MEMORANDUM DECISION
                                                                         Apr 13 2015, 11:30 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any 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
Patricia Caress McMath                                     Gregory F. Zoeller
Marion County Public Defender Agency                       Attorney General of Indiana
Indianapolis, Indiana
                                                           Jesse R. Drum
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Jesse Velez,                                               April 13, 2015

Appellant-Defendant,                                       Court of Appeals Case No.
                                                           49A02-1409-CR-660
        v.                                                 Appeal from the Marion Superior
                                                           Court
                                                           The Honorable David Certo, Judge
State of Indiana,                                          Cause Nos. 49F12-1206-FD-38368,
Appellee-Plaintiff                                         49F12-1208-FD-57410, 49F12-1208-
                                                           CM-57502, 49F12-1208-FD-60304,
                                                           49F12-1305-FD-31844, 49G12-1405-
                                                           FD-25741




Bradford, Judge.



                                      Case Summary


Court of Appeals of Indiana | Memorandum Decision [Case number] | April 13, 2015                 Page 1 of 12
[1]   Over the course of a nearly two-year time period, Appellant-Defendant Jesse

      Velez was arrested for numerous criminal offenses, including theft, possession

      of drug paraphernalia, prostitution, public indecency, resisting law

      enforcement, and conversion. He was charged for these criminal offenses under

      six different cause numbers. Velez eventually pled guilty to all but one of the

      charges levied against him. The remaining charge was dismissed. Following

      Velez’s guilty pleas, the trial court sentenced Velez to an aggregate eight and

      one-half year term, with six and one-half years executed in the Department of

      Correction (“DOC”) and two years served in community corrections.


[2]   On appeal, Velez challenges his sentence, arguing both that the trial court

      abused its discretion in sentencing him and that his sentence is inappropriate.

      Concluding otherwise, we affirm.



                             Facts and Procedural History
         I. Cause Number 49F12-1206-FD-38368 (“Cause No.
                           FD-38368”)
[3]   On June 6, 2012, Velez visited a Marsh Supermarket. While at the Marsh

      Supermarket, Velez placed three bottles of vodka in a backpack. He then

      attempted to leave the store without paying for the bottles. Velez was stopped

      outside the store by two Marsh employees who then notified the police. Later

      that day, Appellee-Plaintiff the State of Indiana (the “State”) charged Velez

      with Class D felony theft. On March 4, 2013, the State amended the charging

      information to include a charge of Class A misdemeanor conversion.

      Court of Appeals of Indiana | Memorandum Decision [Case number] | April 13, 2015   Page 2 of 12
        II. Cause Number 49F12-1208-FD-57410 (“Cause No.
                           FD-57410”)
[4]   On August 19, 2012, Indianapolis Metropolitan Police Department (“IMPD”)

      Officer John Schweers observed Velez walking in an alley with a glass pipe in

      his left hand. Based on Officer Schweers’s training and experience as a police

      officer, he immediately recognized the glass pipe to be a “crack pipe.”

      Appellant’s App. p. 48. When Velez saw Officer Schweers’s marked police

      vehicle, Velez put his left hand in his front pants pocket. Officer Schweers then

      asked Velez to show his hands. Velez initially complied, before shoving his left

      hand back into his pocket. Fearing that Velez may be armed with a weapon,

      Officer Schweers patted Velez down and found a crack pipe with steel wool

      pushed into one end in Velez’s pants pocket. Officer Schweers also found a

      “wad” of steel wool and an ink stick, both of which are commonly used in

      smoking cocaine. Appellant’s App. p. 49. The next day, on August 20, 2012,

      the State charged Velez with Class A misdemeanor possession of paraphernalia

      and Class D felony possession of paraphernalia.


       III. Cause Number 49F12-1208-CM-57502 (“Cause No.
                          CM-57502”)
[5]   At approximately 6:50 a.m. on August 20, 2012, Velez “got into” a vehicle and

      told the driver that he likes to give fellatio and would do so for $25.00.

      Appellant’s App. p. 79. Velez “fondled [the driver’s] genitals” and asked,

      “You’re not a cop are you?” Appellant’s App. p. 79. As it turns out, he was.



      Court of Appeals of Indiana | Memorandum Decision [Case number] | April 13, 2015   Page 3 of 12
      Later that day, the State charged Velez with Class A misdemeanor prostitution

      and Class A misdemeanor public indecency.


       IV. Cause Number 49F12-1208-FD-60304 (“Cause No.
                          FD-60304”)
[6]   On August 30, 2012, IMPD Officer Kenneth Greer responded to a report that a

      man was attempting to “flag cars down” and was “looking into parked cars.”

      Appellant’s App. p. 107. When Officer Greer arrived at the location, he

      observed Velez, who matched the description of the individual in question,

      walking on the sidewalk. Officer Greer approached Velez and “stated that [he]

      needed to talk to him.” Appellant’s App. p. 107. Officer Greer then observed

      Velez “with his left closed fist throw something down on the sidewalk that

      made a sound of broken glass.” Appellant’s App. p. 107. The item in question

      was subsequently identified to be a broken “crack pipe.” Appellant’s App. p.

      107. In addition to the burnt glass from the pipe, Officer Greer also located a

      “burnt piece of brillo pad.” Appellant’s App. p. 107. Later that day, the State

      charged Velez with Class A misdemeanor possession of paraphernalia and

      Class D felony possession of paraphernalia.


        V. Cause Number 49F12-1305-FD-31844 (“Cause No.
                          FD-31844”)
[7]   At approximately 1:45 a.m. on May 15, 2013, IMPD Officers Keith Albert,

      Jean Burkert, and Jeremy Lee responded to a request for assistance from a CVS

      Store. Upon arriving at the CVS, the officers learned that Velez had left a CVS


      Court of Appeals of Indiana | Memorandum Decision [Case number] | April 13, 2015   Page 4 of 12
      with an unusual bulk in his midsection. The store manager chased after and

      apprehended Velez. Officer Albert approached and “lifted Velez’s shirt and

      pulled two bottles of tide liquid detergent and a Lysol spray can that were inside

      Velez’s waistband and placed them on the ground.” Appellant’s App. p. 137.

      When Officer Albert attempted to detain Velez by placing him in handcuffs,

      Velez “tensed up his arms and began to pull away.” Appellant’s App. p. 137.

      Although Velez continued to resist and disobeyed the officers’ orders, he was

      subsequently brought under control by the officers. Later that day, the State

      charged Velez with Class D felony theft and Class A misdemeanor resisting law

      enforcement. On January 17, 2014, the State amended the charging

      information to include a charge of Class A misdemeanor conversion.


        VI. Velez Placed in Mental Health Diversion Program
[8]   On January 16, 2013, Velez was placed in PAIR, a mental health diversion

      program. On December 16, 2013, the State filed a motion seeking to terminate

      Velez’s placement in the program. In making this motion, the State alleged that

      Velez had violated the terms of his participation in the PAIR program by being

      arrested for and charged with new criminal offenses, testing positive for

      cocaine, failing to appear for drug screens as ordered by the court, misleading

      the court as to his residence, and failing to attend sessions with his mental

      health treatment provider.




      Court of Appeals of Indiana | Memorandum Decision [Case number] | April 13, 2015   Page 5 of 12
       VII. Cause Number 49F12-1405-FD-25741 (“Cause No.
                          FD-25741”)
[9]    On May 16, 2014, IMPD officers were dispatched to a Walmart store in

       reference to a shoplifter running from the store. Officers observed an individual

       matching the description provided by Walmart employees running northbound

       away from the store. The individual was subsequently identified to be Velez.

       After detaining Velez, officers recovered a tool set and four pairs of gloves, all

       of which had been reported stolen by a Walmart employee who observed Velez

       take the items “off the shelf and walk past all points of purchase without paying

       for the merchandise.” Appellant’s App. p. 164. Later that day, the State

       charged Velez with Class D felony theft.


                                    VIII. Velez’s Guilty Pleas
[10]   With exception to the charge of Class D felony theft that was charged under

       Cause No. FD-31844, on August 25, 2014, Velez pled guilty to all of the

       charged crimes that are set forth above. Under Cause No. FD-38368, the trial

       court accepted Velez’s guilty plea and merged Velez’s conviction for Class A

       misdemeanor conversion into his conviction for Class D felony theft. Under

       Cause No. FD-57410, the trial court accepted Velez’s guilty plea and merged

       Velez’s conviction for Class A misdemeanor possession of paraphernalia into

       his conviction for Class D felony possession of paraphernalia. Under Cause

       No. CM-57502, the trial court accepted Velez’s guilty plea. Under Cause FD-

       60304, the trial court accepted Velez’s guilty plea and merged Velez’s

       conviction for Class A misdemeanor possession of paraphernalia into his

       Court of Appeals of Indiana | Memorandum Decision [Case number] | April 13, 2015   Page 6 of 12
       conviction for Class D felony possession of paraphernalia. Under Cause No.

       FD-31844, the trial court dismissed the Class D felony theft charge and

       accepted Velez’s guilty plea for the remaining charges. The trial court also

       accepted Velez’s guilty plea under Cause No. FD-25741.


                IX. Sentencing Following Velez’s Guilty Pleas
[11]   After accepting Velez’s guilty pleas, the trial court sentenced Velez as follows:

       (1) one and one-half years under Cause No. FD-38368; (2) one and one-half

       years under Cause No. FD-57410; (3) one year in community corrections under

       Cause No. CM-57502; (4) one and one-half years under Cause No. FD-60304;

       (5) one year in community corrections under Cause No. FD-31844; and (6) two

       years under Cause No. FD-25741. The trial court ordered each of the sentences

       to run consecutive to one another, for an aggregate term of six and one-half

       years executed in the DOC, followed by two years in community corrections.

       This appeal follows.



                                  Discussion and Decision
[12]   Velez challenges his sentence on appeal, claiming both that the trial court

       abused its discretion in sentencing him and that his aggregate eight and one-

       half-year sentence is inappropriate in light of the nature of his offenses and his

       character.




       Court of Appeals of Indiana | Memorandum Decision [Case number] | April 13, 2015   Page 7 of 12
                                       I. Abuse of Discretion
[13]   Sentencing decisions rest within the sound discretion of the trial court and are

       reviewed on appeal only for an abuse of discretion. Anglemyer v. State, 868

       N.E.2d 482, 490 (Ind. 2007), modified on other grounds on reh’g, 875 N.E.2d 218

       (Ind. 2007). “An abuse of discretion occurs if the decision is clearly against the

       logic and effect of the facts and circumstances before the court, or the

       reasonable, probable, and actual deductions to be drawn therefrom.” Id.

       (quotation omitted).

               One way in which a trial court may abuse its discretion is failing to
               enter a sentencing statement at all. Other examples include entering a
               sentencing statement that explains reasons for imposing a sentence-
               including a finding of aggravating and mitigating factors if any-but the
               record does not support the reasons, or the sentencing statement omits
               reasons that are clearly supported by the record and advanced for
               consideration, or the reasons given are improper as a matter of law.
               Under those circumstances, remand for resentencing may be the
               appropriate remedy if we cannot say with confidence that the trial
               court would have imposed the same sentence had it properly
               considered reasons that enjoy support in the record.


       Id. at 490-91.


[14]   Velez claims that the trial court abused its discretion in sentencing him because

       the trial court failed to find his mental illness to be a mitigating factor at

       sentencing. The finding of mitigating factors is discretionary with the trial

       court. Fugate v. State, 608 N.E.2d 1370, 1374 (Ind. 1993) (citing Graham v. State,

       535 N.E.2d 1152, 1155 (Ind. 1989)). The trial court is not required to find the

       presence of mitigating factors. Id. (citing Graham, 535 N.E.2d at 1155).

       Court of Appeals of Indiana | Memorandum Decision [Case number] | April 13, 2015   Page 8 of 12
       Further, if the trial court does not find the existence of a mitigating factor after

       it has been argued by counsel, the trial court is not obligated to explain why it

       has found that the factor does not exist. Id. (citing Hammons v. State, 493

       N.E.2d 1250, 1254-55 (Ind. 1986)).


[15]   In sentencing Velez, the trial court made a lengthy oral statement setting forth

       Velez’s sentence and explaining the trial court’s reasons for imposing the

       particular sentence. The trial court made multiple references to Velez’s mental

       illness in making this statement, and concluded by stating the following:

               Your attitude towards whatever your sentence may be is going to be
               the determining factor in how successful you are; okay? And, that’s
               easy for me to say from up here. It’s not necessarily easy for someone
               to do, regardless of where they are. But, I hope you know that I
               believe wholeheartedly that you and your attitude toward your mental
               illness and your drug addiction is in the place now where as long as
               you keep on the same road that you’re going you can conquer them
               and you can make the life that you want to make; okay? Regardless of
               what I’m doing today, you can make your life better. All right? And,
               I hope that you meant that and I hope that you will continue to do
               that.


       Tr. pp. 96-97. Although the trial court did not specifically explain why it did

       not find Velez’s mental illness to be a mitigating factor, the trial court’s oral

       sentencing statement indicates that the trial court did consider Velez’s mental

       illness in sentencing Velez.


[16]   Furthermore, even if we were to find that the trial court did not consider Velez’s

       mental illness, we conclude that the trial court did not abuse its discretion in

       declining to find that Velez’s mental illness was a mitigating factor.

       Court of Appeals of Indiana | Memorandum Decision [Case number] | April 13, 2015   Page 9 of 12
               The mitigating weight to be afforded a defendant’s mental impairment
               depends on: 1) the extent of the defendant’s inability to control his or
               her behavior due to the impairment; 2) overall limitations on
               functioning; 3) the duration of the mental illness; and 4) the extent of
               any nexus between the impairment and the commission of the crime.
               Williams v. State, 840 N.E.2d 433, 439 (Ind. Ct. App. 2006).


       Smith v. State, 929 N.E.2d 255, 259 (Ind. Ct. App. 2010).


[17]   Velez has not established that the effect his mental illness impacted his ability to

       control his behavior or limited his ability to function. More importantly, Velez

       failed to establish that there was a nexus between his mental condition and his

       crimes. Rather than being impacted by his mental illness, Velez’s actions

       appear to be largely impacted by his drug addiction. We therefore cannot say

       the trial court abused its discretion in declining to find Velez’s mental illness to

       be a mitigating factor.


                              II. Appropriateness of Sentence
[18]   Indiana Appellate Rule 7(B) provides that “The Court 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.” In analyzing such claims, we “‘concentrate

       less on comparing the facts of [the case at issue] to others, whether real or

       hypothetical, and more on focusing on the nature, extent, and depravity of the

       offense for which the defendant is being sentenced, and what it reveals about

       the defendant’s character.’” Paul v. State, 888 N.E.2d 818, 825 (Ind. Ct. App.

       2008) (quoting Brown v. State, 760 N.E.2d 243, 247 (Ind. Ct. App. 2002), trans.

       Court of Appeals of Indiana | Memorandum Decision [Case number] | April 13, 2015   Page 10 of 12
       denied). The defendant bears the burden of persuading us that his sentence is

       inappropriate. Sanchez v. State, 891 N.E.2d 174, 176 (Ind. Ct. App. 2008).


[19]   In challenging the appropriateness of his sentence, Velez argues that a

       minimum sentence was appropriate in light of the nature of his offenses. We

       cannot agree. While the nature of each of Velez’s individual offenses was not

       particularly egregious when considered in isolation, the quantity and

       consistency of his criminal actions justify an enhanced sentence. The record

       demonstrates that Velez was convicted of eight criminal offenses stemming

       from six unrelated episodes of criminal conduct, all of which he committed over

       the course of a less than two years. Velez’s criminal offenses include theft,

       conversion, possession of paraphernalia, prostitution, public indecency, and

       resisting law enforcement. We find it troubling that Velez continued to commit

       these crimes despite his participation in the court-supervised mental health

       diversion PAIR program.


[20]   With respect to Velez’s character, the record demonstrates that Velez suffers

       from an addiction to drugs. However, the record further demonstrates that, to-

       date, he has been unwilling to complete treatment that is aimed to help him

       overcome his addiction. Velez also has a substantial criminal history which

       dates back to when he was a juvenile. As a juvenile, he was found to be a

       delinquent for committing what would be the following crimes if committed by

       an adult: conversion, failure to stop at an accidence causing injury, operating a

       vehicle without ever receiving a license. Velez’s adult criminal history includes

       numerous convictions for battery, resisting law enforcement, theft/receiving

       Court of Appeals of Indiana | Memorandum Decision [Case number] | April 13, 2015   Page 11 of 12
       stolen property, conversion, and possession of drug paraphernalia. Velez has

       also repeatedly violated the terms of prior placements on probation and in

       community corrections. Velez’s criminal history indicates an unwillingness to

       conform his behavior to the rules of society. In light of the nature of Velez’s

       offenses and his character, we conclude that Velez has failed to meet his burden

       of persuading us that his aggregate eight and one-half-year sentence is

       inappropriate.



                                                Conclusion
[21]   In sum, we conclude that the trial court acted within its discretion in sentencing

       Velez and that Velez failed to meet his burden of proving that his aggregate

       eight and one-half-year sentence is inappropriate.


[22]   The judgment of the trial court is affirmed.


       Vaidik, C.J., and Kirsch, J., concur.




       Court of Appeals of Indiana | Memorandum Decision [Case number] | April 13, 2015   Page 12 of 12
