DE LA TORRE v. STATE (2025)

MEMORANDUM DECISION

[1] Following a jury trial, the Marion Superior Court entered judgment of conviction against Bryan De La Torre for Level 3 felony criminal confinement, Level 3 felony aggravated battery, and three counts of Level 6 felony criminal recklessness. The trial court ordered De La Torre to serve an aggregate sixteen-year sentence and then enhanced the sentence on the aggravated battery conviction by twelve years because he used a firearm in the commission of that offense. De La Torre appeals his sentence and argues that the trial court was not permitted to enhance his sentence for his use of a firearm under Indiana Code section 35-50-2-11(i).

[2] We affirm in part but remand with instructions to the trial court to correct its sentencing order and abstract of judgment.

Facts and Procedural History

[3] In the summer of 2022, Juan DeJesus purchased a truck from De La Torre, who was a mechanic and owned a business named American Mobile Garage. DeJesus paid De La Torre $5,000, but they agreed that the truck would remain in De La Torre's possession until he completed needed repairs and obtained a clean title.

[4] In September 2022, DeJesus grew frustrated that De La Torre had not transferred the truck to him. DeJesus decided to speak to De La Torre in person about the matter and, on September 14, he returned to De La Torre's garage. De La Torre was sleeping when DeJesus arrived around 4:25 p.m., and DeJesus remained in the garage and waited for De La Torre to wake up.

[5] After De Le Torre awoke, DeJesus told him that he no longer wanted the truck and asked for a refund. DeJesus then sat down in a chair to wait for De La Torre to give him his money. In response, De La Torre pulled out a gun and shot DeJesus in his leg near his knee. He asked DeJesus whether he thought “this [wa]s a game.” Tr. Vol. 3, pp. 146, 159. He then put the gun to DeJesus's head and told DeJesus that he could not let him go. DeJesus was bleeding profusely and eventually passed out.

[6] Shortly thereafter, De La Torre sprayed water and soda on DeJesus's face, and he regained consciousness. DeJesus asked De La Torre to spare his life and told De La Torre that he would tell people that he shot himself in the leg. De La Torre gave DeJesus items to make a torniquet and, because he was afraid DeJesus might pass out again, he gave him a piece of chocolate and a soda. De La Torre helped DeJesus into the driver's seat of DeJesus's vehicle, but De La Torre took DeJesus's wallet and cell phone before DeJesus left.

[7] DeJesus drove away from the garage, and, after driving approximately one mile, he sought help from a nearby motorist. The motorist called 9-1-1 and paramedics arrived at approximately 5:35 p.m. They transported DeJesus to the hospital.¹ DeJesus initially did not tell law enforcement officers who had shot him but disclosed that the shooting occurred at American Mobile Garage near Emerson Avenue and 30th Street.

[8] Law enforcement officers obtained a warrant to search American Mobile Garage, and they arrived to execute the warrant at 11:25 p.m. The officers were accompanied by a SWAT team. The officers asked for the occupants of the garage to exit the building with their hands up. After no one complied with that command, the officers attempted to enter the garage using a battering ram and a Halligan. But the officers heard gunshots and retreated to safety. The gunshots exited the garage through the siding next to the door and struck the SWAT team's Bearcat. The officers could see the muzzle flash from a rifle. They had to seek cover for approximately six hours as De La Torre continued to shoot at them from inside the garage. They had to use drones to attempt to see inside of the garage and to shield themselves from sporadic gunfire.

[9] During the six-hour standoff, De La Torre called 9-1-1 and told the operator that he had hostages he was holding at gunpoint, including a female and a five-month-old child. The SWAT team eventually decided to force entry into the garage. As they entered the garage, the officers smelled a gas that made it difficult to breathe. The officers took De La Torre into custody, and De La Torre's breathing was also labored from inhaling the gas. Inside the garage, the officers found four firearms, cases of ammunition, and DeJesus's wallet and cell phone. Law enforcement officers’ investigation of the scene revealed that De La Torre had fired over 120 rounds during the standoff.

[10] The State ultimately charged De La Torre with three counts of Level 1 felony attempted murder, Level 2 felony robbery resulting in serious bodily injury, two counts of Level 3 felony criminal confinement (naming DeJesus as the victim in both counts), Level 3 felony aggravated battery, and three counts of Level 6 felony criminal recklessness.² The State also filed a firearm enhancement on all counts except for the three Level 6 felony criminal recklessness counts.

[11] De La Torre's jury trial commenced on January 27, 2025. The jury found De La Torre not guilty of the attempted murder and robbery counts but guilty on the remaining six counts. De La Torre then pleaded guilty to the firearm enhancements on the aggravated battery charge and the two criminal confinement charges. Tr. Vol. 7, p. 59.

[12] During the sentencing hearing, citing double jeopardy concerns, the trial court merged one of the criminal confinement convictions with the aggravated battery conviction. The trial court then ordered De La Torre to serve an aggregate sixteen years executed and enhanced the sentence on the aggravated battery charge by twelve years because De La Torre had used a firearm while committing that offense. Therefore, in the aggregate, the trial court imposed a twenty-eight-year executed sentence.

[13] De La Torre now appeals.

Discussion and Decision

[14] Indiana Code section 35-50-2-11, the Firearm Enhancement Statute, provides in relevant part:

(b) As used in this section, “offense” means:

(1) a felony under IC 35-42 that resulted in death or serious bodily injury ․

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(d) The state may seek, on a page separate from the rest of a charging instrument, to have a person who allegedly committed an offense sentenced to an additional fixed term of imprisonment if the state can show beyond a reasonable doubt that the person knowingly or intentionally used a firearm in the commission of the offense.

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(g) If the jury (if the hearing is by jury) or the court (if the hearing is to the court alone) finds that the state has proved beyond a reasonable doubt that the person knowingly or intentionally used a firearm in the commission of the offense under subsection (d), the court may sentence the person to an additional fixed term of imprisonment of between five (5) years and twenty (20) years.

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(i) A person may not be sentenced under subsections (g) and (h) for offenses, felonies, and misdemeanors comprising a single episode of criminal conduct.

Focusing on subsection (i) of the statute, De La Torre argues that the statute is ambiguous and claims that his actions constituted a single episode of criminal conduct. Therefore, he continues, the trial court could not enhance his sentence for using a firearm in the commission of his aggravated battery offense.³

[15] “The interpretation of a statute is a question of law that we review de novo.” Vandenberg v. Ind. Dep't of Corr., 153 N.E.3d 1122, 1124 (Ind. Ct. App. 2020). “We presume that the General Assembly intended for the statutory language to be applied in a logical manner consistent with the statute's underlying policies and goals.” Id. “If a statute is clear and unambiguous, we need not apply any rules of construction other than to require that words and phrases be taken in their plain, ordinary, and usual sense.” Id. “But if a statute is susceptible to more than one reasonable interpretation, it is ambiguous and must be construed to determine legislative intent.” Id. “We also keep in mind that penal statutes must be strictly construed against the State.” Id. “But this does not mean that a statute should be interpreted in an overly narrow manner so as to exclude cases fairly covered by it; we should instead interpret the statute so as to give efficient operation to the expressed intent of the legislature.” Id.

[16] In Howell v. State, 97 N.E.3d 253 (Ind. Ct. App. 2018), trans. denied, our court considered the defendant's argument that subsection (i) barred “a sentencing enhancement for an offense when that offense was committed with other offenses comprising a single episode of criminal conduct.” Id. at 267. The court disagreed with Howell's proposed interpretation of subsection (i), and stated:

By its plain language, subsection (i) states that a person may not be sentenced under subsection (g) for offenses—plural—comprising a single episode of criminal conduct. Thus, subsection (i) prohibits a trial court from imposing a sentence enhancement on more than one conviction where a defendant is convicted of multiple offenses comprising a single episode of criminal conduct, even if more than one of the offenses would otherwise be eligible for a sentencing enhancement. To read subsection (i) as Howell suggests would lead to the absurd result that a person who was convicted of committing a single qualifying offense, say voluntary manslaughter, would be subject to a sentencing enhancement, but a person who committed voluntary manslaughter as part of an episode of criminal conduct could not be subject to a sentencing enhancement. Accordingly, we conclude that subsection (i) simply means that not more than one offense in a single episode of criminal conduct is subject to the sentencing enhancement. Thus, even if Howell's offenses can be said to comprise a single episode of criminal conduct, the Firearm Enhancement Statute permits a sentencing enhancement of one of his offenses (as long as that offense meets the definition provided in subsection (b), and as noted, there is no dispute that voluntary manslaughter qualifies).

Id. at 267-68; see also Jarrett v. State, 160 N.E.3d 526, 538-39 (Ind. Ct. App. 2020) (agreeing with the Howell court's interpretation of Indiana Code subsection 35-50-2-11(i)), trans. denied.

[17] We agree with the panel opinions in Howell and Jarrett, and we are not convinced by De La Torre's argument that we should reject those holdings.⁴ And following the Howell panel's well-reasoned interpretation of Indiana Code section 35-50-2-11(i), we conclude that the trial court was permitted under subsection (i) to enhance De La Torre's sentence for his aggravated battery conviction because he used a firearm in the commission of that offense.

The Trial Court Should Have Vacated the Criminal Confinement Conviction Charged in Count 10.

[18] Citing double jeopardy concerns, the trial court merged the criminal confinement conviction imposed on Count 10 with De La Torre's aggravated battery conviction. De La Torre argues, and the State agrees, that the trial court was required to vacate the criminal confinement conviction. See Stubbers v. State, 190 N.E.3d 424, 431 n.2 (Ind. Ct. App. 2022) (citing, inter alia, Green v. State, 856 N.E.2d 703, 704 (Ind. 2006)). For this reason, we remand this case to the trial court to correct its sentencing order and abstract of judgment to reflect that the criminal confinement conviction should have been vacated.

Conclusion

[19] The trial court properly enhanced De La Torre's sentence on the aggravated battery conviction by twelve years under the Firearm Enhancement Statute. However, we remand this case to the trial court to correct its sentencing order and abstract of judgment to vacate the criminal confinement conviction imposed on Count 10.

[20] Affirmed in part and remanded in part for proceedings consistent with this opinion.

FOOTNOTES

1.   As a result of the gunshot wound, DeJesus had to have surgery on his leg. The surgeons had to use a vein from his other leg to rebuild a perforated artery. If DeJesus had not had the surgery, doctors would have had to amputate his leg. He was in the hospital for several days.

2.   The crimes charged against De La Torre for his offenses against DeJesus were initially filed under a separate cause number. The trial court later granted the State's motion to join those offenses with the charges for the offenses committed against law enforcement officers during the standoff.

3.   De La Torre does not argue that his Level 3 felony aggravated battery conviction does not qualify as an “offense” under Indiana Code subsection 35-50-2-11(b).

4.   De La Torre argues that subsection (i) is ambiguous, and therefore, we should apply the rule of lenity. However, “the rule of lenity applies only when ambiguity remains after consulting traditional canons of statutory construction.” Falletti v. State, 209 N.E.3d 456, 462 (Ind. Ct. App. 2023) (citing Shular v. United States, 589 U.S. 154, 165, 140 S. Ct. 779, 787, 206 L.Ed.2d 81 (2020)). Consistent with the Howell panel observations, De La Torre's claim that the statute is ambiguous and his proposed interpretation of the statute would yield an absurd result that the enhancement applies to persons convicted of a single qualifying offense but not persons convicted of a qualifying offense committed during an episode of criminal conduct.

Mathias, Judge.

Vaidik, J., and Pyle, J., concur.