defendant’s failure to fully develop a cogent argument results in waiver of the issue on appeal
How later courts described this case
- defendant’s failure to fully develop a cogent argument results in waiver of the issue on appeal
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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
Dec 30 2020, 8:59 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
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Jason A. Flora Curtis T. Hill, Jr.
Peter Robbins Attorney General of Indiana
Flora Legal Group Taylor Carpenter
Indianapolis, Indiana Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Ines Garcia Perez, December 30, 2020
Appellant-Defendant, Court of Appeals Case No.
20A-CR-1396
v. Appeal from the Bartholomew
Superior Court
State of Indiana, The Honorable James D. Worton,
Appellee-Plaintiff Judge
Trial Court Cause No.
03D01-1907-F6-4179
Crone, Judge.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-1396| December 30, 2020 Page 1 of 11
Case Summary
[1] Ines Garcia Perez appeals the one-year suspended sentence imposed by the trial
court following her guilty plea to level 6 felony identity deception, for which the
trial court entered judgment of conviction as a class A misdemeanor pursuant
to a plea agreement. She contends that the trial court abused its discretion
during sentencing and that her sentence is inappropriate in light of the nature of
the offense and her character. Finding no abuse of discretion and that she has
not met her burden to demonstrate that her sentence is inappropriate, we
affirm.
Facts and Procedural History
[2] On February 10, 2019, Maria Martinez reported to the Columbus Police
Department that her identity information, including her date of birth and social
security number, were being used without her consent for employment at Enkei
American, Inc. (Enkei), in Columbus. Martinez provided authorities with the
Internal Revenue Service paperwork to verify her report. The police contacted
officials at Enkei and confirmed that an individual using Martinez’s identifying
information was employed there. Enkei supplied police with the tax forms
signed by the individual using the information.
[3] Police used an employee photograph provided by Enkei to locate Perez, and
she was taken into custody on June 26, 2019. Perez is a citizen of Mexico who
has lived in the United States unlawfully since 2003. Perez admitted to police
that she obtained Martinez’s birth date and social security number from an
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unknown person in Columbus who in turn helped her get a fraudulent Texas
Department of Public Safety identity card with Martinez’s information. Perez
admitted that she had worked at Enkei for four years using that information.
[4] On July 23, 2019, the State charged Perez with one count of level 6 felony
identity deception. On June 1, 2020, Perez pled guilty as charged. However,
pursuant to the plea agreement, the State agreed that the judgment of
conviction would be entered as a class A misdemeanor. 1 Sentencing was left to
the trial court’s discretion. A sentencing hearing was held on June 30, 2020.
During the hearing, Perez’s counsel requested a suspended sentence not to
exceed 179 days due to the potential immigration consequences of a longer
sentence. 2 At the conclusion of the hearing, the trial court imposed a one-year
fully suspended sentence. This appeal ensued.
1
Provided certain requirements are met, “if a person has committed a Class D felony (for a crime committed
before July 1, 2014) or a Level 6 felony (for a crime committed after June 30, 2014), the court may enter
judgment of conviction of a Class A misdemeanor and sentence accordingly.” Ind. Code § 35-50-2-7(c).
2
Perez’s counsel submitted a sentencing memorandum indicating that her offense “is potentially a crime
involving moral turpitude (CIMT) under federal immigration law, and being deemed to have committed such
a crime renders a noncitizen inadmissible to the United States.” Appellant’s App. Vol. 2 at 44-45 (citing 8
U.S.C. § 1182(a)(2)(A)(i)). The memorandum noted that federal immigration law provides an exception if
the noncitizen has committed only one CIMT, and such was a crime “for which the maximum penalty does
not exceed one year in prison, and the actual sentence imposed must not exceed imprisonment for 6
months.” Id. at 45 (citing 8 U.S.C. § 1182(a)(2)(A)(ii)). Counsel indicated that even a suspended sentence in
excess of 181 days could “possib[ly]” make Perez statutorily ineligible to ever lawfully be admitted to the
United States in the future or qualify for other benefits. Id. Counsel conceded that whether a particular
offense even qualifies as a CIMT is “ambiguous,” and that further decisions regarding whether a fully
suspended sentence would impact Perez’s immigration status would be a matter of federal judicial discretion.
Id.
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Discussion and Decision
Section 1 – The trial court did not abuse its discretion during
sentencing.
[5] Perez asserts that the trial court abused its discretion during sentencing.
“Generally speaking, sentencing decisions are left to the sound discretion of the
trial court, and we review the trial court’s decision only for an abuse of this
discretion.” Singh v. State, 40 N.E.3d 981, 987 (Ind. Ct. App. 2015), trans. denied
(2016). “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.” Anglemyer v. State, 868
N.E.2d 482, 490 (Ind. 2007) (quotation marks omitted), clarified on reh’g, 875
N.E.2d 218. A trial court may abuse its discretion by: (1) failing to enter a
sentencing statement at all; (2) entering a sentencing statement that includes
aggravating and mitigating factors that are unsupported by the record; (3)
entering a sentencing statement that omits reasons that are clearly supported by
the record; or (4) entering a sentencing statement that includes reasons that are
improper as a matter of law. Id. When reviewing the sufficiency of the
sentencing statement, we examine both the trial court’s written and oral
statements. Gleason v. State, 965 N.E.2d 702, 710 (Ind. Ct. App. 2012).
[6] Here, in its oral sentencing statement, the trial court stated that it did not find
any aggravating or mitigating factors. Perez asserts that the trial court abused
its discretion in omitting mitigating factors that are clearly supported by the
record. It is well established that the finding of mitigating circumstances rests
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within the trial court’s discretion. Newsome v. State, 797 N.E.2d 293, 301 (Ind.
Ct. App. 2003), trans. denied (2004). A trial court is not obligated to credit a
defendant’s claim as to what constitutes a mitigating circumstance. Rascoe v.
State, 736 N.E.2d 246, 249 (Ind. 2000). In order to be persuasive, a claim that
the trial court failed to find a mitigating circumstance requires the defendant to
establish that the mitigating evidence was both significant and clearly supported
by the record. Anglemyer, 868 N.E.2d at 493.
[7] Regarding her first proffered mitigator, her lack of criminal history and claim
that she had led “a law-abiding life,” the trial court specifically stated, “I don’t
think there is sufficient evidence presented to find a mitigator that she has led a
law-abiding life.” Tr. Vol. 2 at 19. 3 Indeed, the record demonstrates that Perez
had been living in this country illegally since 2003. It is well established that an
individual’s unlawful immigration status is a valid aggravating factor because it
demonstrates a disregard for the law, including immigration laws. Guzman v.
State, 985 N.E.2d 1125, 1132 (Ind. Ct. App. 2013). Thus, while the trial court
did not find Perez’s unlawful immigration status as an aggravating factor, it was
reasonable under the circumstances for the court to decline to find as mitigating
factors her lack of criminal history and claim of being a law-abiding individual.
[8] Perez next challenges the trial court’s failure to find her guilty plea as a
mitigating factor. Specifically, the trial court stated, “even though she [pled]
3
Perez complains that the trial court did not “expound” on this finding and that the “record is unclear as to
the court’s reasoning.” Reply Br. at 9, 10. It is well established that “the trial court is not obligated to
explain why it has found that the factor does not exist.” Anglemyer, 868 N.E.2d at 493.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-1396| December 30, 2020 Page 5 of 11
guilty she did receive a benefit, for it being a misdemeanor instead of a felony,
so I’m not going to find the plea a mitigator either.” Tr. Vol. 2. At 20. In
clarifying how to treat a guilty plea, our supreme court offered this analysis:
We have held that a defendant who pleads guilty deserves some
mitigating weight be given to the plea in return. But an
allegation that the trial court failed to identify or find a mitigating
factor requires the defendant to establish that the mitigating
evidence is not only supported by the record but also that the
mitigating evidence is significant. And the significance of a
guilty plea as a mitigating factor varies from case to case. For
example, a guilty plea may not be significantly mitigating when it
does not demonstrate the defendant’s acceptance of
responsibility, or when the defendant receives a substantial
benefit in return for the plea.
Anglemyer, 875 N.E.2d at 221 (citations and internal quotations omitted).
Whether a trial court should cite a guilty plea as a mitigating factor “is
necessarily fact sensitive, and not every plea of guilty is a significant mitigating
circumstance that must be credited by a trial court.” Cherry v. State, 772 N.E.2d
433, 436-37 (Ind. Ct. App. 2002) (quoting Trueblood v. State, 715 N.E.2d 1242,
1257 (Ind. 1999), cert. denied (2000)), trans. denied.
[9] Here, the record shows that Perez’s plea agreement was more likely the result of
pragmatism than acceptance of responsibility and remorse because the evidence
against her was overwhelming. Anglemyer, 875 N.E.2d at 221. Moreover, as
acknowledged by the trial court, Perez bargained for the specific benefit of
having her level 6 felony conviction entered as a class A misdemeanor, which
resulted in a sentencing cap of one year. Had Perez been convicted of and
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sentenced for a level 6 felony as charged, she faced a sentence of up to two and
one-half years. Ind. Code § 35-50-2-7(b). The trial court did not abuse its
discretion in concluding that Perez received a substantial benefit from pleading
guilty and thus her guilty plea was not a significant mitigating circumstance.
[10] Perez maintains that the trial court’s sentencing statement improperly omits
additional mitigating factors that were advanced for consideration in her
sentencing memorandum submitted to the trial court. In her appellate brief,
Perez simply lists those potential mitigating factors and baldly contends that
they were “established by the facts,” Appellant’s Br. at 17, but she makes no
attempt to establish that “the mitigating evidence is both significant and clearly
supported by the record.” See Anglemyer, 868 N.E.2d at 493. Accordingly, she
has waived our review of these additional factors for failure to provide cogent
argument. See Smith v. State, 822 N.E.2d 193, 202-03 (Ind. Ct. App. 2005)
(defendant’s failure to fully develop a cogent argument results in waiver of the
issue on appeal), trans. denied; Ind. Appellate Rule 46(A)(8)(a) (the argument
“must contain the contentions of the appellant on the issues presented,
supported by cogent reasoning.”).
[11] Waiver notwithstanding, we note that even if the trial court is found to have
abused its discretion in sentencing, the error is harmless if the sentence imposed
was not inappropriate. Mendoza v. State, 869 N.E.2d 546, 556 (Ind. Ct. App.
2007), trans. denied. We thus turn to Perez’s inappropriateness claim.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-1396| December 30, 2020 Page 7 of 11
Section 2 – Perez has not met her burden to demonstrate that
her sentence is inappropriate.
[12] Perez requests that we reduce her one-year suspended sentence to a 179-day
sentence pursuant to Indiana Appellate Rule 7(B), which 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 to persuade this Court that his or her sentence is inappropriate. Childress
v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). Indiana’s flexible sentencing
scheme allows trial courts to tailor an appropriate sentence to the circumstances
presented, and the trial court’s judgment “should receive considerable
deference.” Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008). Such
deference to the trial court’s judgment should prevail 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). Absent such a
sufficiently compelling evidentiary basis, we will not override the decision of
the trial court. Sorenson v. State, 133 N.E.3d 717, 728 (Ind. Ct. App. 2019),
trans. denied (2020).
[13] “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.” Fonner v. State, 876 N.E.2d 340, 344 (Ind. Ct. App. 2007). We
Court of Appeals of Indiana | Memorandum Decision 20A-CR-1396| December 30, 2020 Page 8 of 11
consider all aspects of the penal consequences imposed by the trial court in
sentencing the defendant, including whether a portion of the sentence is ordered
suspended “or otherwise crafted using any of the variety of sentencing tools
available to the trial judge.” Davidson v. State, 926 N.E.2d 1023, 1025 (Ind.
2010).
[14] Regarding the nature of the offense, the advisory sentence is the starting point
that the legislature has selected as an appropriate sentence for the crime
committed. Fuller v. State, 9 N.E.3d 653, 657 (Ind. 2014). Perez pled guilty to a
level 6 felony, but the State agreed that judgment of conviction would be
entered as a class A misdemeanor. The legislature has not provided an advisory
sentence for class A misdemeanors but has simply provided that “[a] person
who commits a Class A misdemeanor shall be imprisoned for a fixed term of
not more than one (1) year.” Ind. Code § 35-50-3-2. The trial court here
imposed a fully suspended one-year sentence which, contrary to Perez’s
repeated claims, was far from a maximum sentence. 4
[15] When reviewing the nature of the offense, this Court considers “the details and
circumstances of the commission of the offense.” Washington v. State, 940
N.E.2d 1220, 1222 (Ind. Ct. App. 2011), trans. denied. Perez downplays her
identity deception by emphasizing that she committed her crime to provide for
her family, that her crime was not dangerous or particularly heinous, and that
4
“[F]or purposes of Rule 7(B) review, a maximum sentence is not just a sentence of maximum length, but a
fully executed sentence of maximum length.” See Jenkins v. State, 909 N.E.2d 1080, 1085-86 (Ind. Ct. App.
2009), trans. denied.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-1396| December 30, 2020 Page 9 of 11
she did not have any specific ill will toward Martinez. Nevertheless, identity
deception is not a victimless crime. Martinez’s identifying information was
appropriated by Perez for more than four years, and Martinez felt sufficiently
victimized to go to the police when she discovered the crime. Although we
agree with Perez that her crime was not particularly heinous, we do not find it
as benign as she urges, and we certainly do not view it in such a positive light
that sentence revision would be warranted. Perez has not met her burden to
demonstrate that the sentence imposed by the trial court is inappropriate in light
of the nature of her offense.
[16] We are similarly unpersuaded by Perez’s arguments that a review of her
character warrants sentence revision. The character of the offender is found in
what we learn of her life and conduct. Croy v. State, 953 N.E.2d 660, 664 (Ind.
Ct. App. 2011). Simply put, regardless of any positive character traits, Perez
has not led a law-abiding life. She admits that she has been in this country
illegally since 2003. As already noted above, one’s status as an illegal
immigrant demonstrates a disregard for the law, including immigration laws.
See Guzman, 985 N.E.2d at 1132. We are not unsympathetic to Perez’s plight
and the angst she faces in worrying about the potential repercussions the current
conviction and sentence may have on her future immigration status. However,
we cannot say that the trial court’s imposition of a one-year fully suspended
sentence was inappropriate in light of her character and the circumstances
presented. Accordingly, we decline Perez’s invitation to revise her sentence.
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[17] Affirmed.
Najam, J., and Riley, J., concur.
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