MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                               FILED
this Memorandum Decision shall not be                            Jun 23 2016, 9:20 am
regarded as precedent or cited before any
                                                                     CLERK
court except for the purpose of establishing                     Indiana Supreme Court
                                                                    Court of Appeals
the defense of res judicata, collateral                               and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
P. Jeffrey Schlesinger                                   Gregory F. Zoeller
Appellate Public Defender                                Attorney General of Indiana
Crown Point, Indiana
                                                         Lyubov Gore
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Christopher M. Castillo,                                 June 23, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         45A05-1512-CR-2115
        v.                                               Appeal from the Lake Superior
                                                         Court
State of Indiana,                                        The Honorable Samuel L. Cappas,
Appellee-Plaintiff.                                      Judge
                                                         The Honorable Kathleen B. Lang,
                                                         Senior Judge
                                                         Trial Court Cause No.
                                                         45G04-1505-FC-7



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 45A05-1512-CR-2115 | June 23, 2016     Page 1 of 8
                               Case Summary and Issues
[1]   Christopher Castillo pleaded guilty to theft as a Class D felony and the trial

      court sentenced him to two years in the Indiana Department of Correction.

      Castillo appeals his sentence, raising two issues for our review: (1) whether the

      trial court abused its discretion in sentencing him, and (2) whether Castillo’s

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

      Concluding the trial court did not abuse its discretion and Castillo’s sentence is

      not inappropriate, we affirm.



                            Facts and Procedural History
[2]   On March 25, 2014, Castillo opened a checking account at the Main Source

      Bank in Lake County, depositing $65.00 into the account. A week after

      opening the account, Castillo had withdrawn the $65.00. Over the course of the

      following weeks, Castillo made several transactions on the account, leaving it

      with a negative balance of $889.50.


[3]   On May 4, 2015, the State charged Castillo with fraud on a financial institution

      as a Class C felony. The State later amended the charging information to

      include a charge of theft as a Class D felony. On September 22, 2014, Castillo

      entered into a plea agreement with the State whereby he agreed to plead guilty

      to theft as a Class D felony in exchange for the State dismissing the fraud

      charge. The agreement left the sentence to the discretion of the trial court. The




      Court of Appeals of Indiana | Memorandum Decision 45A05-1512-CR-2115 | June 23, 2016   Page 2 of 8
      trial court accepted the plea, ordered a pre-sentence investigation report, and

      scheduled a sentencing hearing.


[4]   The pre-sentence investigation report indicates Castillo has prior convictions for

      public intoxication, operating a vehicle while intoxicated endangering a person,

      residential entry, and two counts of theft.1 At the sentencing hearing, the State

      argued Castillo’s criminal history was an aggravating circumstance. Castillo

      argued his employability was a mitigating circumstance. The trial court

      sentenced Castillo to two years in the Department of Correction. This appeal

      ensued.



                                   Discussion and Decision
                                     I. Sentencing Discretion
[5]   We review a trial court’s sentencing decision 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. An abuse of discretion occurs when the trial court’s decision is “clearly

      against the logic and effect of the facts and circumstances before the court, or

      the reasonable, probable, and actual deductions to be drawn therefrom.” Id.

      (citation omitted). A trial court may abuse its discretion by failing to enter a

      sentencing statement, finding aggravating or mitigating circumstances




      1
       The report further indicates Castillo pleaded guilty to fraud as a Level 6 felony under another cause
      number, but had yet to be sentenced.

      Court of Appeals of Indiana | Memorandum Decision 45A05-1512-CR-2115 | June 23, 2016               Page 3 of 8
      unsupported by the record, omitting aggravating or mitigating circumstances

      supported by the record, or noting reasons that are improper considerations as a

      matter of law. Id. at 490-91. “Under those circumstances, remand for

      resentencing may be the appropriate remedy if we cannot say with confidence

      that the trial court would have imposed the same sentence had it properly

      considered reasons that enjoy support in the record.” Id. at 491.


[6]   Castillo contends the trial court abused its discretion in sentencing him because

      the trial court did not make a reasonably detailed sentencing statement.

      Specifically, Castillo asserts (1) the trial court failed to identify two mitigating

      circumstances, and (2) the trial court did not adequately detail his criminal

      history as an aggravating circumstance. At the sentencing hearing, the State

      detailed Castillo’s criminal history in support of its request the trial court

      sentence him to two years in prison.2 Castillo requested the court consider his

      employability as a mitigating circumstance. In its sentencing statement, the

      trial court stated,

              Mr. Castillo, you may well have some skills and the potential to
              work in the steel industry, but you certainly haven’t availed
              yourself of that, it’s a lot of criminal history here, it’s a lot of
              things going on that would seem to indicate that you are a danger
              to the community in terms of financial crimes. Also, repeated
              criminal history here, as I said, you completed several jail
              sentences. And also, they occurred in more than one county



      2
       “A person who commits a Class D felony . . . shall be imprisoned for a fixed term of between six (6) months
      and three (3) years, with the advisory sentence being one and one-half (1 ½) years.” Ind. Code § 35-50-2-
      7(a).

      Court of Appeals of Indiana | Memorandum Decision 45A05-1512-CR-2115 | June 23, 2016             Page 4 of 8
              ....
              ***
              As a result, you will be sentenced to two years in the Department
              of Correction, fully executed.


      Transcript at 19-20.


[7]   At the outset, we note the trial court is not required to use the terms

      “aggravating” or “mitigating” in its sentencing statement. See Lewis v. State, 31

      N.E.3d 539, 543 n.7 (Ind. Ct. App. 2015). As to the mitigating circumstances,

      Castillo contends the trial court erred in failing to identify his guilty plea and

      employability as mitigating circumstances. Castillo did not argue before the

      trial court his guilty plea was a mitigating circumstance and the trial court did

      not identify Castillo’s guilty plea as a mitigating circumstance. In such a case,

      Castillo is not precluded from raising the issue for the first time on appeal, see

      Anglemyer, 875 N.E.2d at 220, but on appeal must “establish that the mitigating

      evidence is not only supported by the record but also that the mitigating

      evidence is significant[,]” id. at 221. The significance of a guilty plea as a

      mitigating factor varies from case to case. Id. “For instance, a guilty plea does

      not rise to the level of significant mitigation where the defendant has received a

      substantial benefit from the plea . . . .” Wells v. State, 836 N.E.2d 475, 479 (Ind.

      Ct. App. 2005), trans. denied. Here, Castillo received a substantial benefit from

      his plea agreement because the State agreed to dismiss a count of fraud on a

      financial institution as a Class C felony in exchange for Castillo’s plea. See Ind.

      Code § 35-50-2-6(a) (providing a sentence for a Class C felony is a fixed term

      between two and eight years with the advisory sentence being four years).

      Court of Appeals of Indiana | Memorandum Decision 45A05-1512-CR-2115 | June 23, 2016   Page 5 of 8
[8]   Castillo also argued he has “some skills” and should have “good prospects with

      regard to getting another job and being able to work . . . .” Tr. at 19. As noted

      above, the trial court acknowledged Castillo may possess “some skills and the

      potential to work in the steel industry,” but noted Castillo failed to take

      advantage of that potential. Although it did not specifically use the term

      “mitigating,” it is clear the trial court acknowledged Castillo’s proposed

      mitigating circumstance and assigned it little, if any, weight because Castillo

      possessed certain skills and failed to properly utilize them. Therefore, we

      cannot agree the trial court abused its discretion in not identifying Castillo’s

      guilty plea and employability as mitigating circumstances.


[9]   As to the aggravating circumstance, Castillo argues the trial court did not enter

      a reasonably detailed sentencing statement addressing his criminal history as an

      aggravating circumstance sufficient to support an enhanced sentence. When

      imposing a sentence in a felony case in which the trial court has identified

      aggravating or mitigating circumstances, the trial court must provide a

      reasonably detailed sentencing statement explaining its reason for imposing the

      sentence. Guzman v. State, 985 N.E.2d 1125, 1131 (Ind. Ct. App. 2013). Here,

      the trial court reviewed the pre-sentence investigation report and the State

      detailed Castillo’s criminal history when requesting the trial court sentence

      Castillo above the advisory term. Although the trial court could have been

      more specific in addressing Castillo’s criminal history, it is clear after reviewing

      the sentencing transcript in its entirety that the trial court found his criminal




      Court of Appeals of Indiana | Memorandum Decision 45A05-1512-CR-2115 | June 23, 2016   Page 6 of 8
       history to be an aggravating circumstance. We conclude the trial court did not

       abuse its discretion in sentencing Castillo.3


                                     II. Inappropriate Sentence
[10]   Indiana Appellate Rule 7(B) provides, “The 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.” The defendant bears the burden of

       persuading this court that his or her 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). Finally,

       we note the principal role of appellate review is to “leaven the outliers,” not

       achieve the perceived “correct” result in each case. Id. at 1225.


[11]   Castillo contends his sentence is inappropriate in light of the nature of the

       offense and his character. Castillo was convicted of theft as a Class D felony.

       The advisory sentence is the starting point the legislature selected as an




       3
         We note even if a trial court abuses its discretion by not issuing a reasonably detailed sentencing statement,
       we may choose to review the appropriateness of a sentence under Indiana Appellate Rule 7(B) instead of
       remanding to the trial court. See Windhorst v. State, 868 N.E.2d 504, 507 (Ind. 2007). Here, Castillo has
       already requested we review the appropriateness of his sentence, and as discussed infra Part II., we conclude
       his sentence is not inappropriate. Therefore, even assuming the trial court abused its discretion in not issuing
       a reasonably detailed sentencing statement, remand is not necessary.

       Court of Appeals of Indiana | Memorandum Decision 45A05-1512-CR-2115 | June 23, 2016                 Page 7 of 8
       appropriate sentence for the crime committed. Anglemyer, 868 N.E.2d at 494.

       Pursuant to Indiana Code section 35-50-2-7(a), “A person who commits a Class

       D felony . . . shall be imprisoned for a fixed term of between six (6) months and

       three (3) years, with the advisory sentence being one and one-half (1 ½) years.”

       The trial court sentenced Castillo to two years in the Department of Correction.

       Castillo did not just overdraw his account on one occasion, but he consistently

       and intentionally drew amounts over what he had deposited. As to his

       character, Castillo has five prior convictions, two of which are for theft. It is

       apparent Castillo has not learned from his past run-ins with the law. Therefore,

       we are not persuaded his sentence inappropriate.



                                               Conclusion
[12]   The trial court did not abuse its discretion in sentencing Castillo and Castillo’s

       sentence is not inappropriate in light of the nature of the offense and his

       character. Therefore, we affirm his sentence.


[13]   Affirmed.


       Najam, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 45A05-1512-CR-2115 | June 23, 2016   Page 8 of 8
