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.

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

KRISTINA J. JACOBUCCI GREGORY F. ZOELLER

Newby, Lewis, Kaminski & Jones LLP Attorney General of Indiana

LaPorte, Indiana

KARL M. SCHARNBERG

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

JUAQUIN DIAZ-DELREAL, )

)

Appellant-Defendant, )

)

vs. ) No. 46A03-1404-CR-130

)

STATE OF INDIANA, )

)

Appellee-Plaintiff. )

APPEAL FROM THE LAPORTE CIRCUIT COURT

The Honorable Thomas J. Alevizos, Judge

Cause No. 46C01-1302-FD-729

October 27, 2014

MEMORANDUM DECISION - NOT FOR PUBLICATION

SULLIVAN, Senior Judge 
2

Juaquin Diaz-Delreal appeals after pleading guilty to one count of criminal 

recklessness,

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contending that the trial court’s judgment of conviction does not conform to 

the terms of the plea agreement and that his sentence is inappropriate in light of the nature 

of the offense and the character of the offender. We affirm in part, and reverse in part and 

remand. 

On February 10, 2013, Diaz-Delreal and Christian Osornio exchanged text 

messages agreeing to fight in a K-Mart parking lot. Diaz-Delreal drove his pickup to the 

meeting place, and his brother, Rigoberto, and his friend, Adrian Martinez, accompanied 

him there. When the three reached the location previously agreed upon, they saw Osornio 

along with several other people awaiting Diaz-Delreal’s arrival. Rigoberto exited DiazDelreal’s truck and began fighting. Diaz-Delreal circled around in his truck and called for 

Rigoberto to get inside. When his brother was back inside the truck, Diaz-Delreal 

accelerated away from the group, striking Osornio with his truck in the process. Osornio 

suffered a skull fracture, which required him to be hospitalized for a week. After his 

recovery, Osornio’s doctor expressed his surprise that Osornio survived his injuries 

because he was certain the injuries were fatal. 

The State charged Diaz-Delreal with criminal recklessness as a Class D felony and 

failure to stop at the scene of an accident resulting in serious bodily injury as a Class D 

felony. Diaz-Delreal and the State entered into a plea agreement, which provided in 

pertinent part as follows:

8. Notwithstanding the above, I have, with the assistance of Counsel, 

 

1

Ind. Code §35-42-2-2 (2006).
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entered into an agreement with the State of Indiana as follows:

A. I will plead guilty to Criminal Recklessness, Class D 

Felony;

B. Judgment of conviction will enter as a Class A 

Misdemeanor;

C. Sentencing will be argued by the parties;

D. At sentencing, any other charges in this cause will be 

dismissed.

Appellant’s App. at 68. The trial court took the tendered plea agreement under advisement, 

ordered the preparation of a pre-sentence investigation report, and set the matter for 

sentencing. 

The trial court accepted the plea and entered a sentencing order, which reads in 

pertinent part as follows:

The court now enters a judgment of conviction against the Defendant, 

Juaquin Diaz-Delreal, to Criminal Recklessness, a Class D Felony.

The Defendant, Juaquin Diaz-Delreal, who is a male person, 23 years of age, 

is guilty of Criminal Recklessness, a Class D Felony, and shall be sentenced 

as an A Misdemeanor.

IT IS ORDERED, ADJUDGED AND DECREED by the Court that the 

Defendant, Juaquin Diaz-Delreal, shall be committed to the custody of the 

LaPorte County Jail for a period of one (1) year. 

Id. at 71 (emphasis in original). Diaz-Delreal now appeals. Additional facts will be 

supplied as needed.

Diaz-Delreal argues that the trial court’s sentencing order violates the terms of the 

plea agreement because the judgment of conviction was entered as a Class D felony, when 

the plea agreement explicitly stated that the judgment of conviction would be entered as a 

Class A misdemeanor. The State contends that we should affirm the trial court since the 

sentencing order provided that Diaz-Delreal would be sentenced for a Class A 
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misdemeanor and the sentence imposed was within the statutory range for a Class A 

misdemeanor. We disagree with the State’s position.

Although the sentencing order reflects that Diaz-Delreal shall be sentenced “as an 

A misdemeanor,” judgment of conviction was entered as a Class D felony. The plea 

agreement, which was accepted by the trial court, provided that judgment of conviction 

would be entered as a Class A misdemeanor. “Our courts have long held that plea 

agreements are in the nature of contracts entered into between the defendant and the State.” 

Lee v. State, 816 N.E.2d 35, 38 (Ind. 2004). “[A] plea agreement is contractual in nature, 

binding the defendant, the state and the trial court.” Pannarale v. State, 638 N.E.2d 1247, 

1248 (Ind. 1994) (citing State ex rel. Goldsmith v. Superior Court, 419 N.E.2d 109, 114 

(Ind. 1981)). “If the court accepts a plea agreement, it shall be bound by its terms.” Ind. 

Code §35-35-3-3(e) (1987). 

Here, the plea agreement provided that the judgment of conviction would be entered 

as a Class A misdemeanor. This is not a situation involving alternative misdemeanor 

sentencing under Indiana Code section 35-50-2-7(b) (2013), nor does this situation 

implicate Indiana Code section 35-38-1-1.5(a) (2013) (Class D felony conviction later 

converted to Class A misdemeanor after conditions are met). The record reflects that upon 

hearing the factual basis for the plea, the trial court specifically questioned the State about 

the agreement to plead to a Class A misdemeanor, when the factual basis appeared to 

support a Class D felony conviction. Trial counsel did state at the sentencing hearing that 

“I’m asking you to accept the plea. It simply called for treatment as a misdemeanor and 

then argued sentence.” Tr. at 21. However, the plea bargain speaks for itself. Further, the 
5

portion of the plea agreement stating that Diaz-Delreal would plead guilty to Criminal 

Recklessness as a Class D felony could reasonably be interpreted to mean that of the two 

charges, criminal recklessness was the one to which a plea agreement had been reached. 

Consequently, we remand this matter to the trial court to vacate the Class D felony 

conviction and to enter a judgment of conviction as a Class A misdemeanor consistent with 

the terms of the plea agreement.

Next, Diaz-Delreal contends that his sentence is inappropriate in light of the nature 

of the offense and the character of the offender. Because Diaz-Delreal’s sentence falls 

within the sentencing range for a Class A misdemeanor, we consider his argument despite 

the error in the judgment of conviction. The sentencing range for a Class A misdemeanor 

is a fixed term of not more than one year. Ind. Code § 35-50-3-2 (1977). Although the 

trial court may have acted within its lawful discretion in imposing Diaz-Delreal’s sentence, 

Article 7, Sections 4 and 6 of the Indiana Constitution authorize independent appellate 

review and revision of sentences through Indiana Appellate Rule 7(B), which provides that 

a court “may revise a sentence authorized by statute if, after due consideration of the trial 

court’s decision, the Court finds that the sentence is inappropriate in light of the nature of 

the offense and the character of the offender.” Reid v. State, 876 N.E.2d 1114, 1116 (Ind.

2007) (quoting Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007)). The “nature of 

offense” compares the defendant’s actions with the required showing to sustain a 

conviction under the charged offense, while the “character of the offender” permits for a 

broader consideration of the defendant’s character. Douglas v. State, 878 N.E.2d 873, 881 

(Ind. Ct. App. 2007). An appellant bears the burden of showing both prongs of the inquiry 
6

favor revision of his sentence. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). 

As for Diaz-Delreal’s character, his criminal history is not the worst. He had a prior 

juvenile adjudication for battery. However, the facts show that he intended to engage in a 

fight with Osornio, which would have constituted another battery. Examining the nature 

of the offense, we observe that Osornio nearly died as a result of Diaz-Delreal’s reckless 

behavior. Osornio spent a week in the hospital after having his skull and orbital bone 

fractured after being struck by the truck. Osornio described the physical impact of his 

injuries as follows: “[the injury] wasn’t just a simple scratch and put a Band Aid on it. I 

went through months and months after months of pain and suffering literally to get where 

I’m at.” Tr. at 25. The extent of Osornio’s injuries were such that a metal plate was 

installed to stabilize his jaw and he has no sensation in the jaw area. Diaz-Delreal has not 

met his burden of establishing that his sentence is inappropriate in light of the nature of the 

offense and the character of the offender. 

In light of the foregoing, we affirm the trial court’s sentencing decision, but reverse 

and remand to the trial court to vacate the judgment of conviction as a Class D felony and 

to enter a judgment of conviction as a Class A misdemeanor.

Affirmed in part, reversed in part and remanded. 

MAY, J., and BROWN, J., concur.