MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                   FILED
regarded as precedent or cited before any                          Jul 12 2018, 10:27 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
Carlos I. Carrillo                                        Curtis T. Hill, Jr.
Greenwood, Indiana                                        Attorney General of Indiana

                                                          Lee M. Stoy, Jr.
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Julio Cesar Pina,                                        July 12, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-291
        v.                                               Appeal from the Tippecanoe
                                                         Superior Court
State of Indiana,                                        The Honorable Randy J.
Appellee-Plaintiff.                                      Williams, Judge
                                                         Trial Court Cause No.
                                                         79D01-1710-F3-27



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-291 | July 12, 2018                Page 1 of 11
[1]   Julio Cesar Pina appeals his sentence for rape as a level 3 felony and certain

      conditions of his probation. Pina raises two issues which we revise and restate

      as:


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

              II.      Whether certain conditions of his probation are reasonably
                       related to his rehabilitation and protecting the public.


      We affirm in part, reverse in part, and remand.


                                      Facts and Procedural History

[2]   During the early morning hours of October 22, 2017, Pina left his apartment,

      walked for about forty-five minutes to Walmart to purchase cigarettes, walked

      around Walmart for about an hour, and then left to return home. While on his

      way home, he observed D.S., whom he did not know, delivering papers at

      Dollar General in Lafayette. Pina forcibly grabbed D.S. and pushed her to the

      ground. D.S. began screaming, and Pina threatened that, if she did not stop

      screaming, he would hurt her. He removed D.S.’s pants and had sexual

      intercourse with her, and D.S. repeatedly asked him not to hurt her. He

      ejaculated on the ground and left the area. D.S.’s daughter and her daughter’s

      friend were asleep in D.S.’s vehicle during the assault. Pina later gave a

      statement to the police in which he admitted to placing his finger in D.S.’s

      vagina and having sexual intercourse with her, that the intercourse lasted two

      or three minutes, and that he told her to stop screaming or he would hurt her.



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-291 | July 12, 2018   Page 2 of 11
[3]   On October 31, 2017, the State charged Pina with two counts of rape as level 3

      felonies. Pina and the State entered into a plea agreement pursuant to which

      Pina would plead guilty to one count of rape as a level 3 felony and the other

      count would be dismissed. On December 12, 2017, the court held a guilty plea

      hearing at which Pina pled guilty pursuant to the plea agreement. On January

      9, 2018, the trial court held a sentencing hearing. D.S. testified regarding how

      the assault has changed her, that she is scared all the time, that Pina took her

      sense of well-being and security from her, that her daughter and her daughter’s

      friend, who was fourteen years old, were asleep in the car and were devastated

      when they learned what had occurred, and that the children have been deeply

      affected. Pina stated that he was sexually abused when he was four years old

      by his babysitter and when he was eleven by another child. He also stated that

      he took full responsibility for his crime, that he made “a very bad mistake,” and

      that he harmed an innocent woman. Transcript Volume 2 at 37. The court

      found Pina’s guilty plea, that he had taken responsibility, and that he had a

      support system to be mitigating circumstances. It found his juvenile and adult

      criminal history, substance abuse history, failed attempts at rehabilitation, the

      recommendation of the victim, and that the harm, injury, loss, or damage

      suffered was significant and greater than the elements necessary to prove the

      commission of the offense to be aggravating circumstances. The court found

      that the aggravating circumstances outweighed the mitigating circumstances

      and sentenced Pina to fifteen years with two years suspended to supervised

      probation. It also entered special probation conditions for sex offenders.



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-291 | July 12, 2018   Page 3 of 11
                                                   Discussion

                                                         I.


[4]   The first issue is whether Pina’s sentence is inappropriate in light of the nature

      of the offense and his character. Ind. Appellate Rule 7(B) provides that we

      “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. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).


[5]   Pina argues, with respect to the nature of the offense, that he was intoxicated at

      the time of the offense, reported a long struggle with alcohol, and would not

      have committed the crime if he were sober. With respect to his character, he

      asserts that he expressed remorse, took responsibility for his crime, pled guilty,

      would not have committed the offense if he had not been intoxicated, had been

      the victim of sexual abuse when he was younger, was self-sufficient, had an

      extensive work history, and had significant family support. He states that his

      criminal history is explained by his long struggle with substance abuse.


[6]   The State argues that Pina raped unsuspecting D.S. at random, that he saw an

      opportunity to commit a crime and took it, that he knew there were children

      nearby, and that he dragged D.S. to the side of the building, knocked her to the

      ground, pulled her pants off, penetrated her vagina with his penis, and

      threatened her. It argues the manner of Pina’s sexual assault and threats


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-291 | July 12, 2018   Page 4 of 11
      demonstrate the particularly egregious nature of his actions. The State also

      points out that Pina committed several offenses that would have been felonies if

      he had committed them as an adult and, while he attempts to pin his actions on

      his drunkenness the night he raped D.S. and the fact he has a drug problem, he

      had numerous opportunities to address those problems prior to this offense and

      that his illegal drug and alcohol use demonstrates that he has not been living a

      law-abiding life.


[7]   Pina was convicted of rape as a level 3 felony. Ind. Code § 35-50-2-5 provides

      that a person who commits a level 3 felony shall be imprisoned for a fixed term

      of between three and sixteen years, with the advisory sentence being nine years.

      The court sentenced him to fifteen years with thirteen years executed and two

      years suspended to probation.


[8]   Our review of the nature of the offense reveals that, in the early morning hours,

      Pina forcibly grabbed D.S., pushed her to the ground, threatened to hurt her if

      she continued to scream, removed her pants, and had sexual intercourse with

      her. He also admitted to placing his finger in her vagina. D.S. testified as to

      the impact the assault has had on her, her fourteen-year-old daughter, and her

      daughter’s friend. To the extent Pina argues his intoxication at the time of his

      crime warrants a reduction of his sentence, we observe that the presentence

      investigation report (“PSI”) states that Pina reported, “I was highly intoxicated

      on 18+ beers and 2 shots of vodka,” Appellant’s Appendix Volume 3 at 12, and

      that the trial court stated at sentencing that it did not believe Pina’s report and

      noted that Pina had walked for forty to forty-five minutes to Walmart, walked

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-291 | July 12, 2018   Page 5 of 11
      around Walmart for one hour, and then walked for at least one-half hour to

      return, and that, in any event, his intoxication was not a defense.


[9]   Our review of the character of the offender reveals that Pina, who was born in

      October of 1996, pled guilty to rape as a level 3 felony and expressed remorse

      and took responsibility for his actions. The PSI indicates that his juvenile

      criminal history includes adjudications for leaving home without permission in

      September 2008; theft as a class D felony if committed by an adult in June

      2010; auto theft as a class D felony if committed by an adult and leaving home

      without permission in October 2011; residential entry as a class D felony if

      committed by an adult and a delinquency alcohol violation in March 2013; and

      escape and theft as class D felonies if committed by an adult in July 2013. The

      PSI further indicates that Pina’s adult criminal history includes charges of

      operating a vehicle without ever receiving a license as a class C misdemeanor

      and possession of marijuana as a class B misdemeanor filed on February 28,

      2017, for which Pina failed to appear in March 2017. A warrant was issued but

      then recalled, and charges of three counts of theft as class A misdemeanors and

      possession of marijuana as a class B misdemeanor were filed on February 24,

      2017. Again Pina failed to appear, a warrant was issued, and the case is

      pending. The PSI states that Pina received numerous services including

      probation, home detention, secure detention, residential placement, and

      counseling, that he had seven petitions for modification filed against him of

      which at least six were granted, and that he was out on bond in the case filed on

      February 24, 2017, when he committed the instant offense.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-291 | July 12, 2018   Page 6 of 11
[10]   In addition, the PSI indicates that Pina’s employment history includes working

       as a dish washer, detailer, laborer, and roofer, and that he reported earning

       $750 per month. With respect to substance abuse, the PSI states that Pina

       reported that he consumed alcohol until intoxicated once per month between

       ages fifteen and sixteen and once per week between ages twenty and twenty-

       one, that he used marijuana every day between ages fourteen and eighteen and

       weekly between ages nineteen and twenty-one, that he used cocaine weekly for

       four months between the ages of twenty and twenty-one, and that he used

       Xanax twice per week between the ages of eighteen and twenty. He was

       ordered to complete a substance abuse evaluation at Wabash Valley in 2011,

       reported completing treatment while committed to the Boys’ School in 2014,

       and was ordered to complete a drug/alcohol evaluation and all recommended

       counseling with court services in 2017. The PSI also indicates that Pina’s

       overall risk assessment score using the Indiana risk assessment system places

       him in the high risk to reoffend category.


[11]   After due consideration, we conclude that Pina has not sustained his burden of

       establishing that his sentence of fifteen years with two years suspended to

       probation is inappropriate in light of the nature of the offense and his

       character.1




       1
         With respect to the court’s finding that the harm, loss, or damage suffered was significant or greater than
       the elements necessary to prove the commission of the offense Pina also argues, that his actions or statements
       should not have been used to enhance his sentence. To the extent he argues the court abused its discretion in
       sentencing him, we need not address this issue because we find that his sentence is not inappropriate under
       Ind. Appellate Rule 7(B). See Chappell v. State, 966 N.E.2d 124, 134 n.10 (Ind. Ct. App. 2012) (noting that

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-291 | July 12, 2018                     Page 7 of 11
                                                               II.


[12]   The next issue is whether certain conditions of Pina’s probation are reasonably

       related to his rehabilitation and protecting the public. The special probation

       conditions provide in part:


                8. You are prohibited from accessing or using certain web sites,
                chat rooms, or instant messaging programs frequented by
                children. You are prohibited from deleting, erasing, or
                tampering with information on your personal computer with
                intent to conceal an activity prohibited by this condition. . . .

                9. You shall not use a social networking web site or an instant
                messaging or chat room program to communicate, directly or
                through an intermediary, with a child less than sixteen (16) years
                of age. This includes your own child, stepchild, sibling or
                another relative. If you want to communicate with your own
                child, stepchild, sibling or another relative by using a social
                networking web site or an instant messaging or chat room
                program, you may only do so with a written order of this court
                that specifically names the relative(s) with whom you can
                communicate. . . .

                                                          *****

                27. You shall abide by all the terms of the electronic device user
                agreement for sex offenders (see attached).




       any error in failing to consider the defendant’s guilty plea as a mitigating factor is harmless if the sentence is
       not inappropriate) (citing Windhorst v. State, 868 N.E.2d 504, 507 (Ind. 2007) (holding that, in the absence of
       a proper sentencing order, Indiana appellate courts may either remand for resentencing or exercise their
       authority to review the sentence pursuant to Ind. Appellate Rule 7(B)), reh’g denied; Mendoza v. State, 869
       N.E.2d 546, 556 (Ind. Ct. App. 2007) (noting that, “even if the trial court is found to have abused its
       discretion in the process it used to sentence the defendant, the error is harmless if the sentence imposed was
       not inappropriate”), trans. denied), trans. denied.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-291 | July 12, 2018                          Page 8 of 11
       Appellant’s Appendix Volume 2 at 72, 74. The attached Electronic Device

       User Agreement, in the second initialed paragraph, provides:


               Client shall obtain prior approval from the Supervising
               Officer/Designee to engage in the following activities:

               ___      Web browsing (including but not limited to surfing).
               ___      Email (all email accounts must have prior approval).
               ___      Interpersonal communication (including but not limited to
                        chatting, texting and instant messaging).
               ___      Producing web content (including but not limited to a web
                        site, Facebook, Myspace, and other social networking site
                        pages, YouTube, Podcasting, blogging, vlogging,
                        Personals (Craigslist, Backpage, etc..).
               ___      Participating in social networking activities
               ___      Internet related telephone communication (including but
                        not limited to using Voice Over Internet Protocol).
               ___      File sharing by any method (including, but not limited to
                        Peer to Peer, Internet Relay Chat, attachments to emails,
                        iTunes).

       Id. at 75. The user agreement also included other paragraphs which prohibited

       Pina from using the computer for any purpose which might further sexual

       activity including possession or viewing of material that is sexual in nature.


[13]   In Weida v. State, the Indiana Supreme Court observed that a court abuses its

       discretion when the probation conditions imposed are not reasonably related to

       rehabilitating the defendant and protecting the public. 94 N.E.3d 682, 687 (Ind.

       2018). The Court noted that certain probation conditions in that case, which

       included the same conditions as those in Paragraphs 8 and 9 in this case,

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-291 | July 12, 2018   Page 9 of 11
       worked together to limit Weida’s contact or communication with children

       through any means including the internet and found that, because Weida

       committed a sex crime against a child, it was reasonable to restrict his access to

       children through any medium. See id. at 689-690. The Court also noted that

       one of the probation conditions prohibited Weida from accessing the internet

       without the prior approval of his probation officer and concluded that the

       condition’s broad prohibition on internet access but for the court’s or the

       probation officer’s permission was not reasonably related to Weida’s

       rehabilitation or maintaining public safety. Id. at 691-692.


[14]   Pina argues in part that the restrictions in Paragraphs 8, 9, and 27, and the

       electronic device user agreement, which he asserts seems to restrict any and all

       internet activity without prior approval of the probation officer, are not

       reasonably related to his rehabilitation and maintaining public safety, that this

       case does not involve a crime against a child, and that his crime did not relate to

       any use of the internet.


[15]   The State agrees that Pina’s crimes were not perpetrated against a child and that

       the conditions in Paragraphs 8 and 9 are not reasonably related to Pina’s

       rehabilitation and protecting the public, and it agrees that Pina did not use the

       internet to commit his crime and the provision of the electronic device user

       agreement set forth above requiring prior approval before accessing the internet

       is invalid. It contends that, after striking the problematic provision related to

       prior approval from the user agreement, the remainder of the user agreement is

       reasonably related to his rehabilitation. The State requests that we remand with

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-291 | July 12, 2018   Page 10 of 11
       instructions to remove the conditions in Paragraphs 8 and 9 and to remove that

       part of the user agreement which requires Pina to obtain prior approval before

       using the internet.


[16]   As the State notes, Pina did not commit a sex crime against a child and the

       conditions in Paragraphs 8 and 9 relate to children. We also observe that the

       electronic device user agreement contains a broad prohibition on internet access

       absent prior approval. Based on the language of the special conditions and the

       user agreement, and in light of Weida and the State’s agreement that remand is

       necessary, we remand for the entry of amended special probation conditions

       which do not include the conditions set forth in Paragraphs 8 and 9 as described

       above and an amended electronic device user agreement which does not

       include a condition that requires Pina to obtain approval prior to using the

       internet.


                                                    Conclusion

[17]   For the foregoing reasons, we affirm Pina’s sentence for rape of fifteen years

       with two years suspended as a level 3 felony and remand for entry of amended

       special probation conditions and an electronic device user agreement consistent

       with this opinion.


[18]   Affirmed in part, reversed in part, and remanded.


       Bailey, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-291 | July 12, 2018   Page 11 of 11
