Campbell v. State

• Decision Date: 27 March 1990
• Docket Number: No. 34A048906CR235,34A048906CR235
• Citation: 551 N.E.2d 1164
• Parties: 59 Ed. Law Rep. 482 Richard L. CAMPBELL, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 1164

551 N.E.2d 1164

59 Ed. Law Rep. 482

Richard L. CAMPBELL, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 34A048906CR235.

Court of Appeals of Indiana Fourth District.

March 27, 1990.

James R. Fleming, Simmons & Fleming, Kokomo, for appellant.

Linley E. Pearson, Atty. Gen., John D. Shuman, Deputy Atty. Gen., Indianapolis, for appellee.

CONOVER, Judge.

Defendant-Appellant Richard L. Campbell (Campbell) appeals the trial court's judgment sentencing him to three suspended sentences and two 5 year jail terms to run consecutively, together with fines totalling $50,000 or in the alternative a $40,000 non tax deductible contribution to Indiana University-Kokomo Foundation for stealing more than a quarter million dollars of the University's funds.

We affirm.

This appeal presents the following issues:

1. whether the trial court can order consecutive sentences when it finds no statutory aggravating circumstances;

2. whether the non-statutory aggravating circumstances found by the trial court can justify its consecutive sentencing;

3. whether probation as a condition of the suspended sentences can be ordered served after Campbell's jail terms have been served; and

4. whether the court could order a $50,000 fine, or in the alternative, a $40,000 contribution to Indiana University-Kokomo Foundation but forbid Campbell to take a charitable deduction on his income tax return.

From January, 1983, through December, 1987, Campbell was the Business Manager for Indiana University-Kokomo campus. In that capacity he had access to the Central Stores Department of Indiana University, Bloomington. During that period, he would pick up items such as trash bags, light bulbs, door stoppers, door locks, and materials of like nature. Out of these supplies he converted property valued at $5,884.52 to his personal use.

Campbell was also in charge of obtaining postage for the University. It created for him The $12,100 Richard L. Campbell Revolving Fund which was kept in cash in the Bursar's office safe to which Campbell had access. Furthering his scheme to steal the university's postal funds, Campbell obtained blank receipts from the U.S. Postal Service. Regularly, he would remove cash in sums ranging from $2,000 to $5,000 from his postal fund in the Bursar's safe, leaving a forged postal receipt supposedly signed by a post office employee in its place. Also, during that five year period Campbell falsified petty cash receipts to document other cash removed from the Bursar's safe. In all during that period, Campbell stole $257,908.52 from the University in this manner.

Campbell by way of information was charged with 162 counts of theft and forgery. After negotiations, the State and Campbell entered into a plea bargain which was accepted by the trial court. At the time of sentencing Campbell was 47 years old and married with three children and two grandchildren. He had been employed by Indiana University for 26 years, the last 22 serving as business manager for its Kokomo extension. Campbell was a civic leader in Kokomo having served variously as a member of the local alcoholic beverage commission, the athletic booster club, Babe Ruth League, Chamber of Commerce, city hall dedication committee, police department study committee, the county community hospital association, and as President of Rotary International, to name but a few of his leadership posts.

Campbell pled guilty to three counts of theft and two of forgery. One theft count charged a class D felony, the remaining counts all were charged as class C felonies. Theft counts numbered 163 and 164 to which he pled had been filed as part of the plea bargain. In mitigation at the sentencing hearing, the trial court found Campbell's civic and community reputation and work ethic to be outstanding. It further found he was a leader of the community, both as to the university and the City of Kokomo, he had no history of delinquent activity, and was unlikely to commit another crime. Finally, the trial court determined there were no statutorily aggravating circumstances as listed in IND. CODE 35-38-1-7(b)(1-7), but the trial court did find

1. Campbell's violation of a position of trust to the University;

2. his violation of a position of trust to the community 3. the crimes involved multiple victims; and,

4. the crimes were committed in secrecy;

were aggravating circumstances warranting imposition of the consecutive sentences. (R. 397). The trial court also imposed a $10,000 fine on each of the five counts, terms of 2 and 5 years each on one count of theft and two counts of forgery, respectively, all suspended, but sentenced Campbell to the Indiana Department of Corrections for two 5 year prison terms on the plea bargained theft counts, to run consecutively. The balance of the trial court's sentencing order reads, in part, as follows:

The probation herein is granted as a result of the mitigating circumstances stated herein; the consecutive sentencing arises due to the aggravating circumstances as stated. The suspended sentences shall carry a term of probation of five (5) years to occur after release from incarceration. As a special condition of probation, the defendant is ordered to make total restitution to Indiana University in an amount to be determined by the Adult Probation Office of this court after all civil cases are concluded. Further, he is to serve five hundred (500) hours of community service while on probation. He will pay a Probation User's Fee of $50.00 and $15.00 per month while on probation. As to the fines, said fines totaling $50,000.00 will be suspended upon the condition that Mr. Campbell contribute $40,000.00 to the Indiana University-Kokomo Foundation. If the defendant chooses not to make said contribution to the Indiana University Foundation at Kokomo, the fines are ordered paid to the State of Indiana during the term of his probation. Further said contribution to Indiana University-Kokomo Foundation will not be used for tax deductions or in any other manner by which to reduce the defendant's tax liabilities nor shall such contribution be acknowledged by the Foundation in any form by memorial, scholarship, grant or dedication. The Court recommends the defendant be allowed to serve his sentence at a minimal correctional facility. Defendant has no jail time credit. Commitment is ordered. Court enters judgment on said findings.

From this sentence, Campbell appeals.

Campbell first argues none of the trial court's four aggravating circumstances are found in I.C. 35-38-1-7(b)(1-7). Thus, the trial court abused its discretion by so doing Campbell opines, citing Taylor v. State (1982), Ind., 442 N.E.2d 1087, and Brown v. State (1986), Ind., 497 N.E.2d 1049, in support of his position. We disagree.

The factors listed in I.C. 35-38-1-7 are not exclusive. The trial court may, in its discretion, consider other relevant factors. Ballard v. State (1988), Ind., 531 N.E.2d 196, 198; Brooks v. State (1986), Ind., 497 N.E.2d 210, 220; Mullens v. State (1983), Ind., 456 N.E.2d 411, 414. Brown and Taylor are inapposite. In Brown, the trial court properly articulated an aggravating circumstance before enhancing the defendant's sentence. In Taylor, the trial court expressly found no aggravating circumstances, either statutory or non-statutory. Thus, neither case supports Campbell's argument. We further note I.C. 35-38-1-7 itself says

. . . . .

(d) The criteria listed in subsections (b) [aggravating circumstances] and (c) [mitigating circumstances] do not limit the matters that the court may consider in determining the sentence....

Thus, the trial court could consider aggravating factors not set forth in the statute in question as bearing upon the question of sentence enhancement, so long as they were relevant. Ballard, 531 N.E.2d at 197.

Next Campbell argues the mere fact his crimes involved a violation of trust placed in him by his employer, the University, cannot be used as an aggravating factor, citing Linger v. State (1987), Ind.App., 508 N.E.2d 56. In Linger, the court said the mere recitation by the trial court of an element of the crime without more to justify enhancement of sentence is improper. While that is the rule in Linger, that case also says Townsend [v. State (1986), Ind., 498 N.E.2d 1198] also recognizes that the trial court may consider the particularized circumstances of the crime's factual elements, and the sentence may be enhanced if an element is particularly egregious ... [when] the trial court establishes, in its sentencing statement, reasons why the theft from an employer is any more grievous than theft from another and justifies imposition of an enhanced sentence[,]

enhancement of sentence is proper. Linger, 508 N.E.2d at 65. Here, the trial court particularized this element and the others he set forth in his sentencing order by writing the following:

THE COURT NOW FINDS that many character witnesses of high standing within this community have testified for and on behalf of the defendant, Richard L. Campbell, and in their testimony have indicated the defendant's civic and community reputation and work ethic to be outstanding.

It appears to the Court that Mr. Campbell can be described in many different and flattering terms. It was shown to the court that Mr. Campbell had a charitable nature in that he worked for the good of many local causes, and further, that he was benevolent in the use of his money and time. In his personal life, he was bold and forward looking, capable of performing many and varied tasks. Thereby, it can be said, he was both enterprising and ambitious. These traits were enhanced by the aspect of creativity and cleverness that was demonstrated by Mr. Campbell. At his work at Indiana University-Kokomo, there is some mixed evidence describing him as demanding, vocal and visibly aggressive as well as charming, witty and friendly. These traits when combined with the fact that...