Pursuant to Ind.Appellate Rule 65(D), Nov 08 2013, 5:37 am
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
PATRICIA CARESS McMATH GREGORY F. ZOELLER
Indianapolis, Indiana Attorney General of Indiana
MICHAEL GENE WORDEN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
JAN A. RIDDLE, )
)
Appellant-Defendant, )
)
vs. ) No. 84A01-1304-CR-185
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE VIGO SUPERIOR COURT
The Honorable David R. Bolk, Judge
Cause No. 84D03-1003-FD-1053
November 8, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
NAJAM, Judge
STATEMENT OF THE CASE
Jan A. Riddle appeals her sentence and order of restitution following her conviction
for theft, as a Class D felony, pursuant to a plea agreement. Riddle presents the
following issues for our review:
1. Whether her sentence is inappropriate under Indiana Appellate Rule
7(B).
2. Whether the trial court abused its discretion when it ordered Riddle
to pay restitution.
We affirm in part, reverse in part, and remand with instructions.
FACTS AND PROCEDURAL HISTORY
In 2009, Riddle was serving as the representative payee for L.P.’s SSI disability
checks when Riddle used some of L.P.’s money to pay Riddle’s satellite television bill.
The State charged Riddle with two counts of theft, as Class D felonies. Riddle ultimately
pleaded guilty to one count of theft, as a Class D felony, and the State dismissed the
second count in exchange for her plea. The parties’ plea agreement capped Riddle’s
executed sentence at one and one-half years and left open the possibility of alternative
placements through the Vigo County Community Corrections program. Following a
hearing, the trial court accepted Riddle’s plea and sentenced her to one and one-half years
executed at the Department of Correction. The trial court also ordered Riddle to pay L.P.
$520 in restitution. This appeal ensued.
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DISCUSSION AND DECISION
Issue One: Sentence
Riddle contends that her sentence is inappropriate under Appellate Rule 7(B).
Although a trial court may have acted within its lawful discretion in determining a
sentence, Article VII, Sections 4 and 6 of the Indiana Constitution “authorize [ ]
independent appellate review and revision of a sentence imposed by the trial court.”
Roush v. State, 875 N.E.2d 801, 812 (Ind. Ct. App. 2007) (alteration original). This
appellate authority is implemented through Indiana Appellate Rule 7(B). Id. Revision of
a sentence under Appellate Rule 7(B) requires the appellant to demonstrate that his
sentence is inappropriate in light of the nature of his offenses and his character. See App.
R. 7(B); Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007). We assess the
trial court’s recognition or non-recognition of aggravators and mitigators as an initial
guide to determining whether the sentence imposed was inappropriate. Gibson v. State,
856 N.E.2d 142, 147 (Ind. Ct. App. 2006). However, “a defendant must persuade the
appellate court that his or her sentence has met th[e] inappropriateness standard of
review.” Roush, 875 N.E.2d at 812 (alteration original).
The Indiana Supreme Court has also stated that “sentencing is principally a
discretionary function in which the trial court’s judgment should receive considerable
deference.” Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008). Indiana’s flexible
sentencing scheme allows trial courts to tailor an appropriate sentence to the
circumstances presented. See id. at 1224. The principal role of appellate review is to
attempt to “leaven the outliers.” Id. at 1225. Whether we regard a sentence as
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inappropriate at the end of the day turns on “our sense of the culpability of the defendant,
the severity of the crime, the damage done to others, and myriad other facts that come to
light in a given case.” Id. at 1224.
Here, Riddle’s sole contention is that, given her myriad health ailments, which
require frequent visits to her physicians’ offices in Indianapolis and for which she takes
seventeen different medications daily, she should have been placed on home detention.
Riddle also asserts that she takes care of her husband, who has several health issues, as
well. And Riddle points out that Vigo County Community Corrections evaluated her and
approved her for home detention. Under the circumstances, Riddle maintains, “serving
her sentence at DOC is inappropriate.” Brief of Appellant at 3.
In King v. State, 894 N.E.2d 265, 267-68 (Ind. Ct. App. 2008), we addressed this
type of claim under Appellate Rule 7(B) and stated:
The location where a sentence is to be served is an appropriate focus for
application of our review and revise authority. Biddinger v. State, 868
N.E.2d 407, 414 (Ind. 2007). It is not, however, subject to review for abuse
of discretion. See id. Nonetheless, we note that it will be quite difficult for
a defendant to prevail on a claim that the placement of his sentence is
inappropriate. Fonner v. State, 876 N.E.2d 340, 343 (Ind. Ct. App. 2007).
This is because the question under Appellate Rule 7(B) is not whether
another sentence is more appropriate; rather, the question is whether the
sentence imposed is inappropriate. Id. at 344. A defendant challenging the
placement of a sentence must convince us that the given placement is itself
inappropriate. Id. As a practical matter, trial courts know the feasibility of
alternative placements in particular counties or communities. Id. at 343.
For example, a court is aware of the availability, costs, and entrance
requirements of community corrections placements in a specific locale. Id.
at 343-44.
Here, as the State points out, Riddle was on probation, on home detention, for
prior theft convictions at the time she committed the instant offense. On that basis, alone,
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Riddle has demonstrated that she is not a good candidate for home detention. Further,
Riddle’s victim was especially vulnerable in that L.P. lived with a debilitating brain
injury. And Riddle was the representative payee for L.P.’s SSI payments. As such,
Riddle was in a position of trust and violated her fiduciary duty when she stole from L.P.
We cannot say that Riddle’s placement with the Department of Correction is
inappropriate under Appellate Rule 7(B).
Issue Two: Restitution
Riddle contends, and the State agrees, that the trial court erred when it ordered
Riddle to pay L.P. $520 in restitution. The State had charged Riddle with two counts of
theft in amounts totaling $520, but the State dismissed the second count in exchange for
Riddle’s plea. At sentencing, Riddle “explicitly agree[d] to pay restitution in the amount
of $267.40” based upon the first theft count. Brief of Appellant at 4. On appeal, the
State asks that we instruct the trial court to revise the restitution order as requested by
Riddle. We reverse the restitution order and remand with instructions that the trial court
order Riddle to pay L.P. $267.40 in restitution.
Affirmed in part, reversed in part, and remanded with instructions.
MATHIAS, J., and BROWN, J., concur.
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