Vazquez v. State, 79A02-0506-CR-504.

• Decision Date: 30 December 2005
• Docket Number: No. 79A02-0506-CR-504.,79A02-0506-CR-504.
• Citation: 839 N.E.2d 1229
• Parties: Ivan Luis VAZQUEZ, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Supreme Court

Page 1229

839 N.E.2d 1229

Ivan Luis VAZQUEZ, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 79A02-0506-CR-504.

Court of Appeals of Indiana.

December 30, 2005.

COPYRIGHT MATERIAL OMITTED

Bruce W. Graham, Trueblood & Graham P.C., Lafayette, for Appellant.

Steve Carter, Attorney General of Indiana, Matthew D. Fisher, Deputy Attorney General, Indianapolis, for Appellee.

OPINION

VAIDIK, Judge.

Case Summary

Ivan Luis Vazquez appeals his sentence after pleading guilty to Conspiracy to Commit Dealing in Cocaine as a Class A felony. Specifically, Vazquez contends that the trial court erred in sentencing him to the maximum term of fifty years with five years suspended to probation because it found improper aggravators and failed to give sufficient weight to the mitigators. He also contends that his sentence is inappropriate and that the trial court erred in ordering his sentence in this case to run consecutive to his sentence in another case. Finding no error in the trial court's aggravated and consecutive sentences and concluding that Vazquez's sentence is not inappropriate, we affirm the trial court.

Facts and Procedural History

Between 2001 and 2003, Vazquez agreed with several people to commit dealing in cocaine. To that end, Vazquez obtained cocaine in amounts greater than three grams and then delivered, with another person, that cocaine to others in exchange for money. For his role in these crimes and others, in 2003, the State charged Vazquez with twelve offenses: two counts of Dealing in Cocaine as Class A felonies, three counts of Possession of Cocaine as Class C felonies, Conspiracy to Commit Dealing in Cocaine as a Class A felony, Possession of Methamphetamine as a Class C felony, three counts of Possession of a Schedule IV Controlled Substance as Class D felonies, Maintaining a Common Nuisance as a Class D felony, and Corrupt Business Influence as a Class C felony. In exchange for the dismissal of the remainder of the charges, in 2004, Vazquez pled guilty to Dealing in Cocaine as a Class A felony and Conspiracy to Commit Dealing in Cocaine as a Class A felony. The plea agreement provided that "the Court shall impose whatever sentence it deems appropriate after hearing argument of counsel."¹ Appellant's App. p. 46.

In sentencing Vazquez, the trial court identified the following aggravating circumstances: (1) Vazquez's criminal history; (2) Vazquez committed "numerous offenses over a substantial period of time with numerous transferees with respect to the drugs;" (3) Vazquez "was a dealer, not a user, with respect to cocaine;" (4) Vazquez attempted to intimidate a witness prior to her testimony; and (5) there have been prior attempts at rehabilitation. Id. at 7. Although the trial court did not identify any mitigators in its Sentencing Order, see id., the court identified two mitigators at the sentencing hearing. First, the court stated that Vazquez's guilty plea, although "coming relatively late in the game and pretty unwillingly," was entitled to "some" mitigating weight. Sent. Tr. p. 83. The court also gave "little weight" to the hardship on Vazquez's six dependents because it found that he had been supporting them by illegal means all along. Id. at 82. Finding that the aggravators outweighed any mitigators, the trial court sentenced Vazquez to the maximum term of fifty years on Conspiracy to Commit Dealing in Cocaine as a Class A felony² with five years suspended to probation.³ The trial court ordered this sentence to be served consecutive to Vazquez's sentence in another cause number. Vazquez now appeals his sentence.

Discussion and Decision

Vazquez raises three issues on appeal. First, he contends that the trial court found improper aggravators and failed to give sufficient weight to the mitigators. Second, he contends that his sentence is inappropriate. Last, he contends that the trial court erred in ordering the sentence in this case to be served consecutive to his sentence in another case. We analyze each issue in turn.

I. Aggravators and Mitigators

First, Vazquez contends that the trial court found improper aggravators and failed to give sufficient weight to the mitigators. In general, sentencing lies within the discretion of the trial court. Henderson v. State, 769 N.E.2d 172, 179 (Ind.2002). As such, we review sentencing decisions only for an abuse of discretion, including a trial court's decision to increase the presumptive sentence because of aggravating circumstances. Id. "When enhancing a sentence, a trial court must: (1) identify significant aggravating and mitigating circumstances; (2) state the specific reasons why each circumstance is aggravating or mitigating; and (3) evaluate and balance the mitigating against the aggravating circumstances to determine if the mitigating offset the aggravating circumstances." Bailey v. State, 763 N.E.2d 998, 1004 (Ind.2002). We examine both the written sentencing order and the trial court's comments at the sentencing hearing to determine whether the trial court adequately explained its reasons for the sentence. Matshazi v. State, 804 N.E.2d 1232, 1238 (Ind.Ct.App.2004), trans. denied. Finally, a sentencing court need not agree with the defendant as to the weight or value to be given to a mitigating factor. Bacher v. State, 722 N.E.2d 799, 804 (Ind.2000).

Vazquez first argues that the trial court erred in finding his criminal history to be an aggravator because it is not significant. Specifically, he points out that his "criminal record largely consists of alcohol offenses, and other minor violations including a possession of marijuana in December 2002." Appellant's Br. p. 9. The record shows that in 1994, Vazquez was convicted of larceny, failure to appear, and harassment — all misdemeanors. In 1997, he received two convictions for operating while intoxicated as Class A misdemeanors, and he received convictions for resisting law enforcement as Class A misdemeanors in 1998 and 1999. In 2002, Vazquez was convicted of operating while suspended as a Class A misdemeanor. And at the time the charges were filed in the case at hand, Vazquez had a possession of marijuana charge pending.⁴

"The significance of a criminal history `varies based on the gravity, nature and number of prior offenses as they relate to the current offense.'" Morgan v. State, 829 N.E.2d 12, 15 (Ind.2005) (quoting Wooley v. State, 716 N.E.2d 919, 929 n. 4 (Ind.1999), reh'g denied). Our Supreme Court observed in Wooley that "a criminal history comprised of a prior conviction for operating a vehicle while intoxicated may rise to the level of a significant aggravator at a sentencing hearing for a subsequent alcohol-related offense. However, this criminal history does not command the same significance at a sentencing hearing for murder." 716 N.E.2d at 929 n. 4. Here, Vazquez has several convictions and a pending charge that relate to the abuse of alcohol and drugs. In the words of the trial court, Vazquez has "an uninterrupted criminal record, repeated substance offenses and repeated law enforcement offenses." Sent. Tr. p. 81. The trial court did not err in finding Vazquez's criminal history to be an aggravator.⁵

Vazquez next argues that the trial court erred in finding as an aggravator that he committed "numerous offenses over a substantial period of time with numerous transferees." Appellant's App. p. 7. Specifically, Vazquez asserts that because the charging information for conspiracy to commit dealing in cocaine alleged that he delivered cocaine "on multiple occasions during 2001-2003," see id. at 39, the fact that he committed numerous offenses constitutes a material element of the offense and cannot be considered as an aggravator. See Waldon v. State, 829 N.E.2d 168, 184 (Ind.Ct.App.2005) ("The law is clear that a material element of a crime may not be used as an aggravating factor."), reh'g denied, trans. denied. We disagree. Although the charging information alleged that Vazquez delivered cocaine in exchange for money on "multiple" occasions, the information did not delineate those specific occasions, and the trial court stated at the sentencing hearing that the evidence showed that he delivered cocaine "over twenty different" times. Sent. Tr. p. 81 (emphasis added). Because multiple can mean as few as two or three, the trial court properly found that the fact that Vazquez delivered cocaine over twenty different times is aggravating. See Smith v. State, 839 N.E.2d 780, 788 (Ind.Ct.App.2005) (holding that although the stalking statute, by definition, involves "repeated" conduct, the defendant did more than the minimum necessary to invoke the statute, thereby warranting an enhanced sentence).

Vazquez also argues that the trial court erred by finding the fact that he "was a dealer, not a user, with respect to cocaine" as an aggravator. Appellant's App. p. 7. Simply put, Vazquez asserts that the court "cannot aggravate a conviction for dealing cocaine because [he] is a dealer. This element is implicit in the charge." Appellant's Br. p. 10. We agree. The charging information for conspiracy to commit dealing in cocaine alleged that over a two-year period, Vazquez conspired with others to deal cocaine in amounts over three grams and that as an overt act of this agreement, Vazquez, with another person, delivered cocaine in exchange for money multiple times. Implicit in this charge is that Vazquez is, indeed, a drug dealer. Although the significant number of times Vazquez delivered cocaine in exchange for money was properly considered an aggravator, the mere fact that he is a drug dealer cannot be. Accordingly, the trial court abused its discretion in finding this to be an aggravator.

Last, Vazquez argues that the trial court failed to give proper weight to the mitigators of undue hardship on his dependents and his plea of guilty. An allegation that the trial court failed to find a mitigating factor requires the defendant to establish that the mitigating...