      MEMORANDUM DECISION                                                  Mar 26 2015, 6:15 am


      Pursuant to Ind. Appellate Rule 65(D), this
      Memorandum Decision shall not be regarded as
      precedent or cited before any court except for the
      purpose of establishing the defense of res judicata,
      collateral estoppel, or the law of the case.



      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Adam Lenkowsky                                           Gregory F. Zoeller
      Roberts & Bishop                                         Attorney General of Indiana
      Indianapolis, Indiana
                                                               Monika Prekopa Talbot
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Juan Humberto Lara-Molina,                               March 26, 2015

      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               12A02-1409-CR-645
              v.                                               Appeal from the Clinton Circuit
                                                               Court
                                                               The Honorable Bradley K. Mohler,
      State of Indiana,                                        Judge
      Appellee-Plaintiff                                       Cause No. 12C01-1311-FA-1101




      Bradford, Judge.



                                            Case Summary
[1]   On November 20, 2013, Appellant-Defendant Juan Humberto Lara-Molina

      was stopped while driving on Interstate 65 in Clinton County. Lara-Molina,

      Court of Appeals of Indiana | Memorandum Decision 12A02-1409-CR-645 | March 26, 2015        Page 1 of 9
      who initially provided a false name to the Indiana State Trooper who stopped

      him, was found to be in possession of approximately 1238 grams of cocaine and

      did not have a valid driver’s license. Soon thereafter, Lara-Molina was charged

      with Class A felony dealing in cocaine, Class D felony synthetic identity

      deception, and Class C misdemeanor operating a vehicle without ever having

      received a license. Lara-Molina subsequently pled guilty as charged. Lara-

      Molina’s plea agreement left sentencing to the discretion of the trial court and

      did not include a sentence recommendation from Appellee-Plaintiff the State of

      Indiana (the “State”).


[2]   At sentencing, the State notified the trial court that the parties wished to amend

      Lara-Molina’s guilty plea for dealing in cocaine from a Class A felony to a

      Class B felony and that the State wished to add a recommendation for a seven-

      year executed sentence. Both the State and Lara-Molina conceded that the trial

      court would not be bound by this recommended sentence, however, because the

      original plea agreement contained no such recommendation. The trial court

      ultimately allowed the parties to amend Lara-Molina’s plea to dealing in

      cocaine from a Class A felony to a Class B felony, but declined to impose the

      seven-year executed sentence recommended by the State. Finding that the

      aggravating factors outweighed the mitigating factors and noting that Lara-

      Molina received a substantial benefit from the reduction of his plea from a Class

      A felony level to a Class B felony level, the trial court imposed an aggregate

      eighteen-year executed sentence. We affirm.




      Court of Appeals of Indiana | Memorandum Decision 12A02-1409-CR-645 | March 26, 2015   Page 2 of 9
                            Facts and Procedural History
[3]   The factual basis entered during the March 31, 2014 guilty plea hearing

      provides as follows: on November 20, 2013, Lara-Molina was stopped by

      Indiana State Police Trooper Ryan Winters while driving a vehicle in Clinton

      County. At the time he was stopped, Lara-Molina possessed, with the intent to

      deliver, more than three grams of cocaine. Lara-Molina, who was driving

      without ever receiving a driver’s license, falsely identified himself to Trooper

      Winters as Juan Carlos Gomez Esparza.


[4]   On November 22, 2013, Appellee-Plaintiff the State of Indiana (the “State)

      charged Lara-Molina with Class A felony dealing in cocaine, Class D felony

      synthetic identity deception, and Class C misdemeanor operating a motor

      vehicle without ever receiving a license.1 On March 31, 2014, Lara-Molina pled

      guilty as charged. According to the terms of Lara-Molina’s guilty plea,

      sentencing was left to the discretion of the trial court as the State did not make a

      sentencing recommendation.


[5]   The trial court conducted a sentencing hearing on August 18, 2014, during

      which the State informed the trial court that:

              the history of this case is that Mr. Lara-Molina pleaded guilty to the
              Class A felony … but due to circumstances that have occurred since




      1
        The State filed an amended charging information on December 2, 2013. The amended charging
      information is identical to the original charging information filed on November 22, 2013, except that
      it appears to correct a spelling error that was contained in the original charging information.

      Court of Appeals of Indiana | Memorandum Decision 12A02-1409-CR-645 | March 26, 2015      Page 3 of 9
        the time of the plea, uh, the State now wishes to provide Mr. Lara-
        Molina with a consideration uh, that is not possible uh, under the
        potential sentencing for the Class A felony to which he -- he pleaded.
        And so in order to be able to recommend to the Court uh, the
        consideration that we wish him to have uh, we uh, would need to --
        and then propose to do so today, amend the uh, Count 1, Dealing in
        Cocaine, a Class A felony, to a Class B felony, uh, carrying a range of
        penalties of six to twenty years. Uhm, and the recommendation we
        would then make is that the executed portion of the sentence be uh,
        seven years. Uh, now that recommendation would be non-binding
        because we stand here today uh, poised for a sentencing in a situation
        in which there was no agreement uh, between the parties at the time
        that the plea agreement was entered. So even if we make a
        recommendation today at the Class A level, it would not be binding on
        the Court and we don’t propose to make it binding on the Court at the
        Class B level. But, it is an attempt to uh, be able to make the
        recommendation to the Court, the consideration that we think uh, we
        would like Mr. Lara-Molina to have. Now we recognize also and we
        hope he does that the minute we uh, amend the Class A to a Class B if
        the court approves that and he is in agreement with it, he gets a fairly
        substantial consideration anyway because the maximum on a Class B
        is the minimum on a Class A, and uh, so that -- that’s a meaningful
        opportunity for him. But, at any rate, that’s what the State proposes
        here uh, if the defense table is in agreement with our proceeding in that
        manner.


Tr. pp. 15-16. Defense counsel indicated that the State’s comments were

consistent with counsel’s understanding. In addition, through the aid of an

interpreter, the trial court and Lara-Molina engaged in the following discussion:

        The Court: And -- Mr. Lara-Molina, have you been able to
        understand the attorney’s summary and outlining of the changes to the
        Plea Agreement that they are proposing?
        Interpreter:     Yes.
        The Court: Do you understand that I would not uh, authorize or
        accept any changes at this point until accepting a plea pursuant to this
        agreement? And what that means is you’ve already pled guilty to a

Court of Appeals of Indiana | Memorandum Decision 12A02-1409-CR-645 | March 26, 2015   Page 4 of 9
        Class A felony. We’re scheduled for sentencing on that Class A felony
        today. Uh, the attorneys have further negotiated and are proposing
        that, that Plea Agreement be modified to a Class -- … So then the Plea
        Agreement if accepted, would be modified so that the Dealing in
        Cocaine would be a Class B felony as opposed to Class A felony.
        Additionally in the portion of that Plea Agreement that originally said
        the State would not make a sentencing recommendation, the parties
        would be making the recommendation that has just been outlined.
        Understand though that the Court is not bound by that
        recommendation. As an A felony or as you originally pled and were
        originally charged, the penalty range is anywhere from twenty to fifty
        years with thirty years being the advisory sentence and the fine
        possible from Zero to Ten Thousand Dollars. If the Court would
        accept this modification, the penalty would range for a B felony would
        be anywhere from six years to twenty years. The advisory sentence
        would be ten years and the fine could range from Zero to Ten
        Thousand Dollars. Do you understand those possible penalties both
        for the charge as it currently stands as an A felony and as a reduced B
        felony charge that is contemplated with these amendments?
        Interpreter:     Yes sir.
        The Court: And again, do you understand that any
        recommendations to the sentence that would be made either by the
        attorneys individually or by the attorneys jointly, would be just that,
        only recommendations and the Court would still have the authority to
        sentence you within the full range for that [B] felony, which is six to
        twenty years of incarceration? Do you understand that?
        Interpreter:     Yes.
                                                ****
        The Court: Other than what I have reviewed with you and what has
        been outlined by the attorneys, have you been promised anything else,
        threatened or forced to get you to plead guilty?
        Interpreter:     No sir.
        The Court: Have you been able to understand everything I’ve said
        through the translation provided by Miss Garza?
        Interpreter:     Yes sir.
                                                ****

Court of Appeals of Indiana | Memorandum Decision 12A02-1409-CR-645 | March 26, 2015   Page 5 of 9
              The Court: Okay. And again just to make sure you’re aware of this,
              if the Court does accept this new plea to a B felony level, the Court has
              the full range of possible penalties, which would be six to twenty years
              and the attorneys can make arguments and recommendations, but
              none of those arguments or recommendations are binding on the
              Court and the Court will decide upon the pos -- the actual penalty
              within that six to twenty year range. Do you understand that?
              Interpreter:     Yes sir.


      Tr. pp. 16-21. Lara-Molina also again admitted that he possessed cocaine, with

      the intent to deliver, on November 20, 2013.


[6]   At the conclusion of the hearing, the trial court allowed Lara-Molina to amend

      his guilty plea from a plea of guilty to a Class A felony to a plea of guilty to a

      Class B felony. The trial court, however, found that the seven-year sentence

      recommended by the State was inadequate, instead sentencing Lara-Molina to

      an aggregate eighteen-year term. In arriving at this sentence, the trial court

      found that the aggravating factors outweighed the mitigating factors. 2 The trial

      court also found that Lara-Molina was a high risk to re-offend and noted that

      Lara-Molina received a substantial benefit from the reduction of his conviction

      for dealing in cocaine from a Class A felony level to a Class B felony level.




      2
        Lara-Molina does not challenge the aggravating and mitigating factors found by the trial court on
      appeal. The aggravating factors include: Lara-Molina’s criminal history, which includes convictions
      for crimes of violence, several weapons charges, and at least one federal conviction for illegal re-
      entry; his status as an illegal alien; and the fact that he had previously been deported. The mitigating
      factors include: Lara-Molina accepted responsibility for his actions by pleading guilty, cooperated
      with law enforcement, and had family obligations.


      Court of Appeals of Indiana | Memorandum Decision 12A02-1409-CR-645 | March 26, 2015         Page 6 of 9
                                Discussion and Decision
[7]   On appeal, Lara-Molina contends that the trial court abused its discretion in

      sentencing him. Generally, sentencing decisions rest within the sound

      discretion of the trial court and are reviewed on appeal only for an abuse of

      discretion. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), modified on other

      grounds on reh’g, 875 N.E.2d 218 (Ind. 2007). “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. (quotation omitted).


[8]   Specifically, Lara-Molina argues that the trial court abused its discretion by

      failing to give him an opportunity to withdraw his guilty plea after the trial

      court determined that it would not impose the seven-year executed sentence

      that was recommended by the State. The record establishes, however, that both

      parties understood that the seven-year executed sentence recommendation

      presented for the first time by the State at sentencing would not be binding upon

      the trial court.

              Under a “nonbinding” sentence recommendation, the defendant
              extracts a promise from the prosecutor to advocate the imposition of a
              particular sentence (or that the prosecutor will remain mute at the
              sentencing hearing), but the defendant knowingly, voluntarily, and
              intelligently submits to the agreement with the understanding that the
              sentence recommendation is “nonbinding” and that he or she is not
              entitled to withdraw the guilty plea if the trial court rejects the
              recommended sentence. This type of sentence recommendation is
              made as another fact relevant to sentencing for the trial court to



      Court of Appeals of Indiana | Memorandum Decision 12A02-1409-CR-645 | March 26, 2015   Page 7 of 9
                 consider when it exercises its sentencing discretion.


       Walker v. State, 420 N.E.2d 1374, 1378 (Ind. Ct. App. 1981); see also Hedger v.

       State, 824 N.E.2d 417, 420 (Ind. Ct. App. 2005) (providing that where the

       defendant’s written plea agreement included no specific sentence term, the trial

       court was not bound to follow the State’s oral sentence recommendation), trans.

       denied.


[9]    Again, both the State and Lara-Molina explicitly stated that they understood

       that the State’s recommendation of a seven-year executed sentence would not

       be binding on the trial court. After both counsel for the State and defense

       counsel indicated that the sentence recommendation would not be binding

       upon the trial court, the trial court, through the aid of an interpreter, engaged in

       a discussion with Lara-Molina in which the trial court repeatedly asked Lara-

       Molina whether he understood that the sentence recommendation was

       nonbinding and sentencing would be left to the trial court. Each time, Lara-

       Molina indicated that he understood. Lara-Molina further indicated that he

       had been able to understand everything that the trial court had said through the

       translation.


[10]   The record clearly demonstrates that all of the relevant parties, including

       counsel for the State, defense counsel, and Lara-Molina, understood that the

       seven-year sentence recommendation was not binding upon the trial court and

       that the trial court retained the discretion to sentence Lara-Molina as the trial

       court saw fit. We therefore conclude that the trial court acted within its


       Court of Appeals of Indiana | Memorandum Decision 12A02-1409-CR-645 | March 26, 2015   Page 8 of 9
       discretion in sentencing Lara-Molina to an aggravated eighteen-year term

       without first offering Lara-Molina the opportunity to withdraw his guilty plea.


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


       Vaidik, C.J., and Kirsch, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 12A02-1409-CR-645 | March 26, 2015   Page 9 of 9
