MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                              FILED
regarded as precedent or cited before any                                  Jun 22 2020, 10:13 am
court except for the purpose of establishing
                                                                                   CLERK
the defense of res judicata, collateral                                        Indiana Supreme Court
                                                                                  Court of Appeals
estoppel, or the law of the case.                                                   and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Donald R. Shuler                                         Curtis T. Hill, Jr.
Barkes, Kolbus, Rife & Shuler, LLP                       Attorney General of Indiana
Goshen, Indiana
                                                         Marjorie Lawyer-Smith
                                                         Megan M. Smith
                                                         Deputy Attorneys General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Byron N. Diaz,                                           June 22, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         20A-CR-259
        v.                                               Appeal from the Elkhart Superior
                                                         Court
State of Indiana,                                        The Honorable Eric S. Ditton,
Appellee-Plaintiff.                                      Magistrate
                                                         Trial Court Cause Nos.
                                                         20D04-1909-F5-205
                                                         20D04-1807-F5-210



Mathias, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A-CR-259 | June 22, 2020                           Page 1 of 8
[1]   Byron Diaz (“Diaz”) was convicted in Elkhart Superior Court of Level 5 felony

      operating a motor vehicle after his driving privileges were forfeited for life. Diaz

      was on probation when he committed the offense, and his probation was

      revoked.


[2]   Diaz appeals the four-year sentence, with two years executed and two years to

      be served in home detention, imposed for his Level 5 felony conviction, arguing

      that it is inappropriate in light of the nature of the offense and the character of

      the offender. Diaz also argues that the trial court abused its discretion when it

      revoked his probation and ordered him to serve his previously suspended one-

      year sentence in the Department of Correction.


[3]   We affirm.


                                 Facts and Procedural History
[4]   Between the years of 1995 and 2011, Diaz committed and was convicted of six

      offenses involving the illegal operation of a vehicle. More recently, in January

      2019, Diaz pleaded guilty to Level 5 felony operating a vehicle while an

      habitual traffic violator after a lifetime suspension in case number 20D04-1807-

      F5-210 (“F5-210”). He was ordered to serve a two-year sentence, with one year

      to be served in community corrections and the remaining year to be served on

      unsupervised probation.


[5]   On September 9, 2019, Diaz was charged with Level 5 felony operating a motor

      vehicle after his driving privileges were forfeited for life in case number 20D04-



      Court of Appeals of Indiana | Memorandum Decision 20A-CR-259 | June 22, 2020   Page 2 of 8
      1909-F5-205 (“F5-205”). As a result of this charge, Michiana Community

      Corrections filed a notice of violation in F5-210.


[6]   On December 11, 2019, without the benefit of a plea agreement, Diaz pleaded

      guilty to Level 5 felony operating a motor vehicle after his driving privileges

      were forfeited for life and admitted that he violated his probation in F5-210.

      The trial court held Diaz’s sentencing hearing on both matters on January 22,

      2020.


[7]   In F5-205, the trial court considered Diaz’s guilty plea and acceptance of

      responsibility as mitigating circumstances. Diaz informed the court that he

      cannot obtain a driver’s license because he is ineligible for a Green Card due to

      his criminal history. Tr. p. 20.


[8]   Diaz’s criminal history consists of two misdemeanor and five prior felony

      convictions all involving the illegal operation of a vehicle. The trial court also

      considered as aggravating that Diaz committed the offense in F5-205 while he

      was serving his sentence in F5-210 on home detention. The court noted that

      Diaz had received lenient sentences in the past but continued to commit “the

      same offense over and over and over.” Tr. p. 27. The trial court concluded that

      the aggravating circumstances outweighed the mitigating circumstances and

      ordered Diaz to serve four years, with two years to be served in home

      detention, for the Level 5 felony operating conviction.




      Court of Appeals of Indiana | Memorandum Decision 20A-CR-259 | June 22, 2020   Page 3 of 8
[9]    The court also revoked Diaz’s probation in F5-210 and ordered him to serve his

       previously suspended one-year sentence in the Department of Correction. 1 The

       court ordered the sentence imposed in F5-205 to be served consecutive to the

       one-year sentence imposed in cause F5-210.


[10]   Diaz now appeals the sentencing orders in both F5-205 and F5-210.


                                              I. Inappropriate Sentence

[11]   Pursuant to Indiana Appellate Rule 7(B), “[t]he 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.” We must exercise deference to a trial court’s

       sentencing decision because Rule 7(B) requires us to give due consideration to

       that decision, and we understand and recognize the unique perspective a trial

       court brings to its sentencing decisions. Rose v. State, 36 N.E.3d 1055, 1063 (Ind.

       Ct. App. 2015). “Such deference should prevail unless overcome by compelling

       evidence portraying in a positive light the nature of the offense (such as

       accompanied by restraint, regard, and lack of brutality) and the defendant’s

       character (such as substantial virtuous traits or persistent examples of good

       character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015).




       1
         Diaz satisfied the one-year home detention sentence in cause F5-210 while he was in jail awaiting trial on
       these offenses. Tr. p. 13.

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-259 | June 22, 2020                       Page 4 of 8
[12]   The determination of whether we regard a sentence as inappropriate “turns on

       our sense of 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.” Bethea v. State, 983 N.E.2d 1134, 1145 (Ind. 2013) (quoting Cardwell v.

       State, 895 N.E.2d 1219, 1224 (Ind. 2008)). The appropriate question is not

       whether another sentence is more appropriate, but whether the sentence

       imposed is inappropriate. Rose, 36 N.E.3d at 1063.


[13]   Although we have the power to review and revise sentences, the principal role

       of appellate 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 perceived ‘correct’ result in each

       case.” Cardwell, 895 N.E.2d at 1225. Our review under Rule 7(B) should focus

       on “the forest—the aggregate sentence—rather than the trees—consecutive or

       concurrent, number of counts, or length of the sentence on any individual

       count.” Id. And it is the defendant’s burden on appeal to persuade us that the

       sentence imposed by the trial court is inappropriate. Childress v. State, 848

       N.E.2d 1073, 1080 (Ind. 2006).


[14]   Diaz was convicted of Level 5 felony operating a motor vehicle after his driving

       privileges were forfeited for life. “A person who commits a Level 5 felony . . .

       shall be imprisoned for a fixed term of between one (1) and six (6) years, with

       the advisory sentence being three (3) years.” Ind. Code § 35-50-2-6. The trial

       court ordered Diaz to serve four years, with two years executed in the

       Department of Correction and two years to be served in home detention.

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-259 | June 22, 2020   Page 5 of 8
[15]   We agree with Diaz that there are no circumstances surrounding the nature of

       his offense that would support the trial court’s decision to impose a sentence

       above the advisory. But we must also consider Diaz’s character.


[16]   Diaz pleaded guilty and accepted responsibility for his offense. But Diaz’s

       criminal history reflects poorly on his character. In 1995, he was convicted of

       misdemeanor driving without a license. In 2000, he was convicted of

       misdemeanor operating while intoxicated. In 2002, he was convicted of Class D

       felony operating while intoxicated. In 2003, he was convicted of Class D felony

       operating while intoxicated. In 2007, he was convicted of Class D felony

       operating a vehicle as an habitual traffic violator. In 2011, he was convicted of

       Class C felony operating a vehicle after lifetime forfeiture of driving privileges.

       And in January 2019, he was convicted of Level 5 felony operating a vehicle

       after lifetime forfeiture of driving privileges. He was serving his sentence for that

       conviction in home detention through community corrections when he

       committed the offense in this case. Diaz’s criminal history also consists of other

       probation violations and multiple failures to appear for court hearings.


[17]   The trial court weighed all of these circumstances and imposed a four-year

       sentence, which is two years less than the maximum six-year sentence for a

       Level 5 felony. Although Diaz pleaded guilty and took responsibility for his

       offense, his criminal history involving the repeated illegal operation of a motor

       vehicle, his commission of this offense while on home detention, and his

       unwillingness to lead a law-abiding life support the trial court’s decision to

       impose a sentence one year more than the advisory. For all of these reasons, we

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-259 | June 22, 2020   Page 6 of 8
       conclude that Diaz has not met his burden of persuading us that his four-year

       sentence, with two years executed and two years to be served in home

       detention, is an outlier that warrants revision by our court.


                                           II. Probation Revocation

[18]   Diaz also argues that the trial court abused its discretion when it revoked his

       probation and ordered him to serve his previously suspended one-year sentence

       executed in the Department of Correction.


               Probation is a matter of grace left to trial court discretion, not a
               right to which a criminal defendant is entitled. The trial court
               determines the conditions of probation and may revoke
               probation if the conditions are violated. Once a trial court has
               exercised its grace by ordering probation rather than
               incarceration, the judge should have considerable leeway in
               deciding how to proceed. If this discretion were not afforded to
               trial courts and sentences were scrutinized too severely on
               appeal, trial judges might be less inclined to order probation to
               future defendants. Accordingly, a trial court’s sentencing
               decisions for probation violations are reviewable using the abuse
               of discretion standard. An abuse of discretion occurs where the
               decision is clearly against the logic and effect of the facts and
               circumstances.


       Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007) (internal citations omitted).


[19]   Diaz claims the trial court abused its discretion when it ordered him to serve his

       previously suspended one-year sentence in the Department of Correction

       because he admitted the violation and drove the vehicle so he would not miss a

       day of work. Diaz was convicted of his seventh offense related to operating a


       Court of Appeals of Indiana | Memorandum Decision 20A-CR-259 | June 22, 2020   Page 7 of 8
       vehicle in F5-210. Yet, the trial court showed leniency and ordered Diaz to

       serve his two-year-sentence, which is just one year more than the minimum

       sentence for a Level 5 felony, in home detention and probation. Instead of

       taking advantage of the grace afforded to him, Diaz committed his eighth

       offense involving the operation of a vehicle. For this reason, we conclude that

       the trial court acted within its discretion when it ordered Diaz to serve his

       previously suspended one-year sentence in the Department of Correction.


                                                 Conclusion
[20]   Diaz has not persuaded us that the sentence imposed in F5-205 is inappropriate

       in light of the nature of the offense and the character of the offender. And in F5-

       210, the trial court did not abuse its discretion when it revoked Diaz’s probation

       and ordered him to serve his previously suspended one-year sentence in the

       Department of Correction.


[21]   Affirmed.


       Riley, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A-CR-259 | June 22, 2020   Page 8 of 8
