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 Feb 06 2014, 9:00 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
DONALD S. EDWARDS GREGORY F. ZOELLER
Columbus, Indiana Attorney General of Indiana
JAMES B. MARTIN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
WILFRIDO GARCIA, )
)
Appellant-Defendant, )
)
vs. ) No. 03A01-1306-CR-284
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE BARTHOLOMEW CIRCUIT COURT
The Honorable Stephen R. Heimann, Judge
Cause No. 03C01-1301-FB-217
February 6, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
DARDEN, Senior Judge
STATEMENT OF THE CASE
Wilfrido Garcia appeals his sentence for Class C felony carrying a handgun
without a license. We affirm.
ISSUES
Garcia contends the trial court abused its discretion in sentencing him by failing to
find several mitigating circumstances and by failing to place him in a post-conviction
forensic diversion program.
FACTS AND PROCEDURAL HISTORY
In January 2013, the police stopped a vehicle driven by Garcia because its
registration plate did not match the vehicle description on file. After determining that
Garcia had an outstanding warrant and had never obtained a driver’s license, the police
conducted a search incident to arrest. A Tic Tac container with Hydrocodone pills, an
ASP baton, a knife, and a stun gun were found on his person. An inventory search of the
vehicle revealed a folding knife with the blade open on the floor between the driver’s seat
and the center console as well as a loaded handgun on the driver’s side floorboard where
Garcia’s right foot would have been. State’s Ex. 1, pp. 5, 8; Appellant’s App. p. 98.
The State charged Garcia with Class B felony possession of a firearm by a serious
violent felon and Class D felony possession of a controlled substance. In April 2013,
pursuant to a plea agreement, Garcia pleaded guilty to an amended charge of Class C
felony carrying a handgun without a license. In exchange, the State agreed to dismiss the
drug charge and to refrain from filing any additional charges stemming from its
investigation.
2
At the sentencing hearing, the trial court found no mitigating circumstances. As
aggravators, the court identified: (1) Garcia’s criminal history, which included three prior
felony convictions; (2) that programs he had been offered in the past, including alcohol
and drug programs, had not been effective; and (3) that he had been granted probation
before, but it was later revoked. 1 The court also set forth the factors it considered in
denying his request to be placed in a forensic diversion program. Particularly, it noted:
(1) that he had absconded from community corrections in the past and indicated that he
would do so again under certain circumstances; (2) his violent tendencies; and (3) his
continued use of illegal drugs. The court sentenced Garcia to seven years and three
months in the Department of Correction. Garcia now appeals his sentence.
DISCUSSION AND DECISION
I. MITIGATING CIRCUMSTANCES
Subject to the review and revision power under Indiana Appellate Rule 7(B),
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), clarified on reh’g, 875 N.E.2d 218 (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. One
way in which a trial court may abuse its discretion is by entering a sentencing statement
1
The trial court also found as an aggravator that Garcia was on probation at the time of the instant
offense, but a few days after the sentencing hearing, Garcia informed the court that he was not on
probation at the time of the offense. The court issued an amended sentencing order accordingly.
3
that omits reasons that are clearly supported by the record and advanced for
consideration. Id. at 490-91.
Garcia contends the trial court abused its discretion in sentencing him by failing to
find his guilty plea, remorse, drug addiction, mental health history, and family hardship
due to incarceration as mitigating circumstances. We address each in turn.
Guilty plea. Garcia argues the court should have found his guilty plea as a
mitigator. A trial court does not necessarily abuse its discretion by failing to recognize a
defendant’s guilty plea as a significant mitigating circumstance. See Anglemyer, 875
N.E.2d at 220-21. A guilty plea does not rise to the level of significant mitigation where
the defendant has received a substantial benefit from the plea. See id. at 221.
Garcia was originally charged with Class B felony possession of a firearm by a
serious violent felon and Class D felony possession of a controlled substance. Pursuant
to the plea agreement, the State: (1) allowed him to plead guilty to an amended charge of
Class C felony carrying a handgun without a license; (2) agreed to dismiss the Class D
felony drug charge; and (3) agreed to refrain from filing any additional charges stemming
from its investigation. A Class B felony carries a maximum sentence of twenty years,
and a Class D felony carries a maximum sentence of three years. See Ind. Code §§ 35-
50-2-5 (2005), -7 (2012). Had Garcia been convicted of the Class B and Class D felonies
originally charged, he could have faced a potential sentence of up to twenty-three years.
Instead, the plea agreement allowed him to significantly limit his sentencing exposure to
just eight years. See Ind. Code § 35-50-2-6 (2005) (maximum sentence for Class C
felony is eight years). Garcia thus received a substantial benefit from his guilty plea.
4
The court therefore did not abuse its discretion by failing to find that his guilty plea rose
to the level of a significant mitigator.
Remorse. Garcia next argues the court should have found his remorse as a
mitigator, but he fails to point to any statement of remorse in the record. Instead, the
presentence investigation report reveals that he denied committing the crime to which he
pleaded guilty and blamed his attorney for his guilty plea. 2 See Appellant’s App. p. 92.
Moreover, despite the fact that the handgun was found on the driver’s side
floorboard where Garcia’s right foot would have been, his statements at the sentencing
hearing show he was trying to convince the court that he was merely in the wrong place
at the wrong time. Specifically, he claimed he did not know the vehicle he was driving
contained a handgun because the vehicle was not his, and he stated he was willing to take
responsibility because he should have thoroughly checked the vehicle for weapons. Tr.
pp. 24-25. At best, his acceptance of responsibility was equivocal.
In light of the presentence investigation report and Garcia’s refusal to
acknowledge he knew of the handgun that was next to his feet, the trial court did not
abuse its discretion by failing to find remorse as a mitigator.
Drug addiction. Garcia also argues the court should have found his severe drug
addiction as a mitigator. A trial court is not required to consider allegations of a
defendant’s substance abuse as a mitigating circumstance. James v. State, 643 N.E.2d
321, 323 (Ind. 1994).
2
The chronological case summary does not reflect that Garcia ever filed a motion to withdraw his guilty
plea.
5
Garcia’s presentence investigation report reveals a significant history of substance
abuse that began when he was eleven years old and includes marijuana, LSD, PCP,
heroin, cocaine, methamphetamine, methadone, ecstasy, and prescription pain pills. At
age twelve, he supported his twin children and girlfriend by dealing cocaine and
marijuana. At age eighteen, he overdosed on drugs, was revived by medical personnel,
and was hospitalized. His drug of choice has recently evolved from a combination of
heroin and cocaine to methamphetamine.
Despite Garcia’s long record of past and present drug abuse, he denied he had any
problem with drugs at his change of plea hearing. Tr. p. 18 (“JUDGE: Are you a drug
abuser or alcoholic? MR. GARCIA: No sir.”). In addition, as noted in the trial court’s
sentencing order, drug abuse treatment programs that had been offered to him in the past
had been ineffective. The trial court did not abuse its discretion by failing to find
Garcia’s drug addiction as a mitigator.
Mental health history. Garcia then argues the court should have found his mental
health history as a mitigator. The presentence investigation report shows Garcia told the
probation officer preparing the report that he has been diagnosed with paranoid
schizophrenia, multiple personality disorder, and bipolar disorder.
When the trial court noted at the sentencing hearing that he has continued to abuse
methamphetamine and methadone even while on medication for his mental health, Garcia
claimed methamphetamine was like medication for him. Tr. p. 70 (“[T]he meth was like
my Seroquel. I mean, when I tried meth, it actually put me to sleep. I could eat. My
mind slowed down. It did just the opposite.”); see also Appellant’s App. pp. 91-92
6
(presentence investigation report reflecting Garcia’s statements that drugs and alcohol
have the “opposite effect” on him and that some of his drug use was an attempt to self-
medicate his mental health issues). His self-medication with methamphetamine shows he
takes neither his drug addiction nor mental health issues seriously. See Webb v. State,
941 N.E.2d 1082, 1089 (Ind. Ct. App. 2011) (no abuse of discretion in failing to find
mental health to be a mitigator where defendant had pattern of stopping prescribed
treatment and self-medicating with illegal drugs), trans. denied.
Further, in determining the mitigating weight, if any, that should be given to
mental illness in sentencing, a court should consider: (1) the extent of the defendant’s
inability to control his behavior due to the disorder or impairment; (2) overall limitations
on functioning; (3) the duration of the mental illness; and (4) the extent of any nexus
between the disorder or impairment and the commission of the crime. Weeks v. State,
697 N.E.2d 28, 30 (Ind. 1998). Garcia offered no evidence on any of these factors at the
sentencing hearing.
The trial court did not abuse its discretion by failing to find Garcia’s mental health
history as a mitigator given the lack of evidence with which the court could evaluate the
proffered mitigator and his self-medication with methamphetamine.
Family hardship. Garcia finally argues the court should have found as a mitigator
that his family would suffer hardship as a result of his incarceration. He points to
evidence that he supports his minor child 3 and that his own mother has health issues.
Absent special circumstances, however, a trial court is not required to find that
3
This child was born over twenty years after the births of Garcia’s twin children.
7
imprisonment will result in undue hardship to dependents. Dowdell v. State, 720 N.E.2d
1146, 1154 (Ind. 1999).
The record shows no such special circumstances here. The presentence
investigation report states that Garcia’s minor child has been a ward of the State since
2011. Appellant’s App. p. 90. Although Garcia pays child support, the record shows the
payments come from his disability benefits and not from any employment he holds. See
Tr. p. 30. As for the claim of hardship to Garcia’s mother, his own testimony shows she
lives independently in Texas with her husband. While Garcia provided documentation of
her health issues and testified she was thinking of temporarily moving to Indiana so he
could help her with her diet, he provided no evidence that he was currently tending to her
health issues. The trial court did not abuse its discretion by failing to find family
hardship as a mitigator.
II. FORENSIC DIVERSION PROGRAM
Garcia also contends the trial court abused its discretion in sentencing him by
failing to place him in a forensic diversion program. According to Indiana Code section
11-12-3.7-4 (2007), a forensic diversion program is
a program designed to provide an adult:
(1) who has a mental illness, an addictive disorder, or both a mental
illness and an addictive disorder; and
(2) who has been charged with a crime that is not a violent offense;
an opportunity to receive community treatment and other services
addressing mental health and addiction instead of or in addition to
incarceration.
Under Indiana Code section 11-12-3.7-12(a) (2007), a person is eligible to participate in a
post-conviction forensic diversion program only by meeting the following criteria:
8
(1) The person has a mental illness, an addictive disorder, or both a mental
illness and an addictive disorder.
(2) The person has been convicted of an offense that is:
(A) not a violent offense; and
(B) not a drug dealing offense.
(3) The person does not have a conviction for a violent offense in the
previous ten (10) years.
(4) The court has determined that the person is an appropriate candidate to
participate in a post-conviction forensic diversion program.
(5) The person has been accepted into a post-conviction forensic diversion
program.
It is within the discretion of the trial court to determine whether a defendant is to be
placed in a post-conviction forensic diversion program. See Ruble v. State, 859 N.E.2d
338, 341 (Ind. 2007) (reviewing trial court’s decision against placement in forensic
diversion program for abuse of discretion).
The trial court here noted three factors it considered in denying Garcia placement
in a forensic diversion program. First, the court noted that Garcia had absconded from
community corrections in the past and testified at sentencing that he would do so again
under certain circumstances. See Tr. p. 43 (Garcia explaining that he absconded from
community corrections after his mother had two major knee surgeries and further stating,
“And would I do it again if my mom needed me, yes sir, I would.”).
Second, the court noted two instances of his prior violent behavior toward law
enforcement:
[Y]ou violated probation by committ[ing] Battery and Resisting Law
Enforcement in Jackson County, where they have the police report from
there that indicates that you caused a police officer injury fighting with the
officer, striking Officer Munson and, you know, the police reports on that
indicate that you suddenly exited the vehicle and began charging the
officer’s location with clenched fist, yelling f*ck you n*gger. The officer
immediately ordered you . . . to return to your vehicle. However, you
9
disregarded the instruction, continued to approach the officer. [The
officer,] afraid you might be armed with a weapon, took cover behind a
door, ordered you to stop, keep your hands where they could be seen and
you continued to shout, f*ck you mother f*cker. And then it talks about
striking the officer, continuing to thrash, break[ing] free. . . . And then later
in 2004, [you] violated conditions of probation by committing the offense
of Battery with a knife[,] Criminal Recklessness, Resisting, Interfering with
Law Enforcement and Disorderly Conduct. Once again, I’ve got the police
report here. Standing on the front porch armed with a knife. Upset and
bleeding from the wrist, stating they are going to have to kill you, smashed
out the storm door glass with his fist and was going in and out of the house
tearing things up, threw the knife, officer ducked so it missed him.
Id. at 68-69. Although Garcia claimed at sentencing that medication was helping him to
control his behavior, the court noted a recent incident involving defense counsel just a
couple weeks before sentencing. Specifically, defense counsel stated in a request to
withdraw:
Even though by the Defendant’s letter of May 3 to the Judge[,] counsel was
not going to represent the Defendant any longer, Counsel did go to jail on
Sunday evening on May 19 to talk about sentencing. Again the situation
was not just bad but turned out to be dangerous. Defendant did all the
talking. Defendant began yelling, shouting, cussing, stood up, sw[u]ng his
arms, fingers and hands at counsel, knocked counsel’s files off [the] table
and got in counsel’s face at which time counsel called the jail personnel to
come intervene and remove the Defendant before bodily injuries occurred.
The jail came and Defendant was totally out of control and had to be
restrained.
Appellant’s App. pp. 36-37. Garcia’s only explanation to the court at sentencing was that
he “talk[s] with [his] hands.” Tr. p. 70.
Finally, the third factor noted by the court in denying Garcia placement in a
forensic diversion program was his continued use of illegal drugs despite being on
medication for his mental health issues.
10
Based on the entire record before the trial court, it was well within its discretion to
determine that Garcia was not a suitable candidate for a forensic diversion program. See
Ruble, 859 N.E.2d at 341 (no abuse of discretion in determining defendant was not
suitable candidate for forensic diversion program where record reflected three
convictions for driving while intoxicated, multiple convictions for motor vehicle
violations leading to a lifetime suspension, and failure of past grants of probation).
CONCLUSION
We therefore affirm Garcia’s sentence.
NAJAM, J., and MAY, J., concur.
11