Court of Appeals of Indiana | Memorandum Decision 19A-CR-387 | November 5, 2020 Page 1 of 7

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

Elizabeth A. Flynn

Braje, Nelson & Janes, LLP

Michigan City, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Angela N. Sanchez

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Omar Dominguez,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

November 5, 2020

Court of Appeals Case No.

19A-CR-387

Appeal from the 

La Porte Circuit Court

The Honorable 

Thomas J. Alevizos, Judge

Trial Court Cause No.

46C01-1603-F4-194

Kirsch, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-387 | November 5, 2020 Page 2 of 7

[1] Omar Dominguez (“Dominguez”) was convicted after a jury trial of one count 

of dealing in cocaine or narcotic drug1 as a Level 4 felony and two counts of 

dealing in cocaine or narcotic drug,

2

each as a Level 5 felony. He was 

sentenced to a nine-years executed. Dominguez appeals and raises two issues 

challenging his sentence. Because the sentencing statement is not clear on how 

the nine-year sentence is applicable to the three convictions, we remand for 

clarification of the sentencing statement.

Facts and Procedural History

[2] On September 9, October 6, and October 28, 2015, law enforcement officers in 

La Porte County, who were part of a multi-department anti-drug task force, 

utilized confidential informant 692 (“CI 692”) to purchase cocaine from 

Dominguez through three separate transactions. Tr. Vol. II at 118-21, 123-42.

Prior to each transaction, law enforcement would meet CI 692 at a 

predetermined location, conduct a pre-buy briefing, search CI 692’s vehicle and 

person for drugs and money, outfit CI 692 with a disguised video and audio 

recording device, and provide CI 692 with pre-recorded U.S. currency for the 

drug purchase. Id. at 122-23. For each transaction, CI 692 was followed by law 

enforcement from the meeting location to Dominguez’s residence, and CI 692 

was under constant surveillance during the entire drive. Id. at 125. Once the 

1

See Ind. Code § 35-48-4-1(a), (c)(1). 

2

See Ind. Code § 35-48-4-1(a). 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-387 | November 5, 2020 Page 3 of 7

transaction had occurred, and CI 692 had purchased cocaine from Dominguez, 

CI 692 would get back into his vehicle and drive back to the same predetermined meeting location, at which time he would be searched, the 

purchased cocaine would be seized by law enforcement officers, and the 

recording device was retrieved so that the footage could be downloaded. Id. at

129, 133-34, 137-38. 

[3] At the September 9, 2015 drug buy, CI 692 purchased 3.6 grams of cocaine 

from Dominguez. State’s Exs. 2A, 2B; Tr. Vol. II at 139-40. At the October 6, 

2015 drug buy, CI 692 purchased 1.0 grams of cocaine from Dominguez. 

State’s Exs. 3A, 3B; Tr. Vol. II at 139-40. During the October 28, 2015 drug buy, 

CI 692 purchased 1.2 grams of cocaine from Dominguez. State’s Exs. 4A, 4B; 

Tr. Vol. II at 139-40. Dominguez was identified as the individual selling 

cocaine to CI 692 on each occasion. Tr. Vol. II at 124-42; State’s Exs. 5-8. 

[4] On March 1, 2016, the State charged Dominguez with one count of Level 4 

felony dealing in cocaine or narcotic drug and two counts of Level 5 felony 

dealing in cocaine or narcotic drug. Appellant’s App. Vol. II at 15-17. On March 

5 and 6, 2018, a jury trial was held. Id. at 43-47. Dominguez failed to appear at 

trial and was tried in absentia. Id. At the conclusion of the jury trial, 

Dominguez was found guilty as charged. Tr. Vol. III at 29. A warrant was 

issued for Dominguez’s arrest, and he was apprehended on July 24, 2018. 

Appellant’s App. Vol. II at 48-51. 
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[5] On October 17, 2018, the sentencing hearing was held. The trial court found the 

following aggravating circumstances: (1) Dominguez’s prior criminal history; 

(2) his recent violation of probation; (3) his commission of subsequent crimes;

and (4) the fact that he was a fugitive and did not attend his trial. Tr. Vol. III at 

62. The trial court found no mitigating circumstances and specifically rejected 

Dominguez’s proffered mitigation argument that incarceration would be a 

hardship on his dependents, reasoning that nothing supported that the burden 

was undue and rose to the status of a mitigating circumstance. Id. at 61-62. In 

its oral sentencing statement, the trial court stated: “The aggravating factors 

outweigh the mitigating factors. The Court sentences the defendant to a 

determinant [sic] sentence of nine years in the Indiana Department of 

Correction.” Id. at 62. In its written judgment of conviction and sentencing 

order, the trial court stated that 

Dominguez shall be committed to the custody of the Indiana 

Department of Correction for a period of three (3) years on 

Count I - Dealing in Cocaine or a Narcotic Drug, Level 4 

Felony; [Dominguez] is sentenced to three (3) years on Count II -

Dealing in Cocaine or a Narcotic Drug, Level 5 Felony, and to 

three (3) years on Count III - Dealing in Cocaine or a Narcotic 

Drug, Level 5 Felony. Said sentence shall be served 

consecutively.

Appellant’s App. Vol. II at 75. Dominguez now appeals.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-387 | November 5, 2020 Page 5 of 7

Discussion and Decision

[6] Dominguez raises two issues regarding his sentence, that his sentence is 

inappropriate in light of the nature of the offenses and his character and that the 

trial court abused its discretion by not considering certain mitigating 

circumstances in sentencing him. As to his inappropriateness argument, 

Dominguez poses two different challenges, one of which is that his nine-year 

sentence is inappropriate because the trial court ordered his sentences to be 

served consecutively, which violated established case law set out in Beno v. 

State, 581 N.E.2d 922 (Ind. 1991) and its progeny. 

[7] In Beno, our Supreme Court found that, although the trial court properly 

sentenced Beno to the maximum term on each count, the trial court 

erroneously ordered the sentences to be served consecutively because the Court 

noted that, although a trial court has discretion to impose both maximum and 

consecutive sentences, where a defendant is enticed by the police to commit 

nearly identical crimes as a result of a police sting operation, consecutive 

sentences are inappropriate. Id. at 924. Since then, Indiana courts have 

repeatedly held that “[c]onsecutive sentences are not appropriate when the State 

sponsors a series of virtually identical offenses.” Gregory v. State, 644 N.E.2d 

543, 544 (Ind. 1994); see also, Eckelbarger v. State, 51 N.E.3d 169, 170 (Ind. 

2016); Davis v. State, 142 N.E.3d 495, 507 (Ind. Ct. App. 2020); Rios v. State, 930 

N.E.2d 664, 669 (Ind. Ct. App. 2010); Williams v. State, 891 N.E.2d 621, 635 

(Ind. Ct. App. 2008); Hendrickson v. State, 690 N.E.2d 765, 767 (Ind. Ct. App. 

1998). Dominguez contends that his sentence is inappropriate because the trial 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-387 | November 5, 2020 Page 6 of 7

court ordered that his sentences be served consecutively for his three 

convictions resulting from a State-sponsored series of virtually identical 

offenses.

[8] There is a conflict between the oral and written sentencing statements, which 

makes the trial court’s intent unclear. In its oral sentencing statement, the trial 

court stated as follows: “[T]he aggravating factors outweigh the mitigating 

factors. The Court sentences the defendant to a determinant [sic] sentence of 

nine years in the Indiana Department of Correction.” Tr. Vol. II at 62. The oral 

statement, therefore, did not specify to which counts the nine-year aggregate 

sentence would apply. Id. However, in the trial court’s written sentencing 

statement, it ordered Dominguez to serve three years on each of his conviction 

with the sentences to run consecutively for an aggregate sentence of nine years. 

Appellant’s App. Vol. II at 74-75. 

[9] When oral and written sentencing statements conflict, we examine them 

together to discern the intent of the sentencing court. Vaughn v. State, 13 

N.E.3d 873, 890 (Ind. Ct. App. 2014), trans. denied. Rather than presuming the 

superior accuracy of the oral statement, we examine it alongside the written 

sentencing statement to assess the conclusions of the trial court. Murrell v. State, 

960 N.E.2d 854, 859 (Ind. Ct. App. 2012). Here, the oral and written 

sentencing statements are in conflict. “Where we find an irregularity in a trial 

court’s sentencing decision, we have the option to remand to the trial court for 

clarification or new sentencing determination, to affirm the sentence if the error 

is harmless, or to reweigh the proper aggravating and mitigating circumstances 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-387 | November 5, 2020 Page 7 of 7

independently at the appellate level.” Clippinger v. State, 54 N.E.3d 986, 992 

(Ind. 2016). Here, we choose to remand to allow the trial court to clarify its 

sentencing statement as to how it intended the nine-year sentence to be 

apportioned between Dominguez’s three convictions.

[10] Remanded with instructions.

Pyle, J., and Tavitas, J., concur.