MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                   FILED
this Memorandum Decision shall not be                               Jun 11 2018, 6:48 am
regarded as precedent or cited before any                                CLERK
court except for the purpose of establishing                         Indiana Supreme Court
                                                                        Court of Appeals
the defense of res judicata, collateral                                   and Tax Court


estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Marietto V. Massillamany                                 Curtis T. Hill, Jr.
Massillamany Jeter & Carson LLP                          Attorney General of Indiana
Fishers, Indiana
                                                         Lee M. Stoy, Jr.
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Sergio Villegas-Solache,                                 June 11, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-236
        v.                                               Appeal from the Hamilton Circuit
                                                         Court
State of Indiana,                                        The Honorable Paul A. Felix,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         29C01-1404-FC-2797



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-236 | June 11, 2018                 Page 1 of 6
[1]   Sergio Villegas-Solache appeals the sentence imposed by the trial court after it

      revoked his probation. Villegas-Solache argues that the trial court violated the

      parties’ plea agreement and that it erred by failing to consider certain mitigating

      circumstances. Finding that the plea agreement was not violated and no other

      error, we affirm.


                                                     Facts
[2]   On October 24, 2014, Villegas-Solache pleaded guilty to Class C felony

      operating a motor vehicle after forfeiture of license for life. The plea agreement

      contained the following sentencing provisions:


              Total sentence:           Five (5) years in the Indiana Department of
                                        Correction.


              Executed:                 Two (2) years executed with the placement of
                                        the executed term left to the discretion of the
                                        court. However, the portion ordered to be
                                        served directly in the Indiana Department of
                                        Correction (i.e., not on a community
                                        corrections placement) may not exceed six (6)
                                        months.


              Suspended:                Three (3) years shall be suspended.


                                                       ***


              Probation:                Defendant shall be placed on probation for a
                                        period of two (2) years . . . .




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-236 | June 11, 2018     Page 2 of 6
      Appellant’s App. Vol. II p. 51 (original emphases omitted). After accepting the

      plea, the trial court sentenced Villegas-Solache to five years in the Department

      of Correction (DOC), with two years to be served on community corrections

      and three years suspended, with two of those years to be served on probation.


[3]   On August 31 and September 2, 2015, the State filed a notice of non-

      compliance with community corrections and a notice of violation of probation,

      respectively, after Villegas-Solache failed a drug test. He admitted to the

      violation. On February 2, 2017, Villegas-Solache admitted to a second

      probation violation. The trial court ordered him to continue on probation,

      added another year to his probation, and revoked one year of his suspended

      sentence, ordering that it be served on community corrections.


[4]   On September 1, 2017, the State filed a third notice of violation of probation

      after Villegas-Solache was charged with committing Level 5 felony operating a

      motor vehicle after forfeiture of license for life. He pleaded guilty to the new

      criminal charge and admitted to violating probation in this cause.


[5]   On January 18, 2018, the trial court revoked his probation in this cause,

      ordering that he serve 365 days in the DOC and continue on probation for the

      remainder of his sentence. In revoking probation, the trial court took into

      account that Villegas-Solache had pleaded guilty and taken responsibility for his

      actions quickly. The trial court explained its decision as follows:


              here you are again in front of me in this cause number, now not
              for a technical violation of a Community Corrections placement
              or probation but because you committed the exact same crime
      Court of Appeals of Indiana | Memorandum Decision 18A-CR-236 | June 11, 2018   Page 3 of 6
              that you were in front of me for in the first place. I hardly ever
              think it’s appropriate, and I’m not convinced or persuaded in this
              case that it is, that I should do something more lenient the second
              or third time around than I did the first time.


      Tr. p. 37. Villegas-Solache now appeals.


                                   Discussion and Decision
[6]   Villegas-Solache first argues that the trial court exceeded the terms of the plea

      agreement when it ordered him to serve 365 days in the DOC after revoking his

      probation. Indiana Code section 35-38-2-3(h) provides that if the trial court

      finds that a person has violated probation, it has a number of sentencing

      options, including to “[o]rder execution of all or part of the sentence that was

      suspended at the time of initial sentencing.” We will reverse a trial court’s

      sentencing decision for a probation violation only if it is against the logic and

      effect of the facts and circumstances before it. Prewitt v. State, 878 N.E.2d 184,

      188 (Ind. 2007).


[7]   If a trial court accepts a plea agreement, it is bound by its terms. Ind.

      Code § 35-35-3-3(e). If a trial court accepts a plea agreement and then later

      revokes the defendant’s probation, the trial court is not free to ignore the plea

      agreement: “[a] plea agreement does not disappear after the trial court imposes

      its initial sentence.” Cox v. State, 850 N.E.2d 485, 489 (Ind. Ct. App. 2006).


[8]   Villegas-Solache contends that his plea agreement prevented the trial court from

      ordering him to serve more than six months of his sentence in the DOC. We

      disagree. The plea agreement states that his total sentence would be five years
      Court of Appeals of Indiana | Memorandum Decision 18A-CR-236 | June 11, 2018   Page 4 of 6
      in the DOC and that, at the time he was originally sentenced, the trial court could

      not send him “directly” to the DOC for more than six months. Appellant’s

      App. Vol. II p. 51. In other words, the plea agreement spells out how his

      sentence would be served initially. For example, the plea agreement also states

      that three years of his sentence would be suspended, but that certainly does not

      mean that the suspended portion of the sentence could not be modified if he

      violated probation. Here, Villegas-Solache violated probation three times, and

      the third time was the last straw for the trial court. After revoking his

      probation, the trial court did not go beyond the bounds of the plea agreement

      by ordering that Villegas-Solache serve 365 days in the DOC.


[9]   Next, Villegas-Solache argues that the trial court erred by failing to take certain

      mitigators into account when imposing his sentence following the probation

      revocation. A trial court is not required to consider mitigating factors when

      imposing sanctions for probation revocations. I.C. § 35-38-2-3. Villegas-

      Solache directs our attention to authority standing for the proposition that a

      trial court must consider mitigating evidence suggesting that a probation

      violation does not warrant revocation, see Woods v. State, 892 N.E.2d 637, 640

      (Ind. 2008), but that caselaw is inapposite to the case before us. In this case,

      Villegas-Solache does not appeal the trial court’s decision to revoke probation;

      instead, he appeals the sentence imposed following the revocation. There is no

      authority requiring a trial court to consider mitigating circumstances in that part

      of the process.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-236 | June 11, 2018   Page 5 of 6
[10]   Moreover, the only mitigating circumstance proposed by Villegas-Solache on

       appeal is the fact that he took responsibility for his actions by pleading guilty to

       the new criminal charge. The trial court explicitly took note of this fact when

       deciding on the sentence. Therefore, although the trial court was not required

       to do so, it did, in fact, consider this mitigating evidence. 1


[11]   The judgment of the trial court is affirmed.


       Kirsch, J., and Bradford, J., concur.




       1
         Villegas-Solache also suggests briefly that the sentence is inappropriate in light of the nature of the offense
       and his character under Indiana Appellate Rule 7(B). It is well established, however, that “[t]he review and
       revise remedy of App. R. 7(B) is not available” in a post-sentence probation violation proceeding. Jones v.
       State, 885 N.E.2d 1286, 1290 (Ind. 2008). Therefore, we will not consider this argument.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-236 | June 11, 2018                           Page 6 of 6
