explaining that “the question under Appellate Rule 7(B) is not whether another sentence is more appropriate; rather, the question is whether the sentence imposed is inappropriate”
How later courts described this case
- explaining that “the question under Appellate Rule 7(B) is not whether another sentence is more appropriate; rather, the question is whether the sentence imposed is inappropriate”
- explaining that an appellate court, exercising its constitutional authority to review and revise criminal sentences, may impose a more severe sentence than was ordered by the trial court
Written by the judges who cited it.
The opinion
MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any
Apr 20 2020, 10:46 am
court except for the purpose of establishing
the defense of res judicata, collateral CLERK
Indiana Supreme Court
estoppel, or the law of the case. Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Zachary J. Stock Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
Angela N. Sanchez
Assistant Section Chief
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Adam Christopher Avila, April 20, 2020
Appellant-Defendant, Court of Appeals Case No.
19A-CR-1619
v. Appeal from the Tippecanoe
Circuit Court
State of Indiana, The Honorable Sean M. Persin,
Appellee-Plaintiff. Judge
Trial Court Cause No.
79C01-1811-F4-43
Pyle, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1619 | April 20, 2020 Page 1 of 10
Statement of the Case
[1] Adam Avila (“Avila”) appeals the sentence imposed after he pled guilty to
Level 4 felony sexual misconduct with a minor1 and Level 6 felony possession
of child pornography.2 Avila argues that his six-year aggregate sentence–with
three years to be served in the Indiana Department of Correction (“DOC”) and
three years to be served in community corrections–is inappropriate.
Concluding that Avila has failed to show that his sentence is inappropriate, we
affirm the sentence.
[2] We affirm.
Issue
Whether Avila’s sentence is inappropriate.
Facts
[3] In January 2017, thirty-one-year-old Avila began communicating with fifteen-
year-old K.D. on Facebook Messenger. Initially, Avila believed that K.D. was
an adult. However, when Avila learned K.D.’s true age, he continued their
relationship. Avila repeatedly engaged in months of grooming behavior. This
behavior included explicit sexual talk and requests for nude images and videos
1
IND. CODE § 35-42-4-9.
2
I.C. § 35-42-4-4.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1619 | April 20, 2020 Page 2 of 10
of K.D. Avila also sent K.D. nude photos of himself and threatened her with
anal sex. Eventually, Avila and K.D. engaged in sexual intercourse a few
months before K.D.’s sixteenth birthday, and they did so on multiple occasions.
[4] In October 2018, an officer from the Lafayette police department was assigned
three CyberTip leads from the National Center for Missing and Exploited
Children. Facebook had submitted the CyberTip leads based on 134 images
and eight videos sent from K.D. to Avila, which they suspected to be child
pornography.
[5] Thereafter, the State charged Avila with Level 4 felony sexual misconduct with
a minor, Level 4 felony child solicitation, Level 5 felony sexual misconduct
with a minor, Level 5 felony child seduction, Level 5 felony vicarious sexual
gratification, Level 6 felony possession of child pornography, and Level 6
felony dissemination of matter harmful to minors. Avila posted bond, and the
trial court ordered him to have no contact with K.D.
[6] Pursuant to a plea agreement, Avila pled guilty to Level 4 felony sexual
misconduct with a minor and Level 6 felony possession of child pornography in
May 2019. In exchange, the State agreed to dismiss the remaining charges, and
the sentence was left to the discretion of the trial court.
[7] Later that month, K.D.’s father reported that she had run away. K.D. was
located at Avila’s father and stepmother’s home, where Avila had been living.
The State filed a motion to revoke Avila’s bond, and the trial court held a
hearing on the State’s motion. The trial court found “that the [S]tate ha[d]
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1619 | April 20, 2020 Page 3 of 10
proven by clear and convincing evidence that [Avila] has violated [a] condition
of bond by having contact with the alleged victim in this case.” (Tr. 37). The
trial court ordered Avila to be held without bond until his sentencing hearing.
[8] In June 2019, the trial court held a sentencing hearing. The presentence
investigation report (“PSI”) included information about Avila’s health issues
including a childhood cancer diagnosis, which has been in remission since
1990, and a 2017 heart transplant. The PSI also explained that Avila was
unable to lift over five to ten pounds and had a limited range of motion in his
left arm, a suppressed immune system, chronic pain, and a low risk to re-
offend. The State requested that the trial court impose consecutive sentences of
seven (7) years for Avila’s Level 4 felony and two (2) years for his Level 6
felony conviction. Avila requested the trial court impose an aggregate sentence
of four (4) years, with a portion executed in community corrections and a
portion on probation.
[9] When sentencing Avila, the trial court identified the harm to the victim as the
only aggravating circumstance. The trial court then identified the following
mitigating circumstances: (1) the fact that Avila had pled guilty and had taken
responsibility for his actions; (2) Avila’s lack of criminal history; and (3) the
difficulty that long term incarceration would have on Avila due to his health
issues. Because the harm to the victim was “substantial[,]” the trial court found
that that “aggravating factor[] and mitigating factors balance.” (Tr. 80). The
trial court then sentenced Avila to the six (6) year advisory sentence for his
Level 4 felony conviction and a one (1) year advisory sentence for his Level 6
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1619 | April 20, 2020 Page 4 of 10
felony conviction. The trial court ordered the two sentences to run
concurrently with three (3) years executed in the DOC and three (3) years
suspended to Community Corrections as a term of probation. Avila now
appeals.
Decision
[10] On appeal, Avila argues that his aggregate six-year sentence is inappropriate.
He does not challenge the duration of his sentence. Rather, he challenges the
trial court’s sentencing decision that he serve three years of his aggregate
sentence in the DOC. Avila contends that his lack of criminal history, low risk
to re-offend, and poor health illustrate a character that makes the execution of a
portion of his sentence in the DOC inappropriate. He asserts that the trial court
should have, instead, suspended his entire six-year sentence and ordered it to be
served in community corrections. We disagree.
[11] Indiana Appellate Rule 7(B) provides that we may revise a sentence authorized
by statute 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. The defendant bears the burden of persuading this Court that
his sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind.
2006). The principal role of a Rule 7(B) review “should be to attempt to leaven
the outliers, and identify some guiding principles for trial courts and those
charged with improvement of the sentencing statutes, but not to achieve a
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1619 | April 20, 2020 Page 5 of 10
perceived ‘correct’ result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225
(Ind. 2008).
[12] When determining whether a sentence is inappropriate, we acknowledge that
the advisory sentence is the starting point the General Assembly has selected as
an appropriate sentence for the crimes committed. Childress, 848 N.E.2d at
1081. Here, Avila pled guilty to one Level 4 felony and one Level 6 felony.
The sentencing range for a Level 4 felony is “for a fixed term of between two (2)
and twelve (12) years, with the advisory sentence being six (6) years.” I.C. § 35-
50-2-5.5. The sentencing range for a Level 6 felony is “for a fixed term of
between six (6) months and two and one-half (2½) years, with the advisory
sentence being one (1) year.” I.C. § 35-50-2-7(b). Here, the trial court
sentenced Avila to concurrent advisory sentences and suspended a portion of
the sentence to probation. Specifically, the trial court imposed an advisory six
(6) year sentence for Avila’s Level 4 felony conviction and a one (1) year
advisory sentence for his Level 6 felony conviction. The trial court ordered that
three (3) years of the aggregate six (6) year sentence would be executed in the
DOC and the remaining three (3) years be suspended to probation and served in
community corrections.
[13] The location where a sentence is to be served is an appropriate focus for our
review and revise authority under Appellate Rule 7(B). Biddinger v. State, 868
N.E.2d 407, 414 (Ind. 2007). However, this Court has previous explained that
it will be “quite difficult” for a defendant to prevail on a claim that his sentence
is inappropriate. Fonner v. State, 876 N.E.2d 340, 343 (Ind. Ct. App. 2007).
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1619 | April 20, 2020 Page 6 of 10
This is because an appellate court is “unlikely to consider an advisory sentence
inappropriate.” Shelby v. State, 986 N.E.2d 345, 371 (Ind. Ct. App. 2013), trans.
denied. “[A] defendant bears a particularly heavy burden in persuading us that
his sentence is inappropriate when the trial court imposes the advisory
sentence.” Fernbach v. State, 954 N.E.2d 1080, 1089 (Ind. Ct. App. 2011), trans.
denied. When considering the appropriateness of a sentence, we consider “all
aspects of the penal consequences imposed by the trial judge in sentencing[,]”
including “whether a portion of the sentence is ordered suspended.” Davidson v.
State, 926 N.E.2d 1023, 1025 (Ind. 2010). Avila has not met the heavy burden
he faces in this appeal.
[14] Turning to the nature of Avila’s offense, this Court has recognized that the
nature of the offense is found in the details and circumstances of the
commission of the offense and the defendant’s participation. Perry v. State, 78
N.E.3d 1, 13 (Ind. Ct. App. 2017). As Avila himself acknowledges, the nature
of his offense is “serious and would generally warrant the term of incarceration
imposed in this case.” (Avila’s Br. 9). Here, Avila requested and had sexual
intercourse with fifteen-year-old K.D. on multiple occasions. He also engaged
in months of grooming behavior, including explicit sexual talk and requests for
nude images and videos of K.D. He also sent K.D. nude photos of himself and
threatened her with anal sex. We cannot say that placement in DOC is
inappropriate in light of the nature of Avila’s crimes.
[15] As for Avila’s character, during sentencing, the trial court identified and
considered the following three mitigating circumstances: (1) the fact that Avila
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1619 | April 20, 2020 Page 7 of 10
had pled guilty and had taken responsibility for his actions; (2) Avila’s lack of
criminal history; and (3) the difficulty that long term incarceration would have
on Avila due to his health issues. We acknowledge that Avila has taken
responsibility, has no prior criminal history, and is a considered a low risk to re-
offend. However, we also recognize that the crimes committed by Avila were
ongoing for months and that he had violated the no contact order with K.D.
while awaiting sentencing, resulting in his bond being revoked.
[16] To support his contention that his health issues–lack of sternum and
susceptibility to illness–warrants a change in placement, Avila relies on Moyer v.
State, 796 N.E.2d 309 (Ind. Ct. App. 2003). In Moyer, the defendant argued on
appeal, in part, that the trial court should have considered his illness as a
significant mitigating circumstance. We agreed and held that the constant
medical attention the defendant required was beyond the jail’s ability and, thus,
the defendant’s condition should have been given weight as a mitigating
circumstance during sentencing. The defendant suffered from “lymphoma,
malignancy of the larynx, and recurring tumors. He also ha[d] pulmonary
disease and relie[d] on a breathing apparatus. [He] require[d] frequent tracheal
cleaning and sterile catheters, which the jail [could not] provide regularly.” Id.
at 314. This Court determined that the aggravating circumstances still
outweighed the mitigating circumstances, but we remanded the case to the trial
court with instructions to vacate the defendant’s forty-year sentence and
resentence him to twenty-four years.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1619 | April 20, 2020 Page 8 of 10
[17] Here, the facts of the instant case are distinguishable from those in Moyer.
Importantly, here, the trial court recognized and considered Avila’s health
issues as a mitigating circumstance. The record clearly demonstrates that the
trial court did not ignore Avila’s medical issues when sentencing him. Next,
Avila does not require constant medical treatment. His main concerns are that
he is susceptible to illness and does not have a sternum. In addition, Avila has
failed to demonstrate that his medical concerns cannot be treated in the DOC.
His argument is essentially that it would be more appropriate for him to serve
his entire six-year sentence in community corrections. Such an argument
amounts to an assertion of what he considers to be a more appropriate sentence,
not an explanation of why his sentence is inappropriate. That is not the
question addressed under Appellate Rule 7(B). See Fonner, 876 N.E.2d at 344
(explaining that “the question under Appellate Rule 7(B) is not whether another
sentence is more appropriate; rather, the question is whether the sentence
imposed is inappropriate”). Furthermore, unlike the defendant in Moyer, who
was sentenced to forty years in the DOC, Avila’s was only ordered to serve
three years of his aggregate six-year sentence in the DOC. This is noteworthy
because a persuasive case can be made that Avila’s sentence could be increased
under these facts. See McCullough v. State, 900 N.E.2d 745, 750 (Ind. 2009)
(explaining that an appellate court, exercising its constitutional authority to
review and revise criminal sentences, may impose a more severe sentence than
was ordered by the trial court).
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1619 | April 20, 2020 Page 9 of 10
[18] Avila has failed to meet his burden to persuade this Court that placement in the
DOC is inappropriate. Accordingly, we affirm his sentence.
[19] Affirmed.
May, J., and Crone, J., concur.
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