Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be                                          Sep 17 2013, 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:

JEFFREY D. STONEBRAKER                             GREGORY F. ZOELLER
Clark County Chief Public Defender                 Attorney General of Indiana
Jeffersonville, Indiana
                                                   JOSEPH Y. HO
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana




                               IN THE
                     COURT OF APPEALS OF INDIANA

KATHERINE CERVANTES,                               )
                                                   )
       Appellant-Defendant,                        )
                                                   )
               vs.                                 )    No. 10A04-1301-CR-19
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )


                        APPEAL FROM THE CLARK CIRCUIT COURT
                            The Honorable Daniel E. Moore, Judge
                               Cause No. 10C01-1111-FB-187



                                       September 17, 2013


                MEMORANDUM DECISION - NOT FOR PUBLICATION


CRONE, Judge
                                       Case Summary

       Katherine Cervantes drank alcohol with her young teenage children and their friends

during a gathering at her house. She then engaged in fondling and sexual intercourse with

one of the guests, fourteen-year-old K.J. She pled guilty to class C felony sexual misconduct

with a minor and class A misdemeanor contributing to the delinquency of a minor. In

exchange, the State agreed to dismiss a class B felony sexual misconduct count. The trial

court sentenced her to a five-year aggregate term.

       Cervantes now appeals, challenging the appropriateness of her sentence. Finding that

she has failed to meet her burden of establishing that her sentence is inappropriate in light of

the nature of the offense and her character, we affirm.

                               Facts and Procedural History

       In the fall of 2011, thirty-two-year-old Cervantes was living with her husband and her

three children, ages fifteen, thirteen, and eleven. She was taking antidepressants and pain

medication in addition to diabetes medicine. On October 21, 2011, Cervantes, her children,

and her children’s friends were drinking alcohol at her house. Around midnight, the

inebriated Cervantes fondled and had sexual intercourse with fourteen-year-old K.J., one of

the alcohol-imbibing guests.      Cervantes’s husband walked in and found her having

intercourse with K.J.

       K.J. subsequently suffered severe emotional issues and substance addiction for which

he underwent extensive and expensive therapy. He was terminated from school, had to be

home-schooled, and at one point attempted suicide. Eventually, his family had to relocate.


                                               2
       The State charged Cervantes with class B felony sexual misconduct with a minor,

class C felony sexual misconduct with a minor, and class A misdemeanor contributing to the

delinquency of a minor. Cervantes filed a plea agreement, which the trial court rejected. She

filed a second plea agreement, pursuant to which she would plead guilty to the class C felony

and class A misdemeanor counts in exchange for the State’s agreement to dismiss the class B

felony count. The agreement provided for a fixed one-year concurrent term for the class A

misdemeanor count, and sentencing on the class C felony count was left to the trial court’s

discretion. The trial court held a hearing and accepted Cervantes’s second plea agreement.

       Following a hearing, the trial court sentenced Cervantes to five years for the class C

felony conviction, with the final six months authorized to be served on work release, all to

run concurrent with the fixed one-year term for the class A misdemeanor conviction. The

trial court cited as aggravating factors the harm, injury, loss, or damage suffered by the

victim and that the circumstances significantly exceeded the elements necessary to prove the

offense. The trial court also noted the age difference between Cervantes and her victim and

found that as an adult, she “should have known better.” Appellant’s App. at 67. The trial

court specifically found no mitigating circumstances. Cervantes now appeals. Additional

facts will be provided as necessary.

                                   Discussion and Decision

       Cervantes requests that we review and revise her sentence under Indiana Appellate

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

consideration of the trial court’s decision, [this] Court finds that the sentence is inappropriate


                                                3
in light of the nature of the offense and the character of the offender.” When a defendant

requests appellate review and revision of her sentence, we have the power to affirm or reduce

the sentence. Akard v. State, 937 N.E.2d 811, 813 (Ind. 2010). Our review focuses on the

aggregate sentence rather than on the number of counts, whether they are to be served

concurrently or consecutively, or the length of sentence on an individual count. Cardwell v.

State, 895 N.E.2d 1219, 1225 (Ind. 2008). In conducting our review, we do not look to see

whether the defendant’s sentence is appropriate or if another sentence might be more

appropriate; rather, the test is whether the sentence is “inappropriate.” Fonner v. State, 876

N.E.2d 340, 344 (Ind. Ct. App. 2007). A defendant bears the burden of persuading this Court

that her sentence meets the inappropriateness standard. Anglemyer v. State, 868 N.E.2d 482,

490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218; Childress v. State, 848 N.E.2d 1073,

1080 (Ind. 2006).

        In considering the nature of a defendant’s offense, “the advisory sentence is the

starting point the Legislature has selected as an appropriate sentence.” Anglemyer, 868

N.E.2d at 494. Cervantes was sentenced to a five-year term for her class C felony conviction,

which carries a four-year advisory term. Ind. Code § 35-50-2-6.1 In her plea agreement, she

agreed to give the trial court discretion to sentence her within the two to eight years

prescribed in the statute.




        1
          Cervantes also pled guilty to class A misdemeanor contributing to the delinquency of a minor.
Because she agreed via a plea agreement to a fixed one-year concurrent term for that offense, she cannot and
does not challenge that aspect of her sentence in this appeal.


                                                     4
        In support of her argument that her offense does not warrant a five-year sentence,

Cervantes speculates concerning information that was not presented during the sentencing

proceedings rather than citing evidence that was presented during the proceedings below.

For example, she claims that if the offense had involved any “sordid details,” “force[,] or

threats,” the State certainly would have brought those to the trial court’s attention during

sentencing.      Appellant’s Br. at 7, 11.2           Likewise, in claiming that the trial court

overemphasized the negative impact of her offense on her underage victim, she cites his and

his mother’s absence from the sentencing hearing as well as their failure to object to some of

the sentencing provisions in her first plea agreement. Id. at 11-14. With respect to her

previous plea agreement, we note that the trial court rejected that plea agreement and that its

terms are not the subject of this appeal.3 With respect to K.J.’s and his mother’s failure to

attend the sentencing hearing, we note that this did not result in a vacuum of victim impact

information, since the presentence investigation report contains a segment describing victim

impact. Appellant’s App. at 83-84. We also note testimony from victim’s advocate Carmen

Croudep indicating that K.J.’s mother did not feel comfortable with him attending the hearing

based on his emotional issues stemming from the incident. Tr. at 50-51.




        2
           Cervantes pled guilty to class C felony sexual misconduct with a minor. Force is not an element of
this offense. Ind. Code § 35-42-4-9(a)(1).
        3
          Notwithstanding, we note that the presentence investigation report repeatedly states that K.J.’s
mother was not in agreement with the first plea agreement because she thought that Cervantes’s executed time
should be spent in prison and not in a community corrections program. Appellant’s App. at 83, 85, 117.



                                                     5
       The record before us shows that Cervantes, a thirty-two-year-old mother of three

young teens, became intoxicated in her home while providing alcohol to her children and

their friends. She then engaged in sexual intercourse with one of her children’s fourteen-

year-old guests. She pled guilty to the class C felony count (involving fondling), and in

exchange, the State dismissed the class B felony count (involving sexual intercourse and

carrying a six-to-twenty-year sentencing range). She received a substantial benefit from her

plea agreement in the form of the dismissal of the class B felony count, especially given her

admission that she committed the more egregious act (sexual intercourse) necessary to

convict her of the class B felony version of the offense. As a result of her offense, K.J. has

suffered serious, ongoing emotional problems and even attempted to commit suicide. He

also developed substance addictions that require expensive treatment and resulted in his

termination from school and the eventual relocation of his family. Simply put, Cervantes’s

conduct caused significant and protracted upheaval in the lives of her victim and his family.

       With respect to the “character of the offender,” Cervantes attempts to portray herself

as a homemaker, wife, and mother who merely made a poor decision in mixing alcohol with

diabetes medicine, pain pills, and antidepressants. Her tearful apology during sentencing

focused on her use of alcohol, with no mention of the sex crime that she committed against

her young victim: “I know I made the wrong judgment in drinking and I just want to

apologize and I wanted to say how truly sorry I am.” Tr. at 60. Additionally, as a mother of

children around the same age as her victim, Cervantes should have understood the

importance of providing a safe gathering place for teens. Instead of protecting each child


                                              6
who was present in her home, she caused her own children and their guests to commit the

delinquent act of drinking alcohol, and she engaged in sex with one of their guests. She

violated not only K.J.’s trust, but also the trust of her own children, K.J.’s family, the other

children present, and the families of the other children. In admitting that her husband walked

in and found her having intercourse with K.J., she essentially acknowledged a breach of

marital trust. In this vein, we acknowledge her family’s letters pleading for leniency based

on forgiveness, but we also emphasize that forgiveness within personal relationships does not

compel a pardon from the legal consequences flowing from a person’s criminal offenses.

       Finally, during the guilty plea hearing, Cervantes was evasive and misleading

regarding the facts surrounding the offense. For example, she first stated that she was fully

clothed during the incident and gave the impression that there had only been fondling on top

of the clothing. Then, when counsel and the trial court asked her for clarification, she

admitted to lying about it and conceded that she wore only a shirt and engaged in sexual

intercourse with K.J. When confronted with the inconsistencies in her testimony, she

reverted to the familiar refrain of being too drunk to remember much of what happened. The

trial court finally admonished her, “Tell me any other detail because we’re going to have a

hearing on this and I’m going to be deciding the sentence for you and if I’m finding that

you’re lying to me this isn’t going to help you.” Tr. at 29. In short, Cervantes not only broke

trust with those in her charge at the time of her offense, but she also proved herself

untrustworthy during court proceedings. Her character simply does not warrant a reduction

of her sentence.


                                               7
      Based on the foregoing, we find that Cervantes has failed to meet her burden of

demonstrating that her five-year sentence is inappropriate. Accordingly, we affirm.

      Affirmed.

BARNES, J., and PYLE, J., concur.




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