Pursuant to Ind.Appellate Rule 65(D), this
Memorandum Decision shall not be Oct 23 2014, 8:42 am
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:
MICHAEL R. FISHER GREGORY F. ZOELLER
Indianapolis, Indiana Attorney General of Indiana
ERIC P. BABBS
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
JASSEL LOPEZ, )
)
Appellant-Defendant, )
)
vs. ) No. 49A02-1403-CR-183
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Mark D. Stoner, Judge
Cause No. 49G06-1304-FB-23413
October 23, 2014
MEMORANDUM DECISION – NOT FOR PUBLICATION
RILEY, Judge
STATEMENT OF THE CASE
Appellant-Defendant, Jassel Lopez (Lopez), appeals his six-year sentence after he
pled guilty to attempted armed robbery, a Class B felony, Ind. Code §§ 35-42-5-1; -41-5-1.
We affirm.
ISSUES
Lopez raises two issues on appeal which we restate as follows:
(1) Whether the trial court erred in finding that his sentence could not be served in a
community corrections program; and
(2) Whether Lopez’s sentence is inappropriate.
FACTS AND PROCEDURAL HISTORY
On March 27, 2013, Stephen Droste (Droste) was asked to deliver pizza to 8919
Autumn Woods Drive, Apartment #A, Indianapolis, Indiana. When he arrived at the
location, he noticed an individual leering outside the apartment building, and after naming
the address, Droste asked the individual if he was at the right place. The individual informed
Droste that he was in the correct address so Droste entered the apartment building. Droste
knocked on the apartment doors, and out of the three apartment units, only one tenant
answered the door. Droste learned from the tenant that he was at the right address, but
Apartment #A was nonexistent. Based on that, Droste left the building and walked to his
vehicle. Just as he was about to enter his vehicle, seventeen-year-old Lopez pointed a gun
2
at the back of Droste’s head and he told Droste, “[G]ive it up.” (Transcript. p. 20). Droste
turned, pushed the gun away, and a struggle for the gun ensued. A second male, Lopez’s
accomplice, came to assist Lopez in the struggle, but when Droste started screaming for
help, Lopez and the other male fled to a silver four-door vehicle. Similarly, the person who
Droste had first seen outside the apartment building, also ran toward the same vehicle.
Lopez sped away from the scene, but as he was leaving the parking lot, his car hit a large
decorative boulder causing it to incur front end damage. Droste also entered his vehicle and
followed Lopez’s car. While following Lopez’s vehicle, he called the police and gave a
description of the vehicle. Droste lost sight of Lopez’s car when it turned westbound on
East 86th Street.
Later that day, the police found Lopez’s car. When Detective Harry Dunn (Detective
Dunn) of the Indianapolis Metropolitan Police Department arrived at the location, he
observed that the vehicle had front end damage, thus matching Droste’s description of the
vehicle. After running the license plate number, the vehicle was traced back to Lopez’s
grandparents (Grandparents). Detective Dunn contacted the Grandparents who explained
that Lopez had their car in his possession. Thereafter, Detective Dunn drove to the
Grandparents’ house and obtained a consent form to search the vehicle. While Detective
Dunn was still at the Grandparents house, Grandparents called Lopez’s father and asked
him to check if his guns were in his house. Lopez’s father stated that they were missing.
Upon searching the vehicle, Detective Dunn found two guns, and the serial numbers
matched the missing guns registered to Lopez’s father.
3
On April 5, 2013, accompanied by his parents, Lopez arrived at the police station.
After signing a waiver of his rights form, Lopez told Detective Dunn that on the day of the
robbery, he was at the mall with a friend, he drove to his father’s house, took his father’s
guns, placed a fake pizza order and offered a phony address. Lopez further told Detective
Dunn that when Droste exited the apartment building, he attempted to rob him at gunpoint.
Also, Lopez stated that he acted alone.
On April 12, 2013, the State filed an Information charging Lopez with Count I,
attempted robbery, a Class B felony, I.C. §§ 35-42-5-1; -41-5-1, and Count II, criminal gang
activity, a Class D felony, I.C. § 35-45-9-3. On January 23, 2014, Lopez entered into a plea
agreement where he admitted to the attempted armed robbery charge. In exchange, the State
dismissed the criminal gang activity charge and capped Lopez’s executed sentence at six
years. On February 18, 2014, the trial court held a guilty plea hearing at which Lopez pled
guilty to attempted armed robbery and admitted the factual basis for his plea. As mitigating
factors, the trial court found that Lopez had no prior criminal history, exhibited remorse,
and took responsibility for the crime by pleading guilty. The trial court sentenced Lopez to
ten years with six years executed, four years suspended, and “one day and one day only”
since Lopez would be “deported.” (Tr. pp. 42-43).
Lopez now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Community Corrections
4
Lopez argues that the trial court abused its discretion because it came to an
“erroneous conclusion that it was prohibited from ordering [his] sentence [] be served
through [c]ommunity [c]orrections.” (Appellant’s Br. p. 4).1 The State counters Lopez’s
argument by stating that had the trial court utilized the alternative sentencing of placing him
in community corrections, it would have resulted in a suspension of Lopez’s six-year
sentence. We agree.
Indiana Code section 35-38-2.6-3(a) (2013) governs the placement of offenders in
community corrections and provides in part that a trial court “may at the time of sentencing,
suspend the sentence and order a person to be placed in a community corrections program
as an alternative to commitment to the Department of Correction.” (emphasis added). In
this regard, placing Lopez in community corrections would suggest a suspension of his
sentence. See Treece v. State, 10 N.E.3d 52, 60 n.4 (Ind. Ct. App. 2014), trans. denied
(noting that a court’s decision to utilize that alternative should result in a corresponding
suspension of the defendant’s sentence).
1
Lopez’s reliance on Barker v. State, 994 N.E.2d 306, 309 (Ind. Ct. App. 2013) trans. denied, is without merit. In
Barker, the State charged Barker with: neglect of a dependent causing death, a Class A felony; battery causing death,
a Class A felony; and neglect of a dependent, a Class D felony. Id. Barker pled guilty to Class A felony neglect of a
dependent causing death, and in exchange, the State agreed to dismiss the remaining charges and capped the executed
portion of his sentence at forty years. Id. In the end, the trial court sentenced Barker to forty-five years, with forty
years executed and the remainder suspended to probation, with 120 days to be served on home detention. Id. On
appeal, we conclude that Barker’s 120-day home detention was part of his executed sentence and that by ordering it in
addition to his forty-year commitment to the DOC, the trial court exceeded the forty-year cap on the executed portion
of his sentence. Id. at 314.
In the instant case, Lopez was sentenced to serve a nonsuspendable six-year sentence in the DOC with four years
suspended. Had the trial court ordered Lopez to serve the suspended portion of his sentence in home detention, the
trial court would have exceeded the six-year cap outlined in his plea agreement. Be that as it may, we find Lopez’s
application of Barker erroneous. The holding in Barker would prohibit a trial court from adding home detention for
the suspended portion of Lopez’s sentence; it does not give the trial court authority to order home detention as an
alternative to the DOC.
5
Furthermore, we note that the six-year minimum sentence for armed robbery is
nonsuspendable. See I.C. § 35-50-2-2(b)(4)(I) (2013). Notably, though the instant case
relates to an attempted armed robbery offense, this court has previously interpreted I.C. §
35-50-2-2(b)(4)(I) (2013) to apply to attempted armed robbery even though the statutory
language does not explicitly address attempt crimes. See Strong v. State, 903 N.E.2d 164,
165-66 (Ind. Ct. App. 2009) (citing Haggenjos v. State, 441 N.E.2d 430 (Ind. 1982), reh’g
denied)) trans. denied. In Haggenjos, our supreme court declared that “murder” in I.C. §
35-50-2-2(b)(4)(A) also refers to attempted murder. Haggenjos, 441 N.E.2d at 434.
Similarly, the Strong court concluded Ind. Code § 35-50-2-2(b)(4)(I) applied to attempted
robbery with a deadly weapon. Following Haggenjos and Strong, we must uphold the trial
court’s determination that the six-year sentence for attempted armed robbery is
nonsuspendable. Because ordering Lopez to serve his six-year sentence in community
corrections would result in a suspension of his sentence, we find that the trial court did not
err in finding that his sentence could not be served in community corrections.
II. Inappropriate Sentence
Lastly, Lopez argues that his sentence was inappropriate in light of the nature of
the offense and his character.
Indiana Appellate Rule 7(B) 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
burden is on the defendant to persuade the appellate court that his or her sentence is
6
inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). “Ultimately the
length of the aggregate sentence and how it is to be served are the issues that matter.”
Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008). Whether we regard a sentence as
appropriate at the end of the day turns on our sense of the culpability of the defendant, the
severity of the crime, the damage done to others, and a myriad of other considerations that
come to light in a given case. Id.
The advisory sentence is the starting point the legislature has selected as an
appropriate sentence for the crime committed. Abbott v. State, 961 N.E.2d 1016, 1019 (Ind.
2012). At the time of his sentencing, the advisory sentence for a Class B felony was ten
years, with a minimum of six and a maximum of twenty years. Here, the trial court imposed
a ten-year sentence with six years executed, four years suspended, and one day of probation
in anticipation that Lopez would be deported after serving his sentence.
As for the nature of the offense, Lopez discredits the seriousness of his crime by
stating that “the robbery was not successful because the victim grabbed the weapon and
screamed for help. This suggests a very amateur attempt to carry out a robbery.”
(Appellant’s Br. p. 10). The State concedes that his offense was not egregious. Though the
crime may not have seemed more dreadful than most armed robbery attempts, it was still a
violent crime. On the day of the robbery, Lopez drove to his father’s house, stole two guns,
phoned Pizza Hut where he placed an order and offered a fake address. Contrary to his
assertion that he acted alone, Lopez and his friends waited for Droste in the parking lot.
When Droste exited the apartment building, Lopez approached Droste from behind, pointed
7
his gun at the back of Droste’s head, and attempted to rob him. Despite his assertion that
the robbery was amateurish, Lopez was armed with a deadly weapon, and he would have
posed a great danger to Droste had the gun gone off. At trial, Droste testified that he suffered
“two badly sprained fingers” and wore “splints on both [] fingers for two months.” (Tr. p.
28).
Turning to Lopez’s character, we find few redeeming qualities. Lopez was born in
Mexico, moved to the United States at age 3, and to Indiana at age 8. Lopez had a relatively
good upbringing. Also, Lopez had no prior contact with the justice system, and this
attempted armed robbery conviction was Lopez’s first felony conviction and, indeed, his
first conviction of any type. At the time he committed the offense, Lopez was seventeen-
years-old. The trial court considered Lopez’s age and his nonexistent criminal history.
Even with the mitigating factors, the trial court found Lopez demonstrated extremely poor
judgment when he attempted to rob Droste at gun point. Furthermore, Lopez did not lead a
law-abiding life. The Pre-Sentencing Investigation report (PSI) indicated that Lopez first
tried THC at age 12, and has used it on a daily basis and that fact reflects poorly on his
character. Although Lopez expressed remorse for his actions and entered into a plea
agreement, the State dismissed his criminal gang activity charge and capped his executed
sentence to six-years. He should not now be given an additional benefit in a further
reduction of his sentence.
Lastly, Lopez argues he should receive a lesser sentence because he is likely to be
deported after he serves his sentence. Specifically, Lopez states that for “the [DOC] to
house and feed [him] seems to be a waste of [the] [S]tate’s resources. If he is going to be
8
deported, it would [be] wiser to let [that] process take its course rather than expend the
money of the taxpayers of this [S]tate.” (Appellant’s Br. p. 11). Because Lopez’s
immigration status is unrelated to either the nature of the offenses or his character, we reject
his argument that his imminent deportation by the Immigration and Naturalization Service
after he serves his six-year sentence should trigger a downward revision of his sentence.
Given the nature of the offense and his character, we find that the six-year sentence
is appropriate.
CONCLUSION
Based on the foregoing, we conclude that (1) the trial court correctly concluded
that Lopez was not eligible to serve his executed sentence in community corrections; and
(2) Lopez’s six-year sentence is appropriate.
Affirmed.
MATHIAS, J. and CRONE, J. concur
9