MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Feb 16 2017, 6:33 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Timothy P. Broden Curtis T. Hill, Jr.
Lafayette, Indiana Attorney General of Indiana
Christina D. Pace
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Diego Armando Pacheco February 16, 2017
Manzo, Court of Appeals Case No.
Appellant-Defendant/Cross-Appellee, 79A02-1607-CR-1703
Appeal from the Tippecanoe
v. Circuit Court
The Honorable Donald L. Daniel,
State of Indiana, Judge
Appellee-Plaintiff/Cross-Appellant Trial Court Cause Nos.
79C01-0608-FA-16
79C01-1404-PC-3
Crone, Judge.
Court of Appeals of Indiana | Memorandum Decision 79A02-1607-CR-1703 | February 16, 2017 Page 1 of 10
Case Summary
[1] Diego Armando Pacheco Manzo (“Pacheco”) appeals the twenty-five-year
sentence imposed by the trial court following his guilty plea to class A felony
dealing in cocaine. His sole contention is that his sentence is inappropriate in
light of the nature of the offense and his character. The State cross-appeals
arguing that the trial court abused its discretion in granting Pacheco permission
to file a belated notice of appeal pursuant to Indiana Post-Conviction Rule 2(1),
and therefore this appeal should be dismissed. We conclude that the trial court
did not abuse its discretion in granting Pacheco permission to file a belated
notice of appeal and we decline the State’s request for dismissal. However,
because we conclude that Pacheco has not met his burden to show that his
sentence is inappropriate, we affirm his sentence.
Facts and Procedural History
[2] On August 21, 2006, Pacheco was driving a red Chevrolet truck in Lafayette
when police officers initiated a traffic stop after pacing Pacheco’s vehicle as
traveling approximately forty-five miles per hour in a thirty-five-mile-per-hour
zone. Officers had been conducting surveillance of Pacheco for suspected drug
dealing prior to the stop. After a drug detection K-9 alerted to the presence of a
narcotic odor coming from Pacheco’s vehicle, officers searched the vehicle.
Officers discovered two packages containing cocaine weighing approximately
one ounce each under the middle cushion in the front seat of the truck.
Pacheco intended to deliver that cocaine to a third party.
Court of Appeals of Indiana | Memorandum Decision 79A02-1607-CR-1703 | February 16, 2017 Page 2 of 10
[3] Based upon evidence collected on that date and several prior dates, the State
charged Pacheco with one count of class A felony conspiracy to commit dealing
in cocaine, four counts of class A felony dealing in cocaine, four counts of class
A felony possession of cocaine, class A misdemeanor possession of
paraphernalia, and class D felony maintaining a common nuisance. Pursuant
to a written plea agreement, Pacheco pled guilty to one count of class A felony
dealing in cocaine with a sentencing cap of twenty-five years. The remaining
charges were dismissed. On June 26, 2007, the trial court sentenced Pacheco to
twenty-five years executed.
[4] On June 6, 2016, Pacheco filed a petition for permission to file a belated notice
of appeal. The trial court granted that petition, and on July 22, 2016, Pacheco
filed his notice of appeal to this Court, and this appeal ensued.
Discussion and Decision
Section 1 – The trial court did not abuse its discretion in
granting Pacheco permission to file a belated notice of appeal.
[5] We first address the State’s cross-appeal request that this case be dismissed.
Specifically, the State contends that the trial court abused its discretion in
granting Pacheco permission to file a belated notice of appeal. Indiana Post-
Conviction Rule 2(1) provides a defendant with an opportunity to petition the
trial court for permission to file a belated notice of appeal. Moshenek v. State,
868 N.E.2d 419, 422 (Ind. 2007). Specifically, the rule provides,
Court of Appeals of Indiana | Memorandum Decision 79A02-1607-CR-1703 | February 16, 2017 Page 3 of 10
An eligible defendant[1] convicted after a trial or plea of guilty
may petition the trial court for permission to file a belated notice
of appeal of the conviction or sentence if;
(1) the defendant failed to timely file a notice of appeal;
(2) the failure to file a timely notice of appeal was not due to the
fault of the defendant; and
(3) the defendant has been diligent in requesting permission to
file a belated notice of appeal under this rule.
Ind. Post-Conviction Rule 2(1)(a). If the trial court finds that these
requirements are met, “it shall permit the defendant to file the belated notice of
appeal. Otherwise, it shall deny permission.” Ind. Post-Conviction Rule
2(1)(c). Our supreme court has explained,
The decision whether to grant permission to file a belated notice
of appeal or belated motion to correct error is within the sound
discretion of the trial court. The defendant bears the burden of
proving by a preponderance of the evidence that he was without
fault in the delay of filing and was diligent in pursuing permission
to file a belated motion to appeal. There are no set standards of
fault or diligence, and each case turns on its own facts. Several
factors are relevant to the defendant’s diligence and lack of fault
in the delay of filing. These include the defendant’s level of
awareness of his procedural remedy, age, education, familiarity
with the legal system, whether the defendant was informed of his
1
An “eligible defendant” is defined as “a defendant who, but for the defendant’s failure to do so timely,
would have the right to challenge on direct appeal a conviction or sentence after a trial or plea of guilty by
filing a notice of appeal, filing a motion to correct error, or pursuing an appeal.” Ind. Post-Conviction Rule
2.
Court of Appeals of Indiana | Memorandum Decision 79A02-1607-CR-1703 | February 16, 2017 Page 4 of 10
appellate rights, and whether he committed an act or omission
which contributed to the delay.
Moshenek, 868 N.E.2d at 422-23 (citations and quotation marks omitted). We
will affirm a trial court’s ruling on a petition for permission to file a belated
notice of appeal under Post-Conviction Rule 2 “unless it was based on an error
of law or a clearly erroneous factual determination.” Id. at 423-24.
[6] As to whether failure to file a timely notice of appeal was Pacheco’s fault, the
record supports the trial court’s conclusion that it was not. The transcript of the
sentencing hearing does not reflect that the trial court ever informed Pacheco
that he had the right to appeal his sentence. Moreover, at the guilty plea
hearing, the trial court advised Pacheco that by pleading guilty he was giving up
his right to appeal even though his plea agreement contained no waiver of the
right to appeal his sentence. Tr. at 4-5.2 The record indicates that Pacheco has
little education, speaks little English and is not highly literate even in his native
Spanish language, and is not familiar with the legal system. Thus, the
preponderance of the evidence indicates that Pacheco was not properly
informed of his appellate rights regarding appeal of his sentence and that he was
not likely aware of or able to understand the proper procedures.
2
See Creech v. State, 887 N.E.2d 73, 75 (Ind. 2008) (holding that a defendant may waive the right to appellate
review of his sentence as part of a written plea agreement).
Court of Appeals of Indiana | Memorandum Decision 79A02-1607-CR-1703 | February 16, 2017 Page 5 of 10
[7] As for his diligence, the record here suggests that Pacheco attempted to
challenge his sentence almost immediately after sentencing, and has done so
repeatedly since. Pacheco first sent the trial court a letter asking for a sentence
reduction within ten days of sentencing. He then filed numerous letters with
the trial court between July 2008 and January 2014, questioning the
appropriateness of his sentence. Each letter had to be translated into English,
and each request made in the letters was subsequently denied by the trial court.3
Pacheco eventually filed a pro se petition for postconviction relief in April 2014,
and requested the aid of counsel. The trial court then appointed the State
Public Defender to represent him. Thereafter, counsel filed a petition for
permission to file a belated notice of appeal on his behalf. Under the
circumstances, we cannot say that the trial court abused its discretion in
determining that Pacheco has met his burden to demonstrate that he was
diligent in pursuing a remedy and requesting permission to file a belated notice
of appeal. The trial court did not abuse its discretion in granting his petition for
permission to file a belated notice of appeal.
[8] We note that the State maintains that dismissal is proper because the trial court
did not issue “the requisite findings” in its order granting Pacheco permission to
file a belated notice of appeal. Appellee’s Br. at 9. However, the State cites no
authority for its proposition that the trial court’s order here is inadequate
3
The trial court did grant a request for transcripts of guilty plea and sentencing hearings on November 23,
2011. However, the record is silent as to whether those items were ever prepared at the time.
Court of Appeals of Indiana | Memorandum Decision 79A02-1607-CR-1703 | February 16, 2017 Page 6 of 10
pursuant to our postconviction rules, and Post-Conviction Rule 2 contains no
language that can be construed as requiring the trial court to make specific
findings of fact in entering its order. See Amphonephong v. State, 32 N.E.3d 825,
831 (Ind. Ct. App. 2015). Indeed, even had the trial court issued express
findings of fact, we would owe those findings no deference because the trial
court did not hold a hearing on Pacheco’s petition. Where, as here, the trial
court rules on a paper record in granting a belated notice of appeal, we review
the granting of the petition de novo. Id. Based upon the record before us, we
decline the State’s invitation to dismiss and we proceed to address the merits of
this appeal.
Section 2 – Pacheco has not met his burden to demonstrate
that the sentence imposed by the trial court is inappropriate.
[9] Pacheco claims that his twenty-five-year sentence is inappropriate and invites
this Court to revise his sentence pursuant 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 defendant 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). Indiana’s flexible sentencing scheme allows trial courts to tailor an
appropriate sentence to the circumstances presented, and the trial court’s
judgment “should receive considerable deference.” Cardwell v. State, 895
N.E.2d 1219, 1222 (Ind. 2008). The principal role of appellate review is to
Court of Appeals of Indiana | Memorandum Decision 79A02-1607-CR-1703 | February 16, 2017 Page 7 of 10
attempt to “leaven the outliers.” Id. at 1225. Whether we regard a sentence as
inappropriate 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 myriad
other facts that come to light in a given case.” Id. at 1224. In reviewing a
sentence, we consider all aspects of the penal consequences imposed by the trial
court in sentencing the defendant, including whether a portion of the sentence
is ordered suspended “or otherwise crafted using any of the variety of
sentencing tools available to the trial judge.” Davidson v. State, 926 N.E.2d
1023, 1025 (Ind. 2010).
[10] Regarding the nature of the offense, the advisory sentence is the starting point
that the legislature has selected as an appropriate sentence for the crime
committed. Fuller v. State, 9 N.E.3d 653, 657 (Ind. 2014). At the time Pacheco
committed his offense, the sentencing range for a class A felony was between
twenty and fifty years, with an advisory sentence of thirty years. Ind. Code §
35-50-2-4. Pacheco received a twenty-five-year sentence for his guilty plea to
one count of class A felony dealing in cocaine. In arguing that his sentence is
inappropriate as to the nature of his offense, he contends that his conduct did
not exceed that necessary to establish the elements of class A felony dealing in
cocaine. We disagree. The amount of cocaine involved here far exceeded the
amount required for a class A felony dealing conviction. See Ind. Code § 35-48-
4-1 (possession with intent to deliver cocaine in an amount of three grams or
Court of Appeals of Indiana | Memorandum Decision 79A02-1607-CR-1703 | February 16, 2017 Page 8 of 10
more).4 In other words, this was no small-time drug deal. Moreover, as noted
by the State, Pacheco faced eleven charges and a maximum sentence of 454
years prior to entering into his plea agreement. We cannot ignore the
substantial benefit that he received in exchange for the dismissal of those
charges, which was a sentencing cap of twenty-five-years for his guilty plea to
one class A felony count, a sentence well below both the statutory maximum
and five years below the advisory sentence on that single count. He has not met
his burden to demonstrate that his sentence is inappropriate in light of the
nature of his offense.
[11] Regarding his character, Pacheco admitted that he has been buying and selling
drugs in the same community for more than two years. He admitted that he
entered the United States illegally and that he has been deported on three
occasions only to return each time illegally. While he concedes that “he has not
exactly led a law abiding life,” he emphasizes that he has no prior criminal
convictions and asserts that he is therefore deserving of a lesser sentence.
Appellant’s Br. at 6. We are not persuaded. His admitted criminal behavior
and disregard for the law is much more indicative of his character than any
official convictions or adjudications. Pacheco has failed to convince us that a
4
We note that the State indicates that Pacheco possessed with intent to deliver one ounce (28.3495 grams) of
cocaine. Appellee’s Br. at 5, 11. However, the record indicates, and Pacheco admits in his brief on appeal,
see Appellant’s Br. at 4, that he possessed with intent to deliver two ounces (56.699 grams) of cocaine.
Regardless, the amount that he possessed with intent to deliver far exceeded the amount required for
conviction.
Court of Appeals of Indiana | Memorandum Decision 79A02-1607-CR-1703 | February 16, 2017 Page 9 of 10
sentence reduction is warranted. We affirm the sentence imposed by the trial
court.
[12] Affirmed.
Riley, J., and Altice, J., concur.
Court of Appeals of Indiana | Memorandum Decision 79A02-1607-CR-1703 | February 16, 2017 Page 10 of 10