Attorney for Appellant Attorneys for Appellee
David W. Stone, IV Steve Carter
Anderson, Indiana Attorney General of
Indiana
Nicole M. Schuster
Deputy Attorney General
Indianapolis, Indiana
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__
In the
Indiana Supreme Court
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No. 48S02-0407-CR-329
Afredo D. Ruiz
Appellant (Defendant below),
v.
State of Indiana
Appellee (Plaintiff below).
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Appeal from the Madison Circuit Court, No. 48C01-0201-FA-19
The Honorable Fredrick R. Spencer, Judge
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On Petition To Transfer from the Indiana Court of Appeals, No. 48A02-0311-
CR-995
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December 7, 2004
Boehm, Justice
Afredo D. Ruiz, was sentenced to the maximum of twenty years after
pleading guilty to child molestation, a Class B felony. The presumptive
sentence for a Class B felony is ten years. Ind. Code § 35-50-2-5 (2004).
Ruiz, twenty years old at the time of the crime, had sexual intercourse
with a thirteen-year-old girl who described their relationship as boyfriend
and girlfriend. The sole aggravating circumstance was Ruiz’s four prior
alcohol related misdemeanors. We hold that Ruiz’s sentence is
inappropriate in light of the lack of more severe aggravating circumstances
and the non-violent nature of the offense. We revise the sentence to the
presumptive sentence of ten years.
On January 12, 2002, after a night of drinking, Ruiz, age twenty, and
Ely Leisure returned to Leisure’s residence where the victim, a thirteen-
year-old girl, was babysitting for Leisure. Leisure had previously warned
Ruiz that the victim was only thirteen and advised him to leave her alone.
Nevertheless, Ruiz had sexual intercourse with the victim that evening.
The victim told her mother and the authorities that at the time of the
incident Ruiz and she were involved in a boyfriend-girlfriend relationship.
Ruiz later admitted to having intercourse with the victim approximately
six times.
After the State charged Ruiz with child molestation as a Class A
felony, he pleaded guilty to child molestation as a Class B felony. The
plea agreement provided that sentencing would be left to the discretion of
the trial court. At sentencing, the trial court found that the aggravating
factors outweighed the mitigating factors and imposed a twenty-year
sentence, the maximum allowed under the statute. The Court of Appeals
affirmed. Ruiz v. State, 810 N.E.2d 784 (Ind. Ct. App. 2004). This Court
granted transfer. Ruiz v. State, No. 48S02-0407-CR-329, 2004 Ind. Lexis
650 (July 23, 2004).
Article VII, Section 4 of the Indiana Constitution provides that “the
Supreme Court shall have, in all appeals of criminal cases, the power to .
. . review and revise the sentence imposed.” Indiana Appellate Rule 7(B)
implements that authority by stating that “[t]he 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.” On
June 24, 2004, the United States Supreme Court decided Blakely v.
Washington, 124 S. Ct. 2531 (2004), which held that facts supporting an
enhanced sentence must be admitted by the defendant or found by a jury. We
direct revision of the sentence to the presumptive sentence solely on state
law grounds, in exercise of our authority to revise a sentence found to be
inappropriate. Accordingly, no Blakely issue is presented or addressed.
Ruiz urges this Court to revise his sentence on the ground that the
aggravating and mitigating factors were not properly balanced. Sentencing
determinations, including whether to adjust the presumptive sentence, are
within the discretion of the trial court. I.C. § 35-38-1-7.1; Wooley v.
State, 716 N.E.2d 919, 929 (Ind. 1999). If a trial court relies on
aggravating or mitigating circumstances to modify the presumptive sentence,
it must: (1) identify all significant aggravating and mitigating
circumstances; (2) explain why each circumstance is aggravating or
mitigating; and (3) articulate the evaluation and balancing of the
circumstances. Harris v. State, 659 N.E.2d 522, 527- 28 (Ind. 1995). The
trial court in this case identified both aggravating and mitigating
circumstances, explained each classification, and articulated its balancing
of the aggravating and mitigating circumstances. The trial court then
imposed the maximum sentence allowed for a Class B felony. The trial court
thus followed correct procedures, but we conclude the trial court’s
balancing of the aggravating and mitigating circumstances resulted in an
inappropriate sentence.
The only aggravating circumstance considered by the trial court was
Ruiz’s “significant criminal history” which consisted of four alcohol-
related misdemeanors. These included “contributing to the delinquency of a
minor,” two convictions for “illegal possession consumption transport,” and
one “driving while intoxicated.” The record does not include the facts of
these offenses, but apart from the driving offense it appears they consist
of two occasions of possession as a minor, and one of giving alcohol to a
minor. We conclude that these convictions for alcohol-related offenses are
at best marginally significant as aggravating circumstances in considering
a sentence for a Class B felony. “Significance varies based on the
gravity, nature and number of prior offenses as they relate to the current
offense.” Wooley, 716 N.E.2d at 929.
In Wooley, this Court reviewed a maximum sentence of sixty years
imposed for a murder conviction. The sole aggravating circumstance was one
prior conviction for driving while intoxicated. Although this was not a
trivial offense, we concluded that it did not constitute a significant
aggravating factor in sentencing for murder. The two offenses were
manifestly different in nature, and the driving offense was relatively
minor in comparison to the extension of the term it was cited as
supporting. Although the defendant in Wooley was drinking the day of the
murder, the alcohol, as a factor in the defendant’s prior conviction did
not render it a significant criminal history warranting imposing an
additional sentence. Id. Similarly, Ruiz’s criminal history of alcohol-
related misdemeanors is not a significant aggravator in relation to a Class
B felony. Although alcohol was involved in these offenses and also in the
current crime, the latter is manifestly different in nature and gravity
from the misdemeanors.
The trial court found Ruiz’s guilty plea and expression of remorse to
be mitigating circumstances. Ruiz argues that the trial court erred in
failing to give substantial weight to his guilty plea. A guilty plea is a
significant mitigating factor in some circumstances. Widener v. State, 659
N.E.2d 529, 534 (Ind. 1995). Guilty pleas may be accorded significant
mitigating weight because they save judicial resources and spare the victim
from a lengthy trial. Sipple v. State, 788 N.E.2d 473, 483 (Ind. Ct. App.
2003), trans. denied. However, as we have frequently observed, a plea is
not necessarily a significant mitigating factor. Senback v. State, 720
N.E.2d 1160, 1165 (Ind. 1999). After pleading, Ruiz’s effort to change his
testimony at the sentencing hearing undermined his acceptance of
responsibility for the crime. The terms of the plea agreement are
controlling, and the trial court was free to conclude as it did; that the
plea was not entitled to great weight.
Although appellate courts are reluctant to substitute their judgments
for those of the trial court in sentencing, sentences are reviewed to
ensure they are not “inappropriate in light of the nature of the offense
and the character of the offender.” App. R. 7(B); Serino v. State, 798
N.E.2d 852, 856 (Ind. 2003). The presumptive sentence is the starting
point the General Assembly has selected as an appropriate sentence for the
crime committed. Lander v. State, 762 N.E.2d 1208, 1214-15 (Ind. 2002).
Here the presumptive sentence was doubled from ten to twenty years, based
on unrelated and relatively insignificant prior convictions. We conclude
that neither the nature of the offense nor the character of the offender
supports an enhanced sentence.
Conclusion
We remand for new sentencing to a term of ten years. We note that
Ruiz is under detention order as an illegal alien and presumably will be
deported after serving his sentence.
Shepard, C.J., and Dickson, Sullivan, and Rucker, JJ. concur.