MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Jun 23 2016, 9:20 am
regarded as precedent or cited before any
CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
P. Jeffrey Schlesinger Gregory F. Zoeller
Appellate Public Defender Attorney General of Indiana
Crown Point, Indiana
Lyubov Gore
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Christopher M. Castillo, June 23, 2016
Appellant-Defendant, Court of Appeals Case No.
45A05-1512-CR-2115
v. Appeal from the Lake Superior
Court
State of Indiana, The Honorable Samuel L. Cappas,
Appellee-Plaintiff. Judge
The Honorable Kathleen B. Lang,
Senior Judge
Trial Court Cause No.
45G04-1505-FC-7
Robb, Judge.
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Case Summary and Issues
[1] Christopher Castillo pleaded guilty to theft as a Class D felony and the trial
court sentenced him to two years in the Indiana Department of Correction.
Castillo appeals his sentence, raising two issues for our review: (1) whether the
trial court abused its discretion in sentencing him, and (2) whether Castillo’s
sentence is inappropriate in light of the nature of the offense and his character.
Concluding the trial court did not abuse its discretion and Castillo’s sentence is
not inappropriate, we affirm.
Facts and Procedural History
[2] On March 25, 2014, Castillo opened a checking account at the Main Source
Bank in Lake County, depositing $65.00 into the account. A week after
opening the account, Castillo had withdrawn the $65.00. Over the course of the
following weeks, Castillo made several transactions on the account, leaving it
with a negative balance of $889.50.
[3] On May 4, 2015, the State charged Castillo with fraud on a financial institution
as a Class C felony. The State later amended the charging information to
include a charge of theft as a Class D felony. On September 22, 2014, Castillo
entered into a plea agreement with the State whereby he agreed to plead guilty
to theft as a Class D felony in exchange for the State dismissing the fraud
charge. The agreement left the sentence to the discretion of the trial court. The
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trial court accepted the plea, ordered a pre-sentence investigation report, and
scheduled a sentencing hearing.
[4] The pre-sentence investigation report indicates Castillo has prior convictions for
public intoxication, operating a vehicle while intoxicated endangering a person,
residential entry, and two counts of theft.1 At the sentencing hearing, the State
argued Castillo’s criminal history was an aggravating circumstance. Castillo
argued his employability was a mitigating circumstance. The trial court
sentenced Castillo to two years in the Department of Correction. This appeal
ensued.
Discussion and Decision
I. Sentencing Discretion
[5] We review a trial court’s sentencing decision 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. An abuse of discretion occurs when the trial court’s 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.
(citation omitted). A trial court may abuse its discretion by failing to enter a
sentencing statement, finding aggravating or mitigating circumstances
1
The report further indicates Castillo pleaded guilty to fraud as a Level 6 felony under another cause
number, but had yet to be sentenced.
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unsupported by the record, omitting aggravating or mitigating circumstances
supported by the record, or noting reasons that are improper considerations as a
matter of law. Id. at 490-91. “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 491.
[6] Castillo contends the trial court abused its discretion in sentencing him because
the trial court did not make a reasonably detailed sentencing statement.
Specifically, Castillo asserts (1) the trial court failed to identify two mitigating
circumstances, and (2) the trial court did not adequately detail his criminal
history as an aggravating circumstance. At the sentencing hearing, the State
detailed Castillo’s criminal history in support of its request the trial court
sentence him to two years in prison.2 Castillo requested the court consider his
employability as a mitigating circumstance. In its sentencing statement, the
trial court stated,
Mr. Castillo, you may well have some skills and the potential to
work in the steel industry, but you certainly haven’t availed
yourself of that, it’s a lot of criminal history here, it’s a lot of
things going on that would seem to indicate that you are a danger
to the community in terms of financial crimes. Also, repeated
criminal history here, as I said, you completed several jail
sentences. And also, they occurred in more than one county
2
“A person who commits a Class D felony . . . shall be imprisoned for a fixed term of between six (6) months
and three (3) years, with the advisory sentence being one and one-half (1 ½) years.” Ind. Code § 35-50-2-
7(a).
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....
***
As a result, you will be sentenced to two years in the Department
of Correction, fully executed.
Transcript at 19-20.
[7] At the outset, we note the trial court is not required to use the terms
“aggravating” or “mitigating” in its sentencing statement. See Lewis v. State, 31
N.E.3d 539, 543 n.7 (Ind. Ct. App. 2015). As to the mitigating circumstances,
Castillo contends the trial court erred in failing to identify his guilty plea and
employability as mitigating circumstances. Castillo did not argue before the
trial court his guilty plea was a mitigating circumstance and the trial court did
not identify Castillo’s guilty plea as a mitigating circumstance. In such a case,
Castillo is not precluded from raising the issue for the first time on appeal, see
Anglemyer, 875 N.E.2d at 220, but on appeal must “establish that the mitigating
evidence is not only supported by the record but also that the mitigating
evidence is significant[,]” id. at 221. The significance of a guilty plea as a
mitigating factor varies from case to case. Id. “For instance, a guilty plea does
not rise to the level of significant mitigation where the defendant has received a
substantial benefit from the plea . . . .” Wells v. State, 836 N.E.2d 475, 479 (Ind.
Ct. App. 2005), trans. denied. Here, Castillo received a substantial benefit from
his plea agreement because the State agreed to dismiss a count of fraud on a
financial institution as a Class C felony in exchange for Castillo’s plea. See Ind.
Code § 35-50-2-6(a) (providing a sentence for a Class C felony is a fixed term
between two and eight years with the advisory sentence being four years).
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[8] Castillo also argued he has “some skills” and should have “good prospects with
regard to getting another job and being able to work . . . .” Tr. at 19. As noted
above, the trial court acknowledged Castillo may possess “some skills and the
potential to work in the steel industry,” but noted Castillo failed to take
advantage of that potential. Although it did not specifically use the term
“mitigating,” it is clear the trial court acknowledged Castillo’s proposed
mitigating circumstance and assigned it little, if any, weight because Castillo
possessed certain skills and failed to properly utilize them. Therefore, we
cannot agree the trial court abused its discretion in not identifying Castillo’s
guilty plea and employability as mitigating circumstances.
[9] As to the aggravating circumstance, Castillo argues the trial court did not enter
a reasonably detailed sentencing statement addressing his criminal history as an
aggravating circumstance sufficient to support an enhanced sentence. When
imposing a sentence in a felony case in which the trial court has identified
aggravating or mitigating circumstances, the trial court must provide a
reasonably detailed sentencing statement explaining its reason for imposing the
sentence. Guzman v. State, 985 N.E.2d 1125, 1131 (Ind. Ct. App. 2013). Here,
the trial court reviewed the pre-sentence investigation report and the State
detailed Castillo’s criminal history when requesting the trial court sentence
Castillo above the advisory term. Although the trial court could have been
more specific in addressing Castillo’s criminal history, it is clear after reviewing
the sentencing transcript in its entirety that the trial court found his criminal
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history to be an aggravating circumstance. We conclude the trial court did not
abuse its discretion in sentencing Castillo.3
II. Inappropriate Sentence
[10] Indiana Appellate Rule 7(B) provides, “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.” The defendant bears the burden of
persuading this court that his or her sentence is inappropriate. Childress v. State,
848 N.E.2d 1073, 1080 (Ind. 2006). Whether we regard a sentence as
inappropriate turns on “the culpability of the 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). Finally,
we note the principal role of appellate review is to “leaven the outliers,” not
achieve the perceived “correct” result in each case. Id. at 1225.
[11] Castillo contends his sentence is inappropriate in light of the nature of the
offense and his character. Castillo was convicted of theft as a Class D felony.
The advisory sentence is the starting point the legislature selected as an
3
We note even if a trial court abuses its discretion by not issuing a reasonably detailed sentencing statement,
we may choose to review the appropriateness of a sentence under Indiana Appellate Rule 7(B) instead of
remanding to the trial court. See Windhorst v. State, 868 N.E.2d 504, 507 (Ind. 2007). Here, Castillo has
already requested we review the appropriateness of his sentence, and as discussed infra Part II., we conclude
his sentence is not inappropriate. Therefore, even assuming the trial court abused its discretion in not issuing
a reasonably detailed sentencing statement, remand is not necessary.
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appropriate sentence for the crime committed. Anglemyer, 868 N.E.2d at 494.
Pursuant to Indiana Code section 35-50-2-7(a), “A person who commits a Class
D felony . . . shall be imprisoned for a fixed term of between six (6) months and
three (3) years, with the advisory sentence being one and one-half (1 ½) years.”
The trial court sentenced Castillo to two years in the Department of Correction.
Castillo did not just overdraw his account on one occasion, but he consistently
and intentionally drew amounts over what he had deposited. As to his
character, Castillo has five prior convictions, two of which are for theft. It is
apparent Castillo has not learned from his past run-ins with the law. Therefore,
we are not persuaded his sentence inappropriate.
Conclusion
[12] The trial court did not abuse its discretion in sentencing Castillo and Castillo’s
sentence is not inappropriate in light of the nature of the offense and his
character. Therefore, we affirm his sentence.
[13] Affirmed.
Najam, J., and Crone, J., concur.
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