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.
of the Case
Javier Antonio Zavala appeals challenging his sentence after
he pleaded guilty to one count of battery causing serious
bodily injury,  a Class C Felony. We affirm.
Zavala raises two sentencing issues, which we restate as the
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?
and Procedural History
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.
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
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
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
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.
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.
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.
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.
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.
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.
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 ...