Juan Roberto Rodriguez-posas v. State of Indiana

Indianapolis, IN - Criminal defense attorney represented Juan Roberto Rodriguez-Posas with appealing his sentence, arguing that it is inappropriate in light of the nature of his offense and of his character.

Rodriguez-Posas lives with Claudia, his wife1 of approximately twenty-five

years, and four of their five children in Tippecanoe County. On October 3,

2019, Rodriguez-Posas learned that Claudia was pregnant with another man's

child. Angry, Rodriguez-Posas hit her. At the time, he was undocumented and

had been living in the United States for two or three years.

[3] The State charged Rodriguez-Posas with three counts, including domestic

battery resulting in bodily injury to a pregnant family member. On May 1,

1 Rodriguez-Posas referred to Claudia as his wife at the guilty plea hearing, see Transcript at 15, but they may

not in fact be married, see Appellant's Appendix, Volume 2 at 54-55 (pre-sentence investigation report stating

that Rodriguez-Posas reported he and Claudia had been "in a relationship” for approximately twenty-five

years and referring to Claudia as his "girlfriend”).

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2020, Rodriguez-Posas and the State entered into a plea agreement for

Rodriguez-Posas to plead guilty to domestic battery resulting in bodily injury to

a pregnant family member in exchange for the State dismissing the two other

counts. Rodriguez-Posas' sentence would be whatever the trial court "deems

appropriate after hearing any evidence or argument of counsel.” Appellant's

Appendix, Volume 2 at 40. The plea agreement also contained the following

relevant provisions about sentencing:

3. That the Defendant understands that the sentence imposed by

the Court may include an executed sentence to the [DOC],

Tippecanoe County Community Corrections, and/or a

suspended sentence on Probation. Further, the Defendant

understands that if he fails to qualify for or is rejected from

Tippecanoe County Community Corrections, he shall serve his

remaining community corrections sentence in the [DOC].

* * *

9. The Defendant states that he . . . is not a citizen of the United

States. . . .

10. That the Defendant acknowledges that if he is not a U.S.

citizen or legal resident alien, . . . [he] would not be eligible for

community corrections or placement on probation.

Id. at 40-41. Sections 3 and 10 are on separate pages of the plea agreement and

five unrelated substantive provisions appear between these two sections.

Sections 3 and 10 therefore appear as entirely independent provisions rather

than section 10 directly and obviously restricting section 3.

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[4] At the guilty plea hearing, the trial court reviewed Rodriguez-Posas' rights with

him and also reviewed the terms of the plea agreement, including the terms

stating that "the sentence imposed by the Court could include an executed

sentence to the DOC, Tippecanoe County Community Corrections and/or a

suspended sentence onto probation” and that if he is not a United States citizen,

he would not be eligible for community corrections or probation. Tr. at 10, 13.

Rodriguez-Posas' attorney laid a factual basis for the plea which the trial court

accepted, and the plea was taken under advisement.2

The probation department

completed a presentence investigation, determined Rodriguez-Posas was a low

risk to reoffend, and recommended a sentence of three years in the DOC.

[5] The sentencing hearing was held on June 19, 2020. Claudia neither provided a

victim impact statement nor appeared at the hearing. See Appellant's App.,

Vol. 2 at 54; Tr. at 18-27. The parties agreed Rodriguez-Posas was entitled to

260 actual days credit and 86.67 days good time credit toward his sentence.

The State acknowledged Rodriguez-Posas has no criminal history but identified

the presence of children during the incident as an aggravating factor and argued

for a sentence of three and one-half years. Rodriguez-Posas' attorney also

acknowledged "it's kind of a rare bird that we have in this courtroom” because

Rodriguez-Posas has never had any contact with the criminal justice system.

2 Rodriguez-Posas notes that the element of bodily injury was not addressed in the factual basis, but

acknowledges that because he pleaded guilty, that is not an issue he can raise on direct appeal. See

Appellant's Brief at 6 n.1.

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Tr. at 21.

3

Rodriguez-Posas noted that he had maintained a long term stable

relationship for over twenty years and supported his five children, he had

uncharacteristically consumed alcohol the night of the incident and does not

use illegal substances, he is "extremely sorry” and the circumstances are

unlikely to recur, and he has already been incarcerated for "quite a period of

time” and "lost a lot[,]” including his wife and family. Accordingly,

Rodriguez-Posas asked for any sentence to be served on probation so he could

"show the Court, show anybody, that he can do everything that they asked of

him and do it perfectly[.]” Id. at 21-22.

[6] The trial court found the fact that minor children could see and hear the offense

to be an aggravator; that Rodriguez-Posas took responsibility for his actions by

pleading guilty, appears remorseful for his conduct, and has no criminal record

to be mitigators; and found the mitigators outweigh the aggravators. With

respect to the sentence, the trial court stated:

I agree with your attorney . . . and don't necessarily agree with

the State or the Probation Department in this case. The Court's

going to enter a sentence of two years. It's going to be fully

executed. If I had the option for community corrections I'd put

him on. It's just not viable. It's not something that's available to

me at this time and I just don't like probation under these

circumstances. The Court has considered one year but under

3 Rodriguez-Posas offered sworn testimony at the sentencing hearing that he had never been arrested before

this, either in the two or three years he had been in the United States or when he lived in Honduras prior to

coming here. See id. at 24.

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these facts and these circumstances and the range that he's

looking at the Court is not going to do that[.]

Id. at 26-27. The trial court's written sentencing order states:

[Rodriguez-Posas] shall execute two (2) years at the [DOC], fully

executed. The Court notes that [he] is ineligible for community

corrections and currently has an immigration hold/detainer,

which would prevent him from residing in Tippecanoe County

on probation.

Appealed Order at 2.

[7] Rodriguez-Posas appeals his sentence. Additional facts will be provided as

necessary.

Discussion and Decision

I. Standard of Review

[8] Indiana Appellate Rule 7(B) provides this court the authority to revise a

defendant's sentence "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.” Sentencing is "principally a discretionary

function” of the trial court to which we afford great deference. Cardwell v. State,

895 N.E.2d 1219, 1222 (Ind. 2008). "Such deference should prevail unless

overcome by compelling evidence portraying in a positive light the nature of the

offense (such as accompanied by restraint, regard, and lack of brutality) and the

defendant's character (such as substantial virtuous traits or persistent examples

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of good character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015). It is

the defendant who bears the burden of persuading this court his or her sentence

is inappropriate under the standard. Childress v. State, 848 N.E.2d 1073, 1080

(Ind. 2006).

[9] On review, the question is not whether another sentence is 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). We may consider any factors

appearing in the record in making this determination. Stokes v. State, 947

N.E.2d 1033, 1038 (Ind. Ct. App. 2011), trans. denied. Whether a defendant's

sentence is inappropriate turns on our "sense of the culpability of the defendant,

the severity of the crime, the damage done to others, and myriad other factors

that come to light in a given case.” Cardwell, 895 N.E.2d at 1224. The trial

court's recognition and non-recognition of aggravators and mitigators serves as

an initial guide in our determination. Sanders v. State, 71 N.E.3d 839, 844 (Ind.

Ct. App. 2017), trans. denied.

II. Inappropriate Sentence

[10] Rodriguez-Posas argues his two-year executed sentence is inappropriate in light

of the circumstances surrounding his offense and his character.

[11] The advisory sentence is the starting point our legislature has selected as an

appropriate sentence for the crime committed. Childress, 848 N.E.2d at 1081.

The sentencing range for domestic battery as a Level 5 felony is between one

and six years, with an advisory sentence of three years. Ind. Code § 35-50-2-

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6(b). Finding the mitigators in this case outweighed the one aggravator, the

trial court sentenced Rodriguez-Posas to a below-advisory sentence of two

years, and further finding a placement in community corrections to be

foreclosed and probation to be unworkable given Rodriguez-Posas'

immigration status, ordered the sentence to be fully executed at the DOC.

[12] The nature of the offense is found in the details and circumstances surrounding

the offense and the defendant's participation therein. Perry v. State, 78 N.E.3d

1, 13 (Ind. Ct. App. 2017). When evaluating a defendant's sentence that

deviates from the advisory sentence, we consider whether there is anything

more or less egregious about the offense as committed by the defendant that

distinguishes it from the typical offense accounted for by our legislature when it

set the advisory sentence. Moyer v. State, 83 N.E.3d 136, 142 (Ind. Ct. App.

2017), trans. denied.

[13] Our review of the record reveals that the offense occurred under a combination

of factors unlikely to recur. Rodriguez-Posas and Claudia had been together for

nearly twenty-five years and had five children together. They left Honduras

with their four youngest children because their sixteen-year-old son was being

recruited by a gang and made to sell drugs. They had been living in the United

States for two or three years at the time of this incident. Rodriguez-Posas

described the night of the incident as the "very first time I ever drank” and

admitted he was drunk when he was arrested. Appellant's App., Vol. 2 at 55.

Rodriguez-Posas and Claudia began arguing and Rodriguez-Posas learned "at

that moment” that Claudia was pregnant with another man's child. Tr. at 16.

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Rodriguez-Posas briefly put his hands around Claudia's neck, making it hard

for her to breathe and causing her pain.4

He then grabbed Claudia's arm and

struck her in the back. When police arrived, Rodriguez-Posas admitted to

touching Claudia in anger. Claudia had no "definitive marks or injuries” and

declined medical treatment. Exhibit Volume, Volume 1 at 7. She did not

submit a victim impact statement to the probation department and did not

appear in court at Rodriguez-Posas' sentencing hearing despite receiving notice

of the date and time.

[14] The "character of the offender” portion of the Rule 7(B) standard refers to

general sentencing considerations and relevant aggravating and mitigating

factors, Williams v. State, 782 N.E.2d 1039, 1051 (Ind. Ct. App. 2003), trans.

denied, and permits a broader consideration of the defendant's character,

Anderson v. State, 989 N.E.2d 823, 827 (Ind. Ct. App. 2013), trans. denied. "A

defendant's life and conduct are illustrative of his or her character.” Morris v.

State, 114 N.E.3d 531, 539 (Ind. Ct. App. 2018), trans. denied.

[15] A typical factor to be considered in examining a defendant's character is his or

her criminal history. Johnson v. State, 986 N.E.2d 852, 857 (Ind. Ct. App. 2013).

A defendant's age is relevant in determining the weight to be given to a

defendant's criminal history or lack thereof. Rutherford v. State, 866 N.E.2d 867,

874 (Ind. Ct. App. 2007). Rodriguez-Posas was forty-three years of age at the

4 A charge of strangulation, a Level 5 felony, was dismissed as part of the plea agreement.

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time of this incident and he has no prior criminal history, including no history

of arrests. The Indiana Risk Assessment System Community Supervision Tool

completed by the probation department indicated Rodriguez-Posas was at a low

risk to reoffend and should be subject to minimum or non-reporting

supervision. As for other aspects of his character, he has supported his family

for over twenty years, most recently working as a roofer. He earned $2,400 per

month and considered himself financially stable. He does not use illegal

substances and said the night of the incident was the "very first time I ever

drank” and he acknowledged that it got him into trouble. Appellant's App.,

Vol. 2 at 55; see also id. at 56 (stating he "didn't decide or planed [sic] anything.

I was drunk and acted out on it.”). He was remorseful for his actions, stating

he was "very sorry” and feels "really bad.” Id. at 56. Obviously, even an

isolated incident of domestic violence is troubling. But Rodriguez-Posas has an

otherwise clean record.

[16] We acknowledge Rodriguez-Posas received a below-advisory sentence, but a

fully executed sentence in the DOC is inappropriate in this case. The plea

agreement, while on the one hand granting the trial court discretion to impose a

range of placements, on the other hand restricted that discretion for a non-U.S.

citizen. Plea agreements are contractual in nature, and the general rule is that

any ambiguities in such agreements must be construed against the State because

the State ordinarily drafts them. Morris v. State, 985 N.E.2d 364, 367 (Ind. Ct.

App. 2013). It would have been easy for the State to excise paragraph 3 from

the plea agreement such that the only provision regarding placement was that

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Rodriguez-Posas, as a non-citizen, was not eligible for community corrections

or probation. Instead, the contradictory provisions in the boilerplate plea

agreement introduced an element of ambiguity into the plea that make it

difficult to know what Rodriguez-Posas' expectations as to his sentence were.

See Tr. at 13 (Rodriguez-Posas' counsel stating at the guilty plea hearing that

non-citizens "can go to probation”) and at 21-22 (arguing at the sentencing

hearing that Rodriguez-Posas had agreed to abide by the probation terms and

would respond affirmatively to probation). It is clear from the trial court's

statements at the sentencing hearing and in the sentencing order that but for the

rules of the Tippecanoe County Community Corrections program denying noncitizens eligibility, the trial court would have ordered a community corrections

placement.

[17] Article 1, section 18 of the Indiana Constitution mandates that "[t]he penal

code shall be founded on the principles of reformation, and not of vindictive

justice.” Incarceration is not generally inconsistent with the principle that our

criminal justice system is based upon rehabilitation, where possible. See Fointno

v. State, 487 N.E.2d 140, 143-44 (Ind. 1986). But incarceration is inconsistent

with rehabilitation in this case, given Rodriguez-Posas' lack of criminal history

in his forty-three years, his low risk to reoffend, the fact that the trial court did

not want to send him to the DOC but did not have any other viable options,

and the fact that Rodriguez-Posas had already been incarcerated for nearly a

year at the time of his sentencing.

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[18] Because of the contradictions in the plea agreement, Rodriguez-Posas' generally

good character, the trial court's clear preference for a community corrections'

placement, and the fact that incarceration serves no rehabilitative purpose here,

we conclude the two-year executed sentence in the DOC is inappropriate and

revise his sentence to time served. A time served sentence at this point will

amount to more than ninety percent of the ordered executed sentence.5

We

remand to the trial court to amend its sentencing order consistent with this

opinion.

Rodriguez-Posas’ fully executed sentence at the DOC is inappropriate in light

of the nature of his offense and his character. We accordingly revise his

sentence to time served and remand to the trial court for further proceedings.