MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Feb 28 2019, 10:33 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke Curtis T. Hill, Jr.
Wieneke Law Office, LLC Attorney General of Indiana
Brooklyn, Indiana
Tiffany A. McCoy
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Fernando Pedroza, February 28, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-2237
v. Appeal from the Shelby Superior
Court
State of Indiana, The Honorable Chris Monroe,
Appellee-Plaintiff Senior Judge
Trial Court Cause No.
73D01-1412-FA-23
Crone, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2237 | February 28, 2019 Page 1 of 9
Case Summary
[1] Fernando Pedroza appeals the fifty-year sentence imposed by the trial court
following his guilty plea to class A felony burglary and class B felony robbery.
He contends that the trial court abused its discretion during sentencing and that
his sentence is inappropriate in light of the nature of the offenses and his
character. Finding no abuse of discretion and that he has not met his burden to
show that his sentence is inappropriate, we affirm.
Facts and Procedural History
[2] On January 17, 2013, Pedroza and another man entered Nick and Dara
Chesser’s Shelby County home wearing stocking caps on their heads and
bandanas over their faces. The men entered the home without permission,
apparently through the garage after Dara had left for work. The men entered
the room that Nick was in, and one of them struck Nick with a pistol. The two
men tied Nick up, and as one of them searched the house for money and
property, the other stayed in the room with Nick and repeatedly beat him. Nick
was concerned for his infant daughter, who was crying from a crib in another
room. The men took several pairs of expensive tennis shoes, firearms,
electronics, and Nick’s cell phone. Before leaving, they threatened to kill Nick
and his family if he called police. Surveillance video later obtained by law
enforcement showed Pedroza and an accomplice exit a black Grand Am
vehicle and walk toward the Chesser home.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2237 | February 28, 2019 Page 2 of 9
[3] On January 28, 2013, police responded to a home invasion in Indianapolis.
Five males were hiding in the basement when police arrived. Firearms that
were stolen from the Chesser residence were found in the basement where the
males were hiding. One of the five males was Pedroza. A black Grand Am
vehicle was located and confirmed to be the same vehicle used in the Chesser
home invasion. After Pedroza’s arrest in Indianapolis, officers overheard a
phone conversation during which he told his cousin to sell “all of those shoes.”
Appellant’s App. Vol. 2 at 25. Several items stolen from the Chesser residence,
including several pairs of shoes, were found during a subsequent search of the
apartment where Pedroza and his cousin had been staying.
[4] The State charged Pedroza with class A felony burglary, class B felony robbery,
and class D felony theft. Following numerous continuances, a jury trial began
on May 22, 2018. However, on the second day of trial, Pedroza tendered a
guilty plea to class A felony burglary and class B felony robbery. A sentencing
hearing was held on August 17, 2018. The trial court sentenced Pedroza to fifty
years for the class A felony and twenty years for the class B felony. The court
ordered the sentences to run concurrently, for an aggregate executed sentence of
fifty years. This appeal ensued.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2237 | February 28, 2019 Page 3 of 9
Discussion and Decision
Section 1 – The trial court did not abuse its discretion during
sentencing.
[5] Sentencing decisions rest within the sound discretion of the trial court, and as
long as a sentence is within the statutory range, it is subject to review 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. An abuse of discretion occurs where the trial
court’s decision is clearly against the logic and effect of the facts and
circumstances before it. Robinson v. State, 894 N.E.2d 1038, 1042 (Ind. Ct. App.
2008).
[6] One way that a trial court may abuse its discretion is if the sentencing statement
omits reasons that are clearly supported by the record and advanced for
consideration. Anglemyer, 868 N.E.2d at 491. The relative weight or value
assignable to mitigators and aggravators is not subject to review for abuse of
discretion. Id. The trial court is not obligated to accept the defendant’s
argument concerning what constitutes a mitigating factor. Barker v. State, 994
N.E.2d 306, 311 (Ind. Ct. App. 2013), trans. denied (2014). Moreover, if the trial
court does not find the existence of a mitigator after it has been argued by
counsel, the court is not obligated to explain why it found the circumstance not
to be mitigating. Anglemyer, 868 N.E.2d at 493.
[7] Pedroza contends that the trial court abused its discretion in failing to consider
his young age and difficult childhood as mitigating factors. It is well settled that
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2237 | February 28, 2019 Page 4 of 9
a defendant’s youth is not automatically a significant mitigating factor. Smith v.
State, 872 N.E.2d 169, 178 (Ind. Ct. App. 2007), trans. denied. Here, the court
specifically considered Pedroza’s young age—he was twenty-one at the time of
the offenses—and rejected it as a mitigating factor. Pedroza already had a
significant and violent criminal history that indicated to the trial court that it
was unlikely that he would “grow out of” his criminal propensities, and that his
youth was not especially predictive of any future “positive behavior.” Tr. Vol.
2 at 130, 134.
[8] As for Pedroza’s difficult childhood, evidence of a difficult childhood generally
“warrants little, if any, mitigating weight.” Coleman v. State, 741 N.E.2d 697,
700 (Ind. 2000). Again, the trial court considered this proffered mitigator and
rejected it, concluding that it was “no excuse for all of the harm that you caused
to other people…[and the] consistent criminal behavior that you’ve engaged
in.” Id. at 133-34. Interestingly, despite proffering his difficult childhood as a
mitigator, Pedroza himself described his childhood as “really good.”
Appellant’s App. Vol. 2 at 191. Regardless, as stated above, the trial court is
not obligated to accept the defendant’s argument concerning what constitutes a
mitigating factor. Barker, 994 N.E.2d at 311. Based on the evidence presented,
the trial court did not abuse its discretion in not identifying Pedroza’s age or his
difficult childhood as mitigating factors.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2237 | February 28, 2019 Page 5 of 9
Section 2 – Pedroza has not met his burden to show that his
sentence is inappropriate.
[9] Pedroza invites this Court to reduce 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
sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).
As we assess the nature of the offense and character of the offender, “we may
look to any factors appearing in the record.” Boling v. State, 982 N.E.2d 1055,
1060 (Ind. Ct. App. 2013). 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).
[10] The principal role of appellate review is to 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 conducting our review, we do not look to see “if another
sentence might be more appropriate; rather, the question is whether the sentence
imposed is inappropriate.” Fonner v. State, 876 N.E.2d 340, 344 (Ind. Ct. App.
2007). Ultimately, our review “should focus on the forest—the aggregate
sentence—rather than the trees—consecutive or concurrent, number of counts,
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2237 | February 28, 2019 Page 6 of 9
or length of the sentence on any individual count.” Cardwell, 895 N.E.2d at
1225.
[11] 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). The sentence for a
class A felony is between twenty and fifty years, with the advisory being thirty
years. Ind. Code § 35-50-2-4(a). The sentence for a class B felony is between
six and twenty years, with the advisory being ten years. Ind. Code § 35-50-2-
5(a). The trial court here imposed maximum sentences of fifty years for the
class A felony and twenty years for the class B felony. However, because the
sentences were ordered served concurrently, the resulting fifty-year aggregate
sentence is significantly below the maximum seventy-year sentence allowable
by statute.
[12] Pedroza concedes that “the crimes he participated in were remarkable because
they involved a home invasion, while a young child was home, where the
homeowner got injured.” Appellant’s Br. at 11. Nevertheless, he argues that
the fact that he burglarized a dwelling and caused injury to the homeowner
already elevated his offense to a class A felony, which carried a higher
sentencing range, and thus the imposition of the maximum sentence in that
range was unwarranted. We disagree.
[13] The record shows that Pedroza’s crimes were quite heinous. He burglarized a
home while the homeowner and his infant child were present. He tied up the
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2237 | February 28, 2019 Page 7 of 9
homeowner, pistol-whipped him, and repeatedly beat him. He also threatened
to kill the homeowner and his family. The crimes caused the family such
psychological trauma, that they have been unable to return to the dwelling.
Nothing about the nature of Pedroza’s crimes warrants a sentence revision.
[14] Pedroza does not fare any better when his character is considered. When
considering the character of the offender, one relevant fact is the defendant’s
criminal history. Johnson v. State, 986 N.E.2d 852, 857 (Ind. Ct. App. 2013).
Pedroza’s substantial criminal history casts an extremely negative light on his
character. He was arrested numerous times as a juvenile and had at least one
delinquency adjudication. By the time he was eighteen, he had been convicted
of class B felony armed robbery and sentenced to prison time and probation. A
mere seven months after his release from prison, he violated his probation and
then was arrested and charged with burglary, six counts of armed robbery, and
seven counts of criminal confinement. He was convicted of six of those felony
counts. Moreover, despite pleading guilty to his current crimes, Pedroza
continued to fail to fully take responsibility for his actions. During sentencing,
he attempted to downplay the significance of his involvement in the crimes,
trying to place blame on his confederates. The court also found his claimed
remorse for his offenses and the victims wholly unconvincing.
[15] Under the circumstances, Pedroza has not met his burden to show that his
aggregate fifty-year sentence, which is well below the maximum allowable by
statute, is inappropriate in light of the nature of the offenses or his character.
Therefore, we affirm the sentence imposed by the trial court.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2237 | February 28, 2019 Page 8 of 9
[16] Affirmed.
Vaidik, C.J., and Mathias, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2237 | February 28, 2019 Page 9 of 9