Opinion
24A-CR-503
07-31-2024
Damian P. Morales, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT Andrew R. Rutz. ATTORNEY FOR APPELLEE Theodore E. Rokita, Alexandria N. Sons.
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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Floyd Circuit Court The Honorable Justin B. Brown, Judge Trial Court Cause No. 22C01-2308-F1-1418.
ATTORNEY FOR APPELLANT Andrew R. Rutz.
ATTORNEY FOR APPELLEE Theodore E. Rokita, Alexandria N. Sons.
MEMORANDUM DECISION
Bailey, Judge.
Case Summary
[¶1] Damian Morales appeals his sentence for attempted murder, a Level 1 felony.The sole issue is whether his sentence is inappropriate in light of the nature of the offense and his character. We affirm.
Ind. Code §§ 35-42-1-1; 35-41-5-1(a).
Morales also asserted that he did not waive the appeal of his sentence because the appeal waiver in his plea agreement was ambiguous. See Davis v. State, 217 N.E.3d 1229, 1233 (Ind. 2023) (observing that ambiguous appeal waivers, such as those that do not state whether they cover only appeals from the convictions or from the sentences too, are unenforceable). Here, Morales' waiver stated only that he "waive[d his] right to appeal." App. v. II at 158. Thus, the waiver was ambiguous and unenforceable, and the State does not assert otherwise on appeal. See State's Br. at 4, n.1.
Facts and Procedural History
[¶2] Morales and M.L. had been in a relationship for five years and had two children together, ages three and one. Morales had a history of domestic violence against M.L. He would become angry and break things in their apartment, including their bed and their baby's bed. Morales had previously dragged M.L. by her hair when she tried to leave their apartment. Morales also had a history of verbal abuse of M.L., telling her that she was going to die, that "he was capable of doing that to [her]," that he would then go to jail, and their children would stay with M.L.'s mother. Tr. at 43.
[¶3] Around the end of July 2023, M.L. ended the relationship, and Morales moved to Missouri. However, on August 10, 2023, Morales showed up unannounced at M.L.'s job and drove her home, where M.L.'s mother was watching their two children. M.L.'s mother left for work. Morales told M.L. that she and her mother were "mistreating him." Id. at 38. M.L. asked Morales to watch the children while she showered, and she went to the bathroom. Morales followed M.L. into the bathroom, and, when M.L turned around, she saw that Morales was holding a "knife." Id. Morales grabbed M.L. by her hair, threw her to the ground, and stabbed her neck, arms, and body while their children watched. The oldest child was screaming, as M.L. told Morales that the little girl was watching them. Morales said nothing and fled the apartment.
[¶4] M.L.'s vision went blurry, and she could barely walk. She banged on her neighbor's door, but when the neighbor opened the door and saw M.L., the neighbor closed the door. M.L. walked downstairs to find help, but no one was there. She was afraid that her daughter would fall down the stairs, so M.L. lay at the bottom of the stairs to soften her fall. M.L. yelled for help. She tried to unlock her cell phone to call for help, but had difficulty doing so because "there was a lot of blood." Id. at 39. When she finally unlocked the phone, she called her mother, saying, "Mom, please come quickly. Damian-Damian stabbed me and I'm about to die." Id.
[¶5] The police arrived and saw large amounts of blood on the front porch of the apartment. M.L. was sitting on the front porch and bleeding heavily. Her throat had been slit. She told the officers, "My children are alone, my children are alone." Id. at 40. The police saw a trail of blood leading up the stairs to M.L.'s apartment door, which was open. There was blood throughout the apartment, including the bedroom where M.L.'s two children were located. The door frame of the bedroom was broken, as if someone had forced entry into the room. An ambulance drove M.L. to a hospital, and she was immediately taken into surgery.
[¶6] After he left M.L.'s home, Morales went to the woods and disposed of the object he had used to stab M.L., which he described as a "box cutter." Id. at 22. Morales then changed his bloody shirt to avoid attention, went to Skyline Chili and ate dinner there, and then stayed the night in a storage unit. Morales did not call the police or an ambulance for M.L. because "he did not want to get caught." Id. at 23. Two days later, Morales turned himself in to law enforcement. During a subsequent police interview, Morales showed no emotion. He explained that he had stabbed M.L. because she had called him an offensive name, and "a blind rage came over him and he started slashing." Id. at 24.
[¶7] M.L. was in a coma for four days. The stab wound in her neck narrowly missed her carotid artery, and she had defensive stab wounds on her hands. Her injuries "were serious, life-threatening, and created a substantial risk of death." Ex. at 21. M.L. had three surgeries, including one on her neck, one on her arm, and a nerve transplant "because nerves, veins, muscles, and tendons were cut." Tr. at 41. "The tendon, muscle, and nerve injuries created a protracted impairment, the loss of function of the forearm and hands[,] and may [be] permanent." Ex. at 22. M.L. was left with constant pain in her arm and chronic pain in her neck. She underwent physical therapy on her hand because she lost all her fine motor skills. She lost feeling in her fingers and could not open and close them. She was unable to work for four months. M.L. was "really afraid" after the attack, believing that "everybody wanted to kill [her]." Tr. at 42.
[¶8] M.L.'s daughter "completely changed" after the attack. Id. She used to be a playful child but had become timid and "always ha[d] her hand in her mouth." Id. When M.L. came home from the hospital, her daughter would not look at her. In a photograph of a bloody doorframe and floor taken by the responding officers and admitted as State's Exhibit 6, M.L.'s daughter could be seen sitting in the background.
[¶9] The State charged Morales with attempted murder, a Level 1 felony, and aggravated battery, as a Level 3 felony. Morales pled guilty to attempted murder, and, in exchange, the State agreed to an "open plea with executed time capped at 30 years," and dismissal of the aggravated battery charge. App. at 57. In a presentence investigation interview, Morales described his relationship with M.L. as "good" and reported no history of domestic violence. Id. at 76. Regarding the instant offense, although he expressed remorse "for what happened," he also stated, "[T]hat day I went to the house to see the kids she insulted me and humiliated me . . . I am not a murderer, because what happened that time[,] I could not take it anymore . . . I couldn't stand any more insults or mistreatment .. . I've never mistreated a woman." Id. at 77. Morales stated, "The one that was truly at fault was her." Id. at 78. Morales had been in the United States for only two years but self-reported that he had no criminal history.
I.C. § 35-42-2-1.5.
[¶10] The trial court held a sentencing hearing on February 1, 2024. The trial court found the following aggravators: the harm suffered by M.L. was greater than the elements necessary to prove the offense; Morales committed a crime of violence in the presence of his minor children, as captured in the "harrowing" photograph of the three-year-old daughter sitting in a room with blood all around; the nature of the crime, including his relationship to M.L. and the violent manner of the attack; Morales's lack of remorse; the psychological impact on M.L. and M.L.'s daughter; and Morales's violent character. Tr. at 56. The trial court found Morales's lack of criminal history was a mitigator but gave this factor minimal weight because it was self-reported. The trial court also found his guilty plea was mitigating but gave it limited weight because it was "motivated by pragmatism rather than remorse." Id. at 55. The trial court entered a judgment of conviction of attempted murder, dismissed the aggravated battery charge, and sentenced Morales to thirty-eight years in the Department of Correction, with eight years suspended to probation. This appeal ensued.
Discussion and Decision
[¶11] Morales contends that his sentence is inappropriate in light of the nature of the offense and his character. Article 7, Sections 4 and 6 of the Indiana Constitution "authorize[] independent appellate review and revision of a sentence imposed by the trial court." Roush v. State, 875 N.E.2d 801, 812 (Ind.Ct.App. 2007) (alteration in original). This appellate authority is implemented through Indiana Appellate Rule 7(B). Id. Revision of a sentence under Rule 7(B) requires the appellant to demonstrate that his sentence is "inappropriate in light of the nature of the offense and the character of the offender." Ind. Appellate Rule 7(B); see also Rutherford v. State, 866 N.E.2d 867, 873 (Ind.Ct.App. 2007).
[¶12] 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, 1224 (Ind. 2008). The principal role of appellate review is to attempt to "leaven the outliers." Id. at 1225. Whether we regard a sentence as inappropriate at the end of the day turns on "our sense of 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. The question is not whether another sentence is more appropriate, but rather whether the sentence imposed is inappropriate. King v. State, 894 N.E.2d 265, 268 (Ind.Ct.App. 2008). Deference to the trial court "prevail[s] 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).
[¶13] We begin by noting that the sentencing range for a Level 1 felony is imprisonment for a term of between twenty and forty years, with an advisory sentence of thirty years. I.C. § 35-50-2-4(b). The advisory sentence "is the starting point the Legislature has selected as an appropriate sentence for the crime committed." Anglemyer v. State, 868 N.E.2d 482, 494 (Ind. 2007). Morales was sentenced to only thirty years executed, which is the advisory sentence, and eight years suspended to probation.
[¶14] Morales has failed to show that the nature of the offense would warrant revision of his sentence. "The nature of the offense is found in the details and circumstances of the commission of the offense and the defendant's participation." Zavala v. State, 138 N.E.3d 291, 301 (Ind.Ct.App. 2019) (quotation and citation omitted), trans. denied. Here, Morales concedes that the nature of his attack was "furious" and "violent." Appellant's Br. at 16. He repeatedly stabbed the mother of his children while his children watched. He splattered M.L.'s blood throughout the apartment, narrowly missing her carotid artery when he slit her throat. See Anglemyer, 868 N.E.2d at 494 (observing that a sentence is not inappropriate when the nature of the offense is "unnecessarily brutal"). Rather than seek help, he fled the apartment and left his children alone in the apartment with their bleeding and severely injured mother. M.L. was in a coma for four days, out of work for four months, underwent three surgeries, and did not regain control of her fingers. See Denham v. State, 142 N.E.3d 514, 517 (Ind.Ct.App. 2020) (observing that a 29-year sentence was not inappropriate where a defendant's attack was "incredibly violent," he left the victim to "suffer from the multiple wounds that he had inflicted," and the victim required surgery to recover), trans. denied.
[¶15] Morales's attack also inflicted psychological harm upon M.L. and their three-year-old daughter who witnessed the brutal attack. M.L. became afraid and thought that everyone wanted to kill her. M.L.'s daughter "completely changed" after witnessing the attack, going from a playful child to a timid child and refusing to look at her mother when she came home from the hospital. See Cardwell, 895 N.E.2d at 1224 (noting damage inflicted on others is considered in the analysis for inappropriateness). We cannot say Morales's offense was accompanied by any apparent restraint or regard for others. See Stephenson, 29 N.E.3d at 122.
[¶16] Nor does Morales's character warrant a sentence revision. Morales showed no remorse for his actions but blamed M.L., stating, "The one that was truly at fault was her." App. at 78. He attempted to justify his crime by claiming that M.L. provoked the attack by humiliating him and calling him names. And after pleading guilty to the attempted murder of M.L., Morales claimed, "I've never mistreated a woman." Id. at 77. Furthermore, he had a history of domestic violence toward M.L., including breaking their furniture, dragging her by her hair, and threatening to kill her. See Bostick v. State, 804 N.E.2d 218, 225 (Ind. Ct. App. 2004) (observing that, even absent a formal criminal history, evidence of a defendant's "less than law-abiding life" may be aggravating).
[¶17] Morales's behavior following his crime also shows his callous character. Rather than seek help for M.L. after his brutal attack, he discarded the murder weapon, changed out of his bloody clothes, and had dinner at a restaurant. See Conley v. State, 972 N.E.2d 684, 877 (Ind. 2012) (finding that resuming normal activities after commission of a crime is evidence of "a hardened character"). These are not the persistent examples of good character that render a sentence inappropriate. Stephenson, 29 N.E.3d at 122. Morales has failed to meet his burden to show that his sentence is inappropriate in light of the nature of his character.
[¶18] Although Morales claims he has no criminal history, this was self-reported; Morales had been in the United States for only two years when he attempted to kill M.L. and, therefore, his criminal history before those two years was unavailable to corroborate his self-serving claim. Moreover, regardless of whether he has an official criminal record, the evidence shows that he had not been leading a law-abiding life prior to the instant crime, as he had repeatedly subjected M.L. to domestic assaults. The evidence also shows that Morales is not "amenable to rehabilitation," as he claims; Morales expressed no remorse for his violent crime, not even during sentencing, and, in fact, he tried to blame the attack on the victim. Moreover, this crime is not the result of circumstances unlikely to recur, as Morales also claims, as shown by the evidence that Morales had a history of abusing M.L.
[¶19] In short, Morales is fortunate that his lawyer negotiated a sentencing cap of 30 years because there is no compelling evidence portraying in a positive light the attempted murder Morales committed or his character. Therefore, we cannot say that his sentence is inappropriate in light of the nature of the offense and his character.
[¶20] Affirmed.
Altice, C.J., and Mathias, J., concur.