MEMORANDUM DECISION
                                                                   FILED
Pursuant to Ind. Appellate Rule 65(D), this                   Jun 30 2016, 6:30 am
Memorandum Decision shall not be
                                                                   CLERK
regarded as precedent or cited before any                      Indiana Supreme Court
                                                                  Court of Appeals
court except for the purpose of establishing                        and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Darren Bedwell                                           Gregory F. Zoeller
Marion County Public Defender                            Attorney General of Indiana
Appellate Division
Indianapolis, Indiana                                    Karl Scharnberg
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Roger Lopez-Rivera,                                      June 30, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A04-1510-CR-1542
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Allan Reid, Judge
Appellee-Plaintiff.                                      Pro Tempore
                                                         Trial Court Cause No.
                                                         49G05-1406-MR-32282




Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A04-1510-CR-1542|June 30, 2016     Page 1 of 15
[1]   Roger Lopez-Rivera appeals his sentence for aggravated battery, a class B

      felony. Lopez-Rivera raises two issues which we revise and restate as:


              I.      Whether the trial court abused its discretion in sentencing
                      him; and
              II.     Whether his sentence is inappropriate in light of the nature
                      of the offense and the character of the offender.

      We affirm and remand.


                                      Facts and Procedural History

[2]   Lopez-Rivera and Kimberly Lopez-Rivera were married in November 2012,

      and in June 2014 their marriage was coming to an end. Kimberly purchased a

      bus ticket from Indianapolis to Fort Wayne. She went to the bus station on

      June 16, 2014, but was mistaken about the date and discovered her departure

      was not until the following day, and she returned to Lopez-Rivera’s house.

      Kimberly told Lopez-Rivera that she was planning a trip to Fort Wayne and he

      slapped her. She left and went to her friend Marie’s house, one block away,

      and later she and Marie walked to Samantha’s house. A person named David,

      was at Samantha’s house and asked Kimberly about the mark on her face, and

      she told him about the earlier incident. David stated that he was going to walk

      Kimberly and Marie home, and the three began walking from Samantha’s

      house to Marie’s house.


[3]   They walked on the sidewalk past Lopez-Rivera’s house, and David yelled

      toward the house, saying “[c]ome hit a man, not a woman.” Transcript at 83.

      David and Kimberly walked toward a convenience store while Marie spoke

      Court of Appeals of Indiana | Memorandum Decision 49A04-1510-CR-1542|June 30, 2016   Page 2 of 15
      with another person. While walking toward the convenience store, Kimberly

      saw Lopez-Rivera holding a knife in each of his hands. David ran away, and

      Lopez-Rivera chased after him. Lopez-Rivera then stopped chasing David, ran

      towards Kimberly, and stabbed her in her left arm with the knife in his right

      hand. Kimberly started to fight back and threw punches, although she did not

      know whether or not she struck him. Lopez-Rivera then stabbed Kimberly in

      her forehead, and as he did so, Kimberly punched the knife and the knife broke.

      Lopez-Rivera then stabbed her near her neck and ran away. Kimberly pulled

      the knife out of her neck, looked at it, and dropped it.


[4]   A woman named Sharron, who was picking up her children from her

      grandmother’s house nearby, ran to Kimberly and told her mom and sister to

      call 911. Sharron could hear air bubbles coming from the injury on Kimberly’s

      neck and tried to cover the wound. Kimberly suffered lacerations to her

      forehead, neck, and shoulder and was taken to a hospital. The wound to her

      neck showed that the knife came from above and went down, entered between

      the first and second rib just under her clavicle, caused damage to the upper and

      middle lobes of Kimberly’s right lung, caused blood and air to be trapped in her

      chest cavity, and was potentially lethal. She required a chest tube for at least

      five days and was hospitalized for eight days.


[5]   On June 18, 2014, the State charged Lopez-Rivera with attempted murder, a

      class A felony. A jury trial was held on August 20, 2015, at which Lopez-

      Rivera’s counsel proposed that the jury be instructed on a lesser-included

      offense of aggravated battery, and the court indicated it was inclined to give the

      Court of Appeals of Indiana | Memorandum Decision 49A04-1510-CR-1542|June 30, 2016   Page 3 of 15
      instruction. Lopez-Rivera stated that he had been looking at law about battery

      and that “if [he] (indecipherable) of attempt murder [he] cannot be find guilty

      on those charges,” and in response the court explained that Lopez-Rivera could

      be found guilty of lesser-included offenses. Transcript at 239. Lopez-Rivera’s

      counsel informed the court that he and Lopez-Rivera had the conversation a

      number of times before and that he had explained to him at great length that he

      would be asking the jury to find him guilty of something less than attempted

      murder. The court then again clarified that, if the jury did not find him guilty of

      attempted murder, it still had the option to convict him of the less serious

      offense. The court explained that the jury could find him guilty of attempted

      murder, guilty of aggravated battery, or not guilty of either offense.


[6]   During closing argument, Lopez-Rivera’s counsel agreed that Lopez-Rivera

      committed the act which resulted in the injuries to Kimberly but argued that he

      did not have the specific intent to kill or murder her and asked the jury to

      convict Lopez-Rivera of aggravated battery. In its final instructions, the court

      instructed the jury on the crimes of attempted murder, a class A felony, and

      aggravated battery, a class B felony. The jury found Lopez-Rivera not guilty of

      attempted murder and guilty of aggravated battery, a class B felony.


[7]   At the beginning of Lopez-Rivera’s sentencing hearing, the court stated in part:


              So we were in Court on August 20th for a jury trial. Mr. Rivera
              went to trial on the charge of attempt[ed] murder. The jury
              convicted him of aggravated battery, that’s a Class B felony as a
              lesser included offense. I think Mr. Rivera should by very
              grateful to [his defense counsel] for having that done, because

      Court of Appeals of Indiana | Memorandum Decision 49A04-1510-CR-1542|June 30, 2016   Page 4 of 15
              that would not have happened otherwise. Are the parties ready
              for sentencing?

      Id. at 280-281.


[8]   The prosecutor asked the court to sentence Lopez-Rivera to eighteen years

      executed, and Lopez-Rivera’s defense counsel asked the court to sentence

      Lopez-Rivera to ten years with four years suspended. Following arguments,

      the court stated:


              All right. Court finds that Mr. Rivera does have a violent
              history. True he only has one actual conviction, and that was in
              2006 Harrison County, Mississippi where he was convicted of
              aggravated battery and served 4 years in prison. In 2014 he was
              arrested in Clinton County, Indiana for battery resulting in
              serious bodily injury. Now he wasn’t convicted of that, but it
              was also a domestic incident. He also acknowledged in the PSI
              he had been arrested twice for fighting when he was age 14. He
              also acknowledged that he is or was a gang member . . . . Court
              finds that criminal history to be aggravating. Court also finds
              especially aggravating the nature and the circumstances of the
              incident that took place here. He knocked his wife around earlier
              in the day and she left, and she was walking back along the street
              with some young kid who was running his mouth of course, but
              there was no indication he was armed at all. So Mr. Rivera was
              coming out, engaging in fisticuffs, took the time to go into the
              kitchen and grab two knives that had blades that were 8 to 10
              inches long. These weren’t just to slice a couple of carrots, these
              were big knives, ran across the street, the young man was smart
              enough to run away, he chased him through a parking lot,
              significant distance he ran with the knives, when the young man
              got away he then ran up to Kim. She is standing there, she is not
              provoking him, she’s not doing anything, just standing there, he
              runs up stabs her in the left shoulder, stabs in the forehead hard

      Court of Appeals of Indiana | Memorandum Decision 49A04-1510-CR-1542|June 30, 2016   Page 5 of 15
              enough that the knife blade snapped. If the blade hadn’t snapped
              she might have been killed. He stabs her in the shoulder deeply
              enough that two of the three lobes of the right lung were
              penetrated. And she would have bled to death if she hadn’t
              received medical care. If that stab wound had been a little bit off
              he would have severed an artery. If it had been on the other side
              of the shoulder you would have penetrated her heart without
              much doubt. This was a potential fatal stab wound. So the
              Court finds those circumstances to be particularly aggravating.

      Id. at 293-295. The court stated it did not find any mitigating circumstances.


[9]   The court imposed a sentence of eighteen years with fourteen years executed

      and four years suspended and ordered that he be placed on probation for two

      years.1 After imposing the sentence, the court stated:

              I would like to point out, I think I touched on it earlier. Mr.
              Rivera, you need to be extremely grateful to [defense counsel].
              At trial you expressed some concern about offering the lesser
              included offense. There is not a doubt in my mind if you had
              only been facing attempted murder, you would have been
              convicted of that. You would have been facing up to 50 years in
              prison. So you should be very grateful to [defense counsel].”

      Id. at 296-297.




      1
        The Abstract of Judgment, under “Disposition” for the charge of attempted murder, states “Dismissed,”
      and for the charge of aggravated battery, states “Plea By Agreement.” Appellant’s Appendix at 16. The
      sentencing order, under “Disposition” for the charge of attempted murder, states “Dismissed,” and for the
      charge of aggravated battery, states “Finding of Guilty.” Id.

      Court of Appeals of Indiana | Memorandum Decision 49A04-1510-CR-1542|June 30, 2016              Page 6 of 15
                                                   Discussion

                                                         I.


[10]   The first issue is whether the trial court abused its discretion in sentencing

       Lopez-Rivera. We review the trial court’s sentence for an abuse of discretion.

       Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified 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. Id.


[11]   Lopez-Rivera asserts that the court disagreed with the jury’s verdict, that his

       sentence was enhanced in part because the court believed he should have been

       convicted of attempted murder, and that this Court should follow the principle

       set forth in Gambill v. State, 436 N.E.2d 301 (Ind. 1982), and reduce his sentence

       to the advisory term of ten years. In response, the State maintains in part that

       the court never expressed any disagreement with the jury’s verdict, that “[t]he

       most one could say about the court’s statements in this case, is that the court

       regarded defense counsel’s strategy to offer a lesser included option to have

       been prudent strategy,” and that, unlike in Gambill, the court did not impose a

       maximum sentence. Appellee’s Brief at 12-13.


[12]   In Gambill, the defendant was convicted of voluntary manslaughter and

       sentenced to twenty years imprisonment. 436 N.E.2d at 302. The trial court

       stated in part: “I think . . . the evidence would justify a conviction of murder. I

       think in fact that was the offense committed. The jury, as it had a right to do,

       returned a verdict of voluntary manslaughter for whatever reason, and I think it

       Court of Appeals of Indiana | Memorandum Decision 49A04-1510-CR-1542|June 30, 2016   Page 7 of 15
       was not the right verdict.” 436 N.E.2d at 304. The Indiana Supreme Court

       stated in part, that “[w]hile the trial court has considerable discretion in

       sentencing, . . . it is not unbridled,” that the jury had found the defendant guilty

       of voluntary manslaughter, a class B felony, and that “[i]t was then the function

       of the court to pronounce sentence for that crime.” Id. at 304-305. The Court

       held that, although the circumstances of the crime may well have warranted the

       assessment of a maximum sentence, that sentence “nevertheless must be for the

       crime of which the defendant was found guilty and not one of which he was

       acquitted,” that “[i]t is clear that the trial court enhanced the sentence to

       compensate for what he believed to be an erroneous verdict,” and that, “[i]n so

       doing, he invaded the province of the jury.” Id. at 305. The Court remanded

       with instructions to resentence the defendant to ten years imprisonment. Id.

       See also Hamman v. State, 504 N.E.2d 276, 278-279 (Ind. 1987) (noting, where

       the defendant was convicted of voluntary manslaughter rather than murder, it

       was clear from the trial judge’s statements that it considered the jury verdicts

       erroneous and that, while a trial judge is not prohibited from expressing his

       personal disagreement with a jury’s verdict, the judge is prohibited from

       enhancing a defendant’s sentence based upon his personal disagreement with

       the verdict, that the judge displayed hostility to the jury verdict, and holding

       that the enhanced sentence was the result of improper considerations).


[13]   The record in this case shows that, at trial, Lopez-Rivera’s counsel proposed

       that the jury be instructed on the lesser-included offense of aggravated battery,

       that Lopez-Rivera questioned the instruction, and that the court spent


       Court of Appeals of Indiana | Memorandum Decision 49A04-1510-CR-1542|June 30, 2016   Page 8 of 15
       considerable time discussing the instruction with him. The court’s statements

       at sentencing were a reference to the exchanges between it and Lopez-Rivera at

       trial regarding the instruction and the fact that the jury had the option to find

       him guilty of attempted murder or the lesser-included offense of aggravated

       battery. The record does not support the conclusion that the trial court imposed

       a sentence above the advisory sentence in an effort to compensate for an

       acquittal the trial court believed was erroneous. Unlike in Gambill, the court

       did not state that Lopez-Rivera should have been convicted of attempted

       murder and that it disagreed with the jury’s verdict, and did not disparage the

       jury’s inability to return a verdict on the charge of attempted murder. The

       court’s comments reveal that, in determining Lopez-Rivera’s sentence, the court

       considered Lopez-Rivera’s criminal history and gang affiliation as well as the

       nature of his unprovoked attack on Kimberly and the scale of her injuries. The

       court’s comments do not reflect that it was so resolutely opposed to the jury

       verdict so as to constitute an invasion of the province of the jury or as to render

       the sentence suspect. Further, the court did not impose the maximum sentence

       for the aggravated battery conviction. We are unpersuaded that Lopez-Rivera’s

       sentence was intended to serve as compensation for his acquittal of attempted

       murder.


[14]   Based upon the record and the trial court’s comments, we cannot say that the

       court abused its discretion in sentencing Lopez-Rivera or that his sentence was

       based upon a crime of which he was acquitted. See Wilson v. State, 458 N.E.2d

       654, 656 (Ind. 1984) (holding, where the defendant claimed the trial court based


       Court of Appeals of Indiana | Memorandum Decision 49A04-1510-CR-1542|June 30, 2016   Page 9 of 15
the enhancement upon its belief the defendant was guilty of murder rather than

manslaughter, that the court did “entertain a degree of skepticism regarding the

evidence of sudden heat and the success which defense counsel had with the

jury through use of his persuasive talents,” that the court was “not however so

resolutely opposed to the jury verdict as was the case in Gambill,” and that

“[c]onsequently we find that the statements of the trial judge were within the

proper scope of his authority to make an evaluative statement of the

circumstances surrounding the crime, and did not constitute an invasion of the

province of the jury or render the enhancement suspect”), reh’g denied; see also

Ellis v. State, 567 N.E.2d 1142, 1144 (Ind. 1991) (observing that the trial judge in

no way reflected that he considered the jury verdict to be erroneous and stated

that he accepted the verdict and that the judge identified facts to justify the

enhanced sentence and holding the enhancement was not the result of improper

considerations); Kirkley v. State, 527 N.E.2d 1116, 1118-1119 (Ind. 1988)

(observing that “[n]either Hamman nor Gambill stand for the proposition that

the jury’s finding of guilty on a lesser included offense precludes the trial judge

from examining the facts of the case to determine whether or not he should

mitigate, enhance, or impose the presumptive sentence upon appellant,” noting

that, while the trial judge observed that the case did not fall into the category of

some voluntary manslaughter cases where a homicide is committed on the spur

of the moment in the heat of passion, the judge recognized that for whatever

reason the jury had seen fit to discard the murder charge and to find the

defendant guilty of the included offense of voluntary manslaughter and fully

acknowledged this was the prerogative of the jury, and finding no error in the
Court of Appeals of Indiana | Memorandum Decision 49A04-1510-CR-1542|June 30, 2016   Page 10 of 15
       trial court’s enhanced sentence of fifteen years), reh’g denied; Frierson v. State, 543

       N.E.2d 669, 670-672 (Ind. Ct. App. 1989) (observing the trial court’s statements

       that, “although the jury did not find that the confinement was committed while

       armed with a deadly weapon, the victim’s testimony that [the defendant] had

       told her he had a weapon to threaten . . . to coerce her into getting into the car

       is uncontradicted, and the jury verdict is not inconsistent with his [sic]

       testimony,” and concluding that the record did not indicate that the trial judge

       sentenced the defendant to compensate for an erroneous jury verdict).


                                                        II.


[15]   The next issue is whether Lopez-Rivera’s sentence is inappropriate in light of

       the nature of the offense and the character of the offender. Ind. Appellate Rule

       7(B) provides that we “may revise a sentence authorized by statute if, after due

       consideration of the trial court’s decision, [we find] that the sentence is

       inappropriate in light of the nature of the offense and the character of the

       offender.” Under this rule, the burden is on the defendant to persuade the

       appellate court that his or her sentence is inappropriate. Childress v. State, 848

       N.E.2d 1073, 1080 (Ind. 2006). Sentencing is principally a discretionary

       function in which the trial court’s judgment should receive considerable

       deference. Hines v. State, 30 N.E.3d 1216, 1225 (Ind. 2015).


[16]   Lopez-Rivera argues that he was born in Guatemala in a time of extraordinary

       violence, that he did not choose to be born into a life of poverty and violence,

       and that he emigrated to the United States out of fear for his life and he fears for


       Court of Appeals of Indiana | Memorandum Decision 49A04-1510-CR-1542|June 30, 2016   Page 11 of 15
       his life if he ever returns to Guatemala. He states that he apologized to

       Kimberly and the court, he acknowledged that he needs help with his substance

       abuse and anger, and that the advisory sentence of ten years with four years

       suspended and two years of supervised probation would be appropriate. He

       also argues that the abstract of judgment and sentencing order contain errors

       that must be corrected.


[17]   The State asserts that Lopez-Rivera’s attack was entirely unprovoked, brutal,

       and senseless and that he inflicted a potentially deadly wound that would have

       killed Kimberly without medical intervention. It also argues that Lopez-Rivera

       appears to have either entered or remained in this country illegally, he was a

       member of a criminal gang in Guatemala, he has a history of substance abuse,

       and that, while Guatemala was a violent and unstable place in the 1980s, “it is

       hard to discern any connection between the condition of a country three

       decades ago and the actions of a drunk and violent man who attacked his

       unarmed wife for no apparent reason.” Appellee’s Brief at 15.


[18]   Our review of the nature of the offense reveals that Lopez-Rivera viciously

       attacked Kimberly, stabbing her in the shoulder, the forehead, and the neck.

       Kimberly’s injuries, including the injuries to her right lung and chest cavity,

       were serious and required a lengthy hospitalization, and according to the

       trauma center physician who treated her, she very well could have died as a

       result of her injuries.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1510-CR-1542|June 30, 2016   Page 12 of 15
[19]   Our review of the character of the offender reveals that, at his sentencing

       hearing, Lopez-Rivera apologized for what happened, said that he never meant

       to hurt anybody, that he was drunk, and that he has “this problem that when I

       get upset I lose realization of what’s going on and I don’t know what I’m

       doing.” Transcript at 283. According to the presentence investigation report

       (“PSI”), he was arrested for aggravated battery in Mississippi in 2006, and the

       PSI states “03/05/2008 Inmate Intake Mississippi DOC.” Appellant’s

       Appendix at 97. At the sentencing hearing, the prosecutor stated that Lopez-

       Rivera was convicted in Mississippi and served approximately four years in the

       Mississippi DOC, and Lopez-Rivera agreed that was correct. The PSI further

       states that he was charged with battery resulting in serious bodily injury,

       strangulation, and domestic battery in Indiana in 2014 and that the charges

       were dismissed. The PSI states that Lopez-Rivera reported that he was arrested

       twice for fighting at age fourteen and was placed in jail. The PSI further states

       that National Crime Information Center records reflect that Lopez-Rivera “had

       contact with Texas Border Patrol on or about 04/04/2006.” Id. at 98.


[20]   The PSI also notes that Lopez-Rivera was born in 1989 in Guatemala, that he

       reported he moved to Indiana in 2011, and that he stated “he was a member of

       [a gang] from age ten (10) until 2013” and that “he cannot return to Guatemala,

       because [the gang] would like to kill him.” Id. at 99. Lopez-Rivera reported

       that he first consumed alcohol when he was twelve years old, he is accustomed

       to drinking weekly until he is inebriated, he first experimented with marijuana

       when he was approximately twelve years old, he last used marijuana three


       Court of Appeals of Indiana | Memorandum Decision 49A04-1510-CR-1542|June 30, 2016   Page 13 of 15
       months prior to his arrest, he first snorted cocaine at approximately thirteen

       years of age, and he would snort cocaine weekly, he first used pills at age

       thirteen and last used pills in 2006, and that he used pills up to three times

       weekly to relax. He also indicated that he does not feel as though he has a drug

       or alcohol problem, that he was under the influence of five beers on the day of

       the incident, and that he has never participated in substance abuse treatment.

       The PSI also notes that his overall risk assessment score places him in the high

       risk to reoffend category.


[21]   We do not find Lopez-Rivera’s arguments compelling. After due consideration

       of the trial court’s decision, we cannot say that the sentence of eighteen years

       with four years suspended and two years of probation is inappropriate in light

       of the nature of the offense and the character of the offender.


[22]   We observe that the abstract of judgment and sentencing order indicate that the

       charge of attempted murder was dismissed, even though the jury found that

       Lopez-Rivera was not guilty of the charge, and that the abstract of judgment

       states there was a plea by agreement as to his aggravated battery conviction,

       even though Lopez-Rivera was found guilty of aggravated battery as a class B

       felony following a jury trial. We remand for an amended sentencing order and

       abstract of judgment for correction.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1510-CR-1542|June 30, 2016   Page 14 of 15
                                                   Conclusion

[23]   For the foregoing reasons, we affirm Lopez-Rivera’s sentence and remand for

       an amended abstract of judgment and sentencing order consistent with this

       opinion.


[24]   Affirmed and remanded.


       Baker, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1510-CR-1542|June 30, 2016   Page 15 of 15
