Sergio Villegas-Solache v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Jun 11 2018, 6:48 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 Marietto V. Massillamany Curtis T. Hill, Jr. Massillamany Jeter & Carson LLP Attorney General of Indiana Fishers, Indiana Lee M. Stoy, Jr. Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Sergio Villegas-Solache, June 11, 2018 Appellant-Defendant, Court of Appeals Case No. 18A-CR-236 v. Appeal from the Hamilton Circuit Court State of Indiana, The Honorable Paul A. Felix, Appellee-Plaintiff Judge Trial Court Cause No. 29C01-1404-FC-2797

Baker, Judge. Court of Appeals of Indiana | Memorandum Decision 18A-CR-236 | June 11, 2018 Page 1 of 6 [1] Sergio Villegas-Solache appeals the sentence imposed by the trial court after it

revoked his probation. Villegas-Solache argues that the trial court violated the

parties’ plea agreement and that it erred by failing to consider certain mitigating

circumstances. Finding that the plea agreement was not violated and no other

error, we affirm.

Facts [2] On October 24, 2014, Villegas-Solache pleaded guilty to Class C felony

operating a motor vehicle after forfeiture of license for life. The plea agreement

contained the following sentencing provisions:

Total sentence: Five (5) years in the Indiana Department of Correction.

Executed: Two (2) years executed with the placement of the executed term left to the discretion of the court. However, the portion ordered to be served directly in the Indiana Department of Correction (i.e., not on a community corrections placement) may not exceed six (6) months.

Suspended: Three (3) years shall be suspended.

***

Probation: Defendant shall be placed on probation for a period of two (2) years . . . .

Court of Appeals of Indiana | Memorandum Decision 18A-CR-236 | June 11, 2018 Page 2 of 6

Appellant’s App. Vol. II p. 51 (original emphases omitted). After accepting the

plea, the trial court sentenced Villegas-Solache to five years in the Department

of Correction (DOC), with two years to be served on community corrections

and three years suspended, with two of those years to be served on probation. [3] On August 31 and September 2, 2015, the State filed a notice of non-

compliance with community corrections and a notice of violation of probation,

respectively, after Villegas-Solache failed a drug test. He admitted to the

violation. On February 2, 2017, Villegas-Solache admitted to a second

probation violation. The trial court ordered him to continue on probation,

added another year to his probation, and revoked one year of his suspended

sentence, ordering that it be served on community corrections. [4] On September 1, 2017, the State filed a third notice of violation of probation

after Villegas-Solache was charged with committing Level 5 felony operating a

motor vehicle after forfeiture of license for life. He pleaded guilty to the new

criminal charge and admitted to violating probation in this cause. [5] On January 18, 2018, the trial court revoked his probation in this cause,

ordering that he serve 365 days in the DOC and continue on probation for the

remainder of his sentence. In revoking probation, the trial court took into

account that Villegas-Solache had pleaded guilty and taken responsibility for his

actions quickly. The trial court explained its decision as follows:

here you are again in front of me in this cause number, now not for a technical violation of a Community Corrections placement or probation but because you committed the exact same crime Court of Appeals of Indiana | Memorandum Decision 18A-CR-236 | June 11, 2018 Page 3 of 6

that you were in front of me for in the first place. I hardly ever think it’s appropriate, and I’m not convinced or persuaded in this case that it is, that I should do something more lenient the second or third time around than I did the first time.

Tr. p. 37. Villegas-Solache now appeals.

Discussion and Decision [6] Villegas-Solache first argues that the trial court exceeded the terms of the plea

agreement when it ordered him to serve 365 days in the DOC after revoking his

probation. Indiana Code section 35-38-2-3(h) provides that if the trial court

finds that a person has violated probation, it has a number of sentencing

options, including to “[o]rder execution of all or part of the sentence that was

suspended at the time of initial sentencing.” We will reverse a trial court’s

sentencing decision for a probation violation only if it is against the logic and

effect of the facts and circumstances before it. Prewitt v. State, 878 N.E.2d 184,

188 (Ind. 2007). [7] If a trial court accepts a plea agreement, it is bound by its terms. Ind.

Code § 35-35-3-3(e). If a trial court accepts a plea agreement and then later

revokes the defendant’s probation, the trial court is not free to ignore the plea

agreement: “[a] plea agreement does not disappear after the trial court imposes

its initial sentence.” Cox v. State, 850 N.E.2d 485, 489 (Ind. Ct. App. 2006). [8] Villegas-Solache contends that his plea agreement prevented the trial court from

ordering him to serve more than six months of his sentence in the DOC. We

disagree. The plea agreement states that his total sentence would be five years Court of Appeals of Indiana | Memorandum Decision 18A-CR-236 | June 11, 2018 Page 4 of 6

in the DOC and that, at the time he was originally sentenced, the trial court could

not send him “directly” to the DOC for more than six months. Appellant’s

App. Vol. II p. 51. In other words, the plea agreement spells out how his

sentence would be served initially. For example, the plea agreement also states

that three years of his sentence would be suspended, but that certainly does not

mean that the suspended portion of the sentence could not be modified if he

violated probation. Here, Villegas-Solache violated probation three times, and

the third time was the last straw for the trial court. After revoking his

probation, the trial court did not go beyond the bounds of the plea agreement

by ordering that Villegas-Solache serve 365 days in the DOC. [9] Next, Villegas-Solache argues that the trial court erred by failing to take certain

mitigators into account when imposing his sentence following the probation

revocation. A trial court is not required to consider mitigating factors when

imposing sanctions for probation revocations. I.C. § 35-38-2-3. Villegas-

Solache directs our attention to authority standing for the proposition that a

trial court must consider mitigating evidence suggesting that a probation

violation does not warrant revocation, see Woods v. State, 892 N.E.2d 637, 640

(Ind. 2008), but that caselaw is inapposite to the case before us. In this case,

Villegas-Solache does not appeal the trial court’s decision to revoke probation;

instead, he appeals the sentence imposed following the revocation. There is no

authority requiring a trial court to consider mitigating circumstances in that part

of the process.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-236 | June 11, 2018 Page 5 of 6 [10] Moreover, the only mitigating circumstance proposed by Villegas-Solache on

appeal is the fact that he took responsibility for his actions by pleading guilty to

the new criminal charge. The trial court explicitly took note of this fact when

deciding on the sentence. Therefore, although the trial court was not required

to do so, it did, in fact, consider this mitigating evidence. 1 [11] The judgment of the trial court is affirmed.

Kirsch, J., and Bradford, J., concur.

1 Villegas-Solache also suggests briefly that the sentence is inappropriate in light of the nature of the offense and his character under Indiana Appellate Rule 7(B). It is well established, however, that “[t]he review and revise remedy of App. R. 7(B) is not available” in a post-sentence probation violation proceeding. Jones v. State, 885 N.E.2d 1286, 1290 (Ind. 2008). Therefore, we will not consider this argument.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-236 | June 11, 2018 Page 6 of 6