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 e stoppel, or the law of the case.

ATTORNEY FOR APPELLANT : ATTORNEYS FOR APPELLEE : BRUCE W. GRAHAM GREGORY F. ZOELLER Graham Law Firm P.C. Attorney General of Indiana Lafayette, Indiana AARON J. SPOLARICH Deputy Attorney General Indianapolis, Indiana



## IN THE COURT OF APPEALS OF INDIANA

JUAN MANUEL CORREA, JR. , ) ) Appellant

- Defendant , ) ) vs. ) No. 79A02

- 1202

- CR

- 1 05 ) STATE OF INDIANA, ) ) Appellee

- Plaintiff. )

APPEAL FROM TIPPECANOE SUPERIOR COURT The Honorable Randy J. Williams , Judge Cause No. 79D01

- 1103

- FB

- 8

October 16, 2012

MEMORANDUM DECISION
- NOT FOR PUBLICATION
CRONE, Judge2 Case Summary Gang leader Juan Manuel Correa appeals his thirty

- one year sentence imposed by the trial court . Correa pled guilty to class B felony burglary and class C felony in timidation

. The trial court sentenced Correa to consecutive sentences of twelve years for burglary and seven years for intimidation , and an additional term of twelve years due to his criminal gang activity. Correa contends that the trial court abused its discretion during sentencing and that his sentence is inappropriate in light of the nature of the offenses and his character. Finding no abuse of discretion and concluding that Correa has not met his burden to show that his sentence is inappropriate, we affirm. Facts and Procedural History In January 2010, Correa was the leader of a gang called the Southside Raza in Lafayette. H e was tired of people telling him and the other gang members that they were “punks” and “nothing.” Tr. at 31. On January 28, 2010, sixteen

- year - old Correa forced two members of the Southside Raza, Efrain Antonio

- Contreras (“Efrain”) and Benigino Astorga

Quiroga (“Bennie”) to go with him to the home of Phillip Miller to steal firearms

. Correa had been friends with Miller’s steps on and knew that Miller had several firearms in the home. Correa threatened Efrain and Bennie that if they did not accompany him to Miller’s home, they would be guilty of a “violation” and would be punished by having every other gang member beat them for thirteen seconds. Id . at 31

- 32. Correa , Efrain , and Bennie broke into Miller’s home and stole ten firearms, including shotguns and rifles. The three took the guns to Correa’s house , and Correa hid the guns underneath a mattress in his bedroom.3

The memb ers of the Southside Raza later convened at Correa’s house to discuss what to do with the stolen weapons. Although the original plan was to sell the guns for money, the gang decided to keep the guns as a sign of the gang’s strength. Correa suggested that the gang could use the weapons to rob a nearby house rumored to have cocaine. During the meeting, gang members posed for pictures with the stolen guns. A little less than a m onth later, although uninvited, Correa attended a wedding

rece ption at the Cons ervation Club. After getting into an altercation with some of the guests, including an individual named Daniel Ortega, Correa went to his house to retrieve one of the stolen shotguns. He returned to the Conservation Club and waved and pointed the shotgun

a round the crowded room . As he pointed the gun at a group of people , he stated, “You’re not going to mess with me any longer ,” and “W ho wants to f**k with Manuel.” Id . at 13. Correa then fired a shot into the ceiling. He eventually left the club, but planned a “hit” on Ortega that was to occur in the summer. Id . at 37. Correa ordered Efrain to be the lookout for that shooting. Aware that authorities were looking for him in connection with his crimes , Correa fled to Illinois and later returned t o Indiana in September 2010. In March 2011, the police finally apprehen ded Correa as he hid inside the attic of his parents’ home. After the juvenile court waive d jurisdiction over Correa, the State charged him with class B felony conspiracy to commit bu rglary, class B felony burglary, class D felony theft, class C felony intimidation, class D felony criminal recklessness, and class D felony pointing a firearm. The State also4

sought a sentence enhancement due to Correa’s involvement in gang activity. Co rrea pled guilty to all of the charges without a plea agreement on November 29, 2011. A sentencing hearing was held on January 17, 2012. Prior to sentencing, the trial court merged Correa’s convictions for conspiracy to commit burglary and theft into h is class B felony burglary conviction. The court also merged his convictions for criminal recklessness and pointing a firearm into his class C felony intimidation conviction. During sentencing, the trial court found sev en aggravating factors and five mit igating factors. The court sentenced Correa to consecutive sentences of twelve years for the burglary conviction and seven years for the intimidation convict ion. The court further sentenced Correa to an additional t welve

- year term due to the crimes being committed in furtherance of gang activity , for an aggregate sentence of thirty

- one years. 1 The trial court suspended five years of his sentence to probation, resulting in a total executed sentence of twe nty

- six ye ars. This appeal followed. Discussio n and Decision I. Abuse of Discretion Correa first contends that the trial court abused its discretion when it sentenced him. Sentencing decisions are within the sound discretion of the trial court and reviewed only for an abuse of that discretion. Angle myer v. State , 868 N.E.2d 482, 490 (Ind. 2007), clarified on

1 Indiana Code Section 35

- 50

- 2

- 15(b) permits the State to seek to have a person who allegedly committed a felony offense sentenced to an additio nal fixed term of imprisonment if the State can show beyond a reasonable doubt that the person knowingly or intentionally was a member of a criminal gang while committing the offense and committed the felony offense at the direction of or in affiliation wi th a criminal gang.5

reh’g , 875 N.E.2d 218. 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 act ual deductions to be drawn therefrom. Id

. A trial court may abuse its discretion in sentencing by failing to enter a sentencing statement, entering a sentencing statement that explains reasons for imposing a sentence which the record does not support, om itting reasons that are clearly supported by the record and advanced for consideration, or giving reasons tha t are improper as a matter of la w. Id

. A. Aggravating Circumstances Correa claims that the trial court abus ed its discretion by relying on impro per aggravating circumstances. Specifically, t he trial court found the following aggravating factors: (1) Correa’s juvenile criminal history; (2) Correa committed a crime of violence in the p resence of a person less than eighteen years of age; (3) an inc ident involving Correa at the Tippecanoe County Jail while the current case was pending; (4) the seriousness of the current offenses; (5) Correa evaded law enforcement; (6) Correa’s substance abuse; and, (7) prior attempts at rehabi litation have been unsuc cessful.
We initially note that Correa does not challenge the propriety of some of those aggravating factors and, regarding several of the factors, merely argues that the trial court assigned the factors too much weight. To the extent that Correa conte nds that the trial court gave any particular aggravating circumstance too much weight, that argument is not available on appeal. The trial court is no longer obligated to weigh mitigating and aggravating factors6

when imposing sentence, and thus the trial court cannot be said to have abused its discretion in failing to assign proper weight to certain factors. Id

. at 491. Correa argues that the trial court abused its discretion in finding that a misconduct incident involving Correa at the Tippecanoe County Jail constituted an aggravating circumstance . Jail misconduct may be properly considered as an aggravating factor. Field v.
State , 843 N.E.2d 1008, 1012 (Ind. Ct. App. 2006), trans. denied

. C orrea admits that although he indeed had an altercation with another inmate , he “did not strike anyone” and “was the youngest person in the jail pod, and was bullied by the other inmates.” Appellant’s
Br. at 11. Therefore, he argues, the record does not support this aggravating factor

. However, the trial court di d not rely upon Correa’s altercation with the other inmate when finding jail misconduct as an aggravating factor but instead specifically relied upon a separate misconduct incident during which Correa reacted violently when some of his visit time was “ cut short

. ” Tr. at 101. Correa has shown no abuse of discretion. Correa similarly takes issue with the trial court’s finding that prior attempts at rehabilitation have been unsuccessful , arguing that this finding is nothing more than “a
rehash and restateme nt of Correa’s minimal juvenile history.” Appellant’s Br. at 11. To the contrary , the record indicates that Correa, a repeat juvenile offender , has continually violated the terms of probation and various court orders during the two years immediately prec eding his commission of the current crimes. He failed to participate in offered services, was twice arrested, found in possession of firearms, failed drug screens, and co ntinued his gang7

affiliation in defiance of a clear court directive. We cannot say t hat the trial court abused its discretion when it considered this behavior an aggravating circumstance. Correa next argues that the trial court improperly considered the seriousness of the offenses as an aggravating circumstance. While we acknowledge th at a material element of a crime cannot be an aggravating circumstance, the nature and circumstances of the crime may properly be considered an aggravating circumstance so long as the trial court discusses facts that go beyond the statutory requirements fo r the crime. Gleason v. State , 965 N.E.2d 702, 711 (Ind. Ct. App. 2012 ). Regarding the burglary, the trial court found it especially egregious that Correa committed burglary with the intent to acquire dangerous firearms, either to sell them or for person al protection of gang members. Regarding intimidation, the trial court not ed that Correa threatened an entire group of people at a crowded wedding reception rather than simply one individual . The trial court provided sufficient discussion of the facts de monstrating how Correa’s crimes exceeded the statutory requirements for conviction. The trial court did not abuse its discretion when it considered the seriousness of Correa’s offenses as an aggravating circumstance. B. Consecutive Sentences Correa mai ntain s that the trial court abused its discretion when it imposed consecutive
sentences. As noted above, the trial court found seven aggr avating factors and only five mitigating circumstances. Indeed, Correa does not specifically challenge the propriety of several of the aggravating factors , including his juvenile history, his history of substance abuse, his evasion of law enforcement, or the fact that he committed an act of violence in the8

presence of a mi nor. One valid aggravating factor alone is enoug h to support the impo sition of consecutive sentences. Owens v. State , 916 N.E.2d 913, 917 (Ind. Ct. App. 2009). We find no abuse of discretion. II. Appropriateness of Sentence Correa asks that we revise his sentence p ursuant 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 de fendant 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). “[W]hether we regard a sentence as appropriate at the end of the day turns on our sense of culpability of th e defendant, the severity of the crime, the damage done to others, and myriad other factors that come to light in a given case.” Cardwell v. State , 895 N.E.2d 1219, 1224 (Ind. 2008). Upon appellate review, we have the power to affirm, reduce, or increase the sentence. Akard v. State , 937 N.E.2d 811, 813 (Ind. 2010). In considering the nature of a defendant’s offense, “the advisory sentence is the starting point the Legislature has selected as an appropriate sentence.” Anglemyer , 868 N.E.2d at 494. Cor rea was sentenced to twelve years for class B felony burglary, which carries a six

- to

- twenty

- year sentencing range and a ten

- year advisory term. Ind. Code § 35

- 50

- 2

- 5. He was sentenced to seven years for class C felony intimidation, which carries a
two

- t o - eight

- year sentencing range and a four

- year advisory term. Ind. Code § 35

- 50

- 2

- 6. The cri minal gang felony sentencing sta tute provides that the court shall sentence the person9

to an additional fixed term of imprisonment equal to the longest sentence im posed for underlying felonies. Ind. Code § 35

- 50

- 2

- 15(d)(2). Correa’s total sentence consists of twenty

- six years executed and five years suspended to probation. The difference between time executed and time suspended to probation is relevant in determi ning the appropriateness of a sentence. Jenkins v. State , 909 N.E.2d 1080, 1085 (Ind. Ct. App. 2009), trans. denied

. As to the nature of the offenses, Correa violently threatened two of his gang followers to help him brea k into Miller’s home with the i ntent to steal a large nu mber of dangerous firearms. They stole ten weapons, including shotguns and rifles. He initia lly intended to sell the guns but instead decided to keep the stolen weapons for personal use and as a signal of s trength for his gang

. A short time later, Correa brandished one of the stolen shotguns at a crowded wedding reception. He pointed that gun at th e group of people gathered. The imminent danger created by Correa’s offenses is significant and, quite frankly, unsettling. To make matters even more unsettling, Correa planned a “hit” on an individual to occur at a later date. Tr. at 37. Correa makes no attempt to downplay the seriousness of his offenses or his gang affiliation and we are unaware of any reason to make such argume nts for him. The trial court imposed a sentence well under the maximum for the burglary and a sentence just shy of the maximum f or the intimidation, with an additional twelve

- year fixed term due to Correa’s undisputed involvement in gang activity. Under the circumstances, we are not persuaded that the nature of the offenses warranted anything less. Correa’s sole argument for revision revolves around his character and, specifically, his young age at the time of the offenses. He had just turned sixteen y ears old when he10

committed the burglary

. However, despite his young age, the record indicates that Correa was hardly a naïve young man. He has been involved in the juvenil e justice system since the age of ten. He continued to have numerous discipline pr oblems culminating in a battery and disorderly conduct adjudication in 2007. Despite numerous attempts at probation, and various placements in both secure an d nonsecure facilities, Correa h as been unable to follow rules, pass drug tests, or to conform his behavior to that which is socially acceptable

. At the time of the offenses, Correa was not simply a member, but was the leader of the Southside Raza. By all witness accounts, he is a violent individual and an admitted drug abuser. He knowingly evaded l aw enforcement in this case, and he continues to defy authori ty as evidenced by his jail misconduct. T here is nothing about Correa’s character to indicate that his twenty

- six

- year e xecuted sentence is inappropriate . As our supreme court has noted, “[t] her e are both relatively old offenders who seem clueless and relatively young ones who appear hardened and purposeful.” Ellis v. State , 736 N.E.2d 731, 736 (Ind. 2000). He has not demonstrated that his sentence is inappropriate , and therefore we decline h is invitation to reduce the sentence imposed by the trial court. Affirmed. RILEY, J., and BAILEY, J., concur.