Opinion
23A-CR-3108
08-23-2024
Alberto A. Alvarez, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT Marielena Duerring Duerring Law Offices South Bend, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Monika Prekopa Talbot Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Elkhart Circuit Court The Honorable Michael A. Christofeno, Judge Trial Court Cause No. 20C01-2205-MR-000005
ATTORNEY FOR APPELLANT
Marielena Duerring
Duerring Law Offices
South Bend, Indiana
ATTORNEYS FOR APPELLEE
Theodore E. Rokita
Indiana Attorney General
Monika Prekopa Talbot
Deputy Attorney General
Indianapolis, Indiana
MEMORANDUM DECISION
Felix, Judge.
Statement of the Case
[¶1] Alberto Alvarez pled guilty to voluntary manslaughter and admitted that he had used a firearm in the commission of this offense. Alvarez's plea agreement left his sentence to the trial court's discretion. The trial court imposed a total aggregate sentence of 43 years of incarceration. Alvarez now appeals that sentence and raises one issue for our review: Whether his sentence is inappropriate under Indiana Appellate Rule 7(B).
[¶2] We affirm.
Facts and Procedural History
[¶3] In 2022, Alvarez lived with his fiancee and their four-year-old daughter, and he used his home to sell illegal drugs, including marijuana to adults and juveniles. On April 28, 2022, while Alvarez was selling marijuana in his home to X.H., a 17-year-old, X.H. allegedly tried to rob him and shot at him four times. Alvarez then shot X.H. many times, even after X.H. left the house. Upon emptying his clip, Alvarez reloaded his gun, followed X.H. outside, where X.H., who had been hit during the initial gunfire, was on his belly crawling away, and Alvarez shot X.H. several more times. When law enforcement officers arrived at the scene, Alvarez initially lied about what had occurred. Alvarez told the officers that he walked behind his house to retrieve the trash can and observed X.H. running towards him.
[¶4] The State charged Alvarez with murder and voluntary manslaughter as a Level 2 felony. The State also alleged that Alvarez used a firearm in the commission of these offenses. Pursuant to a plea agreement, Alvarez pled guilty to voluntary manslaughter as a Level 2 felony and admitted that he had used a firearm in the commission of that offense. The plea agreement required the State to dismiss the murder charge, and left Alvarez's sentence to the trial court's discretion.
[¶5] At the sentencing hearing, Alvarez also testified-and the pre-sentence investigation confirms-that he does not have a prior criminal history. Alvarez began using marijuana at 18 years old, and began dealing marijuana at the age of 19 or 20. Both of Alvarez's parents were killed when he was a young teenager, which he claimed led to him being diagnosed with depression and post-traumatic stress disorder ("PTSD").
[¶6] The trial court sentenced Alvarez to 28 years executed at the Indiana Department of Correction (the "DOC") for voluntary manslaughter as a Level 2 felony, which it enhanced by 15 years executed at the DOC for Alvarez's use of a firearm. In total, the trial court imposed a 43-year sentence. Alvarez now appeals.
Discussion and Decision
1. Alvarez's Sentence is Not Inappropriate Under Appellate Rule 7(B)
[¶7] Alvarez argues his sentence is inappropriate under Indiana Appellate Rule 7(B) and should be revised. The Indiana Constitution authorizes us to independently review and revise a trial court's sentencing decision. Faith v. State, 131 N.E.3d 158, 159 (Ind. 2019) (citing Ind. Const. art. 7, §§ 4, 6; McCain v. State, 88 N.E.3d 1066, 1067 (Ind. 2018)). That authority is implemented through Appellate Rule 7(B), which permits us to revise a sentence 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." Faith, 131 N.E.3d at 159 (quoting Indiana Appellate Rule 7(B)).
[¶8] Sentencing is "principally a discretionary function in which the trial court's judgment should receive considerable deference." Lane v. State, 232 N.E.3d 119, 122 (Ind. 2024) (quoting Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008)). To overcome this deference, the defendant must present "compelling evidence portraying in a positive light the nature of the offense and the defendant's character." Id. (internal quotation marks omitted) (quoting Oberhansley v. State, 208 N.E.3d 1261, 1267 (Ind. 2023)).
Our role is primarily to "leaven the outliers" and identify "guiding principles" for sentencers, rather than to achieve the "perceived 'correct' result" in each case. Cardwell, 895 N.E.2d at 1225. As such, we "focus on the forest-the aggregate sentence-rather than the trees-consecutive or concurrent, number of counts, or length of the sentence on any individual count." Id. Ultimately, we rely on our "collective judgment as to the balance" of all the relevant considerations involved, which include "the culpability of the defendant, the severity of the crime, the damage done to others, and myriad other factors that come to light in a given case." Id. at 1224, 1226.Lane, 232 N.E.3d at 122. In conducting this analysis, "we are not limited to the mitigators and aggravators found by the trial court." Brown v. State, 10 N.E.3d 1, 4 (Ind. 2014).
[¶9] When considering the nature of the offense, we start with the advisory sentence. Brown, 10 N.E.3d at 4 (citing Anglemyer v. State, 868 N.E.2d 482, 494 (Ind. 2007)). Here, Alvarez pled guilty to voluntary manslaughter as Level 2 felony. "A person who commits a Level 2 felony shall be imprisoned for a fixed term of between ten (10) and thirty (30) years, with the advisory sentence being seventeen and one half (17 1/2) years." Ind. Code § 35-50-2-4.5 (emphasis added). The trial court sentenced Alvarez to 28 years for his Level 2 felony conviction. Alvarez also used a firearm in committing his offense. "The court may sentence the person to an additional fixed term of imprisonment of between five (5) years and twenty (20) years." Id. § 35-50-2-11(g). The trial court enhanced Alvarez's 28-year sentence by 15 years executed at the DOC for his use of a firearm, resulting in an aggregate sentence of 43 years executed at the DOC.
[¶10] Where, as here, the trial court deviated from the advisory sentence, one factor we consider is "whether there is anything more or less egregious about the offense committed by the defendant that makes it different from the 'typical' offense accounted for by the legislature when it set the advisory sentence." T.A.D.W. v. State, 51 N.E.3d 1205, 1211 (Ind.Ct.App. 2016) (quoting Holloway v. State, 950 N.E.2d 803, 806-07 (Ind.Ct.App. 2011)), as amended (May 26, 2023). We also consider whether the offense was "accompanied by restraint, regard, and lack of brutality." Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015).
[¶11] Here, Alvarez commonly dealt illegal drugs to juveniles such as X.H. Alvarez shot X.H. multiple times, reloaded his gun, and continued shooting at X.H. while he laid on the ground. Therefore, Alvarez did not show a lack of restraint when he committed his offense. To the contrary, this offense was brutal, excessive, and continued after X.H. was crawling away from the scene.
[¶12] In considering the character of the offender, "we engage in a broad consideration of a defendant's qualities," T.A.D.W., 51 N.E.3d at 1211 (citing Aslinger v. State, 2 N.E.3d 84, 95 (Ind.Ct.App. 2014), clarified on other grounds on reh'g), including whether the defendant has "substantial virtuous traits or persistent examples of good character," Stephenson, 29 N.E.3d at 122. Alvarez claims his character warrants a revised sentence because he has no criminal history. However, Alvarez admitted to dealing drugs consistently and repeatedly over many months. It is relatively uncommon to have a defendant admit to repeated deals such that one's customary and usual expenses could be covered by the profits of dealing in drugs. Alvarez admitted to such conduct. He quit his legal job so he could sell marijuana out of the home where his fiancee and four-year old daughter live. He said he earned approximately $8,000 per week, and was supporting "everybody." Tr. Vol. II at 42. He also lied to law enforcement twice during the investigation about what happened with X.H. Therefore, Alvarez does not demonstrate the good character necessary to revise a sentence under Appellate Rule 7(B).
[¶13] Based on the serious nature of Alvarez's offense and his history of dealing drugs, we cannot say that Alvarez has produced compelling evidence demonstrating that the nature of his offense or his character renders his sentence inappropriate. See Hayko v. State, 211 N.E.3d 483, 487 n.1 (Ind. 2023), reh'g denied (Aug. 18, 2023). As a result, we cannot say the trial court imposed an inappropriate sentence under Appellate Rule 7(B). We therefore affirm the trial court's sentencing decision.
[¶14] Affirmed.
Riley, J., and Kenworthy, J., concur.