Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be                            FILED
regarded as precedent or cited before                          May 07 2012, 8:50 am
any court except for the purpose of
establishing the defense of res judicata,                             CLERK
                                                                    of the supreme court,
collateral estoppel, or the law of the case.                        court of appeals and
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ATTORNEY FOR APPELLANT:                             ATTORNEYS FOR APPELLEE:

DARREN BEDWELL                                      GREGORY F. ZOELLER
Marion County Public Defender Office                Attorney General of Indiana
Indianapolis, Indiana
                                                    ERIC P. BABBS
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

LUIS RAMOS,                                         )
                                                    )
       Appellant-Defendant,                         )
                                                    )
               vs.                                  )      No. 49A04-1103-CR-138
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Plaintiff.                          )


                     APPEAL FROM THE MARION SUPERIOR COURT
                           The Honorable Lisa F. Borges, Judge
                            Cause No. 49G04-1002-MR-7964


                                           May 7, 2012

                MEMORANDUM DECISION - NOT FOR PUBLICATION

MAY, Judge
          Luis Ramos appeals his sentence for murder, a felony,1 and Class A misdemeanor

possession of a handgun without a license.2 The State cross-appeals, requesting remand for

correction of an error in the sentencing statement. We affirm and remand.

                             FACTS AND PROCEDURAL HISTORY

          On January 31, 2010, while at a public park, Ramos shot Brett Reinert six times in the

back. Ramos shot Reinert because Ramos was upset about a fight his brother had with

Reinert the night before. Several bystanders under the age of eighteen were present. Reinert

died from his injuries. After a short investigation, Ramos was arrested for the crime.

          The State charged Ramos with murder, a felony, and Class A misdemeanor possession

of a handgun without a license. A jury convicted Ramos of both counts. At his sentencing

hearing on March 2, 2011, the trial court sentenced Ramos to sixty years for murder, and one

year suspended for Class A misdemeanor possession of a handgun without a license.

                                DISCUSSION AND DECISION

          1.      Appropriateness of Sentence

          We may revise a sentence if it is inappropriate in light of the nature of the offense and

the character of the offender. Williams v. State, 891 N.E. 2d 621, 633 (Ind. Ct. App. 2008)

(citing Ind. Appellate Rule 7(B)). We consider not only the aggravators and mitigators found

by the trial court, but also any other factors appearing in the record. Roney v. State, 872

N.E.2d 192, 206 (Ind. Ct. App. 2007), trans. denied. The appellant bears the burden of



1
    Ind. Code § 35-42-1-1.
2
    Ind. Code § 35-47-2-1.
                                                  2
demonstrating the sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind.

2006).

         When considering the nature of the offense, the advisory sentence is the starting point

to determine the appropriateness of a sentence. Anglemyer v. State, 868 N.E.2d 482, 494

(Ind. 2007), clarified on reh’g 878 N.E.2d 218 (Ind. 2007). The advisory sentence3 for

murder is fifty-five years. Ind. Code § 35-50-2-3. One factor we consider when determining

the appropriateness of a deviation from the advisory sentence is whether there is anything

more or less egregious about the offense committed by the defendant that makes it different

from the “typical” offense accounted for by the legislature when it set the advisory sentence.

Rich v. State, 890 N.E.2d 44, 54 (Ind. Ct. App. 2008), trans. denied. Ramos shot Reinert six

times in the back. The shooting occurred in a park in the presence of multiple bystanders,

some of whom were under the age of eighteen. The trial court also noted the murder seemed

to be a “planned offense . . . in retaliation for some sort of imagined slight the night before,”

(Tr. at 408), and evidence suggested the incident was gang-related. Based on the nature of

his crime, we cannot say Ramos’ sentence was inappropriate. See Groves v. State, 787

N.E.2d 401, 409-10 (Ind. Ct. App. 2003) (appellate court affirmed sixty year sentence for

gang-related murder), trans. denied.

         When considering the character of the offender, one relevant fact is the defendant’s

criminal history. Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct. App. 2007). The


3
 There is no advisory sentence for misdemeanor crimes. Creekmore v. State, 853 N.E.2d 523, 527 (Ind. Ct.
App. 2006), trans. denied.

                                                   3
significance of a criminal history in assessing a defendant’s character varies based on the

gravity, nature, and number of prior offenses in relation to the current offense. Id. Ramos’

juvenile record indicates an increase in the severity and violence of his criminal activity, as

he was adjudicated for battery, criminal recklessness, carrying a handgun without a license,

burglary, and theft. When sentencing Ramos, the court took into consideration his “prior

failures on probation or suspended commitments in the various and sundry attempts to try to

get him back on some sort of straight path all failed.” (Tr. at 407.) In addition, Ramos stated

after committing the crime that he “didn’t feel anything.” (Id. at 408.) Based on Ramos’

criminal record and lack of remorse for his crimes, we cannot say his sentence was

inappropriate.4

        2.      Sentencing Statement

        Pursuant to Indiana Appellate Rules 7(A) and 9(D), the State appeals the

inconsistency between the oral and written iterations of Ramos’ sentence. In reviewing a

sentence, we examine both the oral and written sentencing statements to discern the intent of

the trial court. McElroy v. State, 865 N.E.2d 584, 589 (Ind. 2007). We have the option of

adopting the statement that accurately pronounces the sentence the trial court intended to

impose or remanding for resentencing. Id.

        During the sentencing hearing, the trial court stated:

        I think the appropriate sentence is sixty-one years and I’m going to order that
        one year be suspended, that’s the year in the Marion County Jail. The reason

4
 Ramos also argues the trial court should have given more mitigating weight to his youth when sentencing
him. As we no longer review the weight a factor is given by the trial court when determining a sentence, we
need not address this argument. See Anglemyer, 868 N.E.2d at 491.
                                                    4
       I’m suspending that is because – and I know this doesn’t make sense to some
       folks and I can understand that and I honor the fact you may not understand
       this. I think that in every sentence there has to be a portion of the sentence that
       is meant for rehabilitation. The Defendant is so young that there is a
       possibility that he will be released in the future and with that I have a
       responsibility to try to allow for some rehabilitation. If I leave the year in the
       Marion County Jail as executed time, the Defendant will not be allowed into
       any rehabilitative programs while at the Department of Corrections [sic] and I
       believe it’s important that he be allowed to take part in those programs, that he
       will avail himself of. We must not lose our optimism and our hope for the
       future, for every individual, and I know how painful that is to hear. But that’ll
       be my sentence; sixty years to be executed at the Department of Corrections
       [sic] followed by one year suspended and the Defendant will be on probation
       for that one year.

(Tr. at 410.) Based on the court’s comments, Ramos’ one-year sentence for the Class A

misdemeanor was intended to run consecutively with his sixty-year sentence for murder, as

the court specifically pronounced the sentence as one for “sixty-one years.” (Id.) In addition,

that year was to be suspended to probation “to allow for some rehabilitation.” (Id.)

However, the Abstract of Judgment erroneously indicates the two sentences are to be served

concurrently.

       Ramos does not dispute the discrepancy between the oral and written sentencing

statements, but requests that we remand for resentencing instead of adopting the oral

statement that indicates the trial court’s intent. We decline his request, as it is clear from the

trial court’s oral sentencing statement the intent was for the sentences to be served

consecutively, as evidenced by the court’s pronouncement of the sentence as “sixty-one

years,” (id.), and its explanation why the misdemeanor sentence was suspended and intended

to occur after the sixty-year sentence. Accordingly, we remand for correction of the clerical


                                                5
error in the Abstract of Judgment, and order the sentences to be served consecutively,

consistent with the trial court’s stated intent.

                                       CONCLUSION

       We hold Ramos’ sentence is not inappropriate based on his character and the nature of

his offense. However, the court’s intent was that his sentences be served consecutively, not

concurrently as listed on the Abstract of Judgment. Therefore, we affirm Ramos’ sentence

and remand to the trial court for correction of the Abstract of Judgment to reflect the court’s

intent the two sentences be served consecutively.

       Affirmed and remanded.

CRONE, J., and BROWN, J., concur.




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