Mar 10 2016, 9:36 am
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Dorothy Ferguson Gregory F. Zoeller
Anderson, Indiana Attorney General of Indiana
Richard C. Webster
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Tricia A. Davis Williams, March 10, 2016
Appellant-Defendant, Court of Appeals Case No.
29A02-1506-CR-528
v. Appeal from the Hamilton Superior
Court.
The Honorable Wayne A. Sturtevant,
State of Indiana, Judge.
Appellee-Plaintiff. Cause No. 29D05-1407-FD-6098
Darden, Senior Judge
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Statement of the Case
[1] Tricia A. Davis Williams appeals from the trial court’s sentencing order after
1
pleading guilty to one count of Class D felony theft, and the State cross-appeals
contending that Williams’ appeal should be dismissed. We affirm.
Issues
[2] Because the issue could be dispositive, we address the State’s cross-appeal first,
which presents the following issue for our review:
I. Whether Williams’ appeal should be dismissed because
she waived her right to appeal a discretionary sentencing
decision as part of her plea agreement.
Williams presents the following consolidated and restated issue for our review:
II. Whether the trial court abused its discretion or otherwise
imposed an inappropriate sentence given evidence of
Williams’ true change of behavior and good character.
Facts and Procedural History
[3] Matthew Huddleston was the owner of H & R Construction Services, LLC, a
small business entity, and Williams was the office manager. In May of 2014,
Linda Huddleston discovered that Williams had been embezzling money from
her son’s company. Linda confronted Williams, who admitted that she issued
checks to herself without authorization or eligibility for the money. The
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Ind. Code § 35-43-4-2 (2009).
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company books were audited after which it was determined that Williams paid
herself on thirty-four separate occasions for commissions, expense
reimbursements, and mileage reimbursements from January 1, 2013 to May 2,
2014, totaling $21,721.40. Williams also had falsely claimed overtime on
twenty-four separate occasions during that time period in an amount totaling
$4,008.88. When interviewed by Detective John Bunch of the Noblesville
Police Department, Williams admitted the allegations.
[4] The State charged Williams with one count of Class D felony theft, and later
added an allegation that Williams was an habitual offender. Williams and the
State entered into a plea agreement whereby Williams would plead guilty to
Class D felony theft and the State would dismiss the habitual offender
allegation. The trial court took the plea agreement under advisement, set the
matter for disposition, and ultimately accepted it.
[5] Williams testified at her sentencing hearing about efforts she had made to
improve herself since her arrest. In particular, she sought mental health
treatment, counseling, and medication. She had become active in a church and
took on-line courses to become a faith-based counselor. She had become a
Mary Kay agent and was the primary caregiver for her three and one-half year
old son. She also testified that she was in an abusive marriage and that her
actions occurred because of the stress and fear resulting from that relationship.
[6] Huddleston testified that he had previously fired Williams after she was caught
making unauthorized personal purchases on a business credit card. Later,
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Huddleston decided to give Williams a second chance and rehired Williams
when she requested to return to the company after getting married and the birth
of her child. During the time period leading up to the instant charges against
Williams, H & R Construction, LLC, was on the brink of bankruptcy, such that
Huddleston had to borrow money to keep the company solvent.
[7] Williams agreed that a fair sentence for her offense would be thirty-six months
incarceration in the Department of Correction, but asked the trial court to order
that the sentence be executed on home detention. The probation department
recommended a three-year sentence to the Department of Correction with two
years executed and one year suspended to probation. The State agreed with the
probation department’s recommendation. After considering the evidence and
argument of counsel, the trial court sentenced Williams to three years executed
in the Department of Correction.
Discussion and Decision
I. Waiver
[8] The State contends that Williams cannot challenge the sentence she received
because she waived the right to do so, pursuant to the terms of her plea
agreement. “A plea agreement is contractual in nature, binding the defendant,
the state, and the trial court, once the judge accepts it.” St. Clair v. State, 901
N.E.2d 490, 492 (Ind. 2009). Additionally, “a defendant may waive the right to
appellate review of his sentence as part of a written plea agreement.” Creech v.
State, 887 N.E.2d 73, 75 (Ind. 2008).
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[9] Resolution of this issue turns on the specific terms of the plea agreement, which
the State, Williams, and the trial court signed. Each specific term of that plea
agreement was initialed by Williams.
[10] The terms that are pertinent to this issue provide as follows:
The minimum and maximum sentence for each crime charged to
which he [sic] is pleading is:
Class D Felony: a fixed term of imprisonment of between six (6)
months and three (3) years, with an advisory sentence being one
and one-half (1 ½) years; in addition, a fine of not more than ten
thousand dollars ($10,000.00). Further, the defendant
acknowledges that his/her attorney has advised him/her that
pursuant to statute, the Court in certain instances may only be
able to suspend that part of a sentence in excess of the minimum
sentence if the defendant has a prior unrelated felony conviction
and that such prior conviction(s) may possibly be used by the
Court to increase the possible sentence and/or the possibility of
the imposition of consecutive sentences. Further, the defendant
acknowledges that his/her attorney has advised him/her that the
Court, pursuant to statute, can impose consecutive and/or
concurrent sentences pursuant to statute.
That the Defendant’s prior felony or misdemeanor convictions
may increase the possible sentence or may prevent the Court
from suspending all of the sentence;
....
The defendant acknowledges that he [sic] may have a right,
pursuant to the Sixth Amendment to the United States
Constitution and Article I, Section 13 of the Indiana Constitution
to have a jury determine, by proof beyond a reasonable doubt,
the existence of any fact or aggravating circumstance that would
allow the Court to impose a sentence in excess of the statutory
presumptive sentence and to have the State of Indiana provide
written notification of any such fact or aggravating circumstance.
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The defendant hereby waives such rights and requests that the
Judge of this Court make the determination of the existence of
any aggravating and/or mitigating circumstances and impose
sentence, after considering the presentence investigation report
and any appropriate evidence and argument presented at the
sentencing hearing.
....
The Defendant understands that he/she has a right to appeal his
[sic] sentence if there is an open plea. An open plea is an
agreement which leaves the sentence entirely to the Judge’s
discretion, without any limitations or the dismissal of any
charges. The Defendant acknowledges that his [sic] plea is not
an open plea and the Defendant hereby waives his [sic] right to
appeal his [sic] sentence so long as the Judge sentences the
Defendant within the terms of the plea agreement.
Appellant’s App. p. 22-23.
[11] The foregoing demonstrates the discretion the plea agreement left in the hands
of the trial court with respect to sentencing. The State argues that because
Williams agreed that her plea of guilty was not an open plea, she is foreclosed
from challenging her sentence on direct appeal. We disagree.
[12] “An ‘open’ plea is one in which the sentence imposed is left to the discretion of
the court.” Allen v. State, 865 N.E.2d 686, 689 (Ind. 2007). Where “a defendant
pleads guilty to what has been characterized as an ‘open plea’ the freedom and
latitude of the trial court to impose a particular sentence is readily apparent.”
Childress v. State, 848 N.E.2d 1073, 1078 (Ind. 2006) (footnote omitted). “Under
such circumstances the trial court’s discretion is limited only by the
Constitution and relevant statutes.” Id. In an open plea situation, the sentence
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must be challenged, if at all, by way of a direct appeal. Allen, 865 N.E.2d at
689.
[13] The terms of Williams’ plea agreement are in conflict and thus we find the plea
agreement to be ambiguous with respect to her right to appeal. First, Williams
initialed indicating that she was advised of the statutory maximum, minimum,
and advisory sentence for a Class D felony, to which she was pleading guilty
and the statutory limitations on the trial court’s discretion in imposing the
sentence. Secondly, her initials indicate that she was waiving her right to have
a jury determine the existence of any aggravating factors and requested the trial
court to find any aggravating and mitigating circumstances after considering the
presentence investigation report and evidence and argument of counsel at the
sentencing hearing. Thirdly, the plea agreement provides that Williams had the
right to appeal a sentence imposed on an open plea, but waived her right to
appeal the sentence imposed because hers was not an open plea, at least as was
defined in the plea agreement (“An open plea is an agreement which leaves the
sentence entirely to the Judge’s discretion, without any limitations or the
dismissal of any charges.”). Appellant’s App. p. 23.
[14] “We construe contracts against the drafting party, ‘which, in the case of plea
agreements, is the State.’” Russell v. State, 34 N.E.3d 1223, 1227 (Ind. 2015)
(quoting Grider v. State, 976 N.E.2d 783, 786 (Ind. Ct. App. 2012)). As such, we
conclude that this was in fact an open plea, that the parties mistakenly
characterized as not being so. Nevertheless, per the terms of the plea
agreement, Williams was allowed the opportunity to appeal her sentence from
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the open plea and may do so here on direct appeal. This conclusion comports
with the trial court’s sentencing statement on the record after imposing
sentence. (“Since this was an open sentence, I will advise you of your rights to
appeal in this matter.”). Tr. p. 40. At that point the State did not object to the
trial court’s comments or correct the record pursuant to the plea agreement.
We decline to dismiss Williams’ appeal.
II. Abuse of Discretion
[15] Williams characterizes her claim as, an alleged abuse of discretion in
sentencing, by the failure to consider proffered mitigating circumstances and
makes a passing reference to our authority to review and revise sentences under
Indiana Appellate Rule 7(B). However, Williams argues that the mitigating
circumstance of her true change of behavior and good character mitigates
against her sentence being served at the Indiana Department of Correction. As
a result at the sentencing hearing, Williams specifically requested the trial court
“to order her 36 months to the DOC but executed on in-home detention.” Tr.
p. 32.
[16] “The location where a sentence is to be served is an appropriate focus for
application of our review and revise authority.” King v. State, 894 N.E.2d 265,
267 (Ind. Ct. App. 2008). We will not, however, conduct a review for an abuse
of discretion. Id. A defendant faces a challenging task of prevailing on a claim
that a placement is inappropriate, because appellate review under Appellate
Rule 7(B) requires us to consider not whether another sentence is more
appropriate, but whether the sentence imposed is inappropriate. Id. at 267-68.
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[17] The trial court found the following aggravating circumstances: (1) Williams
twice violated a position of trust with the company; (2) she had a history of
committing the same type of offense; (3) she was on probation for a similar
offense when she committed the instant offense; (4) previous terms of probation
were unsuccessful in rehabilitating Williams and deterring her from committing
new offenses; (5) psychological services and counseling had not been successful;
(6) Williams’ previous period of home detention with electronic monitoring did
not alter her behavior; (7) her crimes took conscious planning and action; and
(8) the impact of Williams’ crimes on Huddleston’s small business was severe,
continuing to steal from him while knowing it was causing him financial
difficulty.
[18] Regarding the mitigating circumstances, the trial court found as follows: (1)
Williams pleaded guilty and by doing so saved the State the time and expense
of a trial; (2) long term incarceration would impose an undue hardship on
Williams’ child; (3) she agreed to make restitution in the amount agreed upon
in the plea agreement even though Huddleston’s losses were greater than that
sum; (4) Williams had resumed mental health treatment; and (5) she is
employed in a job where she is not responsible for handling money.
[19] However, as for Williams’ acceptance of responsibility for her offenses, the trial
court observed and listened to Williams in court, considered the presentence
investigation report, and, having done so, could not say that Williams fully
accepted responsibility for her crime. Regarding restitution, the trial court
questioned Williams’ credibility based in part on her statement in the
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presentence investigation report that it was sometimes acceptable to lie to
protect herself and her son, causing the trial court to be skeptical of Williams’
statements and plans to make restitution. Ultimately, the trial court found that
the aggravating circumstances outweighed the mitigating circumstances,
accepted the plea agreement, entered judgment of conviction, ordered
restitution, and sentenced Williams to three years executed in the Department
of Correction.
[20] In her challenge of the placement of her executed sentence, she asserts that the
trial court failed to properly consider her argument that she had a true change of
behavior and good character. An assessment of that proffered mitigating
circumstance necessarily entails an evaluation of Williams’ credibility. It is
proper for a trial court to make a determination of credibility during sentencing.
Pickens v. State, 767 N.E.2d 530, 535 (Ind. 2002). The trial court acknowledged
Williams’ efforts at rehabilitation, but doubted Williams’ credibility. A trial
court is not obligated to credit proffered mitigating factors in the same manner
as the defendant, nor explain why a proffered mitigating circumstance was not
found. Henderson v. State, 769 N.E.2d 172, 179 (Ind. 2002).
[21] “When considering the nature of the offense, the advisory sentence is the
starting point to determine the appropriateness of a sentence.” Johnson v. State,
986 N.E.2d 852, 856 (Ind. Ct. App. 2013). “One factor we consider when
determining the appropriateness of a deviation from the advisory sentence is
whether there is anything more or less egregious about the offense committed
by the defendant that makes it different from the ‘typical’ offense accounted for
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by the legislature when it set the advisory sentence.” Holloway v. State, 950
N.E.2d 803, 806-07 (Ind. Ct. App. 2011).
[22] When reviewing the sentence with respect to the character of the offender, we
engage in a broad consideration of a defendant’s qualities. Aslinger v. State, 2
N.E.3d 84, 95 (Ind. Ct. App. 2014), clarified on other grounds on reh’g, 11 N.E.3d
571.
[23] Regarding the nature of the offense, initially Williams had violated a position of
trust with Huddleston which led to the termination of her first employment.
When Williams asked for the opportunity to resume working for Huddleston as
office manager, he allowed her to do so, despite her prior theft from his
company. Subsequently, she issued checks for which she was ineligible on
thirty-four separate occasions for commissions, expense reimbursements, and
mileage reimbursements from January 1, 2013 to May 2, 2014, totaling
$21,721.40. Williams also had falsely claimed overtime on twenty-four
separate occasions during that time period in an amount totaling $4,008.88.
[24] Regarding the character of the offender, Williams had twice violated a position
of trust with the small company, had a history of committing the same type of
offense, and was on probation for a similar offense when she committed the
instant offense. Previous terms of probation were unsuccessful in rehabilitating
Williams and deterring her from committing new offenses. Psychological
services that were provided to Williams were not successful and counseling had
failed. Williams’ previous period of home detention with electronic monitoring
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did not alter her behavior. Additionally, her crimes took conscious planning
and action on her part over a lengthy period of time. She committed these acts
while knowing that Huddleston’s small company was suffering financially, and
that she was the primary caregiver for her young son. Williams has not
persuaded us that her placement in the Department of Correction is
inappropriate.
Conclusion
[25] In light of the foregoing, we affirm the trial court’s decision.
[26] Affirmed.
Baker, J., and Altice, J., concur.
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