MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any                                 Oct 15 2015, 9:51 am
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
Marce Gonzalez, Jr,                                      Gregory F. Zoeller
Dyer, Indiana                                            Attorney General of Indiana

                                                         Katherine Modesitt Cooper
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Ricardo Montanez,                                        October 15, 2015
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         45A03-1504-CR-130
        v.                                               Appeal from the Lake Superior
                                                         Court
State of Indiana,                                        The Honorable Clarence D.
Appellee-Plaintiff                                       Murray, Judge
                                                         Trial Court Cause No.
                                                         45G02-1407-F5-3



Vaidik, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 45A03-1504-CR-130| October 15, 2015        Page 1 of 5
                                          Case Summary
[1]   Ricardo Montanez appeals the six-year sentence imposed after he pled guilty to

      Level 5 felony burglary. Montanez specifically argues that his sentence is

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



                            Facts and Procedural History
[2]   On July 20, 2014, Montanez broke into his neighbor Claudia Bussey’s garage

      and took tools and other items belonging to Bussey and Cal Haddad. When

      officers from the Hammond Police Department arrived at the scene in response

      to an alarm from Bussey’s garage, Montanez fled from the officers. The State

      charged Montanez with Level 5 felony burglary, Class A misdemeanor theft,

      and Class A misdemeanor resisting law enforcement. The State later filed an

      habitual offender sentence enhancement against him.

[3]   Pursuant to a plea agreement, Montanez pled guilty to Level 5 felony burglary.

      In exchange for his guilty plea, the State agreed to dismiss the misdemeanors

      and habitual offender enhancement. In addition, the parties left sentencing to

      the trial court’s discretion. The evidence presented at the sentencing hearing

      reveals that forty-nine-year-old Montanez has amassed thirteen felony

      convictions and twenty-six misdemeanor convictions over the past thirty years.

      The offense in this case is Montanez’s ninth felony burglary conviction. In the

      past, he has also violated both probation and parole.




      Court of Appeals of Indiana | Memorandum Decision 45A03-1504-CR-130| October 15, 2015   Page 2 of 5
[4]   After the State presented evidence of his prior convictions, Montanez

      apologized and told the trial court that this would be his last offense. The trial

      court responded as follows:

              Your record just flies in the face of anything you could say this
              morning in terms of any request for leniency. You continue to
              commit these offenses. You’ve got no one to blame but yourself.
              You make these decisions to commit these crimes, and it doesn’t
              stop. . . . The State, correctly, points out that Mr. Montanez
              received a significant benefit from the plea agreement. There’s
              absolutely no basis for leniency here. The Court will impose six
              years in the Department of Correction.


      Tr. p. 27. Montanez appeals his sentence.



                                 Discussion and Decision
[5]   Montanez argues that his six-year sentence is inappropriate in light of the

      nature of the offense and his character. Indiana 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. The defendant bears

      the burden of persuading this Court that his sentence is inappropriate. Childress

      v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). Whether we regard a sentence as

      inappropriate turns on the “culpability of the defendant, the severity of the

      crime, the damage done to others, and myriad other factors that come to light

      in a given case.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008).



      Court of Appeals of Indiana | Memorandum Decision 45A03-1504-CR-130| October 15, 2015   Page 3 of 5
[6]   As to the nature of the offense, the advisory sentence is the starting point that

      the legislature has selected as an appropriate sentence for the crime committed.

      Childress, 848 N.E.2d at 1081. Montanez pleaded guilty to Level 5 felony

      burglary. Pursuant to Indiana Code section 35-50-2-6(b), a person who

      commits a Level 5 felony shall be imprisoned for a fixed term of between one

      and six years, with the advisory sentence being three years. Here, the trial court

      sentenced Montanez to the maximum sentence.

[7]   Montanez argues that “this is a rather average burglary offense, of the type

      likely anticipated by the legislature in crafting the statute and advisory sentence

      . . . . Hence, under the nature of the offense, the advisory sentence appears to

      be the appropriate starting point.” Appellant’s Br. p. 6. We acknowledge that

      the nature of Montanez’s offense was not particularly aggravating and alone

      might not support the sentence imposed.

[8]   It is Montanez’s character, however, that is significantly aggravating.

      Specifically, Montanez has amassed thirteen felony and twenty-six

      misdemeanor convictions over the past three decades. The offense in this case

      is his ninth felony burglary conviction. He has also violated both probation and

      parole. His former contacts with the law have not caused him to reform

      himself. See Jenkins v. State, 909 N.E.2d 1080, 1086 (Ind. Ct. App. 2009), trans.

      denied. Montanez has failed to persuade this Court that his six-year sentence is

      inappropriate.

[9]   We affirm.


      Court of Appeals of Indiana | Memorandum Decision 45A03-1504-CR-130| October 15, 2015   Page 4 of 5
Robb, J., and Pyle, J., concur.




Court of Appeals of Indiana | Memorandum Decision 45A03-1504-CR-130| October 15, 2015   Page 5 of 5
