MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                         FILED
regarded as precedent or cited before any                                 Nov 14 2018, 6:53 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
Cara Schaefer Wieneke                                   Curtis T. Hill, Jr.
Wieneke Law Office, LLC                                 Attorney General of Indiana
Brooklyn, Indiana
                                                        James B. Martin
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Gary J. Leyes,                                          November 14, 2018
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        18A-CR-1396
        v.                                              Appeal from the Vigo Superior
                                                        Court
State of Indiana,                                       The Honorable John T. Roach,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause Nos.
                                                        84D01-1701-F6-33
                                                        84D01-1704-F6-1049
                                                        84D01-1706-F6-1916



Bradford, Judge.


Court of Appeals of Indiana | Memorandum Decision 18A-CR-1396 | November 14, 2018                 Page 1 of 6
                                          Case Summary
[1]   Gary J. Leyes entered into a plea agreement with the State in which he agreed

      to plead guilty to three Level 6 felonies and admit to being a habitual offender.

      In exchange, the State agreed to dismiss all remaining charges. The plea

      agreement left sentencing to the trial court’s discretion but required each

      sentence to be served consecutively. On May 23, 2018, the trial court sentenced

      Leyes to an aggregate sentence of six-and-one-half years in the Indiana

      Department of Correction (“DOC”). Leyes challenges the appropriateness of

      his placement in the DOC. We affirm.



                            Facts and Procedural History
[2]   Following a traffic stop on January 3, 2017, officers discovered drug

      paraphernalia containing residue inside Leyes’s vehicle. The State charged

      Leyes under cause number 84D01-1701-F6-33 (“Cause No. F6-33”) with Level

      6 felony unlawful possession of a syringe and Level 6 felony maintaining a

      common nuisance. The State also alleged that Leyes was a habitual offender.

      On April 3, 2017, officers discovered drug paraphernalia containing residue in

      Leyes’s possession. Leyes was charged under cause number 84D01-1704-F6-

      1049 (“Cause No. F6-1049”) with Level 6 felony possession of a narcotic drug,

      Level 6 felony unlawful possession of a syringe, Class B misdemeanor criminal

      mischief, and Class C misdemeanor possession of paraphernalia and again

      alleged to be a habitual offender. While incarcerated pursuant to Cause No. F6-

      1049, Leyes was found in possession of a metal tube containing heroin after a

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1396 | November 14, 2018   Page 2 of 6
      fellow inmate had to be revived by Narcan following an overdose. Leyes was

      charged under a separate cause number with Level 5 felony trafficking with an

      inmate, three counts of Level 5 felony dealing in a narcotic drug, and Level 6

      felony possession of a narcotic drug. Leyes was granted pretrial release on June

      15, 2017, but violated conditions of his release just three days later by removing

      his electronic monitoring device. Leyes was charged with Level 6 felony escape

      under cause number 84D01-1706-F6-1916 (“Cause No. F6-1916”).


[3]   Pursuant to a plea agreement, Leyes pled guilty to Level 6 felony maintaining a

      common nuisance under Cause No. F6-33, Level 6 felony possession of a

      narcotic drug under Cause No. F6-1049, and Level 6 felony escape under Cause

      No. F6-1916 and admitted to being a habitual offender. In exchange, the State

      dismissed all remaining charges. Sentencing was left to the trial court’s

      discretion, but each sentence was to be served consecutively. On May 16, 2018,

      the trial court accepted the plea agreement and conducted a sentencing hearing.

      Leyes requested home detention at Club Soda until a bed opened at Oak Street,

      a program offering dual-diagnosis treatment. The trial court did not believe

      locally offered placements were appropriate, noting that “[Leyes will be] a risk

      to [himself] and a risk to the public if I just kick [him] out to probation right

      now.” Tr. Vol. II p. 39. On May 23, 2018, the trial court sentenced Leyes to an

      aggregate sentence of six-and-one-half years of purposeful incarceration in the

      DOC, finding that


              [t]he following statutory aggravating factors are established:
              defendant has a lengthy history of criminal or delinquent
              behavior; and defendant recently violated conditions of pre-trial
      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1396 | November 14, 2018   Page 3 of 6
              release into community corrections. The evidence before the
              court does not establish any statutory mitigating factors. The
              court does acknowledge defendant’s acceptance of responsibility
              and request for help. However, defendant has been afforded
              multiple opportunities in his prior cases to address his mental
              health and substance abuse issues, and he has failed to take
              advantage of the same. There is a complete absence of any
              evidence that defendant would follow through and succeed on
              probation or direct placement in getting the help he needs.
              Defendant himself recognizes he is still subject to the “whirlpool”
              that keeps dragging him back to using. Neither a suspended
              sentence nor direct placement are appropriate.


      Appellant’s App. Vol. II p. 86.


                                Discussion and Decision
[4]   Leyes does not contest the length of his sentence, only his placement in the

      DOC. We may revise a sentence 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.” Ind. Appellate Rule 7(B).

      “Sentencing is principally a discretionary function in which the trial court’s

      judgment should receive considerable deference.” Cardwell v. State, 895 N.E.2d

      1219, 1222 (Ind. 2008) (internal citations omitted). Placement is an appropriate

      focus for application of our Appellate Rule 7(B) authority. Biddinger v. State, 868

      N.E.2d 407, 414 (Ind. 2007). When a defendant challenges his placement,

      under Appellate Rule 7(B), the question is not whether another placement is

      more appropriate but, rather, whether the given placement is inappropriate.

      Fonner v. State, 876 N.E.2d 340, 344 (Ind. Ct. App. 2007). It is the defendant’s

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1396 | November 14, 2018   Page 4 of 6
      burden to persuade us that the placement is inappropriate. Id. We have stated

      that “it will be quite difficult for a defendant to prevail on a claim that the

      placement of his or her sentence is inappropriate,” noting that “trial courts

      know the feasibility of alternative placements in particular counties or

      communities.” Id.


[5]   The nature of the offenses Leyes committed warrant placement in the DOC.

      Leyes pled guilty to three Level 6 felonies, two of which were drug-related

      crimes. Leyes committed all three felonies within a span of just six months, and

      his violation of the conditions of pretrial release just three days after placement

      proved that he was unable to handle the less stringent environment of

      community corrections. Leyes’s actions demonstrate a need for the structured

      environment provided at the DOC.


[6]   Leyes’s character also warrants placement in the DOC. The trial court denied

      Leyes’s requested placement at Oak Street, finding that he needed more than

      locally-provided intervention and that he would be a risk to himself and the

      public if released on probation. In reaching its decision, the trial court

      considered Leyes’s lengthy criminal history to be an aggravating factor, which

      includes Level C felony obtaining a controlled substance by fraud or deceit,

      Level D felony possession of marijuana, six other felonies, and seven

      misdemeanors. While the trial court acknowledged that Leyes accepted

      responsibility and sought help for his mental-health and substance-abuse issues,

      it noted his failure to take advantage of the numerous opportunities previously

      offered to deal with those issues. Even Leyes recognized the struggle he has

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1396 | November 14, 2018   Page 5 of 6
      always faced while in the community, telling the trial court, “It seems like no

      matter how good I was doing there was always this whirlpool that drug me

      back into my addiction and mental health circumstances that would lead me

      back to the same circle where I made bad choices.” Tr. Vol. II p. 19. Leyes’s

      evaluation is supported by indications that the year he spent in jail prior to the

      disposition of this case was, in the words of one person close to him, “the best

      I’ve ever seen [Leyes] be in his whole twenty-nine years.” Tr. Vol. II p. 25.

      Given the nature of his offenses, lengthy criminal history, violation of pretrial

      release after just three days, and failure to respond to prior treatment for his

      mental-health and substance-abuse issues, Leyes has failed to establish that his

      placement in the DOC was inappropriate.


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


      Bailey, J., and Mathias, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1396 | November 14, 2018   Page 6 of 6
