PADILLA v. STATE (2025)

MEMORANDUM DECISION

[1] Santos Sotero Padilla (“Padilla”) appeals the trial court's order resentencing him following his direct appeal of his convictions of two counts each of Level 1 felony attempted child molesting ¹ and Level 4 felony child molesting ² and one count of Level 5 felony criminal confinement.³ Padilla presents three issues, which we consolidate and restate as one: whether the trial court abused its discretion in resentencing Padilla. We affirm in part, reverse in part, and remand.

Facts and Procedural History

[2] We summarized the facts of Padilla's offenses following his direct appeal:

In 2022, D.G. lived in Indianapolis with her aunt, her two cousins, E.G. and C.G., and her aunt's boyfriend, Padilla. On December 14, D.G., then nine years old, disclosed during a haircut that she was being molested, most recently the day before. Police were called and responded to her house. D.G. was taken to the hospital, where she underwent a forensic examination. Male DNA was found on an internal genital swab, but there was not enough DNA to develop a profile. D.G. also was interviewed by a child-abuse detective. During the interview, D.G. said she was being sexually abused by both Padilla and sixteen-year-old E.G.

Padilla was taken to the police station, where he waived his Miranda rights and was interviewed by police. One of the officers interpreted for Padilla. Padilla stated that “[t]he other day,” he hugged and kissed D.G. Padilla acknowledged that he put his “private part in between [D.G.’s] legs” but claimed it was “never inside her vagina.” He also acknowledged ejaculating.

Thereafter, the State charged Padilla with five counts relating to D.G.: Count I: Level 1 felony child molesting (sexual intercourse), Count II: Level 1 felony child molesting (“other sexual conduct”), Count III: Level 4 felony child molesting (touching or fondling), Count IV: Level 4 felony child molesting (touching or fondling), and Count V: Level 5 felony criminal confinement. The charges alleged that the offenses occurred between January 1, 2022, and December 14, 2022.

Padilla v. State, 259 N.E.3d 356, 357-58 (Ind. Ct. App. 2025) (internal citations and footnote listing the charges that did not result in conviction omitted) (brackets in original).

[3] The trial court held Padilla's jury trial in July 2024. Id. at 358. D.G. testified regarding three molestation incidents. Id. During two of these incidents, D.G. explained Padilla rubbed his penis on the outside of her vagina but did not insert his penis inside. Id. During the third incident, D.G. stated Padilla had tried to insert his penis into her anus, but she prevented him from penetrating. Id. Padilla was convicted of five felonies and sentenced to an aggregate term of sixty years. Id. at 359. The trial court found as an aggravating factor that Padilla had failed to appear in a case pending in Hamilton County to answer a charge related to possession of methamphetamine. In addition, the trial court explained it was an aggravating factor “that this was a crime of violence that occurred in the presence of children who were less than eighteen (18) years old.” (DA Tr.⁴ Vol. 4 at 229.) The trial court also found Padilla's abuse of a position of trust to be an aggravating factor. The trial court determined Padilla's history of steady employment was a mitigating factor. The trial court sentenced Padilla to a term of thirty years on each of his Level 1 felony child molesting convictions and ordered those sentences served consecutively. The trial court also decreed Padilla a credit restricted felon. Regarding the remaining convictions, the trial court imposed a six-year term on each of Padilla's Level 4 felony convictions and a four-year term on his Level 5 felony conviction. The trial court ordered those sentences to be served concurrently with his Level 1 felony sentences.

[4] Padilla appealed his convictions, and we held the State presented insufficient evidence to sustain his Level 1 felony convictions because the State did not prove the element of penetration. Padilla, 259 N.E.3d at 360. However, we also held the State presented sufficient evidence to support conviction on each count for the lesser-included offense of Level 1 felony attempted child molesting. Id. at 361. Consequently, we vacated Padilla's Level 1 felony convictions and remanded “with instructions for the trial court to enter judgment of conviction for Level 1 felony attempted child molesting on both counts and to resentence him accordingly.” Id.

[5] On July 24, 2025, the trial court held Padilla's resentencing hearing. The trial court incorporated the evidence and argument presented at Padilla's initial sentencing hearing. Padilla asserted the trial court should consider that he was convicted of attempted rather than completed child molesting to be a mitigating factor. In pronouncing sentence, the trial court explained:

Having listened to the evidence in this case, the Court still finds the advisory sentence as to Count I and Count II is appropriate, even as an attempt. While I appreciate defense counsel's argument, in reviewing the facts of this case, the Court finds that the actions of an attempt would still cause damaging consequences to a victim.

(Tr. Vol. 2 at 7.) The trial court sentenced Padilla to a term of thirty years on each of the Level 1 felony attempted child molesting convictions. The trial court ordered the sentences to run consecutively for an aggregate term of sixty years. The trial court did not modify Padilla's sentence on any of the other counts, but it stated Padilla was “still found to be a credit-restricted felon as to Counts [sic] I and Counts [sic] II.” (Id. at 8.)

Discussion and Decision

[6] Padilla contends the trial court abused its discretion by entering “the exact same sentence imposed for the completed offenses for the now attempted offenses.” (Appellant's Br. at 7.) We review a trial court's sentencing decision for an abuse of discretion. Wills v. State, 269 N.E.3d 1273, 1282 (Ind. Ct. App. 2025). “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.” Id. A trial court may abuse its discretion at sentencing by:

(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.

Id. However, even if the trial court abuses its discretion at sentencing, we “will remand for resentencing only if we cannot say with confidence that the trial court would have imposed the same sentence had it properly considered reasons that enjoy support in the record.” Ackerman v. State, 51 N.E.3d 171, 194 (Ind. 2016) (internal quotation marks omitted), cert. denied, 137 S. Ct. 475 (2016).

[7] First, Padilla asserts “[t]he trial court improperly considered the aggravator of committing a crime of violence in the presence of a minor because attempted child molestation is not a crime of violence.” (Appellant's Br. at 7.) One statutorily defined aggravator a trial court may consider when imposing sentence is whether the defendant committed a “crime of violence” in the presence of a minor other than the victim. Ind. Code § 35-38-1-7.1(a)(4). Padilla notes that while child molesting is a “crime of violence” listed in Indiana Code section 35-50-1-2(a)(12), attempted child molesting is not listed. However, Indiana Code section 35-50-1-2(a)(12) does not distinguish between Level 1 felony child molesting and Level 4 felony child molesting. Padilla committed Level 4 felony child molesting by touching D.G.’s breasts and buttocks and that occurred during the same incident as Count I. C.G. and E.G. were present in the house at that time. Therefore, the trial court did not abuse its discretion when it determined Padilla committed a crime of violence in the presence of minors.

[8] Padilla next asks us to consider whether the trial court abused its discretion because it did not “give consideration to Padilla's offenses being attempts rather than completed offenses.” (Appellant's Br. at 9.) However, it is not an abuse of discretion for the trial court to consider the facts and circumstances of the crime when imposing sentence. See, e.g., Grober v. State, 163 N.E.3d 347, 353 (Ind. Ct. App. 2021) (holding trial court did not abuse its discretion when it considered the nature and circumstances of the defendant's crimes as an aggravating factor at sentencing), trans. denied. Even though Padilla did not technically penetrate D.G.’s vagina or anus, his attempts to do so were still egregious. During one of the incidents, Padilla tied D.G.’s hands together and put tape over her mouth. Given the nature and circumstances of Padilla's crimes, the trial court did not abuse its discretion when it concluded those circumstances were aggravating and Padilla's technical failure to complete his offenses was not mitigating.

[9] Additionally, we note that Padilla's sentence on each Level 1 felony is equal to the advisory term for that level of offense. See Ind. Code § 35-50-2-4(b) (thirty years is the advisory term for a Level 1 felony). Padilla does not challenge the propriety of the trial court's designation of his failure to appear or his abuse of a position of trust to be aggravating factors, and such circumstances would have justified an enhanced sentence. See Buford v. State, 139 N.E.3d 1074, 1081 (Ind. Ct. App. 2019) (“A single aggravating circumstance may be sufficient to enhance a sentence”).

[10] Finally, Padilla argues the trial court should not have designated him as a credit restricted felon, and the State agrees that it was error for the trial court to do so. Indiana Code section 35-31.5-2-72(1) provides that an individual is a credit restricted felon if the person was convicted of child molesting involving sexual intercourse or other sexual conduct ⁵ and the offender was over the age of twenty-one and the victim under the age of twelve.⁶ These acts mirror the elements of Level 1 felony child molesting.⁷ However, the State did not convict Padilla of the completed offense of Level 1 felony child molesting. The State convicted Padilla of two counts of Level 1 felony attempted child molesting, and the trial court specified at sentencing that the credit restricted felon status applied to those counts. In Boling v. State, Boling was convicted of Class A felony attempted child molesting for an act involving the attempted penetration of a five-year-old child's sex organ with an object, and the trial court designated him to be a credit restricted felon. 982 N.E.2d 1055, 1056 (Ind. Ct. App. 2013). Boling conceded that if he had been convicted of the completed offense, he would qualify as a credit restricted felon, but he argued he did not qualify because he had only been convicted of the attempted offense. Id. at 1059. We agreed with Boling and held that Boling was not a credit restricted felon because the credit restricted felon statute did not include a citation to the attempt statute. Id. at 1059-60. Likewise, Padilla does not qualify as a credit restricted felon because he was convicted of Level 1 felony attempted child molesting rather than the completed offense. Therefore, we remand for the trial court to correct its sentencing order and abstract of judgment accordingly.

Conclusion

[11] The trial court did not abuse its discretion when it considered Padilla's commission of a crime of violence in the presence of a minor to be an aggravator. The trial court also did not abuse its discretion by refusing to recognize a mitigator in Padilla's conviction of Level 1 felony attempted child molesting rather than the completed offense. We therefore affirm the length of Padilla's sentence. However, the trial court should not have designated Padilla to be a credit restricted felon. Accordingly, we affirm in part, reverse in part, and remand.

[12] Affirmed in part, reversed in part, and remanded.

FOOTNOTES

1.   Ind. Code §§ 35-42-4-3(a)(1) & 35-41-5-1.

2.   Ind. Code § 35-42-4-3(b)(1)(A).

3.   Ind. Code § 35-42-3-3(b)(1).

4.   “DA Tr.” refers to the transcript of Padilla's trial and first sentencing hearing. “Tr.” refers to the transcript of Padilla's resentencing hearing.

5.   Indiana Code section 35-31.5-2-221.5 states:“Other sexual conduct” means an act involving:(1) a sex organ of one (1) person and the mouth or anus of another person; or(2) the penetration of the sex organ or anus of a person by an object.

6.   Indiana Code section 35-31.5-2-72(2) provides that an individual is also a credit restricted felon if the person was convicted of child molesting and the offense resulted in serious bodily injury or death. However, that subsection is not applicable because D.G. did not suffer serious bodily injury or death.

7.   Indiana Code section 35-42-4-3 provides, in relevant part:(a) A person who, with a child under fourteen (14) years of age, knowingly or intentionally performs or submits to sexual intercourse or other sexual conduct (as defined in IC 35-31.5-2-221.5) commits child molesting, a Level 3 felony. However, the offense is a Level 1 felony if:(1) it is committed by a person at least twenty-one (21) years of age[.]

May, Judge.

Altice, C.J., and Foley, J., concur.