Velez v. State

31 N.E.3d 1045 (Table)

Jesse VELEZ, Appellant–Defendant

v.STATE of Indiana, Appellee–Plaintiff.

No. 49A02–1409–CR–66049A.

Court of Appeals of Indiana.

April 13, 2015.

Patricia Caress McMath, Marion County Public Defender Agency, Indianapolis, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Jesse R. Drum, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

MEMORANDUM DECISION

BRADFORD, Judge.

Case Summary

[1] Over the course of a nearly two-year time period, Appellant–Defendant Jesse Velez was arrested for numerous criminal offenses, including theft, possession of drug paraphernalia, prostitution, public indecency, resisting law enforcement, and conversion. He was charged for these criminal offenses under six different cause numbers. Velez eventually pled guilty to all but one of the charges levied against him. The remaining charge was dismissed. Following Velez's guilty pleas, the trial court sentenced Velez to an aggregate eight and one-half year term, with six and one-half years executed in the Department of Correction (“DOC”) and two years served in community corrections.

[2] On appeal, Velez challenges his sentence, arguing both that the trial court abused its discretion in sentencing him and that his sentence is inappropriate. Concluding otherwise, we affirm.

Facts and Procedural History

I. Cause Number 49F12–1206–FD–38368 (“Cause No. FD–38368”)

[3] On June 6, 2012, Velez visited a Marsh Supermarket. While at the Marsh Supermarket, Velez placed three bottles of vodka in a backpack. He then attempted to leave the store without paying for the bottles. Velez was stopped outside the store by two Marsh employees who then notified the police. Later that day, Appellee–Plaintiff the State of Indiana (the “State”) charged Velez with Class D felony theft. On March 4, 2013, the State amended the charging information to include a charge of Class A misdemeanor conversion.

II. Cause Number 49F12–1208–FD–57410 (“Cause No. FD–57410”)

[4] On August 19, 2012, Indianapolis Metropolitan Police Department (“IMPD”) Officer John Schweers observed Velez walking in an alley with a glass pipe in his left hand. Based on Officer Schweers's training and experience as a police officer, he immediately recognized the glass pipe to be a “crack pipe.” Appellant's App. p. 48. When Velez saw Officer Schweers's marked police vehicle, Velez put his left hand in his front pants pocket. Officer Schweers then asked Velez to show his hands. Velez initially complied, before shoving his left hand back into his pocket. Fearing that Velez may be armed with a weapon, Officer Schweers patted Velez down and found a crack pipe with steel wool pushed into one end in Velez's pants pocket. Officer Schweers also found a “wad” of steel wool and an ink stick, both of which are commonly used in smoking cocaine. Appellant's App. p. 49. The next day, on August 20, 2012, the State charged Velez with Class A misdemeanor possession of paraphernalia and Class D felony possession of paraphernalia.

III. Cause Number 49F12–1208–CM–57502 (“Cause No. CM–57502”)

[5] At approximately 6:50 a.m. on August 20, 2012, Velez “got into” a vehicle and told the driver that he likes to give fellatio and would do so for $25.00. Appellant's App. p. 79. Velez “fondled [the driver's] genitals” and asked, “You're not a cop are you?” Appellant's App. p. 79. As it turns out, he was. Later that day, the State charged Velez with Class A misdemeanor prostitution and Class A misdemeanor public indecency.

IV. Cause Number 49F12–1208–FD–60304 (“Cause No. FD–60304”)

[6] On August 30, 2012, IMPD Officer Kenneth Greer responded to a report that a man was attempting to “flag cars down” and was “looking into parked cars.” Appellant's App. p. 107. When Officer Greer arrived at the location, he observed Velez, who matched the description of the individual in question, walking on the sidewalk. Officer Greer approached Velez and “stated that [he] needed to talk to him.” Appellant's App. p. 107. Officer Greer then observed Velez “with his left closed fist throw something down on the sidewalk that made a sound of broken glass.” Appellant's App. p. 107. The item in question was subsequently identified to be a broken “crack pipe.” Appellant's App. p. 107. In addition to the burnt glass from the pipe, Officer Greer also located a “burnt piece of brillo pad.” Appellant's App. p. 107. Later that day, the State charged Velez with Class A misdemeanor possession of paraphernalia and Class D felony possession of paraphernalia.

V. Cause Number 49F12–1305–FD–31844 (“Cause No. FD–31844”)

[7] At approximately 1:45 a.m. on May 15, 2013, IMPD Officers Keith Albert, Jean Burkert, and Jeremy Lee responded to a request for assistance from a CVS Store. Upon arriving at the CVS, the officers learned that Velez had left a CVS with an unusual bulk in his midsection. The store manager chased after and apprehended Velez. Officer Albert approached and “lifted Velez's shirt and pulled two bottles of tide liquid detergent and a Lysol spray can that were inside Velez's waistband and placed them on the ground.” Appellant's App. p. 137. When Officer Albert attempted to detain Velez by placing him in handcuffs, Velez “tensed up his arms and began to pull away.” Appellant's App. p. 137. Although Velez continued to resist and disobeyed the officers' orders, he was subsequently brought under control by the officers. Later that day, the State charged Velez with Class D felony theft and Class A misdemeanor resisting law enforcement. On January 17, 2014, the State amended the charging information to include a charge of Class A misdemeanor conversion.

VI. Velez Placed in Mental Health Diversion Program

[8] On January 16, 2013, Velez was placed in PAIR, a mental health diversion program. On December 16, 2013, the State filed a motion seeking to terminate Velez's placement in the program. In making this motion, the State alleged that Velez had violated the terms of his participation in the PAIR program by being arrested for and charged with new criminal offenses, testing positive for cocaine, failing to appear for drug screens as ordered by the court, misleading the court as to his residence, and failing to attend sessions with his mental health treatment provider.

VII. Cause Number 49F12–1405–FD–25741 (“Cause No. FD–25741”)

[9] On May 16, 2014, IMPD officers were dispatched to a Walmart store in reference to a shoplifter running from the store. Officers observed an individual matching the description provided by Walmart employees running northbound away from the store. The individual was subsequently identified to be Velez. After detaining Velez, officers recovered a tool set and four pairs of gloves, all of which had been reported stolen by a Walmart employee who observed Velez take the items “off the shelf and walk past all points of purchase without paying for the merchandise.” Appellant's App. p. 164. Later that day, the State charged Velez with Class D felony theft.

VIII. Velez's Guilty Pleas

[10] With exception to the charge of Class D felony theft that was charged under Cause No. FD–31844, on August 25, 2014, Velez pled guilty to all of the charged crimes that are set forth above. Under Cause No. FD–38368, the trial court accepted Velez's guilty plea and merged Velez's conviction for Class A misdemeanor conversion into his conviction for Class D felony theft. Under Cause No. FD–57410, the trial court accepted Velez's guilty plea and merged Velez's conviction for Class A misdemeanor possession of paraphernalia into his conviction for Class D felony possession of paraphernalia. Under Cause No. CM–57502, the trial court accepted Velez's guilty plea. Under Cause FD60304, the trial court accepted Velez's guilty plea and merged Velez's conviction for Class A misdemeanor possession of paraphernalia into his conviction for Class D felony possession of paraphernalia. Under Cause No. FD–31844, the trial court dismissed the Class D felony theft charge and accepted Velez's guilty plea for the remaining charges. The trial court also accepted Velez's guilty plea under Cause No. FD–25741.

IX. Sentencing Following Velez's Guilty Pleas

[11] After accepting Velez's guilty pleas, the trial court sentenced Velez as follows: (1) one and one-half years under Cause No. FD–38368; (2) one and one-half years under Cause No. FD–57410; (3) one year in community corrections under Cause No. CM–57502; (4) one and one-half years under Cause No. FD–60304; (5) one year in community corrections under Cause No. FD–31844; and (6) two years under Cause No. FD–25741. The trial court ordered each of the sentences to run consecutive to one another, for an aggregate term of six and one-half years executed in the DOC, followed by two years in community corrections. This appeal follows.

Discussion and Decision

[12] Velez challenges his sentence on appeal, claiming both that the trial court abused its discretion in sentencing him and that his aggregate eight and onehalf-year sentence is inappropriate in light of the nature of his offenses and his character.

I. Abuse of Discretion

[13] Sentencing decisions rest within the sound discretion of the trial court and are reviewed on appeal only for an abuse of discretion. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind.2007), modified on other grounds on reh'g, 875 N.E.2d 218 (Ind.2007). “An abuse of discretion occurs if the decision is clearly against the logic and effect of the facts and circumstances before the court, or the reasonable, probable, and actual deductions to be drawn therefrom.” Id. (quotation omitted).

One way in which a trial court may abuse its discretion is failing to enter a sentencing statement at all. Other examples include entering a sentencing statement that explains reasons for imposing a sentence-including a finding of aggravating and mitigating factors if any-but the record does not support the reasons, or the sentencing statement omits reasons that are clearly supported by the record and advanced

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