MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                        FILED
regarded as precedent or cited before any
                                                                        Apr 20 2020, 10:46 am
court except for the purpose of establishing
the defense of res judicata, collateral                                      CLERK
                                                                         Indiana Supreme Court
estoppel, or the law of the case.                                           Court of Appeals
                                                                              and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Zachary J. Stock                                          Curtis T. Hill, Jr.
Indianapolis, Indiana                                     Attorney General of Indiana
                                                          Angela N. Sanchez
                                                          Assistant Section Chief
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Adam Christopher Avila,                                   April 20, 2020
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          19A-CR-1619
        v.                                                Appeal from the Tippecanoe
                                                          Circuit Court
State of Indiana,                                         The Honorable Sean M. Persin,
Appellee-Plaintiff.                                       Judge
                                                          Trial Court Cause No.
                                                          79C01-1811-F4-43



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1619 | April 20, 2020                   Page 1 of 10
                                          Statement of the Case

[1]   Adam Avila (“Avila”) appeals the sentence imposed after he pled guilty to

      Level 4 felony sexual misconduct with a minor1 and Level 6 felony possession

      of child pornography.2 Avila argues that his six-year aggregate sentence–with

      three years to be served in the Indiana Department of Correction (“DOC”) and

      three years to be served in community corrections–is inappropriate.

      Concluding that Avila has failed to show that his sentence is inappropriate, we

      affirm the sentence.


[2]   We affirm.


                                                      Issue

                                   Whether Avila’s sentence is inappropriate.


                                                      Facts

[3]   In January 2017, thirty-one-year-old Avila began communicating with fifteen-

      year-old K.D. on Facebook Messenger. Initially, Avila believed that K.D. was

      an adult. However, when Avila learned K.D.’s true age, he continued their

      relationship. Avila repeatedly engaged in months of grooming behavior. This

      behavior included explicit sexual talk and requests for nude images and videos




      1
          IND. CODE § 35-42-4-9.
      2
          I.C. § 35-42-4-4.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1619 | April 20, 2020   Page 2 of 10
      of K.D. Avila also sent K.D. nude photos of himself and threatened her with

      anal sex. Eventually, Avila and K.D. engaged in sexual intercourse a few

      months before K.D.’s sixteenth birthday, and they did so on multiple occasions.


[4]   In October 2018, an officer from the Lafayette police department was assigned

      three CyberTip leads from the National Center for Missing and Exploited

      Children. Facebook had submitted the CyberTip leads based on 134 images

      and eight videos sent from K.D. to Avila, which they suspected to be child

      pornography.


[5]   Thereafter, the State charged Avila with Level 4 felony sexual misconduct with

      a minor, Level 4 felony child solicitation, Level 5 felony sexual misconduct

      with a minor, Level 5 felony child seduction, Level 5 felony vicarious sexual

      gratification, Level 6 felony possession of child pornography, and Level 6

      felony dissemination of matter harmful to minors. Avila posted bond, and the

      trial court ordered him to have no contact with K.D.


[6]   Pursuant to a plea agreement, Avila pled guilty to Level 4 felony sexual

      misconduct with a minor and Level 6 felony possession of child pornography in

      May 2019. In exchange, the State agreed to dismiss the remaining charges, and

      the sentence was left to the discretion of the trial court.


[7]   Later that month, K.D.’s father reported that she had run away. K.D. was

      located at Avila’s father and stepmother’s home, where Avila had been living.

      The State filed a motion to revoke Avila’s bond, and the trial court held a

      hearing on the State’s motion. The trial court found “that the [S]tate ha[d]

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1619 | April 20, 2020   Page 3 of 10
      proven by clear and convincing evidence that [Avila] has violated [a] condition

      of bond by having contact with the alleged victim in this case.” (Tr. 37). The

      trial court ordered Avila to be held without bond until his sentencing hearing.


[8]   In June 2019, the trial court held a sentencing hearing. The presentence

      investigation report (“PSI”) included information about Avila’s health issues

      including a childhood cancer diagnosis, which has been in remission since

      1990, and a 2017 heart transplant. The PSI also explained that Avila was

      unable to lift over five to ten pounds and had a limited range of motion in his

      left arm, a suppressed immune system, chronic pain, and a low risk to re-

      offend. The State requested that the trial court impose consecutive sentences of

      seven (7) years for Avila’s Level 4 felony and two (2) years for his Level 6

      felony conviction. Avila requested the trial court impose an aggregate sentence

      of four (4) years, with a portion executed in community corrections and a

      portion on probation.


[9]   When sentencing Avila, the trial court identified the harm to the victim as the

      only aggravating circumstance. The trial court then identified the following

      mitigating circumstances: (1) the fact that Avila had pled guilty and had taken

      responsibility for his actions; (2) Avila’s lack of criminal history; and (3) the

      difficulty that long term incarceration would have on Avila due to his health

      issues. Because the harm to the victim was “substantial[,]” the trial court found

      that that “aggravating factor[] and mitigating factors balance.” (Tr. 80). The

      trial court then sentenced Avila to the six (6) year advisory sentence for his

      Level 4 felony conviction and a one (1) year advisory sentence for his Level 6

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1619 | April 20, 2020   Page 4 of 10
       felony conviction. The trial court ordered the two sentences to run

       concurrently with three (3) years executed in the DOC and three (3) years

       suspended to Community Corrections as a term of probation. Avila now

       appeals.


                                                    Decision

[10]   On appeal, Avila argues that his aggregate six-year sentence is inappropriate.

       He does not challenge the duration of his sentence. Rather, he challenges the

       trial court’s sentencing decision that he serve three years of his aggregate

       sentence in the DOC. Avila contends that his lack of criminal history, low risk

       to re-offend, and poor health illustrate a character that makes the execution of a

       portion of his sentence in the DOC inappropriate. He asserts that the trial court

       should have, instead, suspended his entire six-year sentence and ordered it to be

       served in community corrections. We disagree.


[11]   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). The principal role of a Rule 7(B) review “should be to attempt to leaven

       the outliers, and identify some guiding principles for trial courts and those

       charged with improvement of the sentencing statutes, but not to achieve a



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1619 | April 20, 2020   Page 5 of 10
       perceived ‘correct’ result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225

       (Ind. 2008).


[12]   When determining whether a sentence is inappropriate, we acknowledge that

       the advisory sentence is the starting point the General Assembly has selected as

       an appropriate sentence for the crimes committed. Childress, 848 N.E.2d at

       1081. Here, Avila pled guilty to one Level 4 felony and one Level 6 felony.

       The sentencing range for a Level 4 felony is “for a fixed term of between two (2)

       and twelve (12) years, with the advisory sentence being six (6) years.” I.C. § 35-

       50-2-5.5. The sentencing range for a Level 6 felony is “for a fixed term of

       between six (6) months and two and one-half (2½) years, with the advisory

       sentence being one (1) year.” I.C. § 35-50-2-7(b). Here, the trial court

       sentenced Avila to concurrent advisory sentences and suspended a portion of

       the sentence to probation. Specifically, the trial court imposed an advisory six

       (6) year sentence for Avila’s Level 4 felony conviction and a one (1) year

       advisory sentence for his Level 6 felony conviction. The trial court ordered that

       three (3) years of the aggregate six (6) year sentence would be executed in the

       DOC and the remaining three (3) years be suspended to probation and served in

       community corrections.


[13]   The location where a sentence is to be served is an appropriate focus for our

       review and revise authority under Appellate Rule 7(B). Biddinger v. State, 868

       N.E.2d 407, 414 (Ind. 2007). However, this Court has previous explained that

       it will be “quite difficult” for a defendant to prevail on a claim that his sentence

       is inappropriate. Fonner v. State, 876 N.E.2d 340, 343 (Ind. Ct. App. 2007).

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1619 | April 20, 2020   Page 6 of 10
       This is because an appellate court is “unlikely to consider an advisory sentence

       inappropriate.” Shelby v. State, 986 N.E.2d 345, 371 (Ind. Ct. App. 2013), trans.

       denied. “[A] defendant bears a particularly heavy burden in persuading us that

       his sentence is inappropriate when the trial court imposes the advisory

       sentence.” Fernbach v. State, 954 N.E.2d 1080, 1089 (Ind. Ct. App. 2011), trans.

       denied. When considering the appropriateness of a sentence, we consider “all

       aspects of the penal consequences imposed by the trial judge in sentencing[,]”

       including “whether a portion of the sentence is ordered suspended.” Davidson v.

       State, 926 N.E.2d 1023, 1025 (Ind. 2010). Avila has not met the heavy burden

       he faces in this appeal.


[14]   Turning to the nature of Avila’s offense, this Court has recognized that the

       nature of the offense is found in the details and circumstances of the

       commission of the offense and the defendant’s participation. Perry v. State, 78

       N.E.3d 1, 13 (Ind. Ct. App. 2017). As Avila himself acknowledges, the nature

       of his offense is “serious and would generally warrant the term of incarceration

       imposed in this case.” (Avila’s Br. 9). Here, Avila requested and had sexual

       intercourse with fifteen-year-old K.D. on multiple occasions. He also engaged

       in months of grooming behavior, including explicit sexual talk and requests for

       nude images and videos of K.D. He also sent K.D. nude photos of himself and

       threatened her with anal sex. We cannot say that placement in DOC is

       inappropriate in light of the nature of Avila’s crimes.


[15]   As for Avila’s character, during sentencing, the trial court identified and

       considered the following three mitigating circumstances: (1) the fact that Avila

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1619 | April 20, 2020   Page 7 of 10
       had pled guilty and had taken responsibility for his actions; (2) Avila’s lack of

       criminal history; and (3) the difficulty that long term incarceration would have

       on Avila due to his health issues. We acknowledge that Avila has taken

       responsibility, has no prior criminal history, and is a considered a low risk to re-

       offend. However, we also recognize that the crimes committed by Avila were

       ongoing for months and that he had violated the no contact order with K.D.

       while awaiting sentencing, resulting in his bond being revoked.


[16]   To support his contention that his health issues–lack of sternum and

       susceptibility to illness–warrants a change in placement, Avila relies on Moyer v.

       State, 796 N.E.2d 309 (Ind. Ct. App. 2003). In Moyer, the defendant argued on

       appeal, in part, that the trial court should have considered his illness as a

       significant mitigating circumstance. We agreed and held that the constant

       medical attention the defendant required was beyond the jail’s ability and, thus,

       the defendant’s condition should have been given weight as a mitigating

       circumstance during sentencing. The defendant suffered from “lymphoma,

       malignancy of the larynx, and recurring tumors. He also ha[d] pulmonary

       disease and relie[d] on a breathing apparatus. [He] require[d] frequent tracheal

       cleaning and sterile catheters, which the jail [could not] provide regularly.” Id.

       at 314. This Court determined that the aggravating circumstances still

       outweighed the mitigating circumstances, but we remanded the case to the trial

       court with instructions to vacate the defendant’s forty-year sentence and

       resentence him to twenty-four years.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1619 | April 20, 2020   Page 8 of 10
[17]   Here, the facts of the instant case are distinguishable from those in Moyer.

       Importantly, here, the trial court recognized and considered Avila’s health

       issues as a mitigating circumstance. The record clearly demonstrates that the

       trial court did not ignore Avila’s medical issues when sentencing him. Next,

       Avila does not require constant medical treatment. His main concerns are that

       he is susceptible to illness and does not have a sternum. In addition, Avila has

       failed to demonstrate that his medical concerns cannot be treated in the DOC.

       His argument is essentially that it would be more appropriate for him to serve

       his entire six-year sentence in community corrections. Such an argument

       amounts to an assertion of what he considers to be a more appropriate sentence,

       not an explanation of why his sentence is inappropriate. That is not the

       question addressed under Appellate Rule 7(B). See Fonner, 876 N.E.2d at 344

       (explaining that “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”). Furthermore, unlike the defendant in Moyer, who

       was sentenced to forty years in the DOC, Avila’s was only ordered to serve

       three years of his aggregate six-year sentence in the DOC. This is noteworthy

       because a persuasive case can be made that Avila’s sentence could be increased

       under these facts. See McCullough v. State, 900 N.E.2d 745, 750 (Ind. 2009)

       (explaining that an appellate court, exercising its constitutional authority to

       review and revise criminal sentences, may impose a more severe sentence than

       was ordered by the trial court).




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1619 | April 20, 2020   Page 9 of 10
[18]   Avila has failed to meet his burden to persuade this Court that placement in the

       DOC is inappropriate. Accordingly, we affirm his sentence.


[19]   Affirmed.


       May, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1619 | April 20, 2020   Page 10 of 10
