Rodriguez-Posas v. State

167 N.E.3d 683 (Table)

Juan Roberto RODRIGUEZ-POSAS, Appellant-Defendant,

v.STATE of Indiana, Appellee-Plaintiff,

Court of Appeals Case No. 20A-CR-1403

Court of Appeals of Indiana.

FILED February 5, 2021

MEMORANDUM DECISION

Robb, Judge.

Case Summary and Issue

[1] Juan Roberto Rodriguez-Posas pleaded guilty to domestic battery causing bodily injury to a pregnant family member, a Level 5 felony. The trial court found the mitigators outweighed the aggravators and sentenced him to a below-advisory sentence of two years executed in the Indiana Department of Correction ("DOC"). Rodriguez-Posas now appeals his sentence, arguing that it is inappropriate in light of the nature of his offense and of his character. Finding that a two-year executed sentence is inappropriate, we reverse and remand.

Facts and Procedural History

[2] Rodriguez-Posas lives with Claudia, his wife¹ of approximately twenty-five years, and four of their five children in Tippecanoe County. On October 3, 2019, Rodriguez-Posas learned that Claudia was pregnant with another man's child. Angry, Rodriguez-Posas hit her. At the time, he was undocumented and had been living in the United States for two or three years.

[3] The State charged Rodriguez-Posas with three counts, including domestic battery resulting in bodily injury to a pregnant family member. On May 1, 2020, Rodriguez-Posas and the State entered into a plea agreement for Rodriguez-Posas to plead guilty to domestic battery resulting in bodily injury to a pregnant family member in exchange for the State dismissing the two other counts. Rodriguez-Posas’ sentence would be whatever the trial court "deems appropriate after hearing any evidence or argument of counsel." Appellant's Appendix, Volume 2 at 40. The plea agreement also contained the following relevant provisions about sentencing:

3. That the Defendant understands that the sentence imposed by the Court may include an executed sentence to the [DOC], Tippecanoe County Community Corrections, and/or a suspended sentence on Probation. Further, the Defendant understands that if he fails to qualify for or is rejected from Tippecanoe County Community Corrections, he shall serve his remaining community corrections sentence in the [DOC].

* * *

9. The Defendant states that he ... is not a citizen of the United States....

10. That the Defendant acknowledges that if he is not a U.S. citizen or legal resident alien, ... [he] would not be eligible for community corrections or placement on probation.

Id. at 40-41. Sections 3 and 10 are on separate pages of the plea agreement and five unrelated substantive provisions appear between these two sections. Sections 3 and 10 therefore appear as entirely independent provisions rather than section 10 directly and obviously restricting section 3.

[4] At the guilty plea hearing, the trial court reviewed Rodriguez-Posas’ rights with him and also reviewed the terms of the plea agreement, including the terms stating that "the sentence imposed by the Court could include an executed sentence to the DOC, Tippecanoe County Community Corrections and/or a suspended sentence onto probation" and that if he is not a United States citizen, he would not be eligible for community corrections or probation. Tr. at 10, 13. Rodriguez-Posas’ attorney laid a factual basis for the plea which the trial court accepted, and the plea was taken under advisement.² The probation department completed a presentence investigation, determined Rodriguez-Posas was a low risk to reoffend, and recommended a sentence of three years in the DOC.

[5] The sentencing hearing was held on June 19, 2020. Claudia neither provided a victim impact statement nor appeared at the hearing. See Appellant's App., Vol. 2 at 54; Tr. at 18-27. The parties agreed Rodriguez-Posas was entitled to 260 actual days credit and 86.67 days good time credit toward his sentence. The State acknowledged Rodriguez-Posas has no criminal history but identified the presence of children during the incident as an aggravating factor and argued for a sentence of three and one-half years. Rodriguez-Posas’ attorney also acknowledged "it's kind of a rare bird that we have in this courtroom" because Rodriguez-Posas has never had any contact with the criminal justice system. Tr. at 21.³ Rodriguez-Posas noted that he had maintained a long term stable relationship for over twenty years and supported his five children, he had uncharacteristically consumed alcohol the night of the incident and does not use illegal substances, he is "extremely sorry" and the circumstances are unlikely to recur, and he has already been incarcerated for "quite a period of time" and "lost a lot[,]" including his wife and family. Accordingly, Rodriguez-Posas asked for any sentence to be served on probation so he could "show the Court, show anybody, that he can do everything that they asked of him and do it perfectly[.]" Id. at 21-22.

[6] The trial court found the fact that minor children could see and hear the offense to be an aggravator; that Rodriguez-Posas took responsibility for his actions by pleading guilty, appears remorseful for his conduct, and has no criminal record to be mitigators; and found the mitigators outweigh the aggravators. With respect to the sentence, the trial court stated:

I agree with your attorney ... and don't necessarily agree with the State or the Probation Department in this case. The Court's going to enter a sentence of two years. It's going to be fully executed. If I had the option for community corrections I'd put him on. It's just not viable. It's not something that's available to me at this time and I just don't like probation under these circumstances. The Court has considered one year but under these facts and these circumstances and the range that he's looking at the Court is not going to do that[.]

Id. at 26-27. The trial court's written sentencing order states:

[Rodriguez-Posas] shall execute two (2) years at the [DOC], fully executed. The Court notes that [he] is ineligible for community corrections and currently has an immigration hold/detainer, which would prevent him from residing in Tippecanoe County on probation.

Appealed Order at 2.

[7] Rodriguez-Posas appeals his sentence. Additional facts will be provided as necessary.

Discussion and Decision

I. Standard of Review

[8] Indiana Appellate Rule 7(B) provides this court the authority to revise a defendant's sentence "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." Sentencing is "principally a discretionary function" of the trial court to which we afford great deference. Cardwell v. State , 895 N.E.2d 1219, 1222 (Ind. 2008). "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). It is the defendant who bears the burden of persuading this court his or her sentence is inappropriate under the standard. Childress v. State , 848 N.E.2d 1073, 1080 (Ind. 2006).

[9] On review, the question is not whether another sentence is more appropriate; rather, the question is whether the sentence imposed is inappropriate. Fonner v. State , 876 N.E.2d 340, 344 (Ind. Ct. App. 2007). We may consider any factors appearing in the record in making this determination. Stokes v. State , 947 N.E.2d 1033, 1038 (Ind. Ct. App. 2011), trans. denied. Whether a defendant's sentence is 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." Cardwell , 895 N.E.2d at 1224. The trial court's recognition and non-recognition of aggravators and mitigators serves as an initial guide in our determination. Sanders v. State , 71 N.E.3d 839, 844 (Ind. Ct. App. 2017), trans. denied.

II. Inappropriate Sentence

[10] Rodriguez-Posas argues his two-year executed sentence is inappropriate in light of the circumstances surrounding his offense and his character.

[11] The advisory sentence is the starting point our legislature has selected as an appropriate sentence for the crime committed. Childress , 848 N.E.2d at 1081. The sentencing range for domestic battery as a Level 5 felony is between one and six years, with an advisory sentence of three years. Ind. Code § 35-50-2-6(b). Finding the mitigators in this case outweighed the one aggravator, the trial court sentenced Rodriguez-Posas to a below-advisory sentence of two years, and further finding a placement in community corrections to be foreclosed and probation to be unworkable given Rodriguez-Posas’ immigration status, ordered the sentence to be fully executed at the DOC.

[12] The nature of the offense is found in the details and circumstances surrounding the offense and the defendant's participation therein. Perry v. State , 78 N.E.3d 1, 13 (Ind. Ct. App. 2017). When evaluating a defendant's sentence that deviates from the advisory sentence, we consider whether there is anything more or less egregious about the offense as committed by the defendant that distinguishes it from the typical offense accounted for by our legislature when it set the advisory sentence. Moyer v. State , 83 N.E.3d 136, 142 (Ind. Ct. App. 2017), trans. denied.

[13] Our review of the record reveals that the offense occurred under a combination of factors unlikely to recur. Rodriguez-Posas and Claudia had been together for nearly twenty-five years and had five children together. They left Honduras with their four youngest children because their sixteen-year-old son was being recruited by a gang and made to sell drugs. They had been living in the United States for two or three years at the time of this incident....