
      two cases consecutively because he was on bond for one offense when he committed the other.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2676 | May 10, 2019                   Page 2 of 8
      The State charged Gonzales with possession of a synthetic drug, with a prior

      conviction, a Level 6 felony.


[3]   One month later, on July 3, Officer A. Davis of the Fort Wayne Police

      Department responded to a “man down call” in a local park. Id. at 26. When

      Officer Davis arrived, he observed Gonzales lying on a park bench. As Officer

      Davis approached the bench, Gonzales stood up and stated, “Honestly, I am

      high, please don’t take me to jail.” Id. Directly under where Gonzales’ hand

      had been hanging off the bench was a rolled cigarette containing a “plant like

      material” that Officer Davis suspected to be spice, a synthetic drug. Id.

      Gonzales also told Officer Davis that there was something in his sock, so

      Officer Davis removed Gonzales’ shoe and sock and discovered a plastic baggie

      with suspected spice. Gonzales was arrested and again charged with possession

      of a synthetic drug, with a prior conviction, a Level 6 felony.


[4]   On July 23, Gonzales pleaded guilty to both matters and entered into the Allen

      County Drug Court Program. Gonzales failed to appear for a compliance

      hearing with the drug treatment court on September 4 and a warrant for his

      arrest was issued.2 After the warrant was served, Gonzales’ case manager filed

      a Verified Petition to Terminate Drug Court Program in both matters in which

      he alleged that Gonzales violated the conditions of the Drug Court Program

      Participation Agreement for failure to complete a drug screen, failure to attend



      2
       The Chronological Case Summary (“CCS”) in each matter appear to be contemporaneous with one
      another.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2676 | May 10, 2019             Page 3 of 8
      and complete his assessment, and being arrested for public intoxication.

      Gonzales admitted to the violations and the trial court revoked his placement in

      the drug court program and ordered a presentence investigation.


[5]   A sentencing hearing was held on October 11 and Gonzales was convicted of

      possession of a synthetic drug, with a prior conviction, in each cause, both

      Level 6 felonies. See App. of Appellant, Vol. 2 at 10-11, 21. In sentencing

      Gonzales, the trial court stated:


              The Court does find mitigating circumstances with your plea of
              guilty and acceptance of responsibility, and as an aggravating
              circumstance your prior criminal record, with failed efforts at
              rehabilitation covering a period of time from 2011 to 2018, and
              the fact, in F6-797, that you were on bond at the time you
              committed the offense. You have accumulated eight prior
              misdemeanor convictions and two prior felony convictions.
              You’ve been given short jail sentences, longer jail sentences, time
              in the Department of Correction. You’ve been ordered into
              treatment at the Center for Non-Violence. You’ve had multiple
              sentence modifications and Changes and then, ultimately, the
              Drug Court Program, and as the State points out, nothing has
              curbed your criminal conduct.


      Transcript, Volume 2 at 28. The trial court sentenced Gonzales to one year and

      one hundred and eighty-three days in each of his Level 6 felony possession

      matters.3 Gonzales now appeals.




      3
       Gonzales was also convicted of two counts of public intoxication in two separate cause numbers, both Class
      B misdemeanors, at the October 11 sentencing hearing. He was sentenced to serve ninety days in each cause.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2676 | May 10, 2019                    Page 4 of 8
                                  Discussion and Decision
                                   I. Inappropriate Sentence
                                       A. Standard of Review
[6]   Indiana Appellate Rule 7(B) provides this court the authority to revise a

      defendant’s sentence “if, after due consideration of the trial court’s decision,

      [we] find[] the sentence is inappropriate in light of the nature of the offense and

      the character of the offender.” Sentencing is “principally a discretionary

      function” of the trial court to which we afford great deference. Cardwell v. State,

      895 N.E.2d 1219, 1222 (Ind. 2008). “Such deference should prevail unless

      overcome by compelling evidence portraying in a positive light the nature of the

      offense (such as accompanied by restraint, regard, and lack of brutality) and the

      defendant’s character (such as substantial virtuous traits or persistent examples

      of good character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015). It is

      the defendant who bears the burden of persuading this court his or her sentence

      is inappropriate under the standard. Childress v. State, 848 N.E.2d 1073, 1080

      (Ind. 2006).


[7]   On review, the question is not whether another sentence is more appropriate;

      rather, the question is whether the sentence imposed is inappropriate. Fonner v.

      State, 876 N.E.2d 340, 344 (Ind. Ct. App. 2007). We may consider any factors




      However, on appeal, Gonzales only challenges his sentences for his felony possession convictions.
      Accordingly, our review is confined to his sentences for his felony convictions.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2676 | May 10, 2019                        Page 5 of 8
      appearing in the record in making this determination. Stokes v. State, 947

      N.E.2d 1033, 1038 (Ind. Ct. App. 2011), trans. denied. And whether a

      defendant’s sentence is inappropriate 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.” Cardwell, 895 N.E.2d at 1224.

      The trial court’s recognition and non-recognition of aggravators and mitigators

      serves as an initial guide in our determination. Sanders v. State, 71 N.E.3d 839,

      844 (Ind. Ct. App. 2017), trans. denied. Here, the trial court found Gonzales’

      guilty plea and acceptance of responsibility as mitigators and his criminal

      history, failed rehabilitation efforts, and the fact that he was on bond when he

      committed the second offense as aggravators.


                                   B. Nature of the Offenses
[8]   Our analysis of the “nature of the offense” prong of the inappropriateness

      review begins with the advisory sentence. Reis v. State, 88 N.E.3d 1099, 1104

      (Ind. Ct. App. 2017). The advisory sentence is the starting point our legislature

      selected as an appropriate sentence for the committed offense. Childress, 848

      N.E.2d at 1081. Gonzales was convicted of possession of a synthetic drug, a

      Level 6 felony, in each case. The sentencing range for a Level 6 felony is a

      fixed term between six months and two and one-half years, with an advisory

      sentence of one year. Ind. Code § 35-50-2-7(b).


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

      the offense and the defendant’s participation therein, Perry v. State, 78 N.E.3d 1,


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2676 | May 10, 2019   Page 6 of 8
       13 (Ind. Ct. App. 2017), and compares the defendant’s actions with the required

       showing to sustain a conviction under the charged offense, Anderson v. State, 989

       N.E.2d 823, 827 (Ind. Ct. App. 2013), trans. denied. Although the

       circumstances surrounding Gonzales’ offenses are not particularly egregious,

       lacking violence and harm to others, we cannot conclude this prong merits a

       lesser sentence. We now turn to an evaluation of Gonzales’ character.


                                     C. Character of Offender
[10]   The character of the offender refers to a broad consideration of the defendant’s

       character. Anderson, 989 N.E.2d at 827. A defendant’s character is found in

       what we learn of his or her life and conduct. Washington v. State, 940 N.E.2d

       1220, 1222 (Ind. Ct. App. 2011), trans. denied. Gonzales contends that his

       sentence is inappropriate given the “myriad of medical issues” from which he

       suffers, including a recent infection requiring a twenty-five-day hospital stay.

       Brief of Appellant at 9. Although we acknowledge Gonzales’ health issues, to

       which we are sympathetic, and his acceptance of responsibility, these factors are

       outweighed by Gonzales’ criminal history.


[11]   A defendant’s criminal history is one relevant factor in our analysis, the

       significance of which varies “based on the gravity, nature, and number of prior

       offenses in relation to the current offense.” Rutherford v. State, 866 N.E.2d 867,

       874 (Ind. Ct. App. 2007). Gonzales’ criminal history includes eight

       misdemeanor convictions and two felony convictions. Notably, two of

       Gonzales’ misdemeanor convictions were convictions for possession of a


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2676 | May 10, 2019   Page 7 of 8
       synthetic drug in September 2016 and March 2017. Therefore, these

       convictions are particularly relevant in our analysis. See id. According to the

       pre-sentence investigation report, Gonzales’ overall Indiana Risk Assessment

       System score places him in the very high-risk category to reoffend. The record

       also reveals that Gonzales has had a suspended sentence modified once and a

       suspended sentence revoked once. In his brief, Gonzales acknowledges both

       these factors.


[12]   Despite frequent contact with our criminal justice system and numerous

       opportunities for rehabilitation, Gonzales was not deterred from committing

       the present offenses. Rutherford, 866 N.E.2d at 874. Not even pending charges

       deterred him from committing additional offenses. In light of Gonzales’

       significant criminal history, failed rehabilitation efforts, and continued criminal

       conduct while on bond, he has failed to persuade this court that his one and

       one-half year sentence for each conviction is inappropriate.



                                              Conclusion
[13]   For the reasons set forth above, we conclude Gonzales’ sentences are not

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


[14]   Affirmed.


       Baker, J., and Najam, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2676 | May 10, 2019   Page 8 of 8
