Court of Appeals of Indiana | Memorandum Decision [Case number] | April 13, 2015 Page 1 of 12

MEMORANDUM DECISION

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

Patricia Caress McMath

Marion County Public Defender Agency

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Jesse R. Drum

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Jesse Velez,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff

April 13, 2015

Court of Appeals Case No.

49A02-1409-CR-660

Appeal from the Marion Superior 

Court

The Honorable David Certo, Judge

Cause Nos. 49F12-1206-FD-38368, 

49F12-1208-FD-57410, 49F12-1208-

CM-57502, 49F12-1208-FD-60304, 

49F12-1305-FD-31844, 49G12-1405-

FD-25741

Bradford, Judge.

Case Summary
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[1] Over the course of a nearly two-year time period, Appellant-Defendant Jesse 

Velez was arrested for numerous criminal offenses, including theft, possession 

of drug paraphernalia, prostitution, public indecency, resisting law 

enforcement, and conversion. He was charged for these criminal offenses under 

six different cause numbers. Velez eventually pled guilty to all but one of the 

charges levied against him. The remaining charge was dismissed. Following 

Velez’s guilty pleas, the trial court sentenced Velez to an aggregate eight and 

one-half year term, with six and one-half years executed in the Department of 

Correction (“DOC”) and two years served in community corrections. 

[2] On appeal, Velez challenges his sentence, arguing both that the trial court 

abused its discretion in sentencing him and that his sentence is inappropriate. 

Concluding otherwise, we affirm.

Facts and Procedural History

I. Cause Number 49F12-1206-FD-38368 (“Cause No. 

FD-38368”)

[3] On June 6, 2012, Velez visited a Marsh Supermarket. While at the Marsh 

Supermarket, Velez placed three bottles of vodka in a backpack. He then 

attempted to leave the store without paying for the bottles. Velez was stopped 

outside the store by two Marsh employees who then notified the police. Later 

that day, Appellee-Plaintiff the State of Indiana (the “State”) charged Velez 

with Class D felony theft. On March 4, 2013, the State amended the charging 

information to include a charge of Class A misdemeanor conversion. 
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II. Cause Number 49F12-1208-FD-57410 (“Cause No. 

FD-57410”)

[4] On August 19, 2012, Indianapolis Metropolitan Police Department (“IMPD”) 

Officer John Schweers observed Velez walking in an alley with a glass pipe in 

his left hand. Based on Officer Schweers’s training and experience as a police 

officer, he immediately recognized the glass pipe to be a “crack pipe.” 

Appellant’s App. p. 48. When Velez saw Officer Schweers’s marked police 

vehicle, Velez put his left hand in his front pants pocket. Officer Schweers then 

asked Velez to show his hands. Velez initially complied, before shoving his left 

hand back into his pocket. Fearing that Velez may be armed with a weapon, 

Officer Schweers patted Velez down and found a crack pipe with steel wool 

pushed into one end in Velez’s pants pocket. Officer Schweers also found a 

“wad” of steel wool and an ink stick, both of which are commonly used in 

smoking cocaine. Appellant’s App. p. 49. The next day, on August 20, 2012, 

the State charged Velez with Class A misdemeanor possession of paraphernalia 

and Class D felony possession of paraphernalia. 

III. Cause Number 49F12-1208-CM-57502 (“Cause No. 

CM-57502”)

[5] At approximately 6:50 a.m. on August 20, 2012, Velez “got into” a vehicle and 

told the driver that he likes to give fellatio and would do so for $25.00. 

Appellant’s App. p. 79. Velez “fondled [the driver’s] genitals” and asked, 

“You’re not a cop are you?” Appellant’s App. p. 79. As it turns out, he was. 
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Later that day, the State charged Velez with Class A misdemeanor prostitution 

and Class A misdemeanor public indecency. 

IV. Cause Number 49F12-1208-FD-60304 (“Cause No. 

FD-60304”)

[6] On August 30, 2012, IMPD Officer Kenneth Greer responded to a report that a 

man was attempting to “flag cars down” and was “looking into parked cars.” 

Appellant’s App. p. 107. When Officer Greer arrived at the location, he 

observed Velez, who matched the description of the individual in question, 

walking on the sidewalk. Officer Greer approached Velez and “stated that [he] 

needed to talk to him.” Appellant’s App. p. 107. Officer Greer then observed 

Velez “with his left closed fist throw something down on the sidewalk that 

made a sound of broken glass.” Appellant’s App. p. 107. The item in question 

was subsequently identified to be a broken “crack pipe.” Appellant’s App. p. 

107. In addition to the burnt glass from the pipe, Officer Greer also located a 

“burnt piece of brillo pad.” Appellant’s App. p. 107. Later that day, the State 

charged Velez with Class A misdemeanor possession of paraphernalia and 

Class D felony possession of paraphernalia. 

V. Cause Number 49F12-1305-FD-31844 (“Cause No. 

FD-31844”)

[7] At approximately 1:45 a.m. on May 15, 2013, IMPD Officers Keith Albert, 

Jean Burkert, and Jeremy Lee responded to a request for assistance from a CVS 

Store. Upon arriving at the CVS, the officers learned that Velez had left a CVS 
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with an unusual bulk in his midsection. The store manager chased after and 

apprehended Velez. Officer Albert approached and “lifted Velez’s shirt and 

pulled two bottles of tide liquid detergent and a Lysol spray can that were inside 

Velez’s waistband and placed them on the ground.” Appellant’s App. p. 137. 

When Officer Albert attempted to detain Velez by placing him in handcuffs, 

Velez “tensed up his arms and began to pull away.” Appellant’s App. p. 137. 

Although Velez continued to resist and disobeyed the officers’ orders, he was 

subsequently brought under control by the officers. Later that day, the State 

charged Velez with Class D felony theft and Class A misdemeanor resisting law 

enforcement. On January 17, 2014, the State amended the charging 

information to include a charge of Class A misdemeanor conversion.

VI. Velez Placed in Mental Health Diversion Program

[8] On January 16, 2013, Velez was placed in PAIR, a mental health diversion 

program. On December 16, 2013, the State filed a motion seeking to terminate 

Velez’s placement in the program. In making this motion, the State alleged that 

Velez had violated the terms of his participation in the PAIR program by being 

arrested for and charged with new criminal offenses, testing positive for 

cocaine, failing to appear for drug screens as ordered by the court, misleading 

the court as to his residence, and failing to attend sessions with his mental 

health treatment provider. 
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VII. Cause Number 49F12-1405-FD-25741 (“Cause No. 

FD-25741”)

[9] On May 16, 2014, IMPD officers were dispatched to a Walmart store in 

reference to a shoplifter running from the store. Officers observed an individual 

matching the description provided by Walmart employees running northbound 

away from the store. The individual was subsequently identified to be Velez. 

After detaining Velez, officers recovered a tool set and four pairs of gloves, all 

of which had been reported stolen by a Walmart employee who observed Velez 

take the items “off the shelf and walk past all points of purchase without paying 

for the merchandise.” Appellant’s App. p. 164. Later that day, the State 

charged Velez with Class D felony theft.

VIII. Velez’s Guilty Pleas

[10] With exception to the charge of Class D felony theft that was charged under 

Cause No. FD-31844, on August 25, 2014, Velez pled guilty to all of the 

charged crimes that are set forth above. Under Cause No. FD-38368, the trial 

court accepted Velez’s guilty plea and merged Velez’s conviction for Class A 

misdemeanor conversion into his conviction for Class D felony theft. Under 

Cause No. FD-57410, the trial court accepted Velez’s guilty plea and merged 

Velez’s conviction for Class A misdemeanor possession of paraphernalia into 

his conviction for Class D felony possession of paraphernalia. Under Cause 

No. CM-57502, the trial court accepted Velez’s guilty plea. Under Cause FD60304, the trial court accepted Velez’s guilty plea and merged Velez’s 

conviction for Class A misdemeanor possession of paraphernalia into his 
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conviction for Class D felony possession of paraphernalia. Under Cause No. 

FD-31844, the trial court dismissed the Class D felony theft charge and 

accepted Velez’s guilty plea for the remaining charges. The trial court also 

accepted Velez’s guilty plea under Cause No. FD-25741. 

IX. Sentencing Following Velez’s Guilty Pleas

[11] After accepting Velez’s guilty pleas, the trial court sentenced Velez as follows: 

(1) one and one-half years under Cause No. FD-38368; (2) one and one-half 

years under Cause No. FD-57410; (3) one year in community corrections under 

Cause No. CM-57502; (4) one and one-half years under Cause No. FD-60304; 

(5) one year in community corrections under Cause No. FD-31844; and (6) two 

years under Cause No. FD-25741. The trial court ordered each of the sentences 

to run consecutive to one another, for an aggregate term of six and one-half 

years executed in the DOC, followed by two years in community corrections. 

This appeal follows.

Discussion and Decision

[12] Velez challenges his sentence on appeal, claiming both that the trial court 

abused its discretion in sentencing him and that his aggregate eight and onehalf-year sentence is inappropriate in light of the nature of his offenses and his 

character.
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I. Abuse of Discretion

[13] Sentencing decisions rest within the sound discretion of the trial court and are 

reviewed on appeal only for an abuse of discretion. Anglemyer v. State, 868 

N.E.2d 482, 490 (Ind. 2007), modified on other grounds on reh’g, 875 N.E.2d 218 

(Ind. 2007). “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.” Id. 

(quotation omitted). 

One way in which a trial court may abuse its discretion is failing to 

enter a sentencing statement at all. Other examples include entering a 

sentencing statement that explains reasons for imposing a sentenceincluding a finding of aggravating and mitigating factors if any-but the 

record does not support the reasons, or the sentencing statement omits 

reasons that are clearly supported by the record and advanced for 

consideration, or the reasons given are improper as a matter of law. 

Under those circumstances, remand for resentencing may be the 

appropriate remedy if we cannot say with confidence that the trial 

court would have imposed the same sentence had it properly 

considered reasons that enjoy support in the record.

Id. at 490-91. 

[14] Velez claims that the trial court abused its discretion in sentencing him because 

the trial court failed to find his mental illness to be a mitigating factor at 

sentencing. The finding of mitigating factors is discretionary with the trial 

court. Fugate v. State, 608 N.E.2d 1370, 1374 (Ind. 1993) (citing Graham v. State, 

535 N.E.2d 1152, 1155 (Ind. 1989)). The trial court is not required to find the 

presence of mitigating factors. Id. (citing Graham, 535 N.E.2d at 1155). 
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Further, if the trial court does not find the existence of a mitigating factor after 

it has been argued by counsel, the trial court is not obligated to explain why it 

has found that the factor does not exist. Id. (citing Hammons v. State, 493 

N.E.2d 1250, 1254-55 (Ind. 1986)). 

[15] In sentencing Velez, the trial court made a lengthy oral statement setting forth 

Velez’s sentence and explaining the trial court’s reasons for imposing the 

particular sentence. The trial court made multiple references to Velez’s mental 

illness in making this statement, and concluded by stating the following:

Your attitude towards whatever your sentence may be is going to be 

the determining factor in how successful you are; okay? And, that’s 

easy for me to say from up here. It’s not necessarily easy for someone 

to do, regardless of where they are. But, I hope you know that I 

believe wholeheartedly that you and your attitude toward your mental 

illness and your drug addiction is in the place now where as long as 

you keep on the same road that you’re going you can conquer them 

and you can make the life that you want to make; okay? Regardless of 

what I’m doing today, you can make your life better. All right? And, 

I hope that you meant that and I hope that you will continue to do 

that.

Tr. pp. 96-97. Although the trial court did not specifically explain why it did 

not find Velez’s mental illness to be a mitigating factor, the trial court’s oral 

sentencing statement indicates that the trial court did consider Velez’s mental 

illness in sentencing Velez. 

[16] Furthermore, even if we were to find that the trial court did not consider Velez’s 

mental illness, we conclude that the trial court did not abuse its discretion in 

declining to find that Velez’s mental illness was a mitigating factor. 
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The mitigating weight to be afforded a defendant’s mental impairment 

depends on: 1) the extent of the defendant’s inability to control his or 

her behavior due to the impairment; 2) overall limitations on 

functioning; 3) the duration of the mental illness; and 4) the extent of 

any nexus between the impairment and the commission of the crime. 

Williams v. State, 840 N.E.2d 433, 439 (Ind. Ct. App. 2006). 

Smith v. State, 929 N.E.2d 255, 259 (Ind. Ct. App. 2010).

[17] Velez has not established that the effect his mental illness impacted his ability to 

control his behavior or limited his ability to function. More importantly, Velez 

failed to establish that there was a nexus between his mental condition and his 

crimes. Rather than being impacted by his mental illness, Velez’s actions 

appear to be largely impacted by his drug addiction. We therefore cannot say 

the trial court abused its discretion in declining to find Velez’s mental illness to 

be a mitigating factor.

II. Appropriateness of Sentence

[18] Indiana Appellate Rule 7(B) provides that “The 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.” In analyzing such claims, we “‘concentrate 

less on comparing the facts of [the case at issue] to others, whether real or 

hypothetical, and more on focusing on the nature, extent, and depravity of the 

offense for which the defendant is being sentenced, and what it reveals about 

the defendant’s character.’” Paul v. State, 888 N.E.2d 818, 825 (Ind. Ct. App. 

2008) (quoting Brown v. State, 760 N.E.2d 243, 247 (Ind. Ct. App. 2002), trans. 
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denied). The defendant bears the burden of persuading us that his sentence is 

inappropriate. Sanchez v. State, 891 N.E.2d 174, 176 (Ind. Ct. App. 2008).

[19] In challenging the appropriateness of his sentence, Velez argues that a 

minimum sentence was appropriate in light of the nature of his offenses. We 

cannot agree. While the nature of each of Velez’s individual offenses was not 

particularly egregious when considered in isolation, the quantity and 

consistency of his criminal actions justify an enhanced sentence. The record 

demonstrates that Velez was convicted of eight criminal offenses stemming 

from six unrelated episodes of criminal conduct, all of which he committed over 

the course of a less than two years. Velez’s criminal offenses include theft, 

conversion, possession of paraphernalia, prostitution, public indecency, and 

resisting law enforcement. We find it troubling that Velez continued to commit 

these crimes despite his participation in the court-supervised mental health 

diversion PAIR program.

[20] With respect to Velez’s character, the record demonstrates that Velez suffers 

from an addiction to drugs. However, the record further demonstrates that, todate, he has been unwilling to complete treatment that is aimed to help him 

overcome his addiction. Velez also has a substantial criminal history which 

dates back to when he was a juvenile. As a juvenile, he was found to be a 

delinquent for committing what would be the following crimes if committed by 

an adult: conversion, failure to stop at an accidence causing injury, operating a 

vehicle without ever receiving a license. Velez’s adult criminal history includes 

numerous convictions for battery, resisting law enforcement, theft/receiving 
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stolen property, conversion, and possession of drug paraphernalia. Velez has 

also repeatedly violated the terms of prior placements on probation and in 

community corrections. Velez’s criminal history indicates an unwillingness to 

conform his behavior to the rules of society. In light of the nature of Velez’s 

offenses and his character, we conclude that Velez has failed to meet his burden 

of persuading us that his aggregate eight and one-half-year sentence is 

inappropriate.

Conclusion

[21] In sum, we conclude that the trial court acted within its discretion in sentencing 

Velez and that Velez failed to meet his burden of proving that his aggregate 

eight and one-half-year sentence is inappropriate. 

[22] The judgment of the trial court is affirmed.

Vaidik, C.J., and Kirsch, J., concur.