Andre Natali Suzano, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

[1] Andre Natali Suzano appeals his 365-day sentence for Class A misdemeanor domestic battery.¹ He presents two issues for our review, which we restate as:

1. Whether the trial court abused its discretion when it sentenced Suzano to 365 days for his crime; and

2. Whether his sentence is inappropriate based on the nature of his offense and his character.

We affirm.

Facts and Procedural History

[2] Suzano and S.B. had been dating intermittently for about two years when on May 28, 2023, Suzano, S.B., and two friends – Ali and Chris Mindach (collectively, the “Mindachs”) – attended the Indianapolis 500. While there, Suzano and S.B. argued frequently. After the race, Suzano, S.B., and the Mindachs left the racetrack. Suzano drove because S.B. was inebriated.

[3] After dropping off the Mindachs at their residence, S.B. wanted to drive the car. Suzano refused because S.B. was intoxicated and he threw S.B.’s car keys into the bushes. Suzano retrieved the keys and started to drive S.B. home. The couple began arguing and yelling at each other. S.B. told Suzano she wanted to call her father. Suzano took S.B.’s phone and threw it on the floor next to the driver's side door, out of S.B.’s reach. S.B. tried to reach over Suzano's lap to get her phone and he “palmed [her] head [and] threw [her] across the car ․ [where she hit her head, eye, and lip] the handle on the doorframe of the door to hold onto[.]” (Tr. Vol. II at 196-7.)

[4] S.B. attempted to call 911 through the vehicle's voice-activated call system, but Suzano cancelled the call. S.B. became agitated, and Suzano grabbed S.B.’s hair and slammed her head into the dashboard, where S.B. hit her forehead, nose, and lip. Suzano eventually gave S.B. her phone back. Suzano and S.B. continued to yell and argue with each other until Suzano pulled into S.B.’s driveway. S.B. told Suzano she wanted him to pack up his things and leave the residence, and Suzano did so. On June 1, 2025, S.B. called the police to report the incident and the police took pictures of her injuries as part of their investigation.

[5] The State subsequently charged Suzano with Level 5 felony criminal confinement,² Class A misdemeanor domestic battery, and Class A misdemeanor interference with reporting a crime.³ The trial court held a jury trial and the jury found Suzano guilty of only Class A misdemeanor domestic violence.

[6] The trial court later held a sentencing hearing. Regarding aggravators, the State presented evidence of Suzano's prior convictions of distribution of an intimate image ⁴ and domestic battery, as well as his pending cases for invasion of privacy ⁵ and domestic battery. All of those cases involved S.B. In addition, the State argued S.B.’s extensive injuries should warrant an increased sentence. Suzano acknowledged he also had other misdemeanor convictions that did not involve S.B. Regarding mitigators, Suzano presented evidence that incarceration would negatively affect his three children, his fiancée, and his business. He also told the trial court that Community Corrections considered him “an acceptable candidate for Work Release.” (Tr. Vol. III at 178.)

[7] The trial court stated when pronouncing Suzano's sentence that it found mitigating the financial impact Suzano's incarceration would have on his three children. The trial court considered Suzano's near-completion of his probation for the distribution of an intimate image conviction to be a neutral factor in its sentencing decision. The trial court also stated it found as aggravating circumstances Suzano's convictions and arrest record in the cases involving S.B., noting they “indicate that this is a pattern of conduct that Mr. Suzano has engaged in in his relationship[s] with women.” (Id. at 181.) Based thereon, the trial court sentenced Suzano to 365 days incarcerated.

Discussion and Decision

1. Abuse of Discretion

[8] Suzano contends the trial court abused its discretion when it sentenced him to 365 days incarcerated because it did not consider mitigating evidence Suzano presented during the sentencing hearing and considered pending cases as aggravators,⁶ contrary to the presumption of his innocence. We review a trial court's sentencing decision using a well-settled standard of review:

Sentencing decisions rest within the sound discretion of the trial court. So long as the sentence is within the statutory range, it is subject to review only for an abuse of discretion. An abuse of discretion will be found where 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. A trial court may abuse its discretion in a number of ways, including: (1) failing to enter a sentencing statement at all; (2) entering a sentencing statement that includes aggravating and mitigating factors that are unsupported by the record; (3) entering a sentencing statement that omits reasons that are clearly supported by the record; or (4) entering a sentencing statement that includes reasons that are improper as a matter of law.

Hudson v. State, 135 N.E.3d 973, 979 (Ind. Ct. App. 2019) (internal citations omitted). Even if we determine the trial court abused its discretion in its findings of mitigators and aggravators, we will remand for resentencing only “if we cannot say with confidence that the trial court would have imposed the same sentence if it considered the proper aggravating and mitigating circumstances.” McCann v. State, 749 N.E.2d 1116, 1121 (Ind. 2001).

[9] First, Suzano argues the trial court abused its discretion when it did not indicate why it did not find his acceptance into a community corrections program as a mitigating factor when sentencing him. However, the trial court was not required to explain why it did not find Suzano's alternative, less restrictive placement as a mitigator. See, e.g., Anglemyer v. State, 868 N.E.2d 482, 493 (Ind. 2007) (if the trial court does not find a mitigator presented, it is not required to explain why), clarified on reh'g, 875 N.E.2d 218 (Ind. 2007).

[10] Suzano also argues the trial court abused its discretion when sentencing him because it used his pending charges for alleged crimes involving S.B. to support aggravating factors.⁷ “A single aggravating circumstance may be sufficient to enhance a sentence.” Hackett v. State, 716 N.E.2d 1273, 1278 (Ind. 1999). Suzano acknowledges the trial court did not abuse its discretion when it considered his pending charges, see Cotto v. State, 829 N.E.2d 520, 526 (Ind. 2005) (trial court is permitted to consider offender's arrest record when determining sentence), but contends the trial court “accepted as gospel” the probable cause affidavit in the pending case. (Br. of Appellant at 12.) When considering the pending charge as an aggravator, the trial court stated:

[T]he Court has read and reviewed the Probable Cause Affidavit [for the pending case] ․ and notes that the factual circumstances and the event therein bear a remarkable resemblance to the facts that I'm aware of in the three cases that are here, the two that I've heard and the other one that's filed, which would indicate that this is a pattern of conduct that Mr. Suzano has engaged in his relationship[s] with women.

(Tr. Vol. III at 181.)

[11] An offender's arrest record may be used as an aggravator when it reveals the offender's risk of committing another crime. Cotto, 829 N.E.3d at 526. In addition, it demonstrates “subsequent antisocial behavior has not been deterred by the police authority of the State.” Singh v. State, 40 N.E.3d 981, 988 n.1 (Ind. Ct. App. 2015), trans. denied. Further, trial courts “are permitted to examine specific activities of the defendant at sentencing, where no presumption of innocence exists, to ‘give the judge a feel for the kind of person [the] defendant is through a thorough examination of his background.’ ” Id. at 988 (quoting McNew v. State, 391 N.E.2d 607, 612 (Ind. 1979)).

[12] Here, the trial court considered Suzano's two prior convictions of domestic violence and distribution of an intimate image. It also considered Suzano's two pending cases for invasion of privacy and domestic battery, wherein at least one count involved S.B. Based thereon, it concluded Suzano's repeated attacks upon S.B. established a pattern of behavior to justify finding an aggravating factor when sentencing him. We hold the trial court did not abuse its discretion when it used Suzano's pending charge, in combination with his other two convictions, as an aggravating factor when sentencing him.

2. Inappropriate Sentence

[13] Suzano asserts his 365-day sentence is inappropriate based on the nature of his crime and his character. Pursuant to Indiana Appellate Rule 7(B), we may revise a sentence “if, after due consideration of the trial court's decision, [we find] the sentence is inappropriate in light of the nature of the offense and the character of the offender.” Our determination “turns on our sense of the culpability of the defendant, the severity of the crime, the damage done to others, and myriad other factors that come to light in a given case.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008).

Our review is deferential to the trial court's decision, and our goal is to determine whether the appellant's sentence is inappropriate, not whether some other sentence would be more appropriate. We consider not only the aggravators and mitigators found by the trial court, but also any other factors appearing in the record. The appellant bears the burden of demonstrating his sentence [is] inappropriate.

George v. State, 141 N.E.3d 68, 73-74 (Ind. Ct. App. 2020) (internal citations omitted), trans. denied. A defendant need not prove a sentence is inappropriate given both the defendant's character and offense, but “to the extent the evidence on one prong militates against relief, a claim based on the other prong must be all the stronger to justify relief.” Lane v. State, 232 N.E.3d 119, 127 (Ind. 2024).

[14] Suzano argues his sentence is inappropriate based on the nature of his offense. Generally, when considering the nature of the offense, we first look to the advisory sentence for the crime. Anglemyer, 868 N.E.2d at 494. We assess any deviation from the advisory sentence by looking to see if “there is anything more or less egregious about the offense committed by the defendant that makes it different from the ‘typical’ offense accounted for by the legislature when it set the advisory sentence.” Holloway v. State, 950 N.E.2d 803, 806-07 (Ind. Ct. App. 2011) (quoting Rich v. State, 890 N.E.2d 44, 54 (Ind. Ct. App. 2008), trans. denied). However, our legislature did not provide advisory sentences for misdemeanors. Instead, Indiana Code section 35-50-3-2 provides, in relevant part, that a person convicted of a Class A misdemeanor “shall be imprisoned for a fixed term of not more than one (1) year[.]”

[15] After a day of arguing, Suzano took S.B.’s phone, shoved her head into the handle above the car door, and smashed her head into the dashboard. S.B. received injuries to her forehead, nose, and lip. While Suzano contends the nature of the crime was not significant because S.B. did not immediately seek medical attention, her injuries were still evident when police took pictures of them a few days after the incident. Based thereon, we cannot say Suzano's sentence is inappropriate based on the nature of his offense.

[16] Suzano claims his sentence is inappropriate based on his character because he has children, has a fiancée, and is co-owner of a roofing company, which would be “cripple[d]” by his incarceration. (Tr. Vol. III at 172.) However, these possible consequences of his conviction do not outweigh the deficiencies in his character. For instance, Suzano contends he did not mean to harm S.B., but his failure to take responsibility for his actions does not indicate good character. See, e.g., Carranza v. State, 184 N.E.3d 712, 717 (Ind. Ct. App. 2022) (holding sentence was not inappropriate based in part on defendant's failure to accept responsibility for his crime). In addition, Suzano contends that S.B. contributed to the situation by being inebriated, which should justify a sentence below what he received. However, his doing so actually reflects negatively on his character because he is blaming his victim. See, e.g., Higginson v. State, 209 N.E.3d 15 (Ind. Ct. App. 2023) (the attempt to shift the blame to the victim for the defendant's commission of a crime shows poor character).

[17] “When considering the character of the offender, one relevant fact is the defendant's criminal history.” Johnson v. State, 986 N.E.2d 852, 857 (Ind. Ct. App. 2013). Suzano admitted he had prior convictions of domestic battery and distribution of an intimate image. S.B. was the victim of both of those offenses. He also admitted he had pending cases involving S.B. for two counts of invasion of privacy and two counts of domestic battery. In addition, Suzano was on probation at the time he committed the crime herein. Based thereon, we conclude Suzano's sentence is not inappropriate based on his character.

Conclusion

[18] The trial court did not abuse its discretion when it sentenced Suzano to 365 days incarcerated. Further, his sentence is not inappropriate based on the nature of his crime or his character. Accordingly, we affirm.

[19] Affirmed.

FOOTNOTES

1.   Ind. Code § 35-42-2-1.3(a).

2.   Ind. Code § 35-42-3-3(b)(1).

3.   Ind. Code § 35-45-2-5.

4.   Ind. Code § 35-45-4-8.

5.   Ind. Code § 35-46-1-15.1(d).

6.   While Suzano frames this argument as the trial court looking outside the record to find his pending cases as aggravators, he does not provide argument about that issue. Instead, his argument focuses on the trial court's use of information concerning the pending charge to find an aggravating circumstance to justify his sentence. If Suzano intended to provide argument about the trial court's consideration of documents from other cause numbers, that issue is waived. See, e.g., Allen v. State, 686 N.E.2d 760, 769 n.3 (Ind. 1997) (waiving issue that was identified but not argued in brief).

7.   While Suzano does not challenge the trial court's decision to find his criminal history, specifically those involving S.B., as an aggravator, the trial court's sentencing statement is unclear as to whether it considered his prior convictions and pending charges as separate aggravators and we thus address his argument.

May, Judge.

Judges Mathias and Bradford concur. Mathias, J., and Bradford, J., concur.