BRADFORD, Judge.
On October 2, 2011, Appellant-Defendant Jose Guzman was involved in a traffic accident when his vehicle collided with a vehicle driven by Charity Bland. Bland died as a result of the injuries she sustained in the accident. Her passenger, Richie Austin, was also severely injured. On October 4, 2011, Guzman was charged with numerous offenses, including Class C felony reckless homicide, stemming from the October 2, 2011 accident. Guzman subsequently pled guilty to the Class C felony reckless homicide charge and, in exchange for Guzman's guilty plea, the State agreed to drop the remaining charges. The trial court subsequently accepted Guzman's plea, and on August 9, 2012, sentenced Guzman to an eight-year term of incarceration in the Department of Correction and ordered him to pay restitution to the Estate/Family of Bland and to Austin.
On appeal, Guzman argues that the trial court abused its discretion in ordering him to pay restitution to Austin and in sentencing him. Guzman also argues that his eight-year sentence is inappropriate. Concluding that the trial court acted within its discretion in ordering Guzman to pay restitution to Austin and in sentencing Guzman, and that Guzman's sentence is not inappropriate, we affirm.
The stipulated factual basis entered during the June 19, 2012 guilty plea hearing provides that on October 2, 2011, Guzman was involved in a traffic accident when his vehicle collided with a vehicle driven by Bland. Bland died as a result of the injuries she sustained in the accident. Her passenger, Austin, was also severely injured. During an investigation into the cause of the accident, the investigating officers determined that Guzman's vehicle had been traveling at a high speed just prior to the accident, but Guzman managed to slow his vehicle to approximately thirty miles-per-hour at the time of impact. Guzman submitted to a blood alcohol test, the results of which indicated that at the time of the accident, Guzman had a blood alcohol concentration ("BAC") of 0.20.
On October 4, 2011, the State charged Guzman with one count of Class B felony operating a vehicle with a BAC of 0.15 or greater causing death,
The trial court accepted Guzman's guilty plea and conducted a sentencing hearing on August 9, 2012, at the conclusion of which the court sentenced Guzman to an eight-year term. The trial court also ordered Guzman to pay restitution to the Estate/Family of Bland in the amount of $4,510.65 and to Austin in the amount of $20,631.76. This appeal follows.
Guzman contends that the trial court abused its discretion in ordering him to pay restitution to Austin. Specifically, Guzman claims that the trial court abused its discretion in this regard because Austin was not a victim of the crime to which he pled guilty and because the restitution order was not supported by sufficient evidence.
Guzman argues that the trial court abused its discretion in ordering him to pay restitution to Austin because Austin was not the victim of the crime to which Guzman pled guilty. In support, Guzman relies on authority suggesting that "a trial court may not order restitution in an amount greater than the sums involved in those crimes to which the defendant actually pleaded guilty." Kinkead v. State, 791 N.E.2d 243, 245 (Ind.Ct.App.2003) (citing Polen v. State, 578 N.E.2d 755, 756-57 (Ind.Ct.App.1991), trans. denied), trans. denied. Kinkead and Polen, however, can be distinguished from the instant matter because in both cases, the defendants' criminal actions were financial in nature and the restitution order was not based upon repayment for medical bills stemming from physical injuries sustained because of the defendants' criminal conduct.
Again, Indiana Code section 35-50-5-3(a) provides that a court "may ... order the person to make restitution to the victim of the crime." "The court shall base its restitution order upon a consideration of: ... (2) medical and hospital costs incurred by the victim (before the date of sentencing) as a result of the crime[.]" Ind.Code § 35-50-5-3(a). "Though `victim' is undefined," the Indiana Supreme Court has held that a person who suffers "`loss as a direct and immediate result of the criminal acts of a defendant'" may be considered a victim under Indiana Code section 35-50-5-3(a). Roach, 695 N.E.2d at 943 (citing Reinbold v. State, 555 N.E.2d 463, 470 (Ind.1990), overruled in part on other grounds by Wright v. State, 658 N.E.2d 563 (Ind.1995)).
Here, Austin was clearly a victim of Guzman's criminal behavior and incurred medical and hospital costs as a result. Guzman does not dispute that Austin was injured as a direct result of the collision between his and Bland's vehicles or that he was under the influence of alcohol at the time of the collision. As such, Austin indisputably qualifies as a victim of Guzman's criminal acts under Indiana Code section 35-50-5-3(a).
Guzman also claims that the trial court abused its discretion because the evidence was insufficient to support the restitution award. Unlike when restitution is ordered as a condition of probation or a suspended sentence, when restitution is ordered as part of an executed sentence, and therefore is not a condition of probation or a suspended sentence, an inquiry into the defendant's ability to pay is not required. Shaffer v. State, 674 N.E.2d 1, 9 (Ind.Ct.App.1996) (citing Bitner v. State, 546 N.E.2d 117, 120 (Ind.Ct.App.1989)). This is so because in such a situation, restitution is merely a money judgment and a defendant cannot be imprisoned for his failure to pay the restitution. Id.
Although the trial court could properly choose to hold a hearing on a defendant's ability to pay restitution, it is not required to do so, and may make a proper inquiry, depending on circumstances, by such actions as reviewing the pre-sentence report and questioning witnesses. Laker v. State, 869 N.E.2d 1216, 1221 (Ind.Ct. App.2007) (citing Polen, 578 N.E.2d at 758-59). "Evidence supporting a restitution order is sufficient `if it affords a reasonable basis for estimating loss and does not subject the trier of fact to mere speculation or conjecture.'" S.G. v. State, 956 N.E.2d 668, 683 (Ind.Ct.App.2011) (quoting T.C., 839 N.E.2d at 1227).
Here, Austin's attorney submitted a letter to the Montgomery County Probation
Having concluded that Austin was indisputably a victim of Guzman's criminal actions and that the evidence is sufficient to support the trial court's restitution order, we further conclude that the trial court did not abuse its discretion in ordering Guzman to pay restitution to Austin.
Guzman also contends that the trial court abused its discretion in sentencing him and that his sentence is inappropriate in light of the nature of his offense and his character.
Guzman claims that the trial court abused its discretion in finding certain aggravating factors and failing to find a certain mitigating factor. Sentencing decisions rest within the sound discretion of the trial court and are reviewed on appeal only for an abuse of discretion. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), modified on other grounds on reh'g, 875 N.E.2d 218 (Ind.2007). "An abuse of discretion occurs 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." Id. (quotation omitted). When imposing a sentence in a felony case, the trial court must provide a reasonably detailed sentencing statement explaining its reason for imposing the sentence. Id.
Id. at 490-91.
In sentencing Guzman, the trial court found the following aggravating factors: (1) Guzman's conduct also caused bodily injury to another person; (2) Guzman's criminal history, which included a prior DUI conviction and convictions for other driving-related crimes; (3) Guzman had a pending criminal case at the time he committed the instant offense; (4) Guzman, a Mexican immigrant, does not have legal status in the United States; and (5) Guzman's driver's license was suspended at the time of the accident. The trial court also found the following mitigating factors: (1) Guzman pled guilty; (2) Guzman had dependents to support; and (3) Guzman appeared remorseful. In addition, the trial court considered the impact the accident had on the victim's family and the facts and circumstances surrounding the accident, including the report from the investigation into the cause of the accident. After considering each of these factors, the
On appeal, Guzman does not challenge all of the aggravating factors considered by the trial court. Guzman argues only that the trial court abused its discretion in considering the fact that his actions resulted in bodily injury to another person, his illegal status, and the impact the accident had on the victim's family.
Guzman argues that the trial court abused its discretion in finding the fact that his actions resulted in bodily injury to another person as an aggravating factor because the bodily injury was an essential element of two of the charges that were dismissed pursuant to his plea agreement. Guzman cites to Farmer v. State, 772 N.E.2d 1025 (Ind.Ct.App.2002), and Roney v. State, 872 N.E.2d 192 (Ind. Ct.App.2007), in support of his argument that the bodily injury suffered by Austin cannot be used as an aggravating factor at sentencing because it is an essential element of a dismissed charge. However, Farmer and Roney were explicitly abrogated by the Indiana Supreme Court's recent opinion in Bethea v. State, 983 N.E.2d 1134 (Ind.2013).
In Bethea, the Indiana Supreme Court held that "it is not necessary for a trial court to turn a blind eye to the facts of an incident that brought the defendant before them" so long as the parties do not agree to a plea bargain that "forecloses the possibility of the trial court using enhancements from the underlying charges that were dismissed, or from the original charges from which a lesser included plea is taken." 983 N.E.2d at 1145. The Court reiterated that, as it stated in Anglemyer, "`the nature and circumstances of the crime as well as the manner in which the crime is committed' is a valid aggravating factor." Id. (quoting Anglemyer, 868 N.E.2d at 492). Upon reviewing the facts and circumstances before it, the Court held that the trial court did not err by giving significant weight to the facts relating to the dismissed charges because the parties did not agree to a plea bargain that foreclosed the possibility of the trial court considering said facts. Id. The Court further held that "the State's obligations under the plea agreement were fulfilled upon the dismissal of the seven remaining counts and it owed the defendant no further duty to omit these facts from the aggravating circumstances consideration." Id.
Here, like in Bethea, the plea bargain agreed to by the parties did not contain any language foreclosing the trial court from considering the facts and circumstances relating to the dismissed charges. As such, the trial court was not required to "turn a blind eye" to the facts of the incident that brought the defendant before it. See id. The trial court acted within its discretion in considering the nature and circumstances of the accident from which the underlying criminal charges stemmed, including the injuries suffered by Austin, as a valid aggravating factor.
Guzman also argues that the trial court abused its discretion in finding his status as an illegal immigrant to be an aggravating factor. In Sanchez v. State, however, this court concluded that an individual's unlawful immigration status is a valid aggravating factor because it demonstrates a disregard for the law, including immigration laws. 891 N.E.2d 174, 176 (Ind.Ct.App.2008). As such, the trial court did not abuse its discretion in finding Guzman's status as an illegal immigrant to be an aggravating factor.
In addition, Guzman argues that the trial court abused its discretion in finding the serious impact of his conduct on Bland's family to be an aggravating factor. The Indiana Supreme Court has held that "[i]t is settled law that where `[t]here is nothing in the record to indicate that the impact on the families and victims in this case was different than the impact on families and victims which usually occur in such crimes,' this separate aggravator is improper." McElroy v. State, 865 N.E.2d 584, 590 (Ind.2007) (quoting Mitchem v. State, 685 N.E.2d 671, 680 (Ind.1997)). We are not convinced that the trial court's statement at sentencing demonstrates that the impact on Bland's family was different than the impact on similarly situated families or is so distinct so as to rise to the level of an aggravating circumstance.
Nevertheless, even if the sentencing court in this case improperly used victim family impact as an aggravating circumstance, the sentencing court did find at least five valid aggravating factors. It is well-settled that a single aggravating factor is sufficient to warrant an enhanced sentence. Morgan v. State, 829 N.E.2d 12, 15 (Ind.2005); Gibson v. State, 702 N.E.2d 707, 710 (Ind.1998); Williams v. State, 690 N.E.2d 162, 172 (Ind.1997); Rembert v. State, 832 N.E.2d 1130, 1133 (Ind.Ct.App. 2005); Bennett v. State, 787 N.E.2d 938, 947 (Ind.Ct.App.2003), trans. denied. When a sentencing court improperly applies an aggravating circumstance, but other valid aggravating circumstances do exist, a sentence enhancement may still be upheld. Bacher v. State, 722 N.E.2d 799, 803 (Ind.2000) (citing Gibson, 702 N.E.2d at 710; Blanche v. State, 690 N.E.2d 709, 715 (Ind.1998)).
In the instant matter, the trial court found five valid aggravating factors. These aggravators include the fact that Guzman's conduct also caused bodily injury to another person; Guzman had a criminal history which included a prior driving under the influence ("DUI") conviction and convictions for other driving-related crimes; Guzman had a pending criminal case at the time he committed the instant offense; Guzman, a Mexican immigrant, did not have legal status in the United States; and Guzman's driver's license was suspended at the time of the accident. These five valid aggravating factors are sufficient to warrant Guzman's enhanced sentence.
Guzman also claims that the trial court abused its discretion in failing to consider the fact that Bland induced or facilitated the accident as a significant mitigating factor. Although a sentencing court must consider all evidence of mitigating factors offered by a defendant, the finding of mitigating factors rests within the court's discretion. Henderson v. State, 769 N.E.2d 172, 179 (Ind.2002). "A court does not err in failing to find mitigation when a mitigation claim is highly disputable in nature, weight, or significance." Id. (internal quotations omitted). The trial court is not obligated to explain why it did not find a factor to be significantly mitigating. Sherwood v. State, 749 N.E.2d 36, 38 (Ind.2001) (citing Birdsong v. State, 685 N.E.2d 42, 47 (Ind.1997)). Furthermore, while Indiana law mandates that the trial judge not ignore facts in the record that would mitigate an offense, and a failure to find mitigating factors that are clearly supported by the record may imply that the trial court failed to properly consider them, id., an allegation that the trial court failed to find a mitigating factor requires the defendant to establish that the mitigating evidence is both significant and clearly supported by the record. Carter v. State, 711 N.E.2d 835, 838 (Ind. 1999).
Moreover, Guzman's attempt to shift the blame for the accident from his own reckless behavior and apparent disregard for the law to Bland does not help his case. Guzman does not challenge the portion of the investigation report which indicated that his vehicle was traveling at an unsafe speed and that his BAC was two-and-one-half times the legal limit at the time of the accident. It seems reasonable to assume that, had Guzman not been driving while impaired or had he been traveling at a safe speed, he likely would have been able to avoid the accident altogether, regardless of Bland's actions.
Having concluded that the valid aggravating factors found by the trial court warranted an enhanced sentence and that the trial court did not abuse its discretion in failing to find as a mitigating factor that Bland induced or facilitated the offense, we further conclude that the trial court did not abuse its discretion in sentencing Guzman.
Guzman also challenges his sentence by claiming that it is inappropriate in light of the nature of his offense and his character. Indiana Appellate Rule 7(B) provides that "The 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." In analyzing such claims, we "`concentrate less on comparing the facts of [the case at issue] to others, whether real or hypothetical, and more on focusing on the nature, extent, and depravity of the offense for which the defendant is being sentenced, and what it reveals about the defendant's character.'" Paul v. State, 888 N.E.2d 818, 825 (Ind.Ct.App.2008) (quoting Brown v. State, 760 N.E.2d 243, 247 (Ind.Ct.App. 2002), trans. denied). The defendant bears the burden of persuading us that his sentence is inappropriate. Sanchez, 891 N.E.2d at 176.
With respect to the nature of Guzman's offense, the record demonstrates that Guzman recklessly drove a vehicle at a high rate of speed while intoxicated, resulting in a collision with Bland's vehicle. The investigation into the cause of the accident indicated that Guzman's vehicle had been traveling at a speed of approximately
With respect to Guzman's character, the record demonstrates that, while Guzman appears to financially support his wife and dependent children, he nonetheless has a criminal history. Guzman's criminal history includes prior misdemeanor convictions for driving under the influence of alcohol, driving on a suspended license, and failure to stop at the scene of an accident resulting in damage. At the time of the accident, Guzman was also driving on a suspended license and had a pending misdemeanor case for failure to stop at the scene of an accident.
Guzman argues that it reflects well on his character that he showed remorse, accepted responsibility for his actions, and pled guilty. While we believe that Guzman is, without a doubt, sorry that Bland died and Austin was seriously injured in the accident, we find this argument to be disingenuous because Guzman's attempt to shift the blame for the accident to Bland seems to indicate that he has not fully accepted responsibility for the wrongfulness of his actions. As such, we are left with the belief that Guzman's decision to plead guilty was more of a tactical decision than a true desire to accept responsibility for his actions.
In light of Guzman's actions, which included driving a vehicle at a high rate of speed with a BAC of 0.20 and getting into an accident with another vehicle, leaving one person dead and another severely injured; Guzman's criminal history, which included a prior conviction for driving while intoxicated; and Guzman's attempt to shift blame for the accident to the deceased victim, we cannot say that his eight-year sentence is inappropriate.
The judgment of the trial court is affirmed.
RILEY, J., and BROWN, J., concur.
