Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
                                                           Oct 27 2014, 9:14 am
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:

KRISTINA J. JACOBUCCI                              GREGORY F. ZOELLER
Newby, Lewis, Kaminski & Jones LLP                 Attorney General of Indiana
LaPorte, Indiana
                                                   KARL M. SCHARNBERG
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana




                               IN THE
                     COURT OF APPEALS OF INDIANA


JUAQUIN DIAZ-DELREAL,                              )
                                                   )
       Appellant-Defendant,                        )
                                                   )
               vs.                                 )       No. 46A03-1404-CR-130
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )


                     APPEAL FROM THE LAPORTE CIRCUIT COURT
                         The Honorable Thomas J. Alevizos, Judge
                             Cause No. 46C01-1302-FD-729


                                        October 27, 2014

                MEMORANDUM DECISION - NOT FOR PUBLICATION

SULLIVAN, Senior Judge
          Juaquin Diaz-Delreal appeals after pleading guilty to one count of criminal

recklessness, contending that the trial court’s judgment of conviction does not conform to
                 1




the terms of the plea agreement and that his sentence is inappropriate in light of the nature

of the offense and the character of the offender. We affirm in part, and reverse in part and

remand.

          On February 10, 2013, Diaz-Delreal and Christian Osornio exchanged text

messages agreeing to fight in a K-Mart parking lot. Diaz-Delreal drove his pickup to the

meeting place, and his brother, Rigoberto, and his friend, Adrian Martinez, accompanied

him there. When the three reached the location previously agreed upon, they saw Osornio

along with several other people awaiting Diaz-Delreal’s arrival. Rigoberto exited Diaz-

Delreal’s truck and began fighting. Diaz-Delreal circled around in his truck and called for

Rigoberto to get inside. When his brother was back inside the truck, Diaz-Delreal

accelerated away from the group, striking Osornio with his truck in the process. Osornio

suffered a skull fracture, which required him to be hospitalized for a week. After his

recovery, Osornio’s doctor expressed his surprise that Osornio survived his injuries

because he was certain the injuries were fatal.

          The State charged Diaz-Delreal with criminal recklessness as a Class D felony and

failure to stop at the scene of an accident resulting in serious bodily injury as a Class D

felony. Diaz-Delreal and the State entered into a plea agreement, which provided in

pertinent part as follows:

          8. Notwithstanding the above, I have, with the assistance of Counsel,

1
    Ind. Code §35-42-2-2 (2006).

                                              2
       entered into an agreement with the State of Indiana as follows:
              A.     I will plead guilty to Criminal Recklessness, Class D
              Felony;
              B.     Judgment of conviction will enter as a Class A
              Misdemeanor;
              C.     Sentencing will be argued by the parties;
              D.     At sentencing, any other charges in this cause will be
              dismissed.

Appellant’s App. at 68. The trial court took the tendered plea agreement under advisement,

ordered the preparation of a pre-sentence investigation report, and set the matter for

sentencing.

       The trial court accepted the plea and entered a sentencing order, which reads in

pertinent part as follows:

       The court now enters a judgment of conviction against the Defendant,
       Juaquin Diaz-Delreal, to Criminal Recklessness, a Class D Felony.

       The Defendant, Juaquin Diaz-Delreal, who is a male person, 23 years of age,
       is guilty of Criminal Recklessness, a Class D Felony, and shall be sentenced
       as an A Misdemeanor.

       IT IS ORDERED, ADJUDGED AND DECREED by the Court that the
       Defendant, Juaquin Diaz-Delreal, shall be committed to the custody of the
       LaPorte County Jail for a period of one (1) year.

Id. at 71 (emphasis in original). Diaz-Delreal now appeals. Additional facts will be

supplied as needed.

       Diaz-Delreal argues that the trial court’s sentencing order violates the terms of the

plea agreement because the judgment of conviction was entered as a Class D felony, when

the plea agreement explicitly stated that the judgment of conviction would be entered as a

Class A misdemeanor. The State contends that we should affirm the trial court since the

sentencing order provided that Diaz-Delreal would be sentenced for a Class A

                                             3
misdemeanor and the sentence imposed was within the statutory range for a Class A

misdemeanor. We disagree with the State’s position.

       Although the sentencing order reflects that Diaz-Delreal shall be sentenced “as an

A misdemeanor,” judgment of conviction was entered as a Class D felony. The plea

agreement, which was accepted by the trial court, provided that judgment of conviction

would be entered as a Class A misdemeanor. “Our courts have long held that plea

agreements are in the nature of contracts entered into between the defendant and the State.”

Lee v. State, 816 N.E.2d 35, 38 (Ind. 2004). “[A] plea agreement is contractual in nature,

binding the defendant, the state and the trial court.” Pannarale v. State, 638 N.E.2d 1247,

1248 (Ind. 1994) (citing State ex rel. Goldsmith v. Superior Court, 419 N.E.2d 109, 114

(Ind. 1981)). “If the court accepts a plea agreement, it shall be bound by its terms.” Ind.

Code §35-35-3-3(e) (1987).

       Here, the plea agreement provided that the judgment of conviction would be entered

as a Class A misdemeanor. This is not a situation involving alternative misdemeanor

sentencing under Indiana Code section 35-50-2-7(b) (2013), nor does this situation

implicate Indiana Code section 35-38-1-1.5(a) (2013) (Class D felony conviction later

converted to Class A misdemeanor after conditions are met). The record reflects that upon

hearing the factual basis for the plea, the trial court specifically questioned the State about

the agreement to plead to a Class A misdemeanor, when the factual basis appeared to

support a Class D felony conviction. Trial counsel did state at the sentencing hearing that

“I’m asking you to accept the plea. It simply called for treatment as a misdemeanor and

then argued sentence.” Tr. at 21. However, the plea bargain speaks for itself. Further, the

                                              4
portion of the plea agreement stating that Diaz-Delreal would plead guilty to Criminal

Recklessness as a Class D felony could reasonably be interpreted to mean that of the two

charges, criminal recklessness was the one to which a plea agreement had been reached.

Consequently, we remand this matter to the trial court to vacate the Class D felony

conviction and to enter a judgment of conviction as a Class A misdemeanor consistent with

the terms of the plea agreement.

       Next, Diaz-Delreal contends that his sentence is inappropriate in light of the nature

of the offense and the character of the offender. Because Diaz-Delreal’s sentence falls

within the sentencing range for a Class A misdemeanor, we consider his argument despite

the error in the judgment of conviction. The sentencing range for a Class A misdemeanor

is a fixed term of not more than one year. Ind. Code § 35-50-3-2 (1977). Although the

trial court may have acted within its lawful discretion in imposing Diaz-Delreal’s sentence,

Article 7, Sections 4 and 6 of the Indiana Constitution authorize independent appellate

review and revision of sentences through Indiana Appellate Rule 7(B), which provides that

a 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.” Reid v. State, 876 N.E.2d 1114, 1116 (Ind.

2007) (quoting Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007)). The “nature of

offense” compares the defendant’s actions with the required showing to sustain a

conviction under the charged offense, while the “character of the offender” permits for a

broader consideration of the defendant’s character. Douglas v. State, 878 N.E.2d 873, 881

(Ind. Ct. App. 2007). An appellant bears the burden of showing both prongs of the inquiry

                                              5
favor revision of his sentence. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).

       As for Diaz-Delreal’s character, his criminal history is not the worst. He had a prior

juvenile adjudication for battery. However, the facts show that he intended to engage in a

fight with Osornio, which would have constituted another battery. Examining the nature

of the offense, we observe that Osornio nearly died as a result of Diaz-Delreal’s reckless

behavior. Osornio spent a week in the hospital after having his skull and orbital bone

fractured after being struck by the truck. Osornio described the physical impact of his

injuries as follows: “[the injury] wasn’t just a simple scratch and put a Band Aid on it. I

went through months and months after months of pain and suffering literally to get where

I’m at.” Tr. at 25. The extent of Osornio’s injuries were such that a metal plate was

installed to stabilize his jaw and he has no sensation in the jaw area. Diaz-Delreal has not

met his burden of establishing that his sentence is inappropriate in light of the nature of the

offense and the character of the offender.

       In light of the foregoing, we affirm the trial court’s sentencing decision, but reverse

and remand to the trial court to vacate the judgment of conviction as a Class D felony and

to enter a judgment of conviction as a Class A misdemeanor.

       Affirmed in part, reversed in part and remanded.

       MAY, J., and BROWN, J., concur.




                                              6
