MEMORANDUM DECISION                                                            FILED
Pursuant to Ind. Appellate Rule 65(D), this                               Dec 18 2017, 10:00 am

Memorandum Decision shall not be regarded as                                   CLERK
precedent or cited before any court except for the                         Indiana Supreme Court
                                                                              Court of Appeals
purpose of establishing the defense of res judicata,                            and Tax Court

collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Sean C. Mullins                                          Curtis T. Hill, Jr.
Crown Point, Indiana                                     Attorney General of Indiana

                                                         Caryn N. Szyper
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                             IN THE
    COURT OF APPEALS OF INDIANA

Fernando Arellano,                                       December 18, 2017

Appellant-Defendant,                                     Court of Appeals Case No.
                                                         45A05-1707-CR-1519
        v.                                               Appeal from the Lake County
                                                         Superior Court.
                                                         The Honorable Diane Ross Boswell,
State of Indiana,                                        Judge.
Appellee-Plaintiff.                                      Trial Court Cause No.
                                                         45G03-1611-F2-22




Barteau, Senior Judge




Court of Appeals of Indiana | Memorandum Decision 45A05-1707-CR-1519 | December 18, 2017           Page 1 of 7
                                          Statement of the Case
[1]   Fernando Arellano appeals the ten-year sentence the trial court imposed after
                                                                                                 1
      he pleaded guilty to burglary resulting in bodily injury, a Level 3 felony. We

      affirm.


                                                    Issue
[2]   Arellano raises one issue, which we restate as: whether the court failed to

      provide a sufficient explanation to support Arellano’s ten-year sentence.


                                   Facts and Procedural History
[3]   On November 10, 2016, Arellano and Kelly Swafford went to the home of

      Edward Boffo and Mindy Fontanyi. Fontanyi is Swafford’s sister. Arellano

      intended to steal from the home. Neither Boffo nor Fontanyi were at home

      when Arellano and Swafford arrived. He kicked in the front door, entered the

      house, and moved two televisions and an electronic game system to a window.


[4]   Boffo and Fontanyi returned home and saw Swafford sitting in a car outside

      their house. While the three argued, Arellano knocked out a window screen

      and climbed out of the window. Boffo approached him, and the two men

      fought. Arellano pulled out a knife and cut Boffo’s hand. The police arrived

      and arrested Arellano.




      1
          Ind. Code § 35-43-2-1 (2014).


      Court of Appeals of Indiana | Memorandum Decision 45A05-1707-CR-1519 | December 18, 2017   Page 2 of 7
[5]   The State charged Arellano with burglary with a deadly weapon, a Level 2

      felony; burglary resulting in bodily injury, a Level 3 felony; and burglary of a

      dwelling, a Level 4 felony. The parties negotiated a plea agreement, pursuant

      to which Arellano agreed to plead guilty to burglary as a Level 3 felony. In

      exchange, the State agreed to dismiss the other burglary charges and to refrain

      from charging him with a habitual offender sentencing enhancement. The

      parties further agreed Arellano’s sentence would be capped at ten years.


[6]   The trial court held a guilty plea hearing and took the parties’ agreement under

      advisement. At a subsequent hearing, the court accepted the agreement and

      determined Arellano was guilty of burglary as a Level 3 felony. The court

      imposed a ten-year sentence, and this appeal followed.


                                   Discussion and Decision
[7]   Arellano argues the trial court failed to provide a sufficient explanation for his

      ten-year sentence. Pursuant to Indiana Code section 35-38-1-7.1(d) (2015), a

      court “may impose any sentence that is . . . authorized by statute; and . . .

      permissible under the Constitution of the State of Indiana.” When imposing a

      sentence, the trial court must conduct a hearing and make a record. Ind. Code

      § 35-38-1-3 (1983). The record shall include “a statement of the court’s reasons

      for selecting the sentence that it imposes,” if the court finds aggravating

      circumstances or mitigating circumstances. Id.


[8]   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

      Court of Appeals of Indiana | Memorandum Decision 45A05-1707-CR-1519 | December 18, 2017   Page 3 of 7
       N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (2007). When a

       court imposes a sentence for a felony offense, it must provide a “reasonably

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

       sentence.” Id. The purpose of this requirement is to: (1) guard against

       arbitrary and capricious sentencing; and (2) provide an adequate basis for

       appellate review. Moore v. State, 882 N.E.2d 788, 795 (Ind. Ct. App. 2008).

       Our Supreme Court has stated that one way in which a trial court may abuse its

       sentencing discretion “is [by] failing to enter a sentencing statement at all.”

       Anglemyer, 868 N.E.2d at 490. When reviewing the adequacy of the trial court’s

       sentencing decision, we consider both the written and oral sentencing

       statements. Moore, 882 N.E.2d at 795.


[9]    The sentence for burglary as a Level 3 felony may not exceed sixteen years, and

       nine years is the advisory sentence. Ind. Code § 35-50-2-5 (2014). Arellano’s

       ten-year sentence is thus slightly above the advisory sentence, and the court was

       required to explain what aggravating circumstance justified the enhancement.

       A single aggravating circumstance may be sufficient to enhance a sentence.

       Loyd v. State, 787 N.E.2d 953, 960 (Ind. Ct. App. 2003).


[10]   Neither the trial court’s sentencing order nor the abstract of judgment include

       an explanation for the enhanced sentence, but the court’s oral sentencing

       statement is sufficient. After Arellano addressed the court, the following

       discussion occurred:

               THE COURT: Well, it seems to me that you have had
               opportunities to change your life, but your history is replete with

       Court of Appeals of Indiana | Memorandum Decision 45A05-1707-CR-1519 | December 18, 2017   Page 4 of 7
        convictions, and I’m not looking at everything else, just the
        convictions, so that says to me that you didn’t take those
        opportunities, and it makes me wonder why should I give you
        another one. Because your mother is sick and because you have
        a daughter?
        THE DEFENDANT: Not just because of that, not just because
        of that. Because if I get sentenced right now and I do get the
        whole ten years, if I’m locked up, it’s-it’s-it’s-I’ll be 40 and then I
        won’t never see my mother again. That-my daughter, she’s
        already nine. She’ll be, what-I’ll miss her graduating, stuff like
        that. This-I never foreseen this at all.
        THE COURT: You didn’t?
        THE DEFENDANT: No, I didn’t.
        THE COURT: When you were committing crime after crime
        after crime after crime, it never occurred to you that one of these
        days-
        THE DEFENDANT: This right here, no.
        THE COURT: (Continuing) -I’m going to end up in prison for a
        long time? That never occurred to you? Now, I’m intrigued by
        that.
        THE DEFENDANT: Yes, yes, that did, that did, but not this,
        not this.
        THE COURT: Ten years never-never occurred to you.
        THE DEFENDANT: No, this position I’m in right now, this
        position I’m in. I’m just asking-
        THE COURT: I really don’t have another-I don’t have an
        alternative disposition for you. I can’t send you to Community
        Corrections for ten years or eight years. I mean, they don’t want
        anybody longer than two. That’s what-you know, they think
        that’s the opportune time for them to work with somebody and
        make it beneficial. Anything after that is just warehousing. So I
        don’t have any real alternative.



Court of Appeals of Indiana | Memorandum Decision 45A05-1707-CR-1519 | December 18, 2017   Page 5 of 7
               All right. So on the defendant’s plea of guilty to burglary, and
               that’s Count-Count-Count II, Count II, as a Level 3 felony, he’ll
               be sentenced pursuant to the plea agreement to ten years in the
               Department of Corrections [sic], and he’ll be sentenced to the
               therapeutic community for chemically addicted offenders at
               Westville or any other appropriate facility.
               The Court will consider a petition for modification if the
               defendant successfully completes the therapeutic community.

       Sentencing Tr. pp. 17-19.


[11]   It is clear from this discussion that the court deemed Arellano’s criminal

       history, which consists of four felonies and six misdemeanors, to be significant.

       The court was further troubled that Arellano seemed not to understand that his

       prior sentences should have motivated him to avoid breaking the law, but he

       persisted in criminal conduct. Although more detail would have helped, we

       conclude from this record that the court deemed Arellano’s criminal record to

       be an aggravating factor. See Gleason v. State, 965 N.E.2d 702, 711 (Ind. Ct.

       App. 2009) (trial court sufficiently identified aggravating factors, including

       criminal history, during resentencing hearing).


[12]   Arellano cites to Currie v. State, 448 N.E.2d 1252 (Ind. Ct. App. 1983), but that

       case is distinguishable. There, the trial court simply cited the defendant’s two

       prior felony convictions as an aggravating circumstance, and a panel of this

       Court deemed that statement insufficient. By contrast, in this case the court

       explained Arellano’s lengthy criminal record was a problem because he had

       been given numerous opportunities to reform and chose to persist in criminal



       Court of Appeals of Indiana | Memorandum Decision 45A05-1707-CR-1519 | December 18, 2017   Page 6 of 7
       conduct. The court did not abuse its discretion in explaining the basis for its

       sentence.


                                                Conclusion
[13]   For the reasons stated above, we affirm the judgment of the trial court.


[14]   Affirmed.


       Vaidik, C.J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 45A05-1707-CR-1519 | December 18, 2017   Page 7 of 7
