MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any                                   FILED
court except for the purpose of establishing                           Sep 28 2017, 9:20 am
the defense of res judicata, collateral                                     CLERK
estoppel, or the law of the case.                                       Indiana Supreme Court
                                                                           Court of Appeals
                                                                             and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Christopher L. Clerc                                     Curtis T. Hill, Jr.
Columbus, Indiana                                        Attorney General of Indiana
                                                         Katherine Modesitt Cooper
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Antonio Luis Gonzalez,                                   September 28, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         03A01-1705-CR-1168
        v.                                               Appeal from the Bartholomew
                                                         Circuit Court
State of Indiana,                                        The Honorable Kelly S. Benjamin,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         03C0l-1609-F5-5300



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 03A01-1705-CR-1168 | September 28, 2017       Page 1 of 10
[1]   Antonio Luis Gonzalez appeals his sentence of four years and six months with

      three years executed and one year and six months suspended to probation for

      domestic battery resulting in injury to a pregnant woman as a level 5 felony.

      Gonzalez raises one issue which we revise and restate as whether his sentence is

      inappropriate in light of the nature of the offense and his character. We affirm

      and remand.


                                       Facts and Procedural History

[2]   In late August or September, 2016, Gonzalez, knowing that his girlfriend was

      pregnant, did knowingly or intentionally touch her in a rude, insolent, or angry

      manner resulting in bodily injury.1 On September 27, 2016, the State charged

      Gonzalez with domestic battery resulting in injury to a pregnant woman as a

      level 5 felony. On March 20, 2017, Gonzalez pled guilty pursuant to an

      agreement with the State which provided that he plead to guilty to domestic

      battery resulting in injury to a pregnant woman as a level 5 felony under the

      cause from which this appeal arises, that the State agreed not to amend the

      charges in another cause to include strangulation and domestic battery resulting

      in bodily injury to a pregnant woman and to dismiss that case, and that




      1
        The charging information in the record alleges Gonzalez committed the offense on or about August 28,
      2016, and the date September 12, 2016, was crossed out. At sentencing, defense counsel indicated, in asking
      the victim about the incident, that it occurred on September 12, 2016. The presentence investigation report
      states the offense occurred on or about August 28, 2016. The record does not include a transcript of the
      March 20, 2017 change of plea hearing.

      Court of Appeals of Indiana | Memorandum Decision 03A01-1705-CR-1168 | September 28, 2017       Page 2 of 10
      Gonzalez would be ordered to have no contact with the victim but that that

      term may be modified at the court’s discretion upon her request.


[3]   At sentencing, Gonzalez testified that he was twenty-one years old, that he

      would like to receive counseling for his anger and medication if he needs it, that

      in the year 2016 he probably drank more than he had ever drank in his life, and

      that he would like to receive treatment for his alcohol use. He also expressed

      remorse for his actions. When asked by the prosecutor if all he did was push

      the victim, Gonzalez testified:

              I pushed her . . . I was . . . I don’t recall everything that
              happened that day. I was . . . I was drunk. I pushed her into the
              wall and looked at her and she’s on the floor (inaudible) . . . and I
              said why are you crying, what happened, what’s wrong and she
              said what happened. I don’t want to talk about because I don’t
              remember, but I was drunk and I do not remember and she was
              scared and she was hurt and looking . . . the look of fear in her
              face, I realized I did something wrong and I never want to go
              back to that day again, to be honest with you. I don’t want to
              think about it, but I have to.


      Transcript at 15.


[4]   Gonzalez agreed that the victim was eight months pregnant and that she told

      police that he had kicked her three times in the stomach, and when asked if he

      believed that was true, he replied “I believe that’s true.” Id. The prosecutor

      stated “[a]nd then she told the police officer that she was hoping you’d have a

      change of heart once your child was born but she became scared again when

      you told her that if you weren’t holding the child, you would hit her. Do you

      Court of Appeals of Indiana | Memorandum Decision 03A01-1705-CR-1168 | September 28, 2017   Page 3 of 10
      remember that,” and Gonzalez answered “I do not remember that.” Id. at 16.

      When asked “[d]o you believe that’s true,” he answered “[a]t that moment in

      life, I do believe it’s true. At the point I was at, just everything I was going

      through, yes.” Id. Gonzalez indicated he smoked marijuana on and off since

      he was sixteen, and that he was suspended from school for arguing with

      teachers in 2013.


[5]   Gonzalez’s mother testified that she believed Gonzalez’s being in jail has taught

      him how to change, to control himself, to be patient, and to accept things as

      they are. She also indicated that, if the judge so ordered, she would allow

      Gonzalez back in her home on home detention or some kind of monitoring

      program.


[6]   The victim, when asked “September 12th, 2016. That was right before you had

      your baby. . . tell the Court what he did physically towards you,” testified:


              So, I guess, once again, we had got into a fight. I had found
              some stuff that made be [sic] aggravated. I confronted him about
              it. It aggravated him. We had started going back and forth.
              Well then that’s when he lashed out, had one of his episodes and
              threw me up against the wall and it kind of star gazed me and so
              I winded up falling and he kicked me in the stomach, when I was
              pregnant and he, I don’t know, maybe two minutes later, comes
              back to me, sees that I’m just crying and laying there holding my
              stomach and then he later on, you know, it’s like, yeah, do we
              need to go get checked out? Are you okay?


      Id. at 30. The victim further indicated Gonzalez kicked her “[r]ight above [her]

      belly button” and “kicked [her] three times” in the same place. Id. at 31. When

      Court of Appeals of Indiana | Memorandum Decision 03A01-1705-CR-1168 | September 28, 2017   Page 4 of 10
      asked “[h]ard kicks, soft kicks, I don’t know that it matters,” she answered “I

      mean, it wasn’t like he straight punted me, like a football, no. But he kicked me

      hard enough through me to feel it.” Id. She indicated that Gonzalez kicked her

      when she was down, that he did not help her up and walked away, and she

      “crawled up to the couch pulled [her]self onto the couch and laid there.” Id. at

      31-32. She indicated that Gonzalez drove her to the hospital the next day.


[7]   When asked if she believed Gonzalez when he said he has changed, the victim

      replied “[a]t first I had mixed emotions because that is something that I feel like

      everybody says . . . But to hear him and see him broken like I had just seen, . . .

      I can’t even tell you how many times I’ve ever seen him cry” and “I can’t count

      it on one hand. But I’ve seen him and that was the Anthony I know. That was

      the emotion that I needed to see a really long time ago. So he gave me closer

      [sic] today that I needed. To show me that he is working towards being a better

      person.” Id. at 36-37. When asked “after he . . . kicked you and you went to

      bed and I understand then that you still [were] having cramping and such

      because of that, correct,” the victim answered affirmatively, and when asked

      “so the need to take care of you and go to the hospital was . . . directly related

      to him kicking you,” she answered “[y]es, I will agree with that. I had had

      issues beforehand where . . . they were really scared I was going to go preterm

      labor anyway . . . [s]o I was already starting to cramp, but that just didn’t make

      it any better, if that makes sense.” Id. at 37. When asked “from what I read, . .

      . he’s holding your . . . little infant son and he looked you in the face and said, if

      I wasn’t holding this child, I’d punch you in the face,” the victim answered


      Court of Appeals of Indiana | Memorandum Decision 03A01-1705-CR-1168 | September 28, 2017   Page 5 of 10
       “[y]es.” Id. at 38. When asked “[s]o did he threaten to harm you physically,”

       she answered affirmatively, and when asked “[a] lot?” she answered “[i]t was

       just when he was drunk, it’s nasty, snide comments here and there and that was

       just one of them.” Id. When asked “[w]hen he’s drinking, he’s physically and

       verbally abusive to you,” she answered “[y]es . . . [o]ff the chart, yes.” Id. at 39.


[8]    The trial court found the following aggravating factors: Gonzalez’s criminal

       history of two misdemeanors, he has been placed on probation previously, and

       the victim was eight months pregnant. The court found that the mitigating

       factors included: Gonzalez’s youth and limited criminal history. It sentenced

       him to four years and six months with three years executed and one year and

       six months suspended to probation, and recommended that he be placed in a

       program for substance abuse and a domestic violence program.


                                                   Discussion

[9]    The issue is whether Gonzalez’s sentence is inappropriate in light of the nature

       of the offense and his character. Ind. 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.” Under this rule, the

       burden is on the defendant to persuade the appellate court that his or her

       sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).


[10]   Gonzalez argues that the facts underlying the change to which he pled guilty do

       not differ significantly from a “typical” offense and that the battery had already

       Court of Appeals of Indiana | Memorandum Decision 03A01-1705-CR-1168 | September 28, 2017   Page 6 of 10
       been enhanced to a level 5 felony because it resulted in bodily injury to a

       pregnant woman and he was aware of the pregnancy. Appellant’s Brief at 10.

       He argues he pled guilty and took responsibility for his actions, that he had little

       criminal history, and that his mother and the victim testified they had seen

       positive changes in him and asked that he be released from incarceration. He

       requests this court to revise his sentence to three years fully suspended.


[11]   The State responds that the victim was eight months pregnant at the time of the

       offense and that Gonzalez offers no evidence which shows that he acted with

       restraint, regard, or lack of brutality. It further argues that he has prior

       misdemeanor convictions and a juvenile adjudication for battery resulting in

       bodily injury and he has received the benefit of probation but it did not deter

       him from committing this crime.


[12]   Ind. Code § 35-50-2-6 provides that a person who commits a level 5 felony shall

       be imprisoned for a fixed term of between one and six years, with the advisory

       sentence being three years. The court sentenced Gonzalez to four years and six

       months with three years executed and one year and six months suspended to

       probation.


[13]   Our review of the nature of the offense reveals that Gonzalez, knowing that his

       girlfriend was pregnant, knowingly or intentionally touched her in a rude,

       insolent, or angry manner resulting in bodily injury. According to Gonzalez,

       he pushed the victim into the wall, he was intoxicated, he saw the look of fear

       in her face, and he believed it was true that he kicked her three times in the


       Court of Appeals of Indiana | Memorandum Decision 03A01-1705-CR-1168 | September 28, 2017   Page 7 of 10
       stomach. According to the victim, Gonzalez lashed out and threw her up

       against the wall and that, after she fell, he kicked her in the stomach right above

       her belly button three times. She also indicated that he drove her to the hospital

       the next day and that the need to take her to the hospital was directly related to

       him kicking her.


[14]   Our review of the character of the offender reveals that Gonzalez pled guilty

       more than five months after being charged pursuant to an agreement which

       provided that the State agreed not to amend the charges in another cause to

       include strangulation and domestic battery resulting in bodily injury to a

       pregnant woman and to dismiss that case, and that Gonzalez would be ordered

       to have no contact with the victim but that that term may be modified at the

       court’s discretion upon her request. The presentence investigation report

       (“PSI”) indicates that Gonzalez was born in April of 1995, and that, as a

       juvenile, he had an adjudication for battery resulting in bodily injury in

       September 2012 that would be a class A misdemeanor if committed by an adult

       and received twenty-three days in a juvenile detention center. The PSI further

       shows that, as an adult, he was convicted of contributing to the delinquency of

       a minor as a class A misdemeanor and possession of marijuana as a class B

       misdemeanor in 2015 for which he received a sentence of 365 days all

       suspended to probation. Gonzalez reported that his girlfriend confronted him

       about cheating on her, they had a heated argument, he admitted he did cheat on

       her with other women, she pushed him and he pushed her back, he was

       drinking at the time, and that he made a mistake. He reported that his family


       Court of Appeals of Indiana | Memorandum Decision 03A01-1705-CR-1168 | September 28, 2017   Page 8 of 10
       lived with other family members and also lived in their van, his father used the

       family’s money on drugs and was abusive to his mother, his mother sent him to

       live with his uncle who had a drug problem at age thirteen, his uncle shot

       himself in the car, he and his aunt were in the store and found his uncle when

       they returned to the car, and that six months later his father died of a drug

       overdose. He reported that he was suspended for arguing with teachers, started

       to get into trouble at school when he was approximately eleven years old, and

       that he was diagnosed with oppositional defiant disorder when he was thirteen

       years old. At sentencing, Gonzalez indicated he smoked marijuana on and off

       since he was sixteen and that he probably drank more alcohol in 2016 alone

       than he ever had in his life. With respect to the Indiana Risk Assessment

       System Community Supervision Tool, that the PSI states his overall risk

       assessment score places him in the high risk to reoffend category. It also states,

       with respect to complementary assessment instruments, that “ODARA

       assessment results indicate that [Gonzalez] has an approximate 60% risk to

       commit a new domestic violence act.” Appellant’s Appendix Volume II at 29.


[15]   After due consideration, we conclude that Gonzalez has not sustained his

       burden of establishing that his sentence of four years and six months with three

       years executed is inappropriate in light of the nature of the offense and his

       character.2




       2
         To the extent Gonzalez argues the court abused its discretion in not considering his guilty plea as a
       mitigating factor, we need not address this issue because we find that his sentence is not inappropriate under
       Ind. Appellate Rule 7(B). See Chappell v. State, 966 N.E.2d 124, 134 n.10 (Ind. Ct. App. 2012) (noting that any

       Court of Appeals of Indiana | Memorandum Decision 03A01-1705-CR-1168 | September 28, 2017         Page 9 of 10
                                                        Conclusion

[16]   For the foregoing reasons, we affirm Gonzalez’s sentence.


[17]   Affirmed.


       Najam, J., and Kirsch, J., concur.




       error in failing to consider the defendant’s guilty plea as a mitigating factor is harmless if the sentence is not
       inappropriate) (citing Windhorst v. State, 868 N.E.2d 504, 507 (Ind. 2007) (holding that, in the absence of a
       proper sentencing order, Indiana appellate courts may either remand for resentencing or exercise their
       authority to review the sentence pursuant to Ind. Appellate Rule 7(B)), reh’g denied; Mendoza v. State, 869
       N.E.2d 546, 556 (Ind. Ct. App. 2007) (noting that, even if the trial court is found to have abused its discretion
       in sentencing, the error is harmless if the sentence imposed is not inappropriate), trans. denied), trans. denied.


       Court of Appeals of Indiana | Memorandum Decision 03A01-1705-CR-1168 | September 28, 2017 Page 10 of 10
