MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                        Nov 30 2015, 5:39 am
regarded as precedent or cited before 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
Matthew D. Barrett                                      Gregory F. Zoeller
Matthew D. Barrett, P.C.                                Attorney General of Indiana
Logansport, Indiana
                                                        Angela N. Sanchez
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Luis Torres-Reynoso,                                    November 30, 2015
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        79A02-1412-CR-867
        v.                                              Appeal from the Tippecanoe
                                                        Circuit Court
State of Indiana,                                       The Honorable Donald L. Daniel,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        79C01-1311-FA-11



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 79A02-1412-CR-867 | November 30, 2015     Page 1 of 21
[1]   Luis Torres-Reynoso pleaded guilty to conspiracy to commit dealing in cocaine1

      as a Class A felony, six counts of dealing in cocaine,2 each as a Class A felony,

      and eight additional drug-related offenses.3 The trial court accepted Torres-

      Reynoso’s plea of guilty and sentenced him to an executed term of thirty-five

      years for each of the seven Class A felony convictions, ordering those sentences

      to run concurrently. The trial court did not impose a sentence for the remaining

      convictions. The trial court denied Torres-Reynoso’s motion to correct error.

      Torres-Reynoso raises the following restated issues on appeal:

                 I. Whether Torres-Reynoso was denied the effective assistance
                 of trial counsel;

                 II. Whether the trial court abused its sentencing discretion by
                 relying on improper aggravating factors; and

                 III. Whether Torres-Reynoso’s aggregate thirty-five-year
                 executed sentence is inappropriate in light of the nature of the
                 offense and the character of the offender.


[2]   We affirm.




      1
          See Ind. Code §§ 35-48-4-1(a)(2), 35-41-5-2.
      2
          See Ind. Code § 35-48-4-1(a)(2).
      3
        We note that, effective July 1, 2014, the Indiana General Assembly enacted a new version of each of the
      criminal statutes under which Torres-Reynoso was charged. Because Torres-Reynoso committed his offenses
      before July 1, 2014, we will apply the appropriate statute in effect at that time.

      Court of Appeals of Indiana | Memorandum Decision 79A02-1412-CR-867 | November 30, 2015      Page 2 of 21
                                   Facts and Procedural History
[3]   This case arises from a criminal investigation of Torres-Reynoso by the

      Lafayette Police Department and the Federal Drug Enforcement

      Administration (“DEA”). Between May and November 2013, Torres-Reynoso

      delivered approximately twelve ounces of cocaine and over three pounds of

      marijuana, in seven separate buys, to Lafayette Police Department Detective

      Jason Walters, who was acting undercover. In the first six buys, Detective

      Walters bought a total of eight ounces of cocaine and over one pound of

      marijuana and paid Torres-Reynoso $9,100.4 In the final buy on November 21,

      2013, Torres-Reynoso delivered four ounces of cocaine and two pounds of

      marijuana. No payment was made; instead, Detective Walters arrested Torres-

      Reynoso and his accomplice, Saul Muñoz.


[4]   Torres-Reynoso was interviewed by the police that same night. After initially

      denying involvement, he admitted that he sold drugs to Detective Walters and,

      later, consented to a search of his home; during that search, the police found

      more cocaine. Torres-Reynoso identified his drug suppliers as Muñoz and a

      man named Peña. A search of Muñoz’s home uncovered two pounds of

      cocaine. With the help of Torres-Reynoso, police arranged to purchase cocaine

      from Peña the following day. When police arrived at the designated location,




      4
       Torres-Reynoso was charged with multiple counts of dealing in cocaine in an amount greater than three
      grams. During the guilty plea hearing, Torres-Reynoso pleaded guilty to having repeatedly sold Detective
      Walters about one ounce of cocaine. Guilty Plea Hr’g at 26. The State, however, clarified that one ounce is
      equal to roughly 28 grams of cocaine. Id.

      Court of Appeals of Indiana | Memorandum Decision 79A02-1412-CR-867 | November 30, 2015          Page 3 of 21
      Peña fled in his car and, subsequently, on foot. When Peña was finally

      apprehended, police found no cocaine on his person.


[5]   On November 27, 2013, and as later amended, Torres-Reynoso was charged

      with the following fifteen drug-related counts: (1) seven Class A felonies (one

      count of conspiracy to commit dealing in at least three grams of cocaine and six

      counts of dealing in in at least three grams of cocaine); (2) two Class C felonies

      (one count of possession of cocaine5 and one count of dealing in a substance

      represented to be a controlled substance6); (3) five Class D felonies (one count

      of conspiracy to commit dealing in marijuana,7 two counts of dealing in

      marijuana,8 one count of maintaining a common nuisance,9 and one count of

      “dealing in a substance represented to be cocaine,” Guilty Plea Hr’g at 18), and

      (4) one Class A misdemeanor (dealing in marijuana10). In January 2014,

      attorney Jim Brugh (“Brugh”) filed an appearance as counsel for Torres-

      Reynoso.


[6]   On August 4, 2014, Torres-Reynoso pleaded guilty, without a written plea

      agreement, to all fifteen counts. About a month and a half later, and in




      5
          See Ind. Code § 35-48-4-6(b)(1)(A).
      6
          See Ind. Code §§ 35-48-4-4.5, -4.6.
      7
          See Ind. Code §§ 35-48-4-10(b)(1)(B), 35-41-5-2.
      8
          See Ind. Code § 35-48-4-10(b)(1)(B).
      9
          See Ind. Code § 35-48-4-13(b).
      10
           See Ind. Code §35-48-4-10(a)(1)(c).


      Court of Appeals of Indiana | Memorandum Decision 79A02-1412-CR-867 | November 30, 2015   Page 4 of 21
      preparation for the impending sentencing hearing, Brugh filed a motion to

      shorten the time for the State to respond to Torres-Reynoso’s request for

      production of documents that revealed the identities of any officers involved in

      or reports related to the investigation and arrest of Peña. Specifically, Brugh

      intended to argue as a mitigating factor at sentencing that Torres-Reynoso had

      been cooperative with police, identified Peña as a drug dealer, and helped

      arrange the controlled drug buy that lead to Peña’s arrest. Brugh argued that

      “[e]vidence of [Torres-Reynoso’s] cooperation with law enforcement on the day

      of his arrest . . . and his cooperation with the Drug Task Force to set up drug

      dealer [Peña for a controlled drug buy] . . . is relevant to sentencing.”

      Appellant’s App. at 41.


[7]   During a hearing, the State urged the court to deny the motion to shorten time

      on the basis that Brugh had every report the State had, the reports relating to

      Peña were not relevant to Torres-Reynoso’s sentencing, the State never denied

      that Torres-Reynoso provided helpful information, and Brugh had already

      subpoenaed officers involved in the case to testify at Torres-Reynoso’s

      sentencing hearing. The trial judge, Judge Donald L. Daniel (“Judge Daniel”)

      asked Brugh why he needed additional information if the State agreed that

      Torres-Reynoso’s cooperation with police was a mitigator. Brugh responded

      that police reports might provide a fuller picture of Torres-Reynoso’s

      participation and, “if there is one more kernel of detail that I can add out of the

      police report I have a duty to my client in good representation.” Status Hr’g at

      6. Noting the State’s agreement that Torres-Reynoso was “entitled to a


      Court of Appeals of Indiana | Memorandum Decision 79A02-1412-CR-867 | November 30, 2015   Page 5 of 21
      mitigator” for the help he had given police, the trial court denied his motion to

      shorten time. Id. at 5.


[8]   On October 15, 2014, the trial court held a sentencing hearing, at which Torres-

      Reynoso, his fiancée, his father, and his pastor all testified. Brugh also offered

      testimony from two DEA agents and three police officers regarding the

      assistance Torres-Reynoso’s provided law enforcement to arrange the

      controlled drug buy from Peña. One officer and two DEA agents were allowed

      to testify. During the testimony of the fourth law enforcement witness, West

      Lafayette Police Officer Jonathan Eager, Judge Daniel stated that he had heard

      “three witnesses testify for more than a half an hour . . . as to cooperation by

      [Torres-Reynoso].” Sentencing Hr’g at 69. Noting that the State had previously

      agreed that Torres-Reynoso’s cooperation with law enforcement was a

      mitigating factor, Judge Daniel stated that another witness, testifying to Torres-

      Reynoso’s cooperation, was not necessary. Even so, Judge Daniel indicated,

      “If you have some area to get into which you believe would influence this

      Court I would be happy to hear about it.” Id.


[9]   In response, Brugh revealed his intention to have Officer Eager and another

      officer testify because they “were physically present when [Torres-Reynoso]

      was using his cell phone to communicate with Peña. I simply want the Court

      to know specifically how that worked.” Id. Officer Eager and the other witness

      did not testify; however, Officer Eager was allowed to say that he saw Torres-

      Reynoso communicate with Peña using his cell phone to text and speak once.

      Brugh made an offer of proof as to the testimony of the other officer, stating

      Court of Appeals of Indiana | Memorandum Decision 79A02-1412-CR-867 | November 30, 2015   Page 6 of 21
       that she speaks Spanish and, with Torres-Reynoso’s assistance, she had sent

       some texts to Peña to arrange the controlled buy. Id. at 71.


[10]   At the sentencing hearing, Brugh requested a sentence of twenty years with

       fourteen years suspended. The State requested a forty-year executed sentence,

       and the Tippecanoe County Probation Department recommended a sentence of

       thirty-five years in the Department of Correction. Brugh argued at length in

       support of a reduced sentence, identifying multiple specific mitigating

       circumstances for the trial court to consider. The trial court found the following

       to be aggravating factors in determining Torres-Reynoso’s sentence: his

       criminal history of two prior misdemeanors and a pending felony case; his past

       illegal drug use, notwithstanding that it “was not as significant as frequently

       happens”; his use of an alias at work; the nature and circumstances of the

       crime; and the number of transactions and the amount of illegal drugs involved

       in those transactions. Id. at 97; Appellant’s App. at 97. Mitigating factors found

       by the trial court included the facts that Torres-Reynoso had taken

       responsibility for his actions by pleading guilty and expressing remorse; had

       cooperated with law enforcement; has minor children, including one with

       special needs, that depend on him; has a history of being employed, including

       nine consecutive years with one employer; and had family and friends

       supporting him in court. The trial court accepted Torres-Reynoso’s pleas of

       guilty and entered convictions on the seven Class A felonies and six of the




       Court of Appeals of Indiana | Memorandum Decision 79A02-1412-CR-867 | November 30, 2015   Page 7 of 21
       remaining counts.11 Noting that the advisory sentence for a Class A felony was

       thirty years, Judge Daniel found that the aggravating factors outweighed the

       mitigating factors and sentenced Torres-Reynoso to thirty-five years for each of

       the seven Class A felony convictions, to be served concurrently—the same

       sentence recommended by the Probation Department. Judge Daniel did not

       sentence Torres-Reynoso for the remaining six convictions, all of which were

       deemed to be subsumed under the Class A felony convictions.


[11]   About two weeks after sentencing, Torres-Reynoso filed a motion to correct

       error, alleging that Judge Daniel had been antagonistic toward and biased

       against him and requesting a new sentencing hearing before an impartial judge.

       As evidence of bias, Torres-Reynoso cited to the actions of the Judge Daniel:

       denying the motion to shorten time; expressing irritation at Brugh for having

       called Officer Eager as a fourth witness to testify about Torres-Reynoso’s

       cooperation with law enforcement; allowing the prosecutor to reopen the court

       record just moments after it had been closed so that she could ensure that the

       trial court said “that the aggravators outweighed the mitigators”; and calling

       Brugh into chambers after sentencing to question why he had presented the

       testimony of so many law enforcement officers. Appellant’s App. at 106-07.




       11
         Amended count 11 and count 15 each alleged “dealing in a substance represented to be a controlled
       substance.” Guilty Plea Hr’g at 12, 18. At the sentencing hearing, the trial court chose not to enter
       convictions for these two counts, stating, “The Court takes no action at this time as to amended count 11 or
       count 15.” Sentencing Hr’g at 96-97, 98.

       Court of Appeals of Indiana | Memorandum Decision 79A02-1412-CR-867 | November 30, 2015          Page 8 of 21
[12]   Brugh submitted an affidavit verifying each of the allegations in the motion,

       and providing his version of what occurred during the in-chambers meeting. In

       that meeting, Judge Daniel asked Brugh, “Why did we need to spend so much

       time on your client’s cooperation with police?” Appellant’s App. at 111. Brugh

       responded that the testimony was important to show that Torres-Reynoso had

       provided an unusually high degree of cooperation. Judge Daniel then

       remarked, “But there [were] so many officers [in the courtroom] who could

       have been out on the street.” Id. Defending his strategy, Brugh argued that the

       State had made it difficult to discover Torres-Reynoso’s cooperation.

       Apparently unconvinced, Judge Daniel inquired whether Brugh was “trying to

       get back at the Prosecutor.” Id. Brugh denied any such motivation, saying, “I

       [personally] have nothing in this.” Id. Brugh closed his affidavit by noting that

       “[a]fter a cordial exchange,” Judge Daniel excused him from chambers. Id.


[13]   Without holding a hearing, the trial court denied Torres-Reynoso’s motion to

       correct error in a written order. Judge Daniel provided the following reasoning:

       the sentencing hearing lasted more than two hours and eight witnesses were

       called, all by the defense; four of the witnesses were law enforcement officers,

       called to talk about the mitigating factor of Torres-Reynoso’s cooperation with

       police; the State agreed that Torres-Reynoso was entitled to a finding that his

       cooperation was a mitigator; notwithstanding defense counsel’s desire to elicit

       more testimony regarding Torres-Reynoso’s cooperation, “no further testimony

       along that line was necessary; the trial court entered the sentence recommended

       by the Probation Department; Brugh’s version of what happened in chambers,


       Court of Appeals of Indiana | Memorandum Decision 79A02-1412-CR-867 | November 30, 2015   Page 9 of 21
       after sentencing, “is not substantially incorrect”; the in-chambers meeting

       reflected the trial court’s view that “a calm discussion with counsel of divergent

       views as to procedure can be educational and helpful to both counsel and to the

       Court to promote the efficient administration of justice”; and Brugh’s tactics

       were not negatively reflected in Torres-Reynoso’s sentence. Id. at 112-13.

       Torres-Reynoso now appeals.


                                        Discussion and Decision

                              I. Ineffective Assistance of Counsel
[14]   Torres-Reynoso asserts that his trial counsel was ineffective, and therefore, the

       trial court erred in denying his motion to correct error. Specifically, he asserts

       that his trial counsel’s performance was deficient because he did not: (1)

       request that a recording be made of the in-chamber discussion; (2) request a

       change of judge; and (3) recognize that the nature and circumstances of his

       admitted crimes (i.e., the number of transactions and the amount of illegal drugs

       involved) would be a significant aggravating factor.12 The right to effective

       counsel is rooted in the Sixth Amendment to the United States Constitution.

       Taylor v. State, 840 N.E.2d 324, 331 (Ind. 2006). “‘The Sixth Amendment

       recognizes the right to the assistance of counsel because it envisions counsel’s




       12
          Torres-Reynoso also suggests that his plea was not knowingly and intentionally made because Brugh “was
       under a mistaken belief that the nature and circumstances of all the charges would not be treated as an
       aggravating factor because these matter related to elements of the charges and could not be considered.”
       Appellant’s Br. at 17, 18. In essence, Torres-Reynoso is challenging his conviction. Because it is well-settled
       in Indiana that a person who pleads guilty cannot challenge his convictions by means of direct appeal, we do
       not address this issue. Robey v. State, 7 N.E.3d 371, 383 (Ind. Ct. App. 2014), trans. denied

       Court of Appeals of Indiana | Memorandum Decision 79A02-1412-CR-867 | November 30, 2015           Page 10 of 21
       playing a role that is critical to the ability of the adversarial system to produce

       just results.’” Id. (quoting Strickland v. Washington, 466 U.S. 668, 685 (1984)).

       “‘The benchmark for judging any claim of ineffectiveness must be whether

       counsel’s conduct so undermined the proper function of the adversarial process

       that the trial court cannot be relied on as having produced a just result.’” Id.

       (quoting Strickland, 466 U.S. at 686).


[15]   To prevail on a claim of ineffective assistance of counsel, a party must

       demonstrate both that his or her counsel’s performance was deficient and that

       the party was prejudiced by the deficient performance. Gallien v. State, 19

       N.E.3d 303, 307 (Ind. Ct. App. 2014), trans. denied. A counsel’s performance is

       deficient if it falls below an objective standard of reasonableness based on

       prevailing professional norms, i.e., committing errors so serious that defendant

       did not have the counsel guaranteed by the Sixth Amendment. Id. To meet the

       appropriate test for prejudice, the petitioner must show that there is a

       reasonable probability that, but for counsel’s unprofessional errors, the result of

       the proceeding would have been different. Id. “‘A reasonable probability is a

       probability sufficient to undermine confidence in the outcome.’” Id. (quoting

       Strickland, 466 U.S. at 694). Failure to satisfy either prong will cause the claim

       to fail. Id. Most ineffective assistance of counsel claims can be resolved by a

       prejudice inquiry alone. Id. We find the prejudice inquiry in this case to be

       dispositive; therefore, we do not address the alleged deficiencies in trial

       counsel’s performance.



       Court of Appeals of Indiana | Memorandum Decision 79A02-1412-CR-867 | November 30, 2015   Page 11 of 21
[16]   Torres-Reynoso claims that he was prejudiced when Brugh did not ask Judge

       Daniel to record the in-chambers meeting, which occurred immediately after

       sentencing. He argues that a defendant’s right to appeal errors allegedly

       committed by the trial court, includes the requirement that the defendant

       present a complete record to the reviewing court. Appellant’s Br. at 13. Torres-

       Reynoso maintains, “Without an actual recording, this Court is left with two

       vastly different versions of what allegedly occurred.” Id. at 15. We disagree.


[17]   Failure to have the in-chamber conference recorded resulted in no prejudice to

       Torres-Reynoso because the parties do not dispute what occurred during that

       conference. Brugh attached his affidavit to the motion to correct error, which

       stated that the trial judge had: called him into chambers; asked why Brugh had

       so many law enforcement witnesses testify as to Torres-Reynoso’s cooperation

       with police; noted how many of the law enforcement witnesses could have been

       patrolling the streets; and asked if Brugh was trying to get back at the

       prosecutor. Brugh responded: he wanted witnesses to testify regarding Torres-

       Reynoso’s “unusual degree of cooperation” with police; the State had made it

       difficult to prove Torres-Reynoso’s cooperation; and he personally, “[had]

       nothing in this.” Appellant’s App. at 111. In his order denying Torres-Reynoso’s

       motion to correct error, Judge Daniel specifically stated, “Mr. Brugh’s version

       of what happened in chambers is not substantially incorrect.” 13 Id. at 113.




       13
         Torres-Reynoso misquotes this statement saying, “Judge Daniel stated that Brugh’s version of what
       happened in the chambers was ‘not substantially correct.’” Appellant’s Br. at 7 (citing Appellant’s App. at 113).

       Court of Appeals of Indiana | Memorandum Decision 79A02-1412-CR-867 | November 30, 2015             Page 12 of 21
       Instead of being left with what Torres-Reynoso describes as two vastly different

       versions of what allegedly occurred, we find that Brugh and Judge Daniel

       essentially agreed about the issues discussed during the in-chamber meeting.

       Torres-Reynoso has not met his burden of proving that he was prejudiced by

       the lack of a recording; accordingly, Brugh’s failure to request that the meeting

       be recorded did not constitute ineffective assistance of counsel.


[18]   Torres-Reynoso also asserts that Brugh was ineffective when he did not file a

       motion for change of judge pursuant to Criminal Rule 12. He contends that the

       following revealed that Judge Daniel was biased: ongoing antagonism toward

       the defense; the denial of Torres-Reynoso’s motion to shorten time; irritation at

       Brugh having called Officer Eager as a fourth witness to testify regarding

       Torres-Reynoso’s cooperation; allowing the prosecutor to reopen the record

       moments after it had been closed to ensure that the trial court said, “the

       aggravators outweigh the mitigators or they balance each other out in the

       sentence or the advisory”; and his having calling Brugh into chambers after

       sentencing. Sentencing Hr’g at 98. Regardless of whether any of this reveals that

       Brugh was ineffective, Torres-Reynoso has failed to show how he was

       prejudiced by these actions.


[19]   Torres-Reynoso contends that, had Brugh filed a motion invoking Criminal

       Rule 12 for a change of judge, Judge Daniel would have had to: (1) treat the

       facts in Brugh’s affidavit as true; and (2) hold a hearing to further develop the

       record prior to ruling on the motion. Appellant’s Br. at 11, 12. Here, Judge

       Daniel did take the facts of Brugh’s affidavit as true. In fact, he stated that

       Court of Appeals of Indiana | Memorandum Decision 79A02-1412-CR-867 | November 30, 2015   Page 13 of 21
       Brugh’s version of what occurred was “not substantially incorrect.” Appellant’s

       App. at 113. Further, Torres-Reynoso has failed to show how his sentencing

       was prejudiced by the lack of a hearing. In fact, Torres-Reynoso admits that

       “because the sentence was discretionary, there is no way to know if he was

       otherwise prejudiced.” Appellant’s Br. at 12. Torres-Reynoso has not met his

       burden of proving that he was prejudiced by Brugh’s failure to request a change

       of judge; accordingly, this was not evidence that Brugh was ineffective.


[20]   Finally, Torres-Reynoso argues that Brugh was ineffective for not

       understanding that the nature and circumstances of the seven controlled buys

       were the “biggest aggravator.” Id. at 16. Torres-Reynoso maintains that he was

       prejudiced because Brugh should have crafted a plea agreement that prohibited

       the trial court “from considering the enhanced circumstances from all of the

       charges.” Id. at 18. Torres-Reynoso pleaded guilty to thirteen drug-related

       crimes, seven of which were Class A felonies; yet, he received a sentence that

       was only five years greater than the advisory sentence for having committed just

       one Class A felony. Torres-Reynoso was not prejudiced by trial counsel’s

       representation; accordingly, we cannot say that Brugh was ineffective in his

       representation of Torres-Reynoso.


                                     II. Improper Aggravators
[21]   Torres-Reynoso asserts that the trial court abused its discretion by finding that

       his criminal history, his prior use of illegal drugs, and his use of an alias at work

       were all aggravating factors. Sentencing decisions rest within the sound


       Court of Appeals of Indiana | Memorandum Decision 79A02-1412-CR-867 | November 30, 2015   Page 14 of 21
       discretion of the trial court and are reviewed only 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 before the court, or the

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

       courts must enter a sentencing statement whenever imposing a sentence for a

       felony offense, and the statement must include a reasonably detailed recitation

       of the court’s reasons for imposing a particular sentence. Id. We will find an

       abuse of discretion if the trial court fails to enter a sentencing statement, enters a

       finding of aggravating and mitigating factors that are unsupported by the

       record, omits reasons that are clearly supported by the record and are advanced

       for consideration, or includes reasons that are improper as a matter of law.

       Gomillia v. State, 13 N.E.3d 846, 849 (Ind. 2014).


[22]   Under circumstances when a trial court has abused its discretion, we will

       remand for resentencing “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.” Anglemyer, 868 N.E.2d at 491. The relative

       weight or value assignable to reasons properly found, or those which should

       have been found, is not subject to review for abuse of discretion. Id.


[23]   Torres-Reynoso contends that it was improper for the trial court to combine his

       pending Class A felony charge (in another county) with his two Class C

       misdemeanor convictions (for operating a motor vehicle while never having

       received a license) and conclude that Torres-Reynoso’s criminal history was an

       Court of Appeals of Indiana | Memorandum Decision 79A02-1412-CR-867 | November 30, 2015   Page 15 of 21
       aggravating factor. Torres-Reynoso does not deny that, even without the

       pending felony charge, his Class C misdemeanor convictions “remained for the

       trial court to consider as an aggravating factor. However, whether and to what

       extent a sentence should be enhanced based upon an individual’s criminal

       history hinges on the weight of the history.” Appellant’s Br. at 20 (citing Bryant

       v. State, 841 N.E.2d 1154, 1156 (Ind. 2006)). Torres-Reynoso argues that his

       “minor, far-removed offenses do not merit great aggravating weight.” Id. at 21.

       Because this argument concerns the relative weight, rather than validity of the

       aggravating factor, it is not subject to review for abuse of discretion. Anglemyer,

       868 N.E.2d at 491. The trial court properly considered Torres-Reynoso’s

       criminal history as an aggravating circumstance.


[24]   In his Presentence Investigation (“PSI”) Report, Torres-Reynoso admitted that

       he had used marijuana and cocaine in the past. Appellant’s App. at 21. On

       appeal, he concedes that a trial court may find a history of substance abuse to

       be an aggravating factor for purposes of sentencing. Appellant’s Br. at 22; see

       Iddings v. State, 772 N.E.2d 1006, 1018 (Ind. Ct. App. 2002) (“Indeed, a history

       of substance abuse is sometimes found by trial courts to be an aggravator, not a

       mitigator.”), trans. denied. Instead, Torres-Reynoso argues that his “admission

       to a history of drug use prior to the commission of the present charges, in and of

       itself, does not merit aggravating weight.” Appellant’s Br. at 22. Again, this

       argument concerns the relative weight rather than validity of the aggravating

       factor and is not subject to review for abuse of discretion. Anglemyer, 868




       Court of Appeals of Indiana | Memorandum Decision 79A02-1412-CR-867 | November 30, 2015   Page 16 of 21
       N.E.2d at 491. The trial court properly considered Torres-Reynoso’s use of

       illegal drugs as an aggravating circumstance.


[25]   Torres-Reynoso’s PSI Report listed an alias. When questioned by the trial

       court as to the nature of the alias, Brugh stated that Torres-Reynoso had used

       that alias during the seven years he worked at a hog slaughtering plant. Brugh

       explained that the alias is “what Latinos who are illegal called in work [sic]

       name.” Sentencing Hr’g at 86. Torres-Reynoso does not deny using an alias;

       instead, he argues that the alias was used for strictly employment-related

       purposes, and therefore, its use as an aggravator is not supported by the record.

       Appellant’s Br. at 23.


[26]   Indiana Code section 35-38-1-7.1(a) specifies eleven aggravating circumstances

       that a trial court may consider during sentencing. While use of an alias is not

       among the named circumstances, the trial court was not limited to considering

       only those eleven specified factors. See Ind. Code § 35-38-1-7.1 (criteria listed to

       determine aggravators and mitigators “do not limit the matters that the court

       may consider in determining the sentence.”). Torres-Reynoso provides no

       authority for his suggestion that a trial court cannot consider a defendant’s alias

       unless that alias was used in the commission of a crime. Here, the trial court

       heard the manner in which Torres-Reynoso used his alias. Accordingly,

       Torres-Reynoso’s argument concerns the relative weight rather than validity of

       the aggravating factor and is not subject to review for abuse of discretion.

       Anglemyer, 868 N.E.2d at 491. The trial court properly considered Torres-

       Reynoso’s use of an alias as an aggravating circumstance.

       Court of Appeals of Indiana | Memorandum Decision 79A02-1412-CR-867 | November 30, 2015   Page 17 of 21
[27]   Anglemyer makes it clear that when imposing a sentence, a trial court “no longer

       has any obligation to ‘weigh’ aggravating and mitigating factors against each

       other,” and thus “a trial court cannot now be said to have abused its discretion

       in failing to ‘properly weigh’ such factors.” Anglemyer, 868 N.E.2d at 491.

       “[T]his is so because once the trial court has entered a sentencing statement,

       which may or may not include the existence of aggravating and mitigating

       factors, it may then ‘impose any sentence that is . . . authorized by statute; and .

       . . permissible under the Constitution of the State of Indiana.’” Ind. Code § 35-

       38-1-7.1(d). Here, the trial court set forth mitigating factors and aggravating

       factors, the latter of which consisted of criminal history, prior drug use, use of

       an alias, the nature and circumstances of the crime, and the number of

       transactions and amount of drugs involved in those transactions. Because each

       of those is a valid aggravator, we cannot judge the weight that the trial court

       assigned to each factor. Here, the trial court determined that the aggravating

       factors outweighed the mitigating factors. The trial court cannot be said to have

       abused its discretion in so doing.


                                   III. Inappropriate Sentence
[28]   Finally, Torres-Reynoso contends that his thirty-five-year aggregate sentence is

       inappropriate. Under Indiana Appellate Rule 7(B), “we may revise any

       sentence authorized by statute if we deem it to be inappropriate in light of the

       nature of the offense and the character of the offender.” Corbally v. State, 5

       N.E.3d 463, 471 (Ind. Ct. App. 2014). Although Rule 7(B) does not require us

       to be “extremely” deferential to a trial court’s sentencing decision, we still must

       Court of Appeals of Indiana | Memorandum Decision 79A02-1412-CR-867 | November 30, 2015   Page 18 of 21
       give due consideration to that decision. Id. We also understand and recognize

       the unique perspective a trial court brings to its sentencing decisions. Id. The

       “question under Appellate Rule 7(B) is not whether another sentence is more

       appropriate; rather, the question is whether the sentence imposed is

       inappropriate.” King v. State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008)

       (emphasis in original). 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” allows for a broader consideration

       of the defendant’s character. Anderson v. State, 989 N.E.2d 823, 827 (Ind. Ct.

       App. 2013), trans. denied. It is the defendant’s burden on appeal to persuade the

       reviewing court that the sentence imposed by the trial court is inappropriate.

       Chappell v. State, 966 N.E.2d 124, 133 (Ind. Ct. App. 2012), trans. denied.


[29]   A person who commits a Class A felony shall be imprisoned for a fixed term of

       between twenty and fifty years, with the advisory sentence being thirty years.

       Ind. Code § 35-50-2-4. In the present case, Torres-Reynoso was sentenced to an

       executed term of thirty-five years for each of his seven cocaine-related Class A

       felony convictions. The trial court ordered the sentences to be served

       concurrent with each other, resulting in a thirty-five-year aggregate sentence.


[30]   As to the nature of the offense, Torres-Reynoso was charged with Class A

       felony dealing in cocaine for having sold three or more grams of cocaine to

       Detective Walters not just once or twice, but on six separate dates over a span




       Court of Appeals of Indiana | Memorandum Decision 79A02-1412-CR-867 | November 30, 2015   Page 19 of 21
       of seven months.14 See Ind. Code § 35-48-4-1 (the offense of dealing cocaine in

       an amount of three grams or more is a Class A felony). During that time,

       Torres-Reynoso had more than enough time to rethink his decision to sell

       illegal drugs. Torres-Reynoso admitted during his guilty plea hearing that he

       sold Detective Walters about one ounce of cocaine on four of the six dates and

       that he knew that an ounce was equal to approximately 28 grams. Guilty Plea

       Hr’g at 24-26. Accordingly, on four separate occasions, Torres-Reynoso sold

       Detective Walters more than nine times the amount of cocaine required to

       commit the offense for which he was convicted. Torres-Reynoso sold not only

       cocaine to Detective Walters, but also marijuana in an aggregate weight of

       more than three pounds. Further, cocaine was found during a search of Torres-

       Reynoso’s home—a home that he shared with his fiancée and three children. A

       thirty-five-year aggregate sentence was not inappropriate in light of the nature

       of the offense.


[31]   As to the character of the offender, Torres-Reynoso focuses on his long-term

       employment and his ability to financially take care of his children, some of

       whom live in the United States and others in Mexico. He offers that he was

       targeted by police in the seven controlled drug buys and that his profit for the

       sales was no more than $1,000. Further, he argues that he cooperated with

       police by setting up a controlled buy with Peña. We remind Torres-Reynoso



       14
         The charging information alleged that Torres-Reynoso delivered more than three grams of cocaine on May
       10, 2013, May 24, 2013, June 10, 2013, July 16, 2013, September 29, 2013, and November 21, 2013.
       Appellant’s App. at 13, 20, 22, 23, 24, and 25.

       Court of Appeals of Indiana | Memorandum Decision 79A02-1412-CR-867 | November 30, 2015    Page 20 of 21
       that the burden rests with him to prove to this court that the sentence is

       inappropriate in light of his character. Chappell, 966 N.E.2d at 133. Regardless

       of whether he was targeted by police, made little money from this enterprise,

       and cooperated with police, Torres-Reynoso willingly sold cocaine and

       marijuana, repeatedly, over a period of seven months, financially benefitted

       from selling these illegal drugs, and only cooperated with police after he was

       arrested. His criminal history, while not remarkable, consists of two Class C

       misdemeanor convictions for driving without being licensed, plus, at the time of

       sentencing, he had a pending Class A felony charge in Clinton County for

       dealing in cocaine. Evidence presented during the sentencing hearing revealed

       that Torres-Reynoso had used illegal drugs in the past, and he had used an alias

       while working for one of his employers. Sentencing Hr’g at 86, 88. Torres-

       Reynoso has not met his burden of proving to this court that a sentence of

       thirty-five years, only five years greater than the advisory sentence for just one

       of his seven Class A felony convictions, is inappropriate in light of the nature of

       the offense and the character of the offender.


[32]   We conclude that the trial court did not abuse its discretion in denying Torres-

       Reynoso’s motion to correct error.


[33]   Affirmed.


       Najam, J., and Barnes, J., concur.




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