MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                     FILED
regarded as precedent or cited before any                           Nov 15 2016, 11:18 am
court except for the purpose of establishing
                                                                          CLERK
the defense of res judicata, collateral                               Indiana Supreme Court
                                                                         Court of Appeals
estoppel, or the law of the case.                                          and Tax Court




ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Marce Gonzalez, Jr.                                     Gregory F. Zoeller
Appellate Public Defender                               Attorney General of Indiana
Crown Point, Indiana
                                                        Larry D. Allen
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Albert B. Lucero, III,                                  November 15, 2016
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        45A03-1603-CR-639
        v.                                              Appeal from the Lake Superior
                                                        Court
State of Indiana,                                       The Honorable Salvador Vasquez,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        45G01-1506-F4-26



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 45A03-1603-CR-639 | November 15, 2016       Page 1 of 18
                                       Statement of the Case
[1]   Albert B. Lucero, III appeals his convictions, following a jury trial, for child

      molesting, as a Level 4 felony, and performing sexual conduct in the presence

      of a minor, as a Level 6 felony. He also appeals his habitual offender

      enhancement. He raises the following three issues:

              1.      Whether the trial court erred in removing Lucero from the
                      courtroom during his sentencing.


              2.      Whether Lucero waived his right to a jury trial on the
                      habitual offender charge by stipulating to his habitual
                      offender status.


              3.      Whether his sentence was inappropriate in light of the
                      offenses and his character.


[2]   We affirm.


                                 Facts and Procedural History
[3]   Lucero is the father and only parental guardian of C.L., who was born in

      December 2001. Until April 2015, Lucero and C.L. lived with C.L.’s

      grandmother, C.L.’s brother, and C.L.’s brother’s girlfriend, Melinda Rogers, in

      East Chicago. After that time, Lucero and C.L. moved around and, at one

      point, slept in the lobby of a jewelry store after hours.


[4]   When C.L. was between the ages of twelve and fourteen, Lucero repeatedly

      fondled her breasts and slapped her buttocks. Lucero told C.L. that he was

      checking for lumps and to see if she needed to wear a bra. One night, while

      Court of Appeals of Indiana | Memorandum Decision 45A03-1603-CR-639 | November 15, 2016   Page 2 of 18
      C.L. was sharing a bed with Lucero in her grandmother’s house, C.L. awoke to

      feel something poking her in the back. C.L. realized that the back of her shirt

      was wet with what she described as a “whitish clear-ish kind of liquid.” Tr. at

      93. C.L. woke Lucero, whom she thought was pretending to be asleep, and he

      told her, “that’s what happens when a man is not with a woman for a long

      time.” Id. at 94.


[5]   During that same period of time, Lucero also tried to get C.L. to wear costumes

      featuring revealing clothing and lingerie. The first costume was a bunny outfit

      that was silky and slightly transparent. The second costume was a transparent

      nurse’s outfit that included a red lace bra and panties. Lucero bought C.L. lace

      and silk undergarments and told her that “he knew how to dress [C.L.] sexy,

      but classy.” Id. at 117. Lucero also told C.L. that it was fine for him to see her

      body, stating, “It’s fine. I made it. I can see it.” Id.


[6]   One night when C.L. was thirteen and she and Lucero were staying in the local

      jewelry store after hours, C.L. was eating dinner in the lounge area of the store

      and Lucero was in a backroom. Lucero called C.L. into the backroom and

      showed her photographs on his cellphone of a woman in lingerie on a bed.

      Lucero showed C.L. another photograph depicting what C.L. later described as

      a “girl’s private area with a lollipop in her.” Id. at 102. C.L. noticed that

      Lucero had a bulge in his pants. Lucero instructed C.L. to stand in the corner

      and, while C.L.’s back was turned, Lucero began masturbating and moaning.

      C.L. tried to cover her ears so she did not have to listen to Lucero.



      Court of Appeals of Indiana | Memorandum Decision 45A03-1603-CR-639 | November 15, 2016   Page 3 of 18
[7]   After a few minutes, Lucero asked C.L. to back up so he could “touch [her]

      butt” and make it “feel more realistic to him.” Id. at 106. Lucero then asked

      C.L. to sit on his covered lap and “wiggle,” and she did so. Id. at 107-08.

      Lucero then told C.L. to stand up and to turn around to face him. C.L. was

      reluctant to turn around, but Lucero said, “It’s not a snake. It’s not going to bite

      you.” Id. at 105. C.L. turned around and saw on the floor in front of Lucero

      the same substance that C.L. had seen in the bedroom before. Lucero told C.L.

      to get a mop so he could clean it up. On another occasion while Lucero and

      C.L. were sleeping in the jewelry store after hours, Lucero told C.L. that he

      would give her the Wi-Fi password if she would “jack [him] off.” Id. at 113.


[8]   Later that same year, C.L. and Lucero went to the Indiana sand dunes.

      Because it was raining, they stayed in the car. Lucero began to look at the same

      photographs he had shown to C.L. previously inside the jewelry store. Lucero

      leaned back his seat and told C.L. to “keep an eye out.” Id. at 110. C.L.

      looked out of the car window, and she heard Lucero masturbating and

      moaning. Lucero asked C.L. to put her leg up on the car’s dash board so he

      could touch her, and he began to touch C.L.’s inner-thigh while he

      masturbated. Lucero finished and asked C.L. to pass him a grease cloth so that

      he could clean up.


[9]   At first, C.L. did not tell anyone what Lucero was doing to her because she was

      scared of him. Lucero had told C.L. that if she talked to anyone like the

      Department of Child Services (“DCS”), they would send her to live with her

      mother. Lucero had told C.L. that her mother was a prostitute and would sell

      Court of Appeals of Indiana | Memorandum Decision 45A03-1603-CR-639 | November 15, 2016   Page 4 of 18
       C.L. for drug money. However, later that year, C.L. saw her brother’s former

       girlfriend, Rogers, at a drug store. Rogers immediately noticed that C.L. wore

       tight pants and high heels. After she spoke with Rogers for a while, C.L. told

       Rogers what Lucero was doing with her. Rogers immediately called DCS.


[10]   When DCS attempted to investigate, they initially could not locate Lucero or

       C.L. Eventually, a DCS investigator called Lucero directly. Lucero lied and

       stated that he was living in South Dakota on a reservation. However, DCS

       tracked C.L. down to a nearby apartment in East Chicago and went to the

       apartment. Lucero called C.L. to warn her that DCS was coming and

       instructed her to change her appearance, disguise herself, escape out of the back

       door of the apartment, and meet him in an alley. C.L. followed Lucero’s

       instructions and met him in a nearby alley where he had parked his car and

       hidden in the bushes. Lucero then drove C.L. to Nebraska.


[11]   C.L. spent several weeks in Nebraska until she called her grandmother and

       asked her grandmother to come and get her. C.L.’s grandmother drove C.L.

       back to Indiana and called DCS. After C.L. was interviewed by DCS, the State

       filed criminal charges against Lucero. Lucero twice violated a no-contact order

       with C.L.: prior to his trial, Lucero sent C.L. a letter from prison, and, during

       his trial, Lucero mouthed the words “I love you” and “you can stop this” to

       C.L. over and over while she was on the witness stand preparing to testifying.

       Id. at 393.




       Court of Appeals of Indiana | Memorandum Decision 45A03-1603-CR-639 | November 15, 2016   Page 5 of 18
[12]   Following a jury trial, Lucero was convicted of child molesting as a Level 4

       felony, and performing sexual conduct in the presence of a minor, as a Level 6

       felony. Lucero admitted that he had two prior unrelated felony convictions and

       “stipulate[d] to the habitual offender enhancement.” Id. at 328. According to

       Lucero’s pre-sentence investigation report, he had three adjudications as a

       juvenile delinquent, one misdemeanor conviction as an adult, and three felony

       convictions as an adult. Lucero’s felony convictions were for attempted

       burglary in Florida, and Class C felony burglary and Class C felony criminal

       recklessness in Indiana.


[13]   On February 19, 2015, the trial court held Lucero’s sentencing hearing. At the

       beginning of the hearing, the trial court noted that Lucero was communicating

       with correctional officers and court staff that he may act in such a way as to

       force someone to kill him. As soon as Lucero was brought into the courtroom

       for the hearing, he began interrupting the proceedings despite being represented

       by counsel. The trial court asked Lucero to be quiet and told Lucero that he

       would have “the opportunity to say something in a few moments.” Id. at 361.

       Lucero continued to interrupt the proceedings, and the trial court continued to

       order Lucero to stop interrupting. The trial court told Lucero:

               THE COURT: It is not proper for you to interrupt me or
               interrupt these proceedings. But I’ll—as I’ve indicated before, I’ll
               give you the opportunity to speak, if we get to that point.


               MR. LUCERO: If.



       Court of Appeals of Indiana | Memorandum Decision 45A03-1603-CR-639 | November 15, 2016   Page 6 of 18
               THE COURT: But you don’t have an absolute right to be here.
               I can make the finding that you’ve become so disruptive that you
               should no longer be part of this hearing. It’s something that I
               rarely do because I try to be extremely patient—particularly
               when it comes to a sentencing hearing on . . . a person who’s
               been found guilty as a result of a jury trial. You should be here
               and you should have the opportunity to be heard, but that’s not
               absolute.


               If you continue to interrupt me, Mr. Lucero, I want you to be
               perfectly clear. I will excuse you and we will conduct the
               sentencing hearing in your absence without you being here. So
               I’m asking you at this point to be quiet. And I’m requesting you
               to not interrupt the proceedings anymore. Keep that in mind.


       Id. at 364-65.


[14]   Lucero continued to interject throughout the hearing, including raising

       objections despite his counsel telling him that he could not speak out. Lucero

       also stated, “[t]his is all a setup,” and, “[t]his is all a lie.” Id. at 379. The trial

       court once again warned Lucero and stated, “[y]ou need to stop interrupting

       me. If you do it one more time, I will excuse you.” Id. at 380. Almost

       immediately, Lucero again interrupted his own counsel. The trial court once

       again told Lucero to stop speaking and the court would give him an

       opportunity to speak if they got to that point in the hearing.


[15]   While he reviewed the presentence investigation, Lucero stated, “[t]his is

       bullshit.” Id. at 381. When the prosecutor began to read the victim impact

       statement from C.L., Lucero crumbled a piece of paper and interrupted by

       saying, “[i]t’s a lie. It’s not her. I already know my daughter.” Id. at 382.
       Court of Appeals of Indiana | Memorandum Decision 45A03-1603-CR-639 | November 15, 2016   Page 7 of 18
[16]   At that point, Lucero had interrupted the proceedings approximately twenty

       times. The trial court ordered that Lucero be removed from the courtroom

       because of the constant interruptions. In explaining its decision, the trial court

       stated, in part:


               Lucero is now removed from the courtroom. And I think I’ve
               given him more than enough opportunity to be present and more
               than enough opportunity to be part of this proceeding—a
               significant proceeding, as I see it. … I removed him as opposed
               to holding him in contempt. He’s upset. But being upset does
               not give rise to being excused for being disruptive.


       Id. at 382-83. The trial court also noted that it was “highly concerned” about

       Lucero’s threat of suicide at the hands of the guards and that it did not want “to

       take the chance that he would blow up in our presence.” Id. at 383-84.

       Lucero’s counsel did not object to his client being removed from the courtroom.


[17]   Lucero’s counsel remained present throughout the sentencing hearing and took

       part in those proceedings. At the conclusion of the sentencing hearing, the trial

       court found there were no mitigating circumstances. Regarding aggravating

       factors, the trial court noted that Lucero demonstrated poor character by being

       dishonest, manipulative, and violating the no contact order. The trial court also

       noted that Lucero’s criminal history and Lucero’s violation of a position of trust

       as a father were aggravating circumstances. The trial court sentenced Lucero to

       ten years on Count I, child molesting as a Level 4 felony, and two years for

       Count III, performing sexual conduct in the presence of a minor as a Level 6

       felony. The trial court enhanced Count I by fourteen years for Lucero’s status

       Court of Appeals of Indiana | Memorandum Decision 45A03-1603-CR-639 | November 15, 2016   Page 8 of 18
       as a habitual offender and ordered Lucero to serve his sentences for Counts I

       and III consecutively. Thus, Lucero’s aggregate sentence was twenty-six years

       in the Indiana Department of Correction. This appeal ensued.


                                      Discussion and Decision
                             Issue One: Right to Be Present at Sentencing

[18]   Lucero contends that the trial court erred when it removed him from the court

       room and held his sentencing hearing without him. We review a trial court’s

       decision to remove a defendant from the courtroom and continue his trial in his

       absence for an abuse of discretion. Wilson v. State, 30 N.E.3d 1264, 1269 (Ind.

       Ct. App. 2015), trans. denied. “An abuse of discretion occurs when the trial

       court’s decision is clearly against the logic, facts, and circumstances presented.

       We do not reweigh evidence.” Id. (citations omitted).


[19]   The Sixth Amendment to the United States Constitution and Article 1, Section

       13 of the Indiana Constitution grant a defendant in a criminal proceeding the

       right to be present at all stages of his trial. Id. However, that right may be

       waived if it is done so knowingly and voluntarily. “[S]ignificantly

       contemptuous conduct by a defendant can function as a knowing and voluntary

       waiver of [his] right to be present” at any stage of his trial. Id. As we stated in

       Campbell v. State, 732 N.E.2d 197, 204 (Ind. Ct. App. 2000) (quoting Illinois v.

       Allen, 397 U.S. 337, 343 (1970)):


               [A] defendant can lose his right to be present at trial if, after he
               has been warned by the judge that he will be removed if he
               continues his disruptive behavior, he nevertheless insists on
       Court of Appeals of Indiana | Memorandum Decision 45A03-1603-CR-639 | November 15, 2016   Page 9 of 18
                conducting himself in a manner so disorderly, disruptive, and
                disrespectful of the court that his trial cannot be carried on with
                him in the courtroom.


[20]   In the instant case, the trial judge was extremely patient with Lucero and

       provided him with multiple opportunities to cease his interruptions of the

       proceedings and remain in the courtroom. Moreover, the trial court gave

       Lucero two clear warnings that he would be removed and the sentencing

       hearing would be held without him if he did not cease his interruptions. Tr. at

       365, 380. Yet, Lucero chose to continue to interrupt both the court and the

       lawyers and disrupt the proceedings by shouting out sometimes profane

       statements. Lucero’s disruptive actions amounted to a waiver of his Sixth

       Amendment and Article 1, Section 13 rights. Campbell, 732 N.E.2d at 205. The

       trial court was well within its discretion when it finally excluded Lucero from

       the remainder of his sentencing hearing.


                                    Issue Two: Habitual Offender Status

[21]   Lucero claims his admission to being a habitual offender1 was a guilty plea, not

       a stipulation, and that it was not given knowingly or voluntarily. After the

       pronouncement of the jury’s verdicts, the trial court engaged in the following

       exchange with Lucero, outside of the jury’s presence, regarding the habitual

       offender charge:




       1
         A “habitual offender” has at least two prior unrelated felony convictions such that his sentence can be
       enhanced. Ind. Code § 35-50-2-8 (2014).

       Court of Appeals of Indiana | Memorandum Decision 45A03-1603-CR-639 | November 15, 2016          Page 10 of 18
        THE COURT: You may be seated. All right. Mr. Vazanellis,
        you indicated that you discussed with your client the second
        phase and your client has indicated to you that he would like to
        stipulate to the habitual offender enhancement; is that correct?


        MR. VAZANELLIS: Yes, your Honor.


        THE COURT: All right. Mr. Lucero, I want to address you on
        this, because you have some rights and they’re your rights and
        your rights alone. Okay. You have the right to have a jury trial
        on the habitual offender enhancement. And at that trial all of the
        same rights would pertain that pertained to the first half of this
        trial. You have the right to confront the witnesses, to cross-
        examine them; to testify, if you chose to do so.


        MR. LUCERO: I’m not worried about none of that. It doesn’t
        matter.


        THE COURT: You’re not worried about any—


        MR. LUCERO: No.


        THE COURT: Okay. So you’re willing to waive your right to a jury
        trial?


        MR. LUCERO: I’ll waive my death. I waive everything. It’s
        done.


        THE COURT: All right. All right. I’ll show, then, that the
        defendant has, in fact, waived his right to a jury trial on the
        habitual offender enhancement. Then let me ask you, Mr.
        Lucero, are you admitting to the fact that you do have . . . two prior
        unrelated felony convictions?


Court of Appeals of Indiana | Memorandum Decision 45A03-1603-CR-639 | November 15, 2016   Page 11 of 18
               MR. LUCERO: I got a million of them.


               THE COURT: Okay. So you are admitting that?


               MR. LUCERO: It’s done.


               THE COURT: I need a yes or a no from you.


               MR. LUCERO: Yes, it’s fine.


               THE COURT: Thank you. All right. I’ll show, then, that you
               have made that admission. . . .


       Tr. at 328-30 (emphasis added).


[22]   The trial court then listed and discussed two of Lucero’s prior felony

       convictions as follows:


               THE COURT: The count that they’re talking about here is the
               amended information habitual count. It indicates that on
               February 21st of 1991, that you were – that you committed the
               offense of burglary as a C felony. And on or about October 4th
               you were sentenced to a term of two years in the Department of
               Correction for that conviction, which was suspended and served
               on probation, six months to be served on home detention.


               Thereafter, after that sentence – specifically[,] on or about
               November 1st of 1991, it is alleged that you committed the
               offense of criminal recklessness as a C felony. That was in
               45G01-9111-CF-244. It’s alleged that[,] on June 10th of 1993,
               that [sic] you were convicted by way of plea agreement to
               criminal recklessness as a Class C felony. And on June 10th of


       Court of Appeals of Indiana | Memorandum Decision 45A03-1603-CR-639 | November 15, 2016   Page 12 of 18
               1993[,] you were sentenced to a term of three years on the
               Department of Correction.


                                                      ***


               Would you admit those convictions for me, Mr. Lucero?


               MR. LUCERO: When I was a juvenile or young, yeah.


               THE COURT: When you were young, yes.


                                                      ***


               Okay. I’m gonna accept, then, the stipulation or the admission
               to the habitual offender and the waiver of a jury trial on that – on
               that enhancement.


       Id. at 332-33.


[23]   A defendant, personally or through his attorney, may stipulate that he has two

       prior unrelated felony convictions but that stipulation does not, by itself, equal

       an admission that he is a habitual offender for sentencing purposes. See Garrett

       v. State, 737 N.E.2d 388, 392 (Ind. 2000). However, if the defendant, personally

       or through his attorney, goes beyond merely stipulating to the underlying

       convictions and also expressly admits to the habitual offender enhancement,

       such an admission is the functional equivalent of a guilty plea. See Vanzandt v.




       Court of Appeals of Indiana | Memorandum Decision 45A03-1603-CR-639 | November 15, 2016   Page 13 of 18
       State, 730 N.E.2d 721, 726 (Ind. Ct. App. 2000).2 And a defendant may

       challenge a guilty plea only in a petition for post-conviction relief, not on direct

       appeal. Tumulty v. State, 666 N.E.2d 394, 396 (Ind. 1996).


[24]   Here, Lucero’s admission was a guilty plea, not a stipulation. Lucero admitted

       that he had at least two prior unrelated felony convictions, which the court

       described to him, and that admission provided the factual basis for his guilty

       plea to the habitual offender charge. See, e.g., Daugherty v. State, 547 N.E.2d

       1116, 1117 (Ind. Ct. App. 1989) (citing Frazier v. State, 490 N.E.2d 315, 316

       (Ind. 1986) (holding a sufficient factual basis existed for defendant’s guilty plea

       to habitual offender charge, where defendant admitted facts in information

       charging him as habitual offender). However, Lucero went further and,

       through his attorney, expressly “stipulate[d] to the habitual offender

       enhancement,” and personally agreed to waive his right to a jury trial, along

       with other fundamental rights, on the habitual offender charge.3 Tr. at 329. In

       light of Lucero’s express admissions and waivers, the trial court ended the

       habitual offender phase of Lucero’s trial. The lawyers ceased all argument on




       2
          When a defendant pleads guilty to being a habitual offender, the trial court must advise the defendant of his
       right against self-incrimination, the right to trial by jury, and the right to confront accusers before accepting a
       guilty plea. Dewitt v. State, 755 N.E.2d 167, 171 (Ind. 2001) (citing Boykin v. Alabama, 395 U.S. 238 (1969)).
       Lucero makes no claim that the trial court failed to advise him of those rights.
       3
         Thus, Lucero clearly made a personal waiver of his right against self-incrimination, right to a trial by jury,
       and right to confront accusers. Horton v. State, 51 N.E.3d 1154, 1159 (Ind. 2016) (holding the defendant must
       personally waive his right to a jury trial on a habitual-offender charge.)

       Court of Appeals of Indiana | Memorandum Decision 45A03-1603-CR-639 | November 15, 2016             Page 14 of 18
       the issue, the issue was never put to the jury, and the trial court proceeded

       directly to sentencing.


[25]   The same scenario led our supreme court to conclude in Tumulty that the

       defendant had pleaded guilty to a habitual offender enhancement.4 666 N.E.2d

       at 395-96. Similarly, in Vanzandt, we held that the defendant had entered a

       guilty plea where he admitted not just to the underlying convictions but also to

       the enhancement itself, which resulted in the trial court dismissing the jury. 730

       N.E.2d at 726; cf. Garrett, 737 N.E.2d at 392 (holding that the defendant did not

       plead guilty to being an habitual offender where (1) he only admitted to the

       existence of prior offenses, but did not admit the offenses were unrelated, (2) the

       lawyers subsequently presented arguments on the habitual offender charge, and

       (3) the habitual offender charge was submitted to the jury).


[26]   Because Lucero’s admission to the habitual offender enhancement was a guilty

       plea, he cannot challenge his plea or the enhancement on direct appeal.

       Tumulty, 666 N.E.2d at 396. Therefore, we affirm Lucero’s conviction. See

       Stringer v. State, 899 N.E.2d 748, 750 (Ind. Ct. App. 2009).


                                Issue Three: Inappropriateness of Sentence

[27]   Lucero also contends that his sentence is inappropriate in light of the nature of

       the offenses and his character. Article 7, Sections 4 and 6 of the Indiana



       4
         The State cites Hopkins v. State, 889 N.E.2d 314, 317 (Ind. 2008), for authority that Lucero had stipulated to
       the habitual offender enhancement, but Hopkins is not controlling here because it was decided under the post-
       conviction relief standard of review.

       Court of Appeals of Indiana | Memorandum Decision 45A03-1603-CR-639 | November 15, 2016           Page 15 of 18
       Constitution “authorize[] independent appellate review and revision of a

       sentence imposed by the trial court.” Roush v. State, 875 N.E.2d 801, 812 (Ind.

       Ct. App. 2007) (alteration original). This appellate authority is implemented

       through Indiana Appellate Rule 7(B). Id. Revision of a sentence under Rule

       7(B) requires the appellant to demonstrate that his sentence is inappropriate in

       light of the nature of his offenses and his character. See Ind. Appellate Rule

       7(B); Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007). We assess

       the trial court’s recognition or non-recognition of aggravators and mitigators as

       an initial guide to determining whether the sentence imposed was

       inappropriate. Gibson v. State, 856 N.E.2d 142, 147 (Ind. Ct. App. 2006).

       However, “a defendant must persuade the appellate court that his or her

       sentence has met th[e] inappropriateness standard of review.” Roush, 875

       N.E.2d at 812 (alteration original).


[28]   Indiana’s flexible sentencing scheme allows trial courts to tailor an appropriate

       sentence to the circumstances presented, and the trial court’s judgment “should

       receive considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1222, 1224

       (Ind. 2008). The principal role of appellate review is to attempt to “leaven the

       outliers.” Id. at 1225. Whether we regard a sentence as inappropriate 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 myriad other facts that

       come to light in a given case.” Id. at 1224. The question is not whether another

       sentence is more appropriate, but rather whether the sentence imposed is

       inappropriate. King v. State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008).

       Court of Appeals of Indiana | Memorandum Decision 45A03-1603-CR-639 | November 15, 2016   Page 16 of 18
       Deference to the trial court “prevail[s] 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).


[29]   Lucero’s offenses were child molesting, as a Level 4 felony, and performing

       sexual conduct in the presence of a minor, as a Level 6 felony. These are, by

       their very nature, serious and depraved crimes—but even more so in this case

       where the sexual abuse was directed toward Lucero’s own minor daughter who

       trusted and relied upon him as her sole parental guardian. Moreover, as the

       trial court correctly found, Lucero exhibited poor character by abusing his

       position of trust as the young victim’s father and by behaving in a dishonest and

       manipulative manner with her, as shown, among other things, by his repeated

       violations of the no-contact order. All of this, in addition to Lucero’s criminal

       history, see, e.g., Garcia v. State, 47 N.E.3d 1249, 1251 (Ind. Ct. App. 2015),

       trans. denied, reflect poorly on his character.


[30]   Lucero appears to assert that his sentence should be revised because he did not

       commit more serious crimes. Appellant’s Br. at 25. However, our Rule 7(B)

       analysis does not focus on comparisons to the sentences for other types of

       crimes.5 See, e.g., Anglin v. State, 787 N.E.2d 1012, 1019 (Ind. Ct. App. 2003),




       5
         Moreover, we note that the trial court did not even impose the maximum sentence on Lucero; had it done
       so, his sentence would have been thirty-four years of incarceration. I.C. § 35-50-2-5.5 (sentencing range for

       Court of Appeals of Indiana | Memorandum Decision 45A03-1603-CR-639 | November 15, 2016          Page 17 of 18
       trans. denied. Rather, we focus less upon comparing the facts of a case to others,

       whether real or hypothetical, and more upon the nature, extent, and depravity

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

       about his character. Id.; see also Brown v. State, 760 N.E.2d 243, 248 (Ind. Ct.

       App. 2002) (“Although one can imagine facts that might be worse than those

       before us here, such does not lessen the severity of [defendant’s] conduct or

       bolster the quality of his character by comparison.”), trans. denied.


[31]   Lucero’s sentence is not inappropriate given the nature of the offenses and his

       character.


[32]   Affirmed.


       Vaidik, C.J., and Baker, J., concur.




       Level 4 felony); I.C. § 35-50-2-7 (sentencing range for Level 6 felony); I.C. § 35-50-2-8 (sentencing range for
       the habitual offender enhancement). Instead, the court sentenced Lucero to an aggregate term of twenty-six
       years.

       Court of Appeals of Indiana | Memorandum Decision 45A03-1603-CR-639 | November 15, 2016           Page 18 of 18
