Cherry v. State

• Decision Date: 10 July 2002
• Docket Number: No. 48A04-0109-CR-417.,48A04-0109-CR-417.
• Parties: H. Erskine CHERRY, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

772 N.E.2d 433

H. Erskine CHERRY, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 48A04-0109-CR-417.

Court of Appeals of Indiana.

July 10, 2002.

Angela Warner Sims, Hulse Lacey Hardacre Austin & Shine, P.C., Anderson, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Christopher L. Lafuse, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

BROOK, Chief Judge.

Case Summary

Appellant-defendant H. Erskine Cherry ("Cherry") appeals his sentence for his convictions for one count of Class C felony theft,¹ two counts of Class D felony theft, and one count of Class C felony corrupt business influence.² We affirm in part and vacate in part.

Issues

Cherry raises four issues for our review, which we restate and reorder as follows:

I. whether the trial court abused its discretion by failing to find Cherry's guilty plea as a mitigating factor;

II. whether the trial court abused its discretion by failing to accord Cherry's lack of criminal record sufficient weight as a mitigating factor;

III. whether Cherry's fourteen-year sentence is manifestly unreasonable; and

IV. whether the trial court abused its discretion in calculating Cherry's restitution.

Facts and Procedural History

Cherry was admitted to the Indiana bar in 1971. On October 21, 1997, he received $120,241.79 from client Janice Schulte ("Schulte"). Cherry told Schulte that he would invest this money in a nonexistent company called "Dajan Inc." and promised Schulte that her investment would return 1.25% per month, or 15% per annum. Instead, Cherry used the money to pay business bills. On March 18, 1998, and June 4, 1998, Schulte gave Cherry checks for $10,000.00 and $5000.00, respectively, thinking that Cherry would deposit them in a trust fund for her son. Instead, Cherry cashed these checks and applied the proceeds toward a business venture.

The State charged Cherry with one count of Class C felony theft, two counts of Class D felony theft, and one count of Class C felony corrupt business influence. On July 9, 2001, Cherry pled guilty to all four counts. On August 29, 2001, the trial court sentenced Cherry as follows:

[Cherry's counsel has] articulated every possible mitigating circumstance and most of them I don't think are applicable. They could be but I don't know that there is evidence that would justify my finding them to be mitigators. There is in fact a mitigating factor that Mr. Cherry has had a long distinguished period of productive work life. I know of my own knowledge that he served honorabl[y] in the military. And I believe he did and he was honorably discharged. That is a mitigator. He was [an] elected public servant and while not everybody will agree with some of his decisions, he generally acquitted himself well. He has no prior criminal history.... [T]he aggravators are that he [h]as a repeated pattern of theft of funds entrusted to him for good and worthy purposes. And he violated the most sacred trust that there can be.... I clearly feel that the aggravating circumstances outweigh the mitigators.

....

Alright, [Cherry] plead guilty to theft as a C in count I, he is sentenced to the Indiana Department of Corrections for a period of eight (8) years. He plead guilty to theft [as] a D in Count II, he is sentenced to the Indiana Department of Corrections for a period of ... [t]hree (3) years. And on Count III, he is sentenced to the Indiana Department of Corrections for theft, three (3) years. All sentences to run consecutively for a total of fourteen (14) years. Count IV, Corrupt Business Influence, he is sentenced to the Indiana Department of Corrections for a period of eight (8) years. Count IV is to run concurrently with Counts I, II and III. Restitution in the amount of two hundred and twelve thousand dollars ($212,000.00) is ordered repaid. There is no fine. He is ordered to pay the costs. [T]here is [a] nine hundred fifty dollars ($950.00) cash bond. I would like to order that paid over to Mrs. Schulte today.

Appellant's App. at 25, 27-28.

The trial court apparently based its restitution order on the $222,527.56 that Schulte requested in her victim impact statement minus $10,000.00 in payments that Cherry had made to Schulte prior to sentencing. On September 25, 2001, Cherry asked the trial court to recalculate its restitution order. After a hearing on January 14, 2002, the trial court credited Cherry for the $950.00 bond and entered judgment on restitution of $211,050.00. Cherry now appeals.

Discussion and Decision

I. Guilty Plea

Cherry contends that the trial court erred when it failed to find his guilty plea as a mitigating circumstance. Trial courts are granted broad discretion in imposing sentences, including the consideration of aggravators and mitigators, and we will reverse a sentencing decision only for an abuse of that discretion. See Davies v. State, 730 N.E.2d 726, 741 (Ind.Ct. App.2000), trans. denied.

When enhancing a sentence, the trial court must set forth a statement of its reasons for selecting a particular punishment. See id. Specifically, the court must (1) identify all significant aggravating and mitigating circumstances, (2) explain why each circumstance is considered aggravating or mitigating, and (3) show that it evaluated and balanced the circumstances. See Payne v. State, 687 N.E.2d 252, 255 (Ind.Ct.App.1997). "At least one aggravating factor is required to impose an enhanced or consecutive sentence, and the same factor may both enhance a presumptive sentence and justify consecutive sentences." Miller v. State, 716 N.E.2d 367, 371 (Ind.1999) (citation omitted). "Finding the existence of mitigating circumstances is within the discretion of the trial court." Beason v. State, 690 N.E.2d 277, 283 (Ind. 1998). Furthermore, "[t]he sentencing court is not required to place the same value on a mitigating circumstance as does the defendant." Id. at 283-84.

"Indiana courts have recognized that a guilty plea is a significant mitigating circumstance in some circumstances." Trueblood v. State, 715 N.E.2d 1242, 1257 (Ind. 1999). "Nevertheless, this determination is necessarily fact sensitive, and not every plea of guilty is a significant mitigating circumstance that must be credited by a trial court."³Id. Cherry argues that the trial court should have found his guilty plea as a mitigating circumstance because it saved the State the time and expense of preparing a case and conducting a trial; because it spared Schulte the stress of a trial; and because it showed his acceptance of responsibility for his crimes. See Appellant's Br. at 9.

Indiana courts have often addressed these three considerations in determining whether a trial court should have found a guilty plea to be a mitigating circumstance. One recent case contains the following analysis:

While a guilty plea is not enough to prove remorse, it can show an acceptance of responsibility for one's actions. Certainly, the plea saves court time and spares the victim's family the trauma of a trial. Where the State reaps a substantial benefit from the defendant's act of pleading guilty, the defendant deserves to have a substantial benefit returned.

As for a guilty plea showing acceptance of responsibility, the court in Scheckel [v. State, 655 N.E.2d 506, 511 (Ind.1995),] considered this circumstance as at least "partially confirm[ing] the mitigating evidence regarding ... character."

Sensback v. State, 720 N.E.2d 1160, 1164-65 (Ind.1999) (some citations omitted, ellipsis in Sensback).

Based on the record before us, we are not convinced that Cherry deserves a substantial benefit in return for pleading guilty. First, it does not appear that Cherry's trial would have been very costly in either time or resources. Second, although Schulte was spared the "added stress of a trial[,]" Appellant's Br. at 9, we do not believe that Schulte's stress would have been significant. Finally, although Cherry claims that he "accepted responsibility upon his first contact with law enforcement[,]" id., he fails to mention that, when confronted by Schulte's counsel prior to police involvement, he wrote Schulte two $5000.00 checks that were returned for insufficient funds. In conclusion, we cannot say that the trial court abused its discretion in not finding Cherry's guilty plea to be a mitigating circumstance.

II. Lack of Criminal Record

Cherry contends that "although the trial court identified his lack of criminal history as a mitigating factor, the trial court failed to give any weight to this factor" and "could not have given [Cherry's] lack of criminal record any weight whatsoever." Appellant's Br. at 7. Cherry cites Loveless v. State, 642 N.E.2d 974, 976 (Ind.1994), for the proposition that a lack of criminal record is a factor that deserves "substantial mitigating weight." As mitigators, the trial court found that Cherry had a "long distinguished period of productive work life[,] that he served honorabl[y] in the military[, that he was an] elected public servant [who] generally acquitted himself well[, and that he had] no prior criminal history." Appellant's App. at 25. As aggravators, the trial court cited Cherry's "repeated pattern of theft of funds entrusted to him for good and worthy purposes" and his "violat[ion of] the most sacred trust that there can be[.]" Id. at 26.

There is no indication that the trial court failed to give Cherry's lack of criminal record the substantial mitigating weight that it deserved. The trial court found that the aggravators outweighed the mitigators, and although it did not indicate the relative weight it assigned to each mitigator or aggravator, it was under no obligation to do so. Cf. Hollen v. State, 761 N.E.2d 398, 401 (Ind.2002) ("To the extent that the State requests that we confirm that a trial court judge is not obligated to assign to each aggravating circumstance a specific proportional weight, we do so."). The two aggravators the trial court found in the...