Alejandro Perez-Cortez v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Mar 08 2018, 9:06 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court estoppel, or the law of the case. ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Noah T. Williams Curtis T. Hill, Jr. Monroe Co. Public Defender Attorney General of Indiana Bloomington, Indiana Michael Gene Worden Deputy Attorney General Indianapolis, Indiana IN THE COURT OF APPEALS OF INDIANA Alejandro Perez-Cortez, March 8, 2018 Appellant-Defendant, Court of Appeals Case No. 53A01-1710-CR-2407 v. Appeal from the Monroe Circuit Court State of Indiana, The Honorable Marc Kellams, Appellee-Plaintiff. Judge Trial Court Cause No. 53C02-1611-F3-1001 Brown, Judge. Court of Appeals of Indiana | Memorandum Decision 53A01-1710-CR-2407 | March 8, 2018 Page 1 of 6 [1] Alejandro Perez-Cortez appeals his sentence for rape as a level 3 felony. He raises one issue which we revise and restate as whether his sentence is inappropriate in light of the nature of the offense and his character. We affirm. Facts and Procedural History [2] On or about October 4, 2016, Perez-Cortez was at the home of S.M. and her husband and was friends with S.M.’s husband. While Perez-Cortez and S.M.’s husband drank together, S.M. went to her bedroom. At some point, Perez- Cortez entered the bedroom and, without wearing his pants or shoes, got into bed with S.M. and Perez-Cortez attempted to force his penis into S.M.’s anus. [3] On November 22, 2016, the State charged Perez-Cortez with: Count I, rape as a level 3 felony,1 and Count II, sexual battery as a level 6 felony.2 The State and Perez-Cortez entered a plea and sentencing agreement pursuant to which he agreed to plead guilty to Count I, the State agreed to dismiss Count II, and the parties agreed that his sentence would not exceed five years. Perez-Cortez pled guilty as charged pursuant to the plea agreement.3 Perez-Cortez stated, “I was drunk, but I never hurt her.” Transcript at 10. He indicated that he was an 1 Count I alleged Perez-Cortez “did knowingly or intentionally have other sexual conduct, that is: tried to force his penis into the anus of S.M. when such person was compelled by force and/or imminent threat of force.” Appellant’s Appendix Volume I at 11. 2 Count II alleged Perez-Cortez, “with the intent to arouse or satisfy the sexual desires of himself, did compel S.M. to submit to a touching, that is: touched the vagina of S.M. with his fingers by the use of force or imminent threat of force.” Appellant’s Appendix Volume I at 11. 3 The transcript indicates that Perez-Cortez does not speak English and provided his testimony through an interpreter. Court of Appeals of Indiana | Memorandum Decision 53A01-1710-CR-2407 | March 8, 2018 Page 2 of 6 undocumented immigrant. The prosecuting attorney argued that Perez-Cortez was not a good candidate for probation due to his ...

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