By GARY POPP
An Indiana appellate court has upheld a Clark County court’s ruling in 2012 related to a case involving a 32-year-old Sellersburg woman having sex with a 14-year-old boy.
Katherine Cervantes, now 34, was appealing the length of her sentence stemming from a plea agreement reached following convictions of sexual misconduct with a minor and contributing to the delinquency of a minor.
According to the case summary released by the Indiana Court of Appeals, Cervantes, Washington Drive, provided and drank alcohol with her teenaged children and their friends during a gathering at the family’s home in October 2011.
Later in the night, Cervantes’ husband discovered his wife having sexual intercourse with the juvenile while another juvenile was asleep in the same room.
Following a plea agreement in Clark County Circuit Court No. 1, Cervantes was convicted in December 2012 with class C felony sexual misconduct with a minor and class A misdemeanor contributing to the delinquency of a minor. The plea dismissed a third charge of class B felony sexual misconduct.
The appellate court earlier this month agreed with the plea agreement’s sentencing ruling by Clark County Circuit Court No. 1 Judge Dan Moore.
Cervantes was sentenced to five years in the Indiana Department of Correction for her guilty plea of sexual misconduct with the option to serve the final six months work release. She was sentenced to one year in the DOC for the class A misdemeanor guilty plea.
The two sentences are to run concurrently, meaning at the same time, for a total of 4.5 years imprisonment. With good behavior, a DOC inmate will serve half of the original sentence, resulting in Cervantes serving an expected net sentence of two years in prison.
The case reached the appellate court “challenging the appropriateness of her sentence,” according to the court’s case summary.
Cervantes requested the appellate court review and revise the sentence under a rule that a sentence issued by a trial court can be modified if the sentence is found to be inappropriate in the light of the nature of the offense and the character of the offender.
The appellate court took into consideration that Cervantes was sentenced to five years for the class C felony charge, which carries a minimum sentence of two years and a maximum sentence of eight years with a four-year advisory sentence.
“In [Cervantes’] plea agreement, she agreed to give the trial court discretion to sentence her within the two-to-eight years prescribed in the statute,” the appellate court points out in its findings.
The findings also state that Cervantes received a “substantial benefit” from her dismissal of the class B felony sexual misconduct with a child charge, as she has admitted to the sexual intercourse.
Cervantes also claimed to the appellate court that her offense does not warrant a five-year sentence as the trial court had overemphasized the negative impact of her offense on the 14-year-old victim.
Following the sexual encounter, court officials found the boy to have suffered serious, ongoing emotional problems and even attempted suicide. The incident in Cervantes’ home also resulted in the juvenile developing substance addictions that require expensive treatment and resulted in his termination from his school and his family moving from the area, according to the appellate court findings.
The court did not find validity, however, in Cervantes’ marginalization of the impact of the sexual encounter on the juvenile.
“Simply put, Cervantes’ conduct caused significant and protracted upheaval in the lives of her victim and his family,” the appellate court found.
When weighing Cervantes’ request that the appellate court review her character, it found that she attempts to portray herself as a homemaker, wife and mother who merely made a poor decision in mixing alcohol with diabetes medicine, pain pills and antidepressants.
Cervantes gave a tearful apology during her sentencing hearing that focused on her use of alcohol, with no mention of the sex crime.
“I know I made the wrong judgment in drinking and I just want to apologize, and I wanted to say how truly sorry I am,” she said during the hearing.
The appellate court also found Cervantes was “evasive and misleading” regarding the facts surrounding the gathering in her home and the sexual encounter.
Cervantes initially stated that she was fully dressed during the incident and gave the impression that there had only been fondling over the clothing.
“Then, when counsel and the trial court asked her for clarification, she admitted to lying about it and conceded that she wore only a shirt and engaged in sexual intercourse with [the boy],” according to the appellate court’s findings.
When questioned about the inconsistencies in her testimony, Cervantes claimed she was too drunk at the time to recall correctly.
The appellate court found her character did not warrant a reduction of her sentence.
Cervantes was arrested 12 days after the sexual encounter, and after a $3,000 bond was posted nine days later on Nov. 11, 2011, she was released from the Michael L. Becher Adult Correctional Complex.
She returned to the jail Dec. 11, 2012, for nearly three weeks before being transferred to a DOC property.
Cervantes is currently being held at the Rockville Correctional Facility, which is west of Indianapolis.