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Zavala v. State

Court of Appeals of Indiana

December 12, 2019

Javier Antonio Zavala, Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff.

          Appeal from the Lake Superior Court Trial Court Cause No. 45G03-1407-FB-48 The Honorable Diane Ross Boswell, Judge

          Attorney for Appellant R. Brian Woodward Crown Point, Indiana

          Attorneys for Appellee Curtis T. Hill, Jr. Attorney General of Indiana Tiffany A. McCoy Deputy Attorney General Molly M. McCann Certified Legal Intern Indianapolis, Indiana

          Darden, Senior Judge.

         Statement of the Case

         [¶1] Javier Antonio Zavala appeals challenging his sentence after he pleaded guilty to one count of battery causing serious bodily injury, [1] a Class C Felony.[2] We affirm.

         Issues

         [¶2] Zavala raises two sentencing issues, which we restate as the following questions:

I. Did the trial court abuse its discretion by failing to accept a proffered mitigating circumstance?
II. Is Zavala's sentence inappropriate in light of the nature of the offense and the character of the offender?

         Facts and Procedural History

         [¶3] On July 1, 2014, Zavala was charged with one count of aggravated battery as a Class B felony, one count of battery committed by means of a deadly weapon, a Class C felony, and one count of battery resulting in serious bodily injury, a Class C felony. He was arrested on July 23, 2014 and posted bond on July 24, 2014. Numerous continuances were requested and granted as follows: (1) September 12, 2014 Zavala's motion to continue the omnibus hearing was granted; (2) October 2, 2014 Zavala's motion to continue was granted; (3) December 9, 2014 Zavala's motion to continue was granted; (4) June 15, 2015 Zavala's motion to continue the pre-trial conference was granted; (5) July 9, 2015 Zavala's motion to vacate the jury trial date was granted; (6) August 27, 2015 Zavala's request to reset the jury trial date was granted; (7) October 13, 2015 Zavala's motion to continue was granted; (8) November 17, 2015 Zavala's motion to continue was granted; (9) January 7, 2016 Zavala's request to reset an omnibus hearing was granted; (10) March 9, 2016 Zavala's request to reset the omnibus hearing was granted; (11) April 13, 2016 Zavala's motion to continue was granted; (12) June 8, 2016 Zavala's request to reset a hearing was granted; (13) July 21, 2016 Zavala's request to reset the omnibus hearing was granted; (14) October 5, 2016 Zavala's request to reset the omnibus hearing was granted; (15) November 17, 2016 Zavala's request to reset a status hearing was granted; (16) December 21, 2016 Zavala's request to reset a hearing was granted; (17) February 15, 2017 Zavala's motion to continue was granted; (18) April 20, 2017 Zavala's motion to continue was granted; (19) December 4, 2017 Zavala's motion to continue was granted; (20) January 8, 2018 Zavala's request to reset the final pre-trial conference was granted; (21) January 25, 2018 Zavala's request to reset the jury trial date was granted; (22) April 12, 2018 Zavala's request to reset the final pre-trial conference was granted; (23) April 25, 2018 Zavala's motion to reset the jury trial was granted; (24) August 9, 2018 Zavala's motion to continue was granted; (25) September 6, 2018 Zavala's motion to set for a change of plea was granted; (26) November 14, 2018 due to time constraints the trial court reset the date for acceptance of Zavala's plea and completion of sentencing hearing; and (27) December 11, 2018 Zavala's motion to continue the sentencing hearing was granted.

         [¶4] Zavala pleaded guilty to battery causing serious bodily injury as a Class C felony on September 6, 2018. His sentencing hearing was held on November 14, 2018-to accommodate the victim who lived out of state and wished to testify-and February 8, 2019-to complete the presentation of evidence and arguments of counsel. We will refer to the facts set forth in Zavala's stipulated guilty plea agreement, the stipulated factual basis, and testimony at the sentencing hearings.

         [¶5] On June 15, 2014, Zavala was present at the 3900 block of Deodar Street in East Chicago, Lake County, Indiana. On that date and at that location Zavala used a handgun to shoot Shaun Tucker multiple times. Tucker suffered gunshot wounds to his right lower flank, the left side of his umbilical area, the right lower quadrant of his abdomen, the anterior/lateral part of his right thigh, his posterior right thigh, the dorsal surface of his right forearm, the volar surface of his right forearm and a graze wound to his left wrist.

         [¶6] On November 14, 2018, Tucker testified that the gunshot striking his right forearm "blew a hole through my arm, so I'm losing mobility now." Tr. Vol. II, p. 24. He further testified that he had two gunshot wounds striking his stomach and that "there's a bullet still in my - - by my spine that they left it in." Id. He had six surgeries to address his injuries from the gunshot wounds and was eight months away from having a surgery on his forearm "where they open it up and they take the nerves and pull them out because the scar tissue keeps growing over it." Id.

         [¶7] As for the mental impact of being shot multiple times, he testified that he does not go outside at night, preferring to stay at home with his children. He stated that the fireworks on the Fourth of July "makes me weird" and that "a lot of loud noises, they're offensive." Id. at 25.

         [¶8] Tucker testified that he is right-handed and with the injuries to his right forearm it is difficult to work. He stated, "I'm a laborer, union, so I can't really do that anymore because the nerves, they end up like - -feels like there's a lot of tingling in my hands so I lose my hammer, drop the sledge hammer or something like that." Id. at 26.

         [¶9] When asked his opinion about what sentence Zavala should receive for his crime, Tucker indicated, "I think he should go to prison. I mean, if it was me, I'd be in prison, you know. I think he should go to prison really, sit and think about what he did. At least he gets to come back out. I mean, I died three times on the way to the hospital, so I might not have made it you know. I mean, he's still got a chance to come out." Id.

         [¶10] On cross-examination, Tucker testified that he knew Zavala. When asked what Zavala's reputation was on the streets, he responded, "[h]e didn't like to fight. He would go run and get the pistol." Id. at 29. He further testified that Zavala told Tucker "he won't fight nobody my size, he'll go get the pistol." Id. at 30. He further clarified that Zavala told him that Zavala was "little, he would not fight, he would just go and get the pistol and shoot the person." Id. at 31.

         [¶11] On February 8, 2019, the second phase of the sentencing hearing was held. Rosario Miranda, one of Zavala's sisters, testified. She testified that her family had immigrated to the United States from Mexico. There were six members in her family: Zavala, Miranda, a sister and a brother and their mother and father. Each of them had become citizens of the United States.

         [¶12] Miranda testified that the language barrier was tough on each of the children but was especially difficult for Zavala. She stated, "He had that language barrier. He was overweight, so he was picked on and bullied in grade school, and unfortunately due to that he turned to people that he [could] connect to, gangs." Id. at 43. "It was a gang . . . that also spoke Spanish that made him feel comfortable, welcome, protected." Id. at 44. He was around thirteen years old when he joined "the Latin Kings." Id. at 44, 54. Zavala, who was in the eighth grade, was expelled from school for a fight.

         [¶13] Zavala's parents discovered that he was in a gang when he was in his 20's "and tried to do their best to lead him away from that lifestyle and to better himself." Id. at 44. Zavala's parents' first plan of action was to try to separate him from the gang by sending him to Mexico to spend some months with grandparents and other relatives. After returning from Mexico, he spent some time with family who live in ...


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