Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be Oct 16 2013, 5:30 am
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:
JARED MICHEL THOMAS GREGORY F. ZOELLER
Evansville, Indiana Attorney General of Indiana
RICHARD C. WEBSTER
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
JOHN NEAL CLARK, )
)
Appellant-Defendant, )
)
vs. ) No. 82A01-1302-CR-69
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE VANDERBURGH CIRCUIT COURT
The Honorable Kelli E. Fink, Magistrate
Cause No. 82C01-1209-FC-1136
October 16, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
BROWN, Judge
John Neal Clark appeals his sentence for conspiracy to commit forgery as a class
C felony and argues that his sentence is inappropriate in light of the nature of the offense
and his character. We affirm.
FACTS AND PROCEDURAL HISTORY
At some point during the summer of 2012, Clark and Larry Goble worked for All
Star Auto Detail, a company owned by Brandon Brucken. Clark and Goble came into
possession of business checks for All Star Auto Detail. On September 11, 2012, Clark
contacted Jamie Gooch and asked her if she “wanted to make some money” and that he
“was looking for somebody that was, that fit close to the description of the ID that he had
because they was trying to cash checks.” Transcript at 160-161. Clark and Goble drove
to Gooch’s apartment and showed her the identification, which was a Kentucky driver’s
license belonging to Samantha Bruce. Although her hair color was different from that of
the woman on the license, Gooch was convinced by Clark and Goble to “try and cash a
check that they had.” Id. at 162.
Clark drove Goble and Gooch to a store which cashed checks, where Goble filled
out a check for $1,000 and gave it and the license to Gooch, and Gooch went inside and
attempted to cash the check but was told that the company would not cash it because of
the amount. Clark drove back to Gooch’s apartment building, and Gooch asked Bonita
Walden, from whom she rented her apartment, if she would help her cash some checks.
Clark and Goble told Walden that Goble “was part owner of the business that they work
for and that their business was going down.” Id. at 165. Clark then drove Goble, Gooch,
and Walden to several locations where Gooch and Walden attempted, unsuccessfully, to
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cash the checks, and eventually, after another person joined the group and they picked up
another vehicle, the group traveled to a branch of Banterra Bank.
Gooch and Walden, each with a check, entered the Banterra Bank branch. Walden
handed the check in her possession to the bank teller, who indicated the check was not
signed and returned it to Walden, and Walden exited the bank to have it signed. Gooch
then presented the check in her possession to the teller. The teller noticed that the check
was written to Samantha Bruce by All Star Auto Detail and that the name Samantha
Bruce had been signed on the back of the check. The teller compared the signature on the
check to the signature on the signature card of the owner of the account which the bank
had on file. The teller showed the bank manager the signatures on the check and
signature card, and the manager agreed that the signature on the check did not look like
that of Brucken, the owner of All Star Auto Detail.
The manager called Brucken, explained the situation, and asked if he could verify
that he had written a check to Samantha Bruce, and Brucken responded that he had not
written the check. Brucken also confirmed that some of the checks for his company were
missing and advised of the check number of the last check he had written. While the
manager was on the phone with Brucken, Walden returned with a check which was
signed. The manager informed Gooch and Walden that the checks they presented were
stolen and that the bank would have to keep them, and the bank made a copy of the
driver’s license belonging to Bruce. Gooch and Walden exited the bank and left with
Clark and the others in the two vehicles.
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Officers with the Evansville Police Department spoke with Brucken and the bank
employees and obtained the checks and a copy of the driver’s license as well as
surveillance photographs of Gooch and Walden. The officers drove to Walden’s
apartment, located her at Gooch’s apartment, and, as they were speaking with her, Clark,
Goble, and Gooch entered the apartment. The police arrested Clark, Goble, and Gooch.
On September 13, 2012, the State charged Clark with conspiracy to commit
forgery as a class C felony and theft as a class D felony. The theft charge was dismissed
upon motion by the State prior to trial. A jury found Clark guilty of conspiracy to
commit forgery as a class C felony.
At the sentencing hearing, Clark’s counsel argued that “there’s no restitution due,”
that “[t]he victim, who was his employer, told the Probation Department that he just
wanted [] Clark to get his life together” and “[t]hat sounds to me like he’s not demanding
any kind of harsh punishment,” that Clark “didn’t forge any checks, he didn’t present any
checks, Jamie Gooch did,” and that Gooch “presented false ID and attempted to get some
money.” Sentencing Transcript at 14. Clark’s counsel argued that the State allowed
Gooch to testify for the State and that the State allowed her to plead guilty to identity
deception as a class D felony, dismissed a forgery count against her, and recommended
the minimum sentence which was six months. Clark’s counsel also argued that Walden
was never charged and that “[t]he State and the Police accepted her version that she
didn’t realize there was anything illegal about this even though when she went to the
bank and attempted to cash the check, they refused it, she took it out to the car and a man
named Larry Go[b]le signed somebody else’s name on it, and she took it back into the
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bank again to try and pass it.” Id. at 15. Clark’s counsel argued that “the sentences in
these cases should be somewhat consistent.” Id. He also stated that Goble’s case was
pending, that he was on work release as a condition of bond, that he had “been revoked
on that,” and that he was back in the county jail. Id. Clark’s counsel stated that “[t]he
Probation Department wants eight years . . . , which . . . is far in excess of what he
deserves in light of his activities in this case,” that he did not “know why Probation
Officers even make recommendations,” that “they don’t know the facts of the case,” and
that “they’re just kind of shooting from the hip and say give him the maximum because
he’s got a record.” Id. at 15-16. He also argued that “[h]e is employed or he’s
employable.” Id. at 16.
Clark stated that he hoped for some leniency so that he could work and provide for
his family, that he “know[s] [he] messed up by being involved in this case in some type
of manner,” and then asked the court: “if you can see it . . . to let me get one shot to
actually try to make it this time, house arrest, Work Release, AAPS and DAPS, Drug
Court, I’ll take all that, and if I mess up one time, you can send me back to prison on it,
it’s just I need one more chance to actually try to prove to my family before I let them
down again ‘cause I know I can do it, and I do have employment.” Id. at 16-17. Clark
stated, with respect to his involvement in the case, that he “was just there” and that he
was “going to take full responsibility for [his] involvement in that case.” Id. at 17-18.
Clark stated that he did not steal the checks, but that he did know about it, and that “[a]s
long as [he] didn’t say nothing to the boss or anything, [he] was gonna get initial cash
funds.” Id. at 18. Clark indicated he had two children and a fiancée. Clark’s counsel
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argued that an appropriate sentence would be eight years with four years executed to
work release and four years suspended to probation.
The State argued that Clark was part of the scheme, that he worked for the
company, and that he knew the checks were stolen. The State said that Clark was
incorrect as to Gooch’s sentence, that she was sentenced to two years with six months
executed and the balance served through the drug abuse probation services program, and
that Gooch did not have Clark’s criminal record and was not on parole at the time of the
offense like Clark. The State argued that Clark has a lengthy criminal history, including
prior felony convictions for dealing in methamphetamine and robbery. The State also
noted that Gooch was cooperative, admitted her responsibility, and did not force the State
to take her to trial, that Clark did not do those things, and that is why Gooch received a
deal.
The trial court found the mitigating circumstances to be that Clark had children
who would be affected by the sentence, that he had health issues involving his knee and
back, that the crime was non-violent, and that he admitted responsibility to some extent.
The court found the aggravating circumstances to be that Clark was on parole at the time
of the offense and that he had a criminal history which included convictions for dealing
in methamphetamine, robbery, several DUI offenses, and possession of marijuana. The
court noted Clark had been previously revoked from the work release program and thus
believed that he was not an appropriate candidate for work release. The court also noted
that it was not going to sentence Clark to the maximum as it did not think it was
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appropriate based on the offense, and sentenced Clark to six years in the Department of
Correction.
DISCUSSION
The issue is whether Clark’s sentence is inappropriate. Indiana Appellate Rule
7(B) provides that this court “may revise a sentence authorized by statute if, after due
consideration of the trial court’s decision, [we find] that the sentence is inappropriate in
light of the nature of the offense and the character of the offender.” Under this rule, the
burden is on the defendant to persuade the appellate court that his or her sentence is
inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).
Clark argues that, while he has a fairly extensive criminal history, “the convictions
of the other co-conspirators were vastly more lenient” than his sentence. Appellant’s
Brief at 8. Clark further argues that the majority of his convictions occurred over six
years prior to the instant charges, that no restitution was required, and that the victim did
not request jail time. Clark also contends that he should not have been considered the
worst of the worst of his alleged co-conspirators.1 The State maintains that Clark fails to
1
Clark also appears to argue, without citation to authority to support his position, that the trial
court abused its discretion in sentencing him because the court failed to take into account that there was
no restitution required, to take “into consideration as a mitigating circumstance that the victim in this case
did not request jail time,” and to take into account “the convictions of the alleged co-conspirators as a
mitigating circumstance,” and that the court “gives no weight to the mitigating circumstances” it found.
Appellant’s Brief at 11. However, “even if the trial court is found to have abused its discretion in the
process it used to sentence the defendant, the error is harmless if the sentence imposed was not
inappropriate.” Mendoza v. State, 869 N.E.2d 546, 556 (Ind. Ct. App. 2007), trans. denied; see also
Windhorst v. State, 868 N.E.2d 504, 507 (Ind. 2007) (holding that in the absence of a proper sentencing
order, we may either remand for resentencing or exercise our authority to review the sentence pursuant to
Ind. Appellate Rule 7(B)), reh’g denied; Shelby v. State, 986 N.E.2d 345, 370 (Ind. Ct. App. 2013)
(holding that “even if the trial court did abuse its discretion by failing to consider the alleged mitigating
factor of residual doubt, this does not require remand for resentencing”), trans. denied. Accordingly, we
need not address Clark’s contentions that the court abused its discretion in sentencing him if we determine
that his sentence is not inappropriate. Even if we were to consider Clark’s abuse of discretion arguments,
we would not find them to be persuasive. An order of restitution in this case was unnecessary because the
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present cogent argument regarding the inappropriateness of his sentence in light of the
nature of his offense or character and has waived this court’s review of his claim.
Our review of the nature of the offense reveals that Clark and Goble worked for
All Star Auto Detail and that Clark contacted Gooch and asked for her help with cashing
checks from All Star Auto Detail using Bruce’s driver’s license. He told Walden that
Goble was part owner of a business, and drove Gooch and the others to several locations
where Gooch and Walden attempted to cash the checks. Clark waited outside Banterra
Bank as Gooch and Walden entered and attempted to cash the checks, and was there
when the women exited the bank. Gooch and Walden exited the bank and left with Clark
and the others in the two vehicles.
Our review of the character of the offender reveals that Clark stated that he was
sorry, has two children, and has some health issues. According to the presentence
investigation report (the “PSI”),2 as a juvenile Clark was adjudicated a delinquent for
operating a vehicle with an alcohol concentration equivalent to at least .08 but less than
Banterra Bank personnel discovered that the presented checks had been stolen and Clark never received
any money from the bank or from the account of All Star Auto Detail. Further, the record does not
contain information related to the sentencing of Clark’s co-conspirators, namely, their criminal histories,
backgrounds, and any other information which may have been taken into account at their sentencing
hearings.
2
Clark has included his PSI on white paper in his appendix. We remind counsel that Indiana
Appellate Rule 9(J) requires that “[d]ocuments and information excluded from public access pursuant to
Administrative Rule 9(G)(1) shall be filed in accordance with Trial Rule 5(G).” Administrative Rule
9(G)(1)(b)(viii) provides that “all pre-sentence reports pursuant to Ind. Code § 35-38-1-13” are “excluded
from public access” and “confidential.” The inclusion of the PSI printed on white paper in the appendix
is inconsistent with Trial Rule 5(G), which states, in pertinent part: “Every document filed in a case shall
separately identify documents that are excluded from public access pursuant to Admin. R. 9(G)(1) as
follows: (1) Whole documents that are excluded from public access pursuant to Administrative Rule
9(G)(1) shall be tendered on light green paper or have a light green coversheet attached to the document,
marked ‘Not for Public Access’ or ‘Confidential.’” See Hape v. State, 903 N.E.2d 977, 1001 n.13 (Ind.
Ct. App. 2009) (observing that the inclusion of the PSI printed on white paper in the appendix is
inconsistent with Appellate Rule 9(J) and Trial Rule 5(G)), trans. denied.
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.15 in 1999 and theft as a class D felony if committed by an adult in 2000. As an adult,
Clark was convicted of public intoxication in 2001; possession of marijuana as a
misdemeanor, illegal consumption of an alcoholic beverage, and operating a vehicle
while intoxicated as a misdemeanor in 2001; public intoxication in 2004 and 2006;
operating a vehicle with alcohol concentration equivalent to .15 or more with a prior as a
class D felony and robbery resulting in bodily injury as a class C felony in 2007; and
dealing methamphetamine as a class B felony in 2009. The PSI noted that the instant
offense is Clark’s fourth felony conviction, that he has previously been revoked from
parole, and that he was on parole when he committed the instant offense. The PSI also
indicated: “The victim stated that the defendant needs to get his life together and stay out
of trouble.” Appellant’s Appendix at 44. The PSI further states that Clark reported that
he had worked for All Star Auto Detail for two months prior to his arrest, that he
previously worked for another company for four months, that he was previously
incarcerated in the DOC for thirty-four actual months, and that he worked for another
company for approximately one year. The PSI indicates that the results of Clark’s risk
assessment show that his overall risk assessment score puts him in the high risk to
reoffend category. The PSI also noted the probation department’s recommendation that
Clark be sentenced to eight years. We also note that Clark received a six-year sentence
and not the possible maximum eight-year sentence for a class C felony. See Ind. Code §
35-50-2-6.
Under the circumstances and after due consideration of the trial court’s decision
and of the record, we conclude that Clark has not sustained his burden of establishing that
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his sentence of six years is inappropriate in light of the nature of the offense and his
character.
CONCLUSION
For the foregoing reasons, we affirm Clark’s sentence for conspiracy to commit
forgery as a class C felony.
Affirmed.
NAJAM, J., and MATHIAS, J., concur.
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