Torres-Reynoso v. State, 79A02–1412–CR–867.

• Decision Date: 30 November 2015
• Docket Number: No. 79A02–1412–CR–867.,79A02–1412–CR–867.
• Citation: 42 N.E.3d 586 (Table)
• Parties: Luis TORRES–REYNOSO, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff.
• Court: Indiana Appellate Court

42 N.E.3d 586 (Table)

Luis TORRES–REYNOSO, Appellant–Defendant

v.STATE of Indiana, Appellee–Plaintiff.

No. 79A02–1412–CR–867.

Court of Appeals of Indiana.

Nov. 30, 2015.

Matthew D. Barrett, Matthew D. Barrett, P.C., Logansport, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Angela N. Sanchez, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

MEMORANDUM DECISION

KIRSCH, Judge.

[1] Luis Torres–Reynoso pleaded guilty to conspiracy to commit dealing in cocaine¹ as a Class A felony, six counts of dealing in cocaine,² each as a Class A felony, and eight additional drug-related offenses.³ The trial court accepted TorresReynoso's plea of guilty and sentenced him to an executed term of thirty-five years for each of the seven Class A felony convictions, ordering those sentences to run concurrently. The trial court did not impose a sentence for the remaining convictions. The trial court denied Torres–Reynoso's motion to correct error. Torres–Reynoso raises the following restated issues on appeal:

I. Whether Torres–Reynoso was denied the effective assistance of trial counsel;

II. Whether the trial court abused its sentencing discretion by relying on improper aggravating factors; and

III. Whether Torres–Reynoso's aggregate thirty-five-year executed sentence is inappropriate in light of the nature of the offense and the character of the offender.

[2] We affirm.

Facts and Procedural History

[3] This case arises from a criminal investigation of Torres–Reynoso by the Lafayette Police Department and the Federal Drug Enforcement Administration (“DEA”). Between May and November 2013, Torres–Reynoso delivered approximately twelve ounces of cocaine and over three pounds of marijuana, in seven separate buys, to Lafayette Police Department Detective Jason Walters, who was acting undercover. In the first six buys, Detective Walters bought a total of eight ounces of cocaine and over one pound of marijuana and paid Torres–Reynoso $9,100.⁴ In the final buy on November 21, 2013, Torres–Reynoso delivered four ounces of cocaine and two pounds of marijuana. No payment was made; instead, Detective Walters arrested TorresReynoso and his accomplice, Saul Muñoz.

[4] Torres–Reynoso was interviewed by the police that same night. After initially denying involvement, he admitted that he sold drugs to Detective Walters and, later, consented to a search of his home; during that search, the police found more cocaine. Torres–Reynoso identified his drug suppliers as Muñoz and a man named Peña. A search of Muñoz's home uncovered two pounds of cocaine. With the help of Torres–Reynoso, police arranged to purchase cocaine from Peña the following day. When police arrived at the designated location, Peña fled in his car and, subsequently, on foot. When Peña was finally apprehended, police found no cocaine on his person.

[5] On November 27, 2013, and as later amended, Torres–Reynoso was charged with the following fifteen drug-related counts: (1) seven Class A felonies (one count of conspiracy to commit dealing in at least three grams of cocaine and six counts of dealing in in at least three grams of cocaine); (2) two Class C felonies (one count of possession of cocaine⁵ and one count of dealing in a substance represented to be a controlled substance⁶ ); (3) five Class D felonies (one count of conspiracy to commit dealing in marijuana,⁷ two counts of dealing in marijuana,⁸ one count of maintaining a common nuisance,⁹ and one count of “dealing in a substance represented to be cocaine,” Guilty Plea Hr'g at 18), and (4) one Class A misdemeanor (dealing in marijuana¹⁰ ). In January 2014, attorney Jim Brugh (“Brugh”) filed an appearance as counsel for TorresReynoso.

[6] On August 4, 2014, Torres–Reynoso pleaded guilty, without a written plea agreement, to all fifteen counts. About a month and a half later, and in preparation for the impending sentencing hearing, Brugh filed a motion to shorten the time for the State to respond to Torres–Reynoso's request for production of documents that revealed the identities of any officers involved in or reports related to the investigation and arrest of Peña. Specifically, Brugh intended to argue as a mitigating factor at sentencing that Torres–Reynoso had been cooperative with police, identified Peña as a drug dealer, and helped arrange the controlled drug buy that lead to Peña's arrest. Brugh argued that “[e]vidence of [Torres–Reynoso's] cooperation with law enforcement on the day of his arrest ... and his cooperation with the Drug Task Force to set up drug dealer [Peña for a controlled drug buy] ... is relevant to sentencing.” Appellant's App. at 41.

[7] During a hearing, the State urged the court to deny the motion to shorten time on the basis that Brugh had every report the State had, the reports relating to Peña were not relevant to Torres–Reynoso's sentencing, the State never denied that Torres–Reynoso provided helpful information, and Brugh had already subpoenaed officers involved in the case to testify at Torres–Reynoso's sentencing hearing. The trial judge, Judge Donald T. Daniel (“Judge Daniel”) asked Brugh why he needed additional information if the State agreed that Torres–Reynoso's cooperation with police was a mitigator. Brugh responded that police reports might provide a fuller picture of Torres–Reynoso's participation and, “if there is one more kernel of detail that I can add out of the police report I have a duty to my client in good representation.” Status Hr'g at 6. Noting the State's agreement that Torres–Reynoso was “entitled to a mitigator” for the help he had given police, the trial court denied his motion to shorten time. Id. at 5.

[8] On October 15, 2014, the trial court held a sentencing hearing, at which TorresReynoso, his fiancée, his father, and his pastor all testified. Brugh also offered testimony from two DEA agents and three police officers regarding the assistance Torres–Reynoso's provided law enforcement to arrange the controlled drug buy from Peña. One officer and two DEA agents were allowed to testify. During the testimony of the fourth law enforcement witness, West Lafayette Police Officer Jonathan Eager, Judge Daniel stated that he had heard “three witnesses testify for more than a half an hour ... as to cooperation by [Torres–Reynoso].” Sentencing Hr'g at 69. Noting that the State had previously agreed that Torres–Reynoso's cooperation with law enforcement was a mitigating factor, Judge Daniel stated that another witness, testifying to TorresReynoso's cooperation, was not necessary. Even so, Judge Daniel indicated, “If you have some area to get into which you believe would influence this Court I would be happy to hear about it.” Id.

[9] In response, Brugh revealed his intention to have Officer Eager and another officer testify because they “were physically present when [Torres–Reynoso] was using his cell phone to communicate with Peña. I simply want the Court to know specifically how that worked.” Id. Officer Eager and the other witness did not testify; however, Officer Eager was allowed to say that he saw TorresReynoso communicate with Peña using his cell phone to text and speak once. Brugh made an offer of proof as to the testimony of the other officer, stating that she speaks Spanish and, with Torres–Reynoso's assistance, she had sent some texts to Peña to arrange the controlled buy. Id. at 71.

[10] At the sentencing hearing, Brugh requested a sentence of twenty years with fourteen years suspended. The State requested a forty-year executed sentence, and the Tippecanoe County Probation Department recommended a sentence of thirty-five years in the Department of Correction. Brugh argued at length in support of a reduced sentence, identifying multiple specific mitigating circumstances for the trial court to consider. The trial court found the following to be aggravating factors in determining Torres–Reynoso's sentence: his criminal history of two prior misdemeanors and a pending felony case; his past illegal drug use, notwithstanding that it “was not as significant as frequently happens”; his use of an alias at work; the nature and circumstances of the crime; and the number of transactions and the amount of illegal drugs involved in those transactions. Id. at 97; Appellant's App. at 97. Mitigating factors found by the trial court included the facts that Torres–Reynoso had taken responsibility for his actions by pleading guilty and expressing remorse; had cooperated with law enforcement; has minor children, including one with special needs, that depend on him; has a history of being employed, including nine consecutive years with one employer; and had family and friends supporting him in court. The trial court accepted Torres–Reynoso's pleas of guilty and entered convictions on the seven Class A felonies and six of the remaining counts.¹¹ Noting that the advisory sentence for a Class A felony was thirty years, Judge Daniel found that the aggravating factors outweighed the mitigating factors and sentenced Torres–Reynoso to thirty-five years for each of the seven Class A felony convictions, to be served concurrently-the same sentence recommended by the Probation Department. Judge Daniel did not sentence Torres–Reynoso for the remaining six convictions, all of which were deemed to be subsumed under the Class A felony convictions.

[11] About two weeks after sentencing, Torres–Reynoso filed a motion to correct error, alleging that Judge Daniel had been antagonistic toward and biased against him and requesting a new sentencing hearing before an impartial judge. As evidence of bias, Torres–Reynoso cited to the actions of the Judge Daniel: denying the motion to shorten time; expressing irritation at Brugh for having called Officer Eager as a fourth witness to testify about Torres–Reynoso's cooperation with law enforcement; allowing the prosecutor to reopen the court record just moments after it had been closed so that she could ensure that the trial court said “that...