                                                                       FILED
                                                                   Dec 12 2019, 9:06 am

                                                                       CLERK
                                                                   Indiana Supreme Court
                                                                      Court of Appeals
                                                                        and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
R. Brian Woodward                                         Curtis T. Hill, Jr.
Crown Point, Indiana                                      Attorney General of Indiana

                                                          Tiffany A. McCoy
                                                          Deputy Attorney General

                                                          Molly M. McCann
                                                          Certified Legal Intern
                                                          Indianapolis, Indiana


                                            IN THE
    COURT OF APPEALS OF INDIANA

Javier Antonio Zavala,                                    December 12, 2019
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          19A-CR-558
        v.                                                Appeal from the Lake Superior
                                                          Court
State of Indiana,                                         The Honorable Diane Ross
Appellee-Plaintiff.                                       Boswell, Judge
                                                          Trial Court Cause No.
                                                          45G03-1407-FB-48



Darden, Senior Judge.




Court of Appeals of Indiana | Opinion 19A-CR-558 | December 12, 2019                       Page 1 of 19
                                          Statement of the Case
[1]   Javier Antonio Zavala appeals challenging his sentence after he pleaded guilty
                                                                             1           2
      to one count of battery causing serious bodily injury, a Class C Felony. We

      affirm.


                                                     Issues
[2]   Zavala raises two sentencing issues, which we restate as the following

      questions:


                 I.       Did the trial court abuse its discretion by failing to accept a
                          proffered mitigating circumstance?

                 II.      Is Zavala’s sentence inappropriate in light of the nature of
                          the offense and the character of the offender?


                                   Facts and Procedural History
[3]   On July 1, 2014, Zavala was charged with one count of aggravated battery as a

      Class B felony, one count of battery committed by means of a deadly weapon, a

      Class C felony, and one count of battery resulting in serious bodily injury, a

      Class C felony. He was arrested on July 23, 2014 and posted bond on July 24,

      2014. Numerous continuances were requested and granted as follows: (1)

      September 12, 2014 Zavala’s motion to continue the omnibus hearing was




      1
          Ind. Code § 35-42-2-1(a)(3) (2012).
      2
          Ind. Code § 35-50-2-6 (2005).


      Court of Appeals of Indiana | Opinion 19A-CR-558 | December 12, 2019               Page 2 of 19
granted; (2) October 2, 2014 Zavala’s motion to continue was granted; (3)

December 9, 2014 Zavala’s motion to continue was granted; (4) June 15, 2015

Zavala’s motion to continue the pre-trial conference was granted; (5) July 9,

2015 Zavala’s motion to vacate the jury trial date was granted; (6) August 27,

2015 Zavala’s request to reset the jury trial date was granted; (7) October 13,

2015 Zavala’s motion to continue was granted; (8) November 17, 2015 Zavala’s

motion to continue was granted; (9) January 7, 2016 Zavala’s request to reset

an omnibus hearing was granted; (10) March 9, 2016 Zavala’s request to reset

the omnibus hearing was granted; (11) April 13, 2016 Zavala’s motion to

continue was granted; (12) June 8, 2016 Zavala’s request to reset a hearing was

granted; (13) July 21, 2016 Zavala’s request to reset the omnibus hearing was

granted; (14) October 5, 2016 Zavala’s request to reset the omnibus hearing was

granted; (15) November 17, 2016 Zavala’s request to reset a status hearing was

granted; (16) December 21, 2016 Zavala’s request to reset a hearing was

granted; (17) February 15, 2017 Zavala’s motion to continue was granted; (18)

April 20, 2017 Zavala’s motion to continue was granted; (19) December 4, 2017

Zavala’s motion to continue was granted; (20) January 8, 2018 Zavala’s request

to reset the final pre-trial conference was granted; (21) January 25, 2018

Zavala’s request to reset the jury trial date was granted; (22) April 12, 2018

Zavala’s request to reset the final pre-trial conference was granted; (23) April

25, 2018 Zavala’s motion to reset the jury trial was granted; (24) August 9, 2018

Zavala’s motion to continue was granted; (25) September 6, 2018 Zavala’s

motion to set for a change of plea was granted; (26) November 14, 2018 due to

time constraints the trial court reset the date for acceptance of Zavala’s plea and

Court of Appeals of Indiana | Opinion 19A-CR-558 | December 12, 2019      Page 3 of 19
      completion of sentencing hearing; and (27) December 11, 2018 Zavala’s motion

      to continue the sentencing hearing was granted.


[4]   Zavala pleaded guilty to battery causing serious bodily injury as a Class C

      felony on September 6, 2018. His sentencing hearing was held on November

      14, 2018–to accommodate the victim who lived out of state and wished to

      testify–and February 8, 2019–to complete the presentation of evidence and

      arguments of counsel. We will refer to the facts set forth in Zavala’s stipulated

      guilty plea agreement, the stipulated factual basis, and testimony at the

      sentencing hearings.


[5]   On June 15, 2014, Zavala was present at the 3900 block of Deodar Street in

      East Chicago, Lake County, Indiana. On that date and at that location Zavala

      used a handgun to shoot Shaun Tucker multiple times. Tucker suffered

      gunshot wounds to his right lower flank, the left side of his umbilical area, the

      right lower quadrant of his abdomen, the anterior/lateral part of his right thigh,

      his posterior right thigh, the dorsal surface of his right forearm, the volar surface

      of his right forearm and a graze wound to his left wrist.


[6]   On November 14, 2018, Tucker testified that the gunshot striking his right

      forearm “blew a hole through my arm, so I’m losing mobility now.” Tr. Vol.

      II, p. 24. He further testified that he had two gunshot wounds striking his

      stomach and that “there’s a bullet still in my - - by my spine that they left it in.”

      Id. He had six surgeries to address his injuries from the gunshot wounds and

      was eight months away from having a surgery on his forearm “where they open


      Court of Appeals of Indiana | Opinion 19A-CR-558 | December 12, 2019        Page 4 of 19
       it up and they take the nerves and pull them out because the scar tissue keeps

       growing over it.” Id.


[7]    As for the mental impact of being shot multiple times, he testified that he does

       not go outside at night, preferring to stay at home with his children. He stated

       that the fireworks on the Fourth of July “makes me weird” and that “a lot of

       loud noises, they’re offensive.” Id. at 25.


[8]    Tucker testified that he is right-handed and with the injuries to his right forearm

       it is difficult to work. He stated, “I’m a laborer, union, so I can’t really do that

       anymore because the nerves, they end up like - -feels like there’s a lot of tingling

       in my hands so I lose my hammer, drop the sledge hammer or something like

       that.” Id. at 26.


[9]    When asked his opinion about what sentence Zavala should receive for his

       crime, Tucker indicated, “I think he should go to prison. I mean, if it was me,

       I’d be in prison, you know. I think he should go to prison really, sit and think

       about what he did. At least he gets to come back out. I mean, I died three

       times on the way to the hospital, so I might not have made it you know. I

       mean, he’s still got a chance to come out.” Id.


[10]   On cross-examination, Tucker testified that he knew Zavala. When asked what

       Zavala’s reputation was on the streets, he responded, “[h]e didn’t like to fight.

       He would go run and get the pistol.” Id. at 29. He further testified that Zavala

       told Tucker “he won’t fight nobody my size, he’ll go get the pistol.” Id. at 30.



       Court of Appeals of Indiana | Opinion 19A-CR-558 | December 12, 2019        Page 5 of 19
       He further clarified that Zavala told him that Zavala was “little, he would not

       fight, he would just go and get the pistol and shoot the person.” Id. at 31.


[11]   On February 8, 2019, the second phase of the sentencing hearing was held.

       Rosario Miranda, one of Zavala’s sisters, testified. She testified that her family

       had immigrated to the United States from Mexico. There were six members in

       her family: Zavala, Miranda, a sister and a brother and their mother and father.

       Each of them had become citizens of the United States.


[12]   Miranda testified that the language barrier was tough on each of the children

       but was especially difficult for Zavala. She stated, “He had that language

       barrier. He was overweight, so he was picked on and bullied in grade school,

       and unfortunately due to that he turned to people that he [could] connect to,

       gangs.” Id. at 43. “It was a gang . . . that also spoke Spanish that made him

       feel comfortable, welcome, protected.” Id. at 44. He was around thirteen years

       old when he joined “the Latin Kings.” Id. at 44, 54. Zavala, who was in the

       eighth grade, was expelled from school for a fight.


[13]   Zavala’s parents discovered that he was in a gang when he was in his 20’s “and

       tried to do their best to lead him away from that lifestyle and to better himself.”

       Id. at 44. Zavala’s parents’ first plan of action was to try to separate him from

       the gang by sending him to Mexico to spend some months with grandparents

       and other relatives. After returning from Mexico, he spent some time with

       family who live in Waukegan, Illinois. “They were just trying to keep him

       busy, occupied away from the negativity.” Id. at 45.


       Court of Appeals of Indiana | Opinion 19A-CR-558 | December 12, 2019      Page 6 of 19
[14]   The State asked Miranda if she was aware of Zavala’s history of criminal

       activity. She acknowledged knowing about only some of his criminal activity.

       In particular, the State asked if she knew about his guilty plea in 2007 for

       domestic battery as a misdemeanor instead of a felony. Miranda stated that she

       vaguely remembered it and that it involved Tiara, the mother of Zavala’s

       children who live out of state. Her description was that “He had a toxic

       relationship”. Id. at 56. In November of 2010, he was involved in another case

       in which he was charged with strangulation and domestic battery. He pled

       guilty to the domestic battery charge as a misdemeanor instead of a felony. In

       June of 2011, Zavala was charged with domestic battery and invasion of

       privacy. He pled guilty to domestic battery as a misdemeanor. She was not

       sure if she was aware of another matter in March of 2013, in which Zavala was

       charged with escape for having jumped out of a moving ambulance after having

       been arrested. In that case, he pleaded guilty to a charge of failure to return to

       lawful detention. Miranda asked the trial court for leniency for her brother in

       the present case.


[15]   Zavala, who could have faced a minimum sentence of two years and a

       maximum sentence of eight years, was facing a maximum sentencing cap of six

       years under the terms of the plea agreement. Zavala’s counsel argued that

       Zavala was remorseful for his crime, that the crime was the result of

       circumstances that are unlikely to recur, that he acted “under strong

       provocation”, id. at 61, that he was likely to respond affirmatively to probation

       or short-term incarceration in community corrections, and that imprisonment


       Court of Appeals of Indiana | Opinion 19A-CR-558 | December 12, 2019      Page 7 of 19
       would result in undue hardship to his children and family. Instead of asking for

       a specific number of years on his sentence, Zavala’s counsel argued in favor of

       placement in community corrections.


[16]   The State argued that the harm, injury, loss, or damage suffered by Tucker was

       significant and greater than the elements necessary to prove the commission of

       the offense. The State also referenced Zavala’s criminal history of violent

       crimes. Zavala was on probation at the time he committed the offense at issue.

       The State asked for the imposition of the full, six years incarcerated in the

       Department of Correction.


[17]   The trial court’s oral sentencing statement follows:


               And, you know, I had the thought when you guys were arguing
               these things that certainly if everyone had the opportunity to
               have four years pass after their crime, they could change their life
               and we could empty the jails, we could empty the prisons. . . .and
               many people can. I mean, give somebody four years and they’ve
               got hanging over their head the possibility of being in prison for
               eight, they could change their life, and while I can appreciate
               what he’s done, and it sounds like he’s been very successful, this
               violent crime can’t just be ignored and say, Well, it’s okay. You
               shot the man four times, two times, six times, whatever, however
               many times it was it doesn’t matter, and we’re just going to - -
               we’re just going to say no problem with that now because you’re
               a better person. You won’t shoot him again or you won’t shoot
               anybody again and let it go. It’s unfortunate that we can’t do
               that.

               Mr. Zavala, you have to pay a penalty for what you did even
               though you’re not that person today. You know, there has to be
               some accountability. And to just walk away and say, Oh, my life

       Court of Appeals of Indiana | Opinion 19A-CR-558 | December 12, 2019      Page 8 of 19
               is just a little bit changed because I’m in Community Corrections
               and I’m in Work Release and I work every day and go home
               and, you know, I’m - - my life is still pretty much the same as it
               was at the time of this crime, it’s just not justice. It’s not justice.

               So today I’m going to sentence you to your - - on the plea of
               guilty to Count III, battery resulting in serious bodily injury as a
               Level C felony, to five years in the Department of Corrections,
               two and a half years to be served in DOC and two and a half
               years to be served in Lake County Community Corrections.

               The Court finds that you have two days in custody on this matter
               plus two days. . . .Four days credit.

               [A probation officer informed the trial court that] He has actually
               spent almost four years additional time on probation, so at this
               time we were willing to just discharge him unsatisfactorily from
               probation.

               [The trial court stated] Well, even more reason. Alright. On the
               probation violation, probation recommends - - that’s in short
               Cause 08, probation recommends that he be discharged
               unsatisfactorily from probation and that he receive no further
               sanction.

       Id. at 74-77. Zavala now appeals.


                                     Discussion and Decision
                            I. Abuse of Discretion in Sentencing
[18]   In this appeal, Zavala contends that the trial court abused its discretion by

       failing to accept a proffered mitigating circumstance. More specifically, Zavala

       argues that the trial court should have identified his pre-sentencing

       rehabilitation efforts as a significant mitigating circumstance.



       Court of Appeals of Indiana | Opinion 19A-CR-558 | December 12, 2019           Page 9 of 19
[19]   “Indiana trial courts are required to enter sentencing statements whenever

       imposing sentence for a felony offense.” Anglemyer v. State, 868 N.E.2d 482,

       490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (2007). “[T]he statement must

       include a reasonably detailed recitation of the trial court’s reasons for imposing

       a particular sentence.” Id.


[20]   “[S]entencing decisions rest within the sound discretion of the trial court and

       are reviewed on appeal only for an abuse of discretion.” Id. “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. (quoting K.S. v. State, 849 N.E.2d 538,

       544 (Ind. 2006) (quoting In re L.J.M., 473 N.E.2d 637, 640 (Ind. Ct. App.

       1985))).


               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.




       Court of Appeals of Indiana | Opinion 19A-CR-558 | December 12, 2019       Page 10 of 19
[21]   “Because the trial court no longer has any obligation to ‘weigh’ aggravating and

       mitigating factors against each other when imposing a sentence, unlike the pre-

       Blakely statutory regime, a trial court can not now be said to have abused its

       discretion in failing to ‘properly weigh’ such factors. Id. at 491.


[22]   “A trial court’s consideration of factors may be evidenced in either the written

       order or in an oral sentencing statement.” Anderson v. State, 989 N.E.2d 823,

       826 (Ind. Ct. App. 2013), trans. denied. “In reviewing a sentencing decision in a

       non-capital case, we are not limited to the written sentencing statement but may

       consider the trial court’s comments in the transcript of the sentencing

       proceedings.” Corbett v. State, 764 N.E.2d 622, 631 (Ind. 2002). “Where the

       record indicates that the trial court did engage in the evaluative processes but

       simply did not articulate sufficiently the reasons for sentence enhancement, and

       the record indicates that the sentence was not manifestly unreasonable, then the

       purposes underlying the specificity requirement are satisfied.” Berry v. State, 819

       N.E.2d 443, 452 (Ind. Ct. App. 2004), trans. denied. “Accordingly, our supreme

       court has held that under those circumstances, remand is unnecessary.” Id.


[23]   “Because reasonable minds may differ due to the subjectivity of the sentencing

       process, it is generally inappropriate for us to merely substitute our opinions for

       those of the trial judge.” Corbett, 764 N.E.2d at 630. “The trial court sits in the

       best position to weigh any conflicting evidence and assess the credibility of the

       witnesses.” Wilfong v. Cessna Corp., 838 N.E. 2d 403, 407 (Ind. 2005).




       Court of Appeals of Indiana | Opinion 19A-CR-558 | December 12, 2019      Page 11 of 19
[24]   Indiana Code section 35-38-1-7.1 (2014) sets forth aggravating and mitigating

       circumstances a trial court may consider in deciding whether to impose a

       sentence other than the presumptive sentence or to impose consecutive

       sentences. Echols v. State, 722 N.E.2d 805, 808 (Ind. 2000). “[T]he court is

       obligated neither to credit mitigating circumstances in the same manner as

       would the defendant, nor to explain why he or she has chosen not to find [a]

       mitigating circumstance.” Bacher v. State, 722 N.E.2d 799, 804 (Ind. 2000).


[25]   “Indiana law, however, mandates that the trial judge not ignore facts in the

       record that would mitigate an offense, and a failure to find mitigating

       circumstances that are clearly supported by the record may imply that the trial

       court failed to properly consider them.” Sherwood v. State, 749 N.E.2d 36, 38

       (Ind. 2001). “The trial court is not obligated to accept the defendant’s

       contentions as to what constitutes a mitigating factor.” Gross v. State, 769

       N.E.2d 1136, 1140 (Ind. 2002). “Nor is the court required to give the same

       weight to proffered mitigating factors as the defendant does.” Id.


[26]   Here, although not obligated to do so, the trial court explained to Zavala that

       she acknowledged the great strides he had made to improve himself in the time

       between when he committed the crime and the time of sentencing. However, it

       is clear in her oral statement that she gave it no weight. Implicitly recognizing

       the lapse of time due to numerous continuances, most if not all at Zavala’s

       request, the trial court noted that most people facing the possibility of a six-year

       sentence executed in the Department of Correction (under the plea agreement;

       8 years under the statute) could modify their behavior over the course of four

       Court of Appeals of Indiana | Opinion 19A-CR-558 | December 12, 2019       Page 12 of 19
       years. She further indicated her opinion that though Zavala today was not the

       man he was at the time of the commission of the offense, he must still be held

       accountable for what he had done at the time of the crime.


[27]   Considering pre-sentencing rehabilitation, as is permitted, cf. Livingston v. State,

       113 N.E. 3d 611, 614 (Ind. 2018) (shortening the defendant’s sentence due to

       pre-sentence rehabilitation), the trial court explained that a “violent crime

       [involving shooting another person repeatedly] can’t just be ignored . . .because

       [now] you’re a better person”. Tr. Vol. II, p. 75. The trial court evaluated the

       aggravating and mitigating factors and found that the favorable plea agreement,

       short sentence for repeatedly shooting Tucker resulting in lasting injuries, and

       the benefit of being placed in community corrections for half of his sentence,

       were more significant than the value of the accomplishment of significant

       rehabilitation over the course of four years.


[28]   While the trial court’s oral and written sentencing statements could be more

       detailed, we conclude that the trial court did not abuse its discretion by

       considering but rejecting Zavala’s efforts at pre-sentencing rehabilitation as a

       significant mitigating factor in light of the very serious nature of his offense.


                                     II. Inappropriate Sentence
[29]   Next, Zavala argues that his sentence is inappropriate in light of the nature of

       the crime and the character of the offender. More specifically, Zavala contends

       that both his character during the pre-sentencing rehabilitative process and the

       trial court’s error in assessing the nature of the offense merit a revision of his

       Court of Appeals of Indiana | Opinion 19A-CR-558 | December 12, 2019       Page 13 of 19
       sentence to the advisory sentence of four years incarcerated in community

       corrections.


[30]   “Although a trial court may have acted within its lawful discretion in

       determining a sentence, Article VII, Section 4 and 6 of the Indiana Constitution

       ‘authorize[] independent appellate review and revision of a sentence imposed

       by the trial court.’” Anglemyer, 868 N.E.2d at 491. “This appellate authority is

       implemented through Appellate Rule 7(B), which 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.’” Id. (internal citations

       omitted). “Of course a defendant must persuade the appellate court that his or

       her sentence has met this inappropriateness standard of review.” Childress v.

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


[31]   Under Appellate Rule 7(B), 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). Whether a sentence

       should be deemed inappropriate turns on the sense of culpability of the

       defendant, the severity of the crime, the damage done to others, and other

       factors. Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008). We may consider

       whether a portion of the sentence is ordered suspended or is otherwise

       fashioned to using any of the variety of sentencing tools available to the trial

       judge. Davidson v. State, 926 N.E.2d 1023, 1025 (Ind. 2010).



       Court of Appeals of Indiana | Opinion 19A-CR-558 | December 12, 2019      Page 14 of 19
[32]   The nature of the offense analyzes the defendant’s action in comparison with

       the elements of the offense. Cardwell, 895 N.E.2d at 1224. Zavala was

       convicted of battery resulting in serious bodily injury as a Level C felony.

       Indiana Code section 35-50-2-6 carries a possible sentence of between two and

       eight years with an advisory sentence of four years. Zavala’s plea agreement

       capped his sentence at six years. Zavala was sentenced to a total of five years

       with two and one-half years to be served in the Department of Correction

       followed by two and one-half years to be served at community corrections.


[33]   “The nature of the offense is found in the details and circumstances of the

       commission of the offense and the defendant’s participation.” Perry v. State, 78

       N.E.3d 1, 13 (Ind. Ct. App. 2017). The details and circumstances of Zavala’s

       crime include that he was in a car when the altercation with Tucker started.

       Instead of driving away, Zavala intentionally shot Tucker numerous times,

       hitting him multiple times in the abdomen, thigh, forearm, and wrist. Those

       shots resulted in serious bodily injury to Tucker. Tucker nearly died and was

       revived three times during the trip to the hospital. He suffered eight different

       gunshot wounds from the shots fired by Zavala. Tucker has undergone six

       surgeries on his right forearm to repair the damage caused by the injuries

       inflicted by Zavala’s gunshots.


[34]   Zavala’s actions, specifically choosing to shoot Tucker numerous times instead

       of driving away from the altercation and the serious bodily injury resulting from

       those shots, support the trial court’s sentencing decision in the middle of the

       sentencing range with half suspended to community corrections.

       Court of Appeals of Indiana | Opinion 19A-CR-558 | December 12, 2019     Page 15 of 19
[35]   As for the character of the offender, we refer to “general sentencing

       considerations and the relevant aggravating and mitigating circumstances.”

       Douglas v. State, 878 N.E.2d 873, 881 (Ind. Ct. App. 2007). A defendant’s

       criminal history is relevant to review of his character. Sanders v. State, 71

       N.E.3d 839, 844 (Ind. Ct. App. 2017), trans. denied.


[36]   Zavala has a history of committing violent crimes. He has three misdemeanor

       convictions for battery and domestic battery and a felony conviction for failure

       to return to lawful detention. His felony conviction was based on his actions of

       jumping from a moving ambulance after having been arrested. A record of

       arrests reflects on the defendant’s character in part because such record reveals

       that subsequent antisocial behavior by the defendant has not been deterred even

       having been subject to police authority and having been made aware of its

       oversight. Pickens v. State, 767 N.E.2d 530, 534 (Ind. 2002). Zavala has also

       been charged with multiple other offenses including resisting law enforcement,

       criminal mischief, interference with the reporting of a crime, disorderly

       conduct, stalking, harassment, intimidation, strangulation, and invasion of

       privacy. The bulk of those charges were dismissed as a result of plea

       agreements and deferrals. Additionally, Zavala has violated probation and was

       on probation at the time he committed the offense at issue here.


[37]   Furthermore, Zavala was affiliated with the Latin Kings gang for at least seven

       years beginning when he was thirteen years old and ending when he parents

       intervened and sent him to live with other family members in Mexico and



       Court of Appeals of Indiana | Opinion 19A-CR-558 | December 12, 2019      Page 16 of 19
       Illinois. Zavala’s street reputation was one of choosing to use his pistol to shoot

       someone instead of engaging in physical fights.


[38]   Zavala’s criminal history, gang affiliation, and reputation reflect poorly on his

       character.


[39]   Zavala argues that incarceration will result in an undue hardship on his family,

       particularly his five children. We note that “[m]any persons convicted of

       crimes have dependents, and absent special circumstances showing that the

       hardship to them is ‘undue,’ a sentencing court does not abuse its discretion by

       not finding this to be a mitigating factor.” Benefield v. State, 904 N.E.2d 230,

       247 (Ind. Ct. App. 2009), trans. denied.


[40]   Here, Zavala has sole custody of only one of his five children and the other four

       children live with their mothers. Zavala admitted that he has not seen his two

       oldest children in over a year and sees his other two children a couple of times

       each year. Zavala is $7,000.00 in arrears on child support payments for his two

       oldest children. Additionally, Zavala and his son live with his parents and

       sister. Zavala’s son could continue to live in the same home with Zavala’s

       family, with Zavala’s parents caring for him during Zavala’s short period of

       incarceration in the Department of Correction. We conclude that these

       circumstances do not rise to the level of undue hardship.


[41]   Next, Zavala attempts to place his character in a positive light due to his pre-

       sentencing rehabilitation. His positive reports, while admirable, do not support

       an argument that his sentence is too harsh, and, therefore, inappropriate. In

       Court of Appeals of Indiana | Opinion 19A-CR-558 | December 12, 2019     Page 17 of 19
       exchange for his plea, the State dismissed two counts against him, and the trial

       court sentenced Zavala within the sentencing cap provided for in the plea

       agreement. His lenient sentence for his serious and reckless criminal conduct is

       not too harsh.


[42]   “[M]any people are gainfully employed such that this would not require”

       employment being noted as a mitigating factor. Newsome v. State, 797 N.E.2d

       293, 301 (Ind. Ct. App. 2003). Zavala’s steady self-employment does not mean

       that he should not be punished for the serious crime he committed against

       Tucker.


[43]   We disagree with Zavala’s argument that the trial court erred as a matter of law

       by ordering a period of incarceration. He claims that the “trial court was

       apparently under the impression that because an individual was shot, [] the trial

       court was compelled to sentence Zavala to a period of incarceration.”

       Appellant’s Br. p. 15. He supports his argument by lifting the trial court’s

       comment “[i]t’s unfortunate that we can’t do that” from the oral sentencing

       statement. Id. (citing Tr. Vol. II, p. 75). Placed in context, the trial court

       commented that the trial court felt compelled to sentence Zavala to a period of

       incarceration because it could not disregard the extremely serious nature of the

       offense Zavala committed, even when factoring in his pre-sentencing efforts at

       rehabilitation.




       Court of Appeals of Indiana | Opinion 19A-CR-558 | December 12, 2019       Page 18 of 19
[44]   Based on the foregoing, we find that Zavala has not met his burden of

       persuading us that his sentence is inappropriate in light of the nature of the

       offense and the character of the offender.


                                                 Conclusion
[45]   We conclude that the trial court did not abuse its discretion in sentencing

       Zavala, nor is his sentence inappropriate in light of the nature of the offense and

       the character of the offender.


[46]   Affirmed.


       Riley, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Opinion 19A-CR-558 | December 12, 2019     Page 19 of 19
