MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                         FILED
regarded as precedent or cited before any                                Jun 14 2019, 9:57 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
Leanna Weissmann                                         Curtis T. Hill, Jr.
Lawrenceburg, Indiana                                    Attorney General of Indiana

                                                         Justin F. Roebel
                                                         Supervising Deputy Attorney
                                                         General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Francisco Gallardo-Cortes,                               June 14, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-26
        v.                                               Appeal from the LaGrange
                                                         Superior Court
State of Indiana,                                        The Honorable Lisa M. Bowen-
Appellee-Plaintiff.                                      Slaven, Judge
                                                         Trial Court Cause No.
                                                         44D01-1806-F2-4



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-26 | June 14, 2019                      Page 1 of 6
                                       Statement of the Case
[1]   Francisco Gallardo-Cortes appeals his sentence following his conviction for

      dealing in cocaine, as a Level 3 felony, pursuant to a guilty plea. Gallardo-

      Cortes raises one issue for our review, namely, whether his sentence is

      inappropriate in light of the nature of the offense and his character. We affirm.


                                 Facts and Procedural History
[2]   On June 6, 2018, Indiana State Police Trooper Andrew C. Baldwin conducted

      a traffic stop of Gallardo-Cortes. Trooper Baldwin noticed an odor of alcohol

      coming from Gallardo-Cortes. He also noticed that Gallardo-Cortes’ speech

      was slurred, his eyes were glossy, and he demonstrated poor manual dexterity.

      Gallardo-Cortes consented to a certified chemical breath test, which indicated

      that Gallardo-Cortes had an alcohol concentration equivalent to 0.128 gram of

      alcohol per 210 liters of breath. Trooper Baldwin also discovered that Gallardo-

      Cortes had never had a valid driver’s license.


[3]   Trooper Baldwin arrested Gallardo-Cortes, impounded his vehicle, and

      conducted an inventory search of the vehicle. During the search, Trooper

      Baldwin found a bag that contained a “white powder substance” underneath

      the driver’s seat. Appellant’s App. Vol. II at 6. He also found another “white

      rock substance” behind the CD player along with cash, baggies, and a scale. Id.

      Both substances were later determined to be cocaine. In total, Trooper Baldwin

      discovered approximately sixty-three grams of cocaine in Gallardo-Cortes’ car.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-26 | June 14, 2019   Page 2 of 6
[4]   The State charged Gallardo-Cortes with dealing in cocaine, as a Level 2 felony;

      operating a vehicle while intoxicated, as a Class A misdemeanor; operating a

      vehicle without ever having received a driver’s license, as a Class C

      misdemeanor; operating a vehicle with an alcohol concentration equivalent to

      at least 0.08 gram of alcohol but less than 0.15 gram of alcohol per 210 liters of

      breath, as a Class C misdemeanor; speeding, as a Class C infraction; improper

      lane usage, as a Class C infraction; and possession of an open alcoholic

      container, as a Class C infraction. Gallardo-Cortes pleaded guilty to dealing in

      cocaine, as a Level 3 felony. In exchange for his plea, the State dismissed the

      remaining charges. Following a hearing, the trial court accepted Gallardo-

      Cortes’ guilty plea. The court then sentenced Gallardo-Cortes to eight years in

      the Department of Correction, with six years executed and two years suspended

      to probation. This appeal ensued.


                                     Discussion and Decision
[5]   Gallardo-Cortes contends that his sentence is inappropriate in light of the

      nature of the offense and his character. Indiana Appellate Rule 7(B) provides

      that “[t]he 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.” This court has recently held that “[t]he advisory sentence is the

      starting point the legislature has selected as an appropriate sentence for the

      crime committed.” Sanders v. State, 71 N.E.3d 839, 844 (Ind. Ct. App. 2017).

      And the Indiana Supreme Court has recently explained that:

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-26 | June 14, 2019   Page 3 of 6
              The principal role of appellate review should be to attempt to
              leaven the outliers . . . but not achieve a perceived “correct”
              result in each case. Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.
              2008). Defendant has the burden to persuade us that the
              sentence imposed by the trial court is inappropriate. Anglemyer v.
              State, 868 N.E.2d 482, 494 (Ind.), as amended (July 10, 2007),
              decision clarified on reh’g, 875 N.E.2d 218 (Ind. 2007).


      Shoun v. State, 67 N.E.3d 635, 642 (Ind. 2017) (omission in original).


[6]   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, 895 N.E.2d at 1222. 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). 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).


[7]   The sentencing range for a Level 3 felony is three years to sixteen years, with an

      advisory sentence of nine years. See Ind. Code § 35-50-2-5(b) (2018). Here, the

      trial court did not identify any mitigators, and the court expressly found that


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-26 | June 14, 2019   Page 4 of 6
      there were no aggravating circumstances. Accordingly, the trial court imposed

      a slightly reduced sentence of eight years, with six years executed and two years

      suspended to probation.


[8]   Gallardo-Cortes contends that his sentence is inappropriate in light of the

      nature of the offense because he “cooperated with the authorities” and because

      his “possession of drugs was driven by his desire to support his own drug

      addiction.” Appellant’s Br. at 9, 10. And Gallardo-Cortes asserts that his

      sentence is inappropriate in light of his character because he only has one prior

      misdemeanor conviction, his incarceration will be a hardship on his family, he

      expressed remorse, and he took responsibility for his actions when he pleaded

      guilty. Id. at 12.


[9]   However, Gallardo-Cortes has not met his burden to demonstrate that his

      sentence is inappropriate. With respect to the nature of the offense, Gallardo-

      Cortes admitted to possessing at least ten grams of cocaine, which is an amount

      well above that required to support his Level 3 felony conviction. 1 See I.C. § 35-

      48-4-1(d) (the offense is a Level 3 felony if “the amount of the drug involved is

      at least five (5) grams but less than ten (10) grams”). As for his character,




      1
        The State contends that Gallardo-Cortes’ sentence is not inappropriate in light of the nature of the offense
      because he possessed sixty-three grams of cocaine, which was “more than 12 times the quantity needed . . . to
      support a Level 3 felony offense[.]” Appellee’s Br. at 8. However, at the hearing on his guilty plea, Gallardo-
      Cortes acknowledged that he was originally charged with a Level 2 felony “because of the amount of cocaine
      that was in his car.” Tr. Vol. II at 11. Accordingly, Gallardo-Cortes only admitted that he had possessed
      enough cocaine to support the Level 2 felony charge, which is at least ten grams. See I.C. § 35-48-4-1(e).

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-26 | June 14, 2019                        Page 5 of 6
       Gallardo-Cortes admitted to a long history of substance-abuse problems for

       which he has never sought treatment, which reflects poorly on his character. 2


[10]   In considering the appropriateness of a sentence under Appellate Rule 7(B),

       appellate courts may consider all aspects of the penal consequences imposed by

       the trial judge, including the fact that a portion of the sentence was suspended.

       Davidson v. State, 926 N.E.2d 1023, 1025 (Ind. 2010). Here, Gallardo-Cortes’

       total sentence was not only below the nine-year advisory sentence for a Level 3

       felony, but two years of his sentence were suspended to probation.

       Accordingly, we cannot say that Gallardo-Cortes’ sentence is inappropriate.


[11]   Affirmed.


       Baker, J., and Robb, J., concur.




       2
         To the extent Gallardo-Cortes contends that the trial court should have “consider[ed] substance abuse
       treatment in lieu” of incarceration, we note that the trial court specifically recommended Gallardo-Cortes for
       the Purposeful Incarceration Program. Appellant’s Br. at 12. The court further indicated that it would
       consider a sentence modification upon Gallardo-Cortes’ successful completion of that program.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-26 | June 14, 2019                        Page 6 of 6
