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Garcia v. State

Court of Appeals of Indiana

February 6, 2014

WILFRIDO GARCIA, Appellant-Defendant,
v.
STATE OF INDIANA, Appellee-Plaintiff

Editorial Note:

These opinions are not precedents and cannot be cited or relied upon unless used when establishing res judicata or collateral estoppel or in actions between the same party. Indiana Rules of Appellate Procedure 65(D).

APPEAL FROM THE BARTHOLOMEW CIRCUIT COURT. The Honorable Stephen R. Heimann, Judge. Cause No. 03C01-1301-FB-217.

ATTORNEY FOR APPELLANT: DONALD S. EDWARDS, Columbus, Indiana.

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER, Attorney General of Indiana, JAMES B. MARTIN, Deputy Attorney General, Indianapolis, Indiana.

DARDEN, Senior Judge. NAJAM, J., and MAY, J., concur.

OPINION

MEMORANDUM DECISION - NOT FOR PUBLICATION

DARDEN, Senior Judge.

STATEMENT OF THE CASE

Wilfrido Garcia appeals his sentence for Class C felony carrying a handgun without a license. We affirm.

ISSUES

Garcia contends the trial court abused its discretion in sentencing him by failing to find several mitigating circumstances and by failing to place him in a post-conviction forensic diversion program.

FACTS AND PROCEDURAL HISTORY

In January 2013, the police stopped a vehicle driven by Garcia because its registration plate did not match the vehicle description on file. After determining that Garcia had an outstanding warrant and had never obtained a driver's license, the police conducted a search incident to arrest. A Tic Tac container with Hydrocodone pills, an ASP baton, a knife, and a stun gun were found on his person. An inventory search of the vehicle revealed a folding knife with the blade open on the floor between the driver's seat and the center console as well as a loaded handgun on the driver's side floorboard where Garcia's right foot would have been. State's Ex. 1, pp. 5, 8; Appellant's App. p. 98.

The State charged Garcia with Class B felony possession of a firearm by a serious violent felon and Class D felony possession of a controlled substance. In April 2013, pursuant to a plea agreement, Garcia pleaded guilty to an amended charge of Class C felony carrying a handgun without a license. In exchange, the State agreed to dismiss the drug charge and to refrain from filing any additional charges stemming from its investigation.

At the sentencing hearing, the trial court found no mitigating circumstances. As aggravators, the court identified: (1) Garcia's criminal history, which included three prior felony convictions; (2) that programs he had been offered in the past, including alcohol and drug programs, had not been effective; and (3) that he had been granted probation before, but it was later revoked.[1] The court also set forth the factors it considered in denying his request to be placed in a forensic diversion program. Particularly, it noted: (1) that he had absconded from community corrections in the past and indicated that he would do so again under certain circumstances; (2) his violent ...


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