Tito Aguilar Sanabria v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Mar 18 2019, 10:21 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 James D. Crum Curtis T. Hill, Jr. Coots Henke & Wheeler, P.C. Attorney General of Indiana Carmel, Indiana Lauren A. Jacobsen Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Tito Aguilar Sanabria, March 18, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-2105 v. Appeal from the Hamilton Superior Court State of Indiana, The Honorable Steven R. Nation, Appellee-Plaintiff. Judge Trial Court Cause No. 29D01-1704-F2-2786

Bradford, Judge. Court of Appeals of Indiana | Memorandum Decision 18A-CR-2105 | March 18, 2019 Page 1 of 6

Case Summary [1] In August of 2018, Tito Aguilar Sanabria pled guilty to Level 4 felony dealing

in methamphetamine. After being arrested while transporting 141 grams of

methamphetamine while his wife and child were in the car, the trial court

sentenced him to eight years of incarceration. Sanabria challenges his sentence

on appeal. We restate his contentions as whether (1) the trial court abused its

discretion in finding his criminal history to be an aggravating factor, and (2) his

sentence is inappropriate. We affirm.

Facts and Procedural History [2] On April 19, 2018, Fishers Police Officer Greg Weesner stopped Sanabria’s

vehicle for following another vehicle too closely and failing to properly signal

three lane changes. Sanabria was driving with his wife in the passenger seat and

his ten-year-old son in the backseat. Officer Weesner approached the vehicle

and requested driver’s licenses from both adults. Sanabria and his wife

produced international driver’s permits1. Officer Weesner observed that

Sanabria and his wife both appeared nervous, and that the glove compartment

1 An international driver’s permit (IDP), often referred to incorrectly as an international driver’s license, is a document that translates a person’s home driver’s license into a different language so that they may drive legally in another country. International Driver Permits, DMV, https://www.dmv.org/international-driver- permits.php (last visited Feb. 28, 2019). In Indiana, travelers cannot use a foreign language driver’s license for identification purposes without an IDP. BMV, New Indiana Residents, IN.GOV, https://www.dmv.org/international-driver-permits.php (last visited Feb. 28, 2019).

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contained a CD entitled Narcos Cultura, which, based on his training, Officer

Weesner knew to glorify “the narcotic lifestyle[,]” and that many individuals

who sell or transport narcotics listen to it. Appellant’s Vol. II p. 16. Sanabria

complied with Officer Weesner’s request to exit the vehicle and to sit in the

backseat of Officer Weesner’s police cruiser. Sanabria and his wife gave Officer

Weesner conflicting stories about where they were going. Sanabria consented

to a K9 sniff of the vehicle, which rendered a positive alert. Officers searched

the vehicle and found a 141-gram rock of methamphetamine in a storage area

behind the back seat. After Sanabria’s arrest, it was discovered that he is an

undocumented immigrant, and United States Immigration and Customs

Enforcement placed an active detainer and immigration hold on Sanabria. [3] Pursuant to the terms of a plea agreement, Sanabria pled guilty to Level 4

felony dealing in methamphetamine. In exchange, the State agreed to dismiss

the Level 3 felony possession of methamphetamine and Class C misdemeanor

operating a vehicle without a license charges. The parties also agreed that

Sanabria’s sentence would be capped at twelve years. During sentencing, the

trial court considered Sanabria’s criminal history, the remoteness of his prior

convictions and Sanabria’s choice to involve his family in dangerous criminal

activity. The trial court sentenced Sanabria to eight years of incarceration.

Discussion and Decision

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I. Abuse of Discretion [4] Sanabria contends that the trial court erred in failing to consider the remoteness

of his previous convictions to be a mitigating factor. We review the trial court’s

finding of an aggravating or mitigating circumstance for an abuse of discretion.

Spiller v. State, 740 N.E.2d 1270, 1274 (Ind. Ct. App. 2001), trans. denied. “An

abuse of discretion exists if the 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.” Lewis v. State, 31 N.E.3d 539, 541–

42 (Ind. Ct. App. 2015). We do not review the trial court’s decision concerning

the relative weight or value of aggravating or mitigating circumstances.

Anglemyer v. State, 868 N.E.2d 482, 490–91 (Ind. 2007), modified on other grounds

on reh’g, 875 N.E.2d 218 (Ind 2007). [5] The record indicates that the trial court acknowledged the remoteness of

Sanabria’s previous criminal convictions yet still found his criminal history to

be an aggravating factor. It was within the trial court’s discretion to do so. See

Buchanan v. State, 767 N.E.2d 967, 972 (Ind. 2002) (“The remoteness of prior

criminal history does not preclude the trial court from considering it as an

aggravating circumstance.”). To the extent that Sanabria argues that the trial

court should have found the remote nature of his criminal history to be

mitigating rather than aggravating, Sanabria’s argument is merely an invitation

to reweigh the aggravating and mitigating circumstances, which we will not do.

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See Anglemyer, 868 N.E.2d at 490–91. Sanabria has failed to establish that the

trial court abused its discretion in sentencing him.

II. Appropriateness [6] Sanabria also contends that his eight-year sentence is inappropriate. We may

revise a sentence 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.” Ind. App. Rule 7(B). “[S]entencing is

principally a discretionary function in which the trial court’s judgment should

receive considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind.

Ct. App. 2008) (internal citations omitted). The defendant bears the burden of

proving that his sentence is inappropriate. Gil v. State, 988 N.E.2d 1231, 1237

(Ind. Ct. App. 2013). Sanabria pled guilty to Level 4 felony dealing in

methamphetamine, and received a sentence of eight years, which is above the

advisory of six years but below the maximum of twelve years. See Ind. Code §

35-48-4-1.1. [7] The nature of Sanabria’s crime does not support a reduction of his sentence.

Sanabria transported 141 grams of methamphetamine in a car while his wife

and son were passengers. Further, Sanabria planned to sell the

methamphetamine while his wife and son were present, potentially

compromising their safety. The nature of Sanabria’s actions demonstrated a

clear disregard for the well-being of his family and his community.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2105 | March 18, 2019 Page 5 of 6 [8] Sanabria’s character also does not support a reduction of his sentence.

Sanabria’s criminal history includes one felony conviction for illegal possession

of a narcotic substance and three misdemeanor convictions. These convictions

are a poor reflection on Sanabria’s character. In addition, Sanabria’s illegal

entry into this country and his use of various aliases to hide his identity indicate

a disregard for the laws of this state and country. Sanabria has failed to establish

that his sentence is inappropriate. [9] The judgment of the trial court is affirmed.

Bailey, J., and Brown, J., concur.

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