Pursuant to Ind.Appellate Rule 65(D),                             Jul 23 2013, 6:16 am
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:

MARCE GONZALEZ, JR.                              GREGORY F. ZOELLER
Dyer, Indiana                                    Attorney General of Indiana

                                                 RICHARD C. WEBSTER
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

JULIO JOEL DELGADO,                              )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )      No. 45A03-1206-CR-271
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


                      APPEAL FROM THE LAKE SUPERIOR COURT
                          The Honorable Salvador Vasquez, Judge
                              Cause No. 45G01-1005-FA-18



                                        July 23, 2013


                MEMORANDUM DECISION - NOT FOR PUBLICATION


BROWN, Judge
       Julio Joel Delgado appeals his sentence for child molesting as a class B felony.

Delgado raises one issue, which we restate as whether his sentence is inappropriate in

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

                        FACTS AND PROCEDURAL HISTORY

       Between January 2010 and May 2010, Delgado lived in the same apartment

building as T.U.’s father. At the time, T.U. was four years old and would visit Delgado

at Delgado’s apartment periodically. During this time period, Delgado put his mouth on

T.U.’s penis and performed deviate sexual conduct on the four-year-old victim.

       On May 11, 2010, the State charged Delgado with child molesting as a class A

felony. Delgado and the State entered into a plea agreement filed with the court on April

5, 2012, which provided that the State agreed to file an amended information adding

Count II, child molesting as a class B felony; that Delgado agreed to plead guilty but

mentally ill to the amended charge of Count II; that the parties agreed Delgado would be

sentenced to a minimum sentence of six years to be served in the Department of

Correction with any additional sentence to be argued by the parties; and the State agreed

to dismiss Count I at the time of sentencing. Delgado pled guilty pursuant to the plea

agreement on April 5, 2012.

       On May 14, 2012, the court conducted a sentencing hearing at which the court

heard testimony from Cynthia Thurman, Delgado’s case worker, and admitted exhibits of

medical examination reports by Dr. R. Bhawani Prasad and Dr. Douglas W. Caruana and

a psychiatric evaluation by Dr. Ebalay for the purposes of sentencing. Delgado’s case

worker, Cynthia Thurman, testified that Delgado had been her client for five years and

                                             2
that her focus was building his skills for daily living, such as money management,

environmental safety, cooking, and symptom management.              Thurman testified that

Delgado is child-like in some aspects, that he is too trusting, and that she had to work

with him on not giving away food and money, not allowing strangers into his apartment,

and learning to say no. Thurman indicated that at one point Delgado gave away a bed

and slept on the floor of his apartment, and she later retrieved the bed. She also testified

that she helped Delgado secure food stamps and Medicaid assistance and that he is unable

to advocate for himself, becomes confused when asked a question and goes off on

another tangent, and needs to be redirected back to focusing on providing the required

information. Thurman further stated that Delgado would throw food away after going

shopping and would discard food, thinking it was spoiled where it was not. She indicated

that Dr. Vargas was Delgado’s psychiatrist and prescribed Delgado his medications.

T.U.’s father and mother read victim impact statements to the court. Delgado argued that

his medical records showed that he had been diagnosed with chronic undifferentiated

schizophrenia in October 2005, January 2007, and October 2009, and reviewed a number

of treatment plans and other notes. The State stipulated to Delgado’s mental health

issues. Delgado asked the court to consider the potential hardship of incarceration on

him, his mental illness and limitations, and that his offense is unlikely to recur. The State

asserted that the charged act was not the only act of Delgado against T.U., but that, as

shown by a police report and through the protected person hearing, Delgado touched

T.U.’s bottom repeatedly and exposed himself to T.U. on multiple occasions. The State

further maintained that the child protective hearing and psychiatric reports established

                                             3
that Delgado knew right from wrong and that his mental illness had no influence over his

criminal actions.

       In its sentencing order, the court found as a mitigating circumstance that

imprisonment of Delgado would result in hardship due to his diminished mental capacity

and noted that, despite having a documented mental illness, Delgado is and has been

psychologically stable for over four years. The court further found as mitigating that

Delgado pled guilty and admitted responsibility. As aggravating circumstances, the court

found that Delgado has a criminal history of reckless driving as a misdemeanor in March

2007 wherein he completed probation successfully; that the victim is comfortable in

Delgado’s presence, which is highly suggestive of a degree of manipulation by Delgado;

and that evidence at sentencing indicates that Delgado had engaged in multiple

inappropriate acts with the victim.       The court found as additional aggravating

circumstances that T.U. was four years of age, significantly less than the statutorily

prescribed maximum age of a child for a class B felony, and that T.U. continues to suffer

psychologically as reflected by testimony from his family at the sentencing hearing. The

court stated that there is no doubt that Delgado has diminished capacity to some extent,

that he graduated high school, is capable of following rules of probation, and that he is

clearly able to follow rules when required to do so either through a court process or when

he is trying to accomplish something such as obtaining a license or graduating high

school. The court also stated that, as noted by the reviewers on competency, Delgado

knew what he was doing, that he has been stable for three to four years leading up to

when he was evaluated, that his deviate sexual conduct occurred multiple times, and that

                                            4
there was a high degree of manipulation by Delgado of the four-year-old child. The court

found that each aggravating factor, standing alone, outweighs any mitigating factor and

sentenced Delgado to fifteen years in the Department of Correction. The State dismissed

Count I.

                                             DISCUSSION

        The issue is whether Delgado’s sentence is inappropriate. Indiana Appellate Rule

7(B) provides that this court “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.1 Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).

        Delgado requests this court to revise his sentence from fifteen years to the

advisory term of ten years. He maintains that “the nature of the offense is the type of

conduct anticipated by the legislature in Class B felony child molesting offenses,” that

“[t]he young age of T.U. is an element of the offense,” and that “[t]here is no aspect of

violence or other factor making the offense particularly egregious or aggravated.”

Appellant’s Brief at 6. Delgado further argues that “[t]he trial court’s description of [his]

illness down plays its chronic and significant nature by referring to it as ‘diminished

capacity’” and that “the court minimized Delgado’s mental illness by finding that ‘the

        1
           To the extent that Delgado argues that the trial court abused its discretion in sentencing him, we
need not address this issue because we review his sentence under Ind. Appellate Rule 7(B). See
Windhorst v. State, 868 N.E.2d 504, 507 (Ind. 2007) (holding that where the court on appeal finds that a
trial court abused its discretion in sentencing the defendant, the court may either remand for resentencing
or exercise the appellate court’s authority to review the sentence under Ind. Appellate Rule 7(B)), reh’g
denied.
                                                     5
defendant is stable and has been psychologically stable for over 4 years.’” Id. at 7

(citation omitted). He contends that Dr. Caruana opined that Delgado is mentally ill and

that his records indicate longstanding treatment for schizophrenia with some paranoid

themes, that his medical records reflect the chronic nature of this mental illness, and that

his caseworker explained that she had been working with him for five years and

described his illness as schizo-affective disorder with auditory hallucinations. Delgado

states that his caseworker further described him as “child-like,” that he is prone to giving

away his food and money, that he gave away his bed and cannot distinguish when his

food is spoiled, and that he does not know how to manage his medications. Delgado

asserts that, given his chronic, significant mental illness, his inability to protect himself

while incarcerated, his child-like demeanor, his remorse, and his guilty plea, his fifteen-

year sentence is inappropriate and the advisory sentence should be imposed consistent

with precedent in mental illness cases.

       The State’s position is that Delgado’s sentence is appropriate in light of the nature

of the offense, pointing out that Delgado lived in the same apartment building as T.U.’s

father, that T.U. was four years old, that T.U. would visit Delgado’s apartment

periodically, that Delgado committed at least one deviate sexual act on T.U. by placing

his mouth on T.U.’s penis, that Delgado took advantage of his relationship with T.U.’s

father and with the victim, and that T.U.’s father trusted Delgado to treat his four-year-

old son properly and Delgado violated that trust.        The State further maintains that

Delgado’s character compels the sentence imposed by the trial court, that while

Delgado’s criminal history is minimal it does not indicate that Delgado is of upstanding

                                             6
character, and that the trial court considered the fact that Delgado was able to

successfully complete probation as an indication that he was capable of following rules

and obeying the law when he was required to do so. The State argues that the court

considered the presentence investigation report (“PSI”) and attachments, including

Delgado’s mental and psychological assessments, that the record is void of any evidence

indicating that Delgado did not know right from wrong or that he could not control his

actions due to mental health problems, and that Delgado never established a nexus

between his mental health problems and the crime. The State also maintains that it is

Delgado’s burden to establish the inappropriateness of his sentence and that he has not

done so.

       Our review of the nature of the offense reveals that Delgado put his mouth on four

year old T.U.’s penis between January and May 2010, that T.U.’s father lived in the same

apartment building as Delgado, and that T.U. would visit Delgado’s apartment

periodically. The victim impact statements of T.U.’s parents indicate that T.U. had

attended therapy, and that T.U. began to go to the bathroom in his pants after he had been

potty trained for two years, started to sleep with her again, had nightmares regularly, and

had to learn to cope with life in a new way.

       Our review of the character of the offender reveals that, according to the PSI,

Delgado’s previous criminal history includes convictions for theft as a class A

misdemeanor in 2001 for which he was discharged satisfactorily from probation and

reckless driving as a class B misdemeanor in 2007 for which he was again satisfactorily

discharged from probation. While the bar graph set forth in the risk assessment section of

                                               7
the PSI indicates Delgado is in the low to moderate category with respect to seven areas

of assessment, the PSI also states that Delgado’s overall risk assessment score places him

in the high risk to reoffend category. The State has stated below and on appeal that

Delgado’s chronic mental illness is not questioned, and the record reveals that Delgado

has been treated for schizophrenia, including symptoms of delusional thoughts, isolation,

and unstable mood. Dr. Caruana stated in a letter to the court that, in evaluating Delgado

for the purpose of addressing the issue of insanity, Delgado was reasonably alert,

oriented, and responsive, that his speech was clear and coherent, that his short term and

remote memory were intact, that his records indicate longstanding treatment for

schizophrenia with some paranoid themes, and that Delgado did not describe having

experienced any distortions of perception, auditory hallucinations, or other extreme

impairments at the time. Dr. Prasad stated in a letter to the court, that in meeting with

Delgado for the purpose of evaluating his competency to stand trial, Delgado did not

show any depression or psychotic symptoms and that his psychiatric records show that he

has been stable for at least the last four years. The record also shows that Delgado had

been living independently in his apartment during the period of time he committed the

offense and had satisfactorily completed the terms of his probation on two prior

occasions. The record does not establish that there was a connection between Delgado’s

conduct and his mental illness.

      Under the circumstances and after due consideration of the trial court’s decision

and of the record, we conclude that Delgado has not sustained his burden of establishing



                                            8
that his sentence of fifteen years is inappropriate in light of the nature of the offense and

his character.

                                      CONCLUSION

       For the foregoing reasons, we affirm Delgado’s sentence for child molesting as a

class B felony.

       Affirmed.

BRADFORD, J., concurs.

RILEY, J., dissents with separate opinion.




                                             9
                              IN THE
                    COURT OF APPEALS OF INDIANA

JULIO JOEL DELGADO,                              )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )     No. 45A03-1206-CR-271
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


RILEY, Judge, dissenting

       I respectfully disagree with the majority to affirm the trial court’s sentencing

decision. Based on the record before me, I do not believe a fifteen year sentence to be

appropriate in light of Delgado’s character and nature of the offense.

       Delgado is chronically mentally ill, suffering from schizophrenia with some

paranoid themes, distortions, and auditory hallucinations. Although Delgado was found

to have been psychologically stable for the past four years, he is under extensive medical

and social treatment plans. He is child-like, too trusting, has difficulty managing his

medications, and cannot live independently within the community. Because he is unable

to protect himself or stand up for himself, he faces an increased risk in the penal system.

       Delgado’s criminal history is minimal. He has been convicted of two prior,

unrelated misdemeanors, in 2011 and 2007 respectively. Both times, he successfully
                                       10
completed probation. Even though the trial court interpreted this information as evidence

that Delgado is capable of following rules, I prefer to view it as an indication that he is a

promising candidate for a probationary sentence.

       Based on the evidence before me, I conclude that a fifteen year sentence is

inappropriate in light of Delgado’s character and the nature of the offense. I would

reduce his sentence and impose the advisory term of ten years.




                                             11
