Opinion
22A-CR-550
07-18-2022
Juan Carlos Medina Gamboa, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff.
Attorney for Appellant Justin R. Wall Huntington, Indiana Attorneys for Appellee Theodore E. Rokita Attorney General of Indiana Justin F. Roebel Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
Court of Appeals Case No. 22A-CR-550 Appeal from the Wells Circuit Court The Honorable Kenton W. Kiracofe, Judge Trial Court Cause No. 90C01-2103-F6-49
Attorney for Appellant
Justin R. Wall
Huntington, Indiana
Attorneys for Appellee
Theodore E. Rokita
Attorney General of Indiana
Justin F. Roebel
Deputy Attorney
General Indianapolis, Indiana
MEMORANDUM DECISION
RILEY, JUDGE.
STATEMENT OF THE CASE
[¶1] Appellant-Defendant, Juan C.M. Gamboa (Gamboa), appeals the sentence imposed by the trial court following his guilty plea to failure to appear, a Level 6 felony, Ind. Code § 35-44.1-2-9.
[¶2] We affirm.
ISSUE
[¶3] Gamboa presents this court with one issue: Whether his sentence is inappropriate in light of the nature of his offense and his character.
FACTS AND PROCEDURAL HISTORY
[¶4] On January 7, 2021, the State charged Gamboa in Cause Number 90C01-2101-F4-000002 (Cause -2) with Level 4 felony possession of a firearm by a serious violent felon (SVF) and Class A misdemeanor possession of paraphernalia. On January 11, 2021, the trial court held Gamboa's initial hearing, set his bond at $10,500, and ordered him to appear at a pre-trial conference on March 10, 2021. Gamboa posted bond and was released from custody. On March 10, 2021, Gamboa did not appear at the scheduled pre-trial hearing in Cause -2.
[¶5] On March 26, 2021, the State filed an Information, charging Gamboa with Level 6 felony failure to appear. A bench warrant was issued for Gamboa's arrest. On April 28, 2021, Gamboa was taken into custody. On November 22, 2021, Gamboa pleaded guilty to Level 6 felony failure to appear without entering into a plea agreement with the State.
[¶6] On February 4, 2022, the Wells County Probation Department filed its pre-sentence investigation report (PSI) for Gamboa. Gamboa, who was thirty-seven years old, had been convicted in 2003 of Class B felony dealing in cocaine and received a ten-year sentence in the Department of Correction (DOC), with four years suspended and two years on probation. Gamboa began serving his probation in that matter in 2005. Gamboa violated his probation and was ordered to serve four years in the DOC. In November of 2007, Gamboa was released to the ReEntry Court Program, but a warrant for his arrest was issued in February 2008 when he failed to report to the program as required. In March 2008, Gamboa was placed on home detention but was referred back to parole for further supervision in April 2008 when he violated the terms of his program again. In May 2008, Gamboa was returned to the DOC for a parole violation. In September 2008, Gamboa pleaded guilty to Class D felony cocaine possession and was sentenced to one and one-half years in the DOC. In 2020, Gamboa pleaded guilty to Level 6 felony possession of methamphetamine, and the State dismissed a charge of Level 4 felony unlawful possession of a firearm by a SVF, as well as dismissing other felony and misdemeanor charges. Gamboa received 183 days in the DOC for the methamphetamine possession offense.
[¶7] In addition to his felony conviction record, Gamboa had misdemeanor convictions spanning from 2002 to 2020 for offenses including public intoxication (three times), minor in consumption of alcohol (three times), disorderly conduct, false informing, operating a motor vehicle while intoxicated endangering a person, and knowingly or intentionally operating a motor vehicle without ever receiving a driver's license (twice). For his misdemeanor convictions, Gamboa received counseling, short jail terms, and probation, which he was found to have violated in two separate matters. Gamboa failed to appear for court hearings on five separate occasions in matters relating to his misdemeanor convictions. When his PSI was compiled, the Cause -2 possession of a firearm by a SVF and possession of paraphernalia charges were still pending. Although the precise reason is unclear from the record, Gamboa had also been found in contempt of court in Cause -2 for failing to abide by a search warrant issued by the trial court.
[¶8] Gamboa's PSI also revealed that Gamboa reported daily alcohol and marijuana use from the age of twelve, daily cocaine abuse from the age of sixteen, and daily prescription medication and methamphetamine abuse starting in his early thirties. Gamboa had completed a substance abuse evaluation in 2008 and had participated in a therapeutic community program through the DOC in 2009. Concerning the instant offense, Gamboa reported to his PSI investigator that he knew that he had a court date on March 10, 2021, but instead of attending, he "took a job out of town." (Appellant's App. Vol. II, p. 62). Gamboa explained that, after he returned from his out-of-town work, he knew that he was facing imprisonment for failing to appear, so he "turned to drugs and lost [his] freedom." (Appellant's App. Vol. II, p. 62).
[¶9] On February 9, 2022, the trial court held Gamboa's sentencing hearing. The State requested a sentence of two and one-half years. The trial court found as aggravating circumstances that Gamboa had a history of criminal behavior and that he had violated the terms of his community supervision. The trial court observed that Gamboa had repeatedly failed to appear for court and/or refused to abide by court orders. The trial court found that Gamboa's guilty plea was a pragmatic decision due to the nature of the case and the evidence the State had of his guilt. However, the trial court observed that Gamboa had pleaded guilty without a plea agreement and that maximum sentences should be reserved for the worst offenders. The trial court sentenced Gamboa to two years, all of which is to be executed with the DOC.
[¶10] Gamboa now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
[¶11] Gamboa requests that we revise his sentence, which he argues is inappropriately harsh. "Appellate Rule 7(B) enables this [c]ourt to 'revise a sentence authorized by statute if, after due consideration of the trial court's decision, the [c]ourt finds that the sentence is inappropriate in light of the nature of the offense and the character of the offender.'" Hall v. State, 177 N.E.3d 1183, 1197 (Ind. 2021). The principal role of such review is to attempt to leaven the outliers. Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). In conducting our review, we give "considerable deference" to the trial court's sentencing decision, and that deference prevails "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). The defendant bears the burden to persuade the reviewing court that the sentence imposed is inappropriate. Robinson v. State, 91 N.E.3d 574, 577 (Ind. 2018).
A. Nature of the Offense
[¶12] When assessing the nature of offenses, the advisory sentence is the starting point that the legislature selected as an appropriate sentence for the particular crimes committed. Childress v. State, 848 N.E.2d 1073, 1081 (Ind. 2006); Madden v. State, 162 N.E.3d 549, 564 (Ind.Ct.App. 2021). Gamboa pleaded guilty to Level 6 felony failure to appear. A Level 6 felony carries a sentencing range of between six months and two and one-half years, with an advisory sentence of one year. I.C. § 35-50-2-7. The trial court imposed a two-year sentence. Therefore, Gamboa received an enhanced, but not the maximum, sentence authorized by the legislature.
[¶13] In assessing the nature of the offense, we look to the details and circumstances of the offense and the defendant's participation in the crime. Perry v. State, 78 N.E.3d 1, 13 (Ind.Ct.App. 2017).
More specifically, we determine 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." Madden, 162 N.E.3d at 564.
[¶14] Gamboa asserts that his offense of failure to appear was "non-violent, non-sexual and is essentially a 'faceless crime.'" (Appellant's Br. p. 13). While we agree with Gamboa that his offense did not involve violence, sexual or otherwise, and that there was no named victim, his offense was still a serious one in that he failed to appear for a matter involving a Level 4 felony charge of possession of a firearm by a SVF, and he was at-large for over a month on a drug binge before he was returned to custody. Gamboa informed his PSI investigator that he knew he had a court date on March 10, 2021, but simply chose to work out-of-town instead of attending. Despite the non-violent, 'faceless' nature of the offense, we are not convinced that the nature of Gamboa's failure to appear merits a reduction of his sentence. See Tanksley v. State, 144 N.E.3d 824, 828 (Ind.Ct.App. 2020) (upholding Tanksley's two-year sentence for Level 6 felony failure to appear, enhanced by four years for being an habitual offender, despite the offense being non-violent and Tanksley's argument that he did not commit an excessively heinous crime), trans. denied.
B. Character of the Offender
[¶15] Upon reviewing a sentence for inappropriateness in terms of the defendant's character, we look to his life and his conduct. Morris v. State, 114 N.E.3d 531, 539 (Ind.Ct.App. 2018), trans. denied. A defendant's criminal record is pertinent to our assessment, and "[e]ven a minor criminal record reflects poorly on a defendant's character." Reis v. State, 88 N.E.3d 1099, 1105 (Ind.Ct.App. 2017).
[¶16] Gamboa argues that his open guilty plea and his plans for employment and a place to live merit a reduction in his sentence. While we acknowledge Gamboa's guilty plea and positive plans for his future once he is released, we cannot ignore that Gamboa has amassed a criminal record of three felonies and eleven misdemeanors. Gamboa has received counseling, home detention, unsupervised probation, supervised probation, jail terms, DOC sentences, and parole. Gamboa has violated his probation and his parole. While this matter was pending, Gamboa was found in contempt in Cause -2 for failing to abide by a search warrant. In addition, throughout his years of contacts with the criminal justice system, Gamboa has made it a habit to fail to appear for court dates. Overall, we conclude that this evidence overshadows any evidence of positive character traits that is before us. Gamboa has demonstrated a pattern of criminal behavior, contempt for the criminal justice system, and disdain for his rehabilitative opportunities that does not constitute evidence of "substantial virtuous traits or persistent examples of good character" sufficient to merit a reduction in his sentence. Stephenson, 29 N.E.3d at 122.
[¶17] In addition, we cannot credit Gamboa's argument that he is entitled to a sentence reduction because his criminal record was fueled by his history of drug and alcohol abuse. Gamboa has received a substance abuse assessment and treatment through the DOC, but the record is bereft of evidence that he sought out any other treatment. Therefore, we find that nothing about Gamboa's character renders his two-year sentence inappropriate. See Tanksley, 144 N.E.3d at 828 (declining to revise Tanksley's two-year sentence for failure to appear where he had a lengthy criminal history, had violated his probation, had regularly failed to appear for court hearings, and had failed to seek out any meaningful treatment for his substance abuse issues).
CONCLUSION
[¶18] Based on the foregoing, we conclude that Gamboa's sentence is not inappropriate given the nature of his offense and his character.
[¶19] Affirmed.
[¶20] May, J. and Tavitas, J. concur.