Linville v. State

• Decision Date: 22 March 2019
• Docket Number: Court of Appeals Case No. 18A-CR-983
• Citation: 120 N.E.3d 648
• Parties: Steven LINVILLE, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff
• Court: Indiana Appellate Court

120 N.E.3d 648

Steven LINVILLE, Appellant-Defendant,

v.STATE of Indiana, Appellee-Plaintiff

Court of Appeals Case No. 18A-CR-983

Court of Appeals of Indiana.

Filed March 22, 2019

Attorney for Appellant: Leanna Weissmann, Lawrenceburg, Indiana

Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, Tyler G. Banks, Deputy Attorney General, Indianapolis, Indiana

May, Judge.

[1] Steven Linville appeals following his convictions of three counts of Level 6 felony theft¹ and three counts of Level 6 felony making or delivering a false sales document.² He argues his fifteen-year sentence is inappropriate and the order that he pay $ 98,310.30 in restitution is "obvious error." (Br. of Appellant at 12.) We affirm in part, and we reverse and remand in part.

Facts and Procedural History

[2] For about sixteen years, Linville was employed by Laughery Valley AG (hereinafter, "Laughery Valley"). On behalf of Laughery Valley, Linville delivered fuel, oil, washer fluid, and antifreeze to about four hundred customers. In 2015, Laughery Valley began to suspect that Linville had been issuing false receipts to customers so that he could steal money from the payments due to Laughery Valley. When Laughery Valley confronted Linville, he admitted he took the money.

[3] On January 29, 2016, the State filed thirty-four counts against Linville for events occurring on seventeen separate dates between October 6, 2014, and October 21, 2015. Seventeen of the counts alleged Linville committed Level 6 felony theft because he "sold property belonging to Laughery Valley AG to Bob's Service Station and accepted a check totaling [date-specific amount]. Steven D. Linville did not turn the funds over to the Laughery Valley AG." (Appellant's App. Vol. 2 at 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30.) Seventeen other counts alleged Linville, on the same dates as the seventeen thefts, "delivered a false receipt to Bob's Service Station for property belonging to Laughery Valley AG." (Id. at 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47.)

[4] On October 23, 2017, Linville entered an agreement whereby he would plead guilty to three counts of Level 6 felony theft³ and three counts of Level 6 felony delivering a false sales document,⁴ in exchange for the State dismissing the remaining twenty-eight counts. The agreement left the sentence for each count to the Court's discretion but required all counts be served consecutively. Finally, the agreement provided: "Defendant shall pay restitution to Laughery Valley AG. The restitution amount shall be determined by the Court following a Restitution Hearing." (Id. at 119.)

[5] On October 24, 2017, the trial court accepted that agreement, entered those six convictions, and ordered the production of a presentence investigation report. The victim impact statement filed by Laughery Valley indicated that, between May of 2011 and November of 2015, Linville "stole at least $ 369,426.59 worth of sales proceeds through his scheme." (Id . at 127.) At sentencing, Linville argued the court could not order him to pay more than $ 35,729.00, based on the six counts to which Linville pled guilty. The trial court entered lengthy findings in support of its sentencing decision:

I. Under the terms of the Plea Agreement, Defendant faces a minimum sentence of 3 years and a maximum sentence of 15 years (180 days to 910 days on each count), with a total Advisory Sentence of 6 years.

II. The Defense asked for a sentence of probation or community corrections. The Prosecutor asked for a sentence of 15 years with 5 years suspended.

III. The AGGRAVATING FACTOR(S) are as follows:

a. The facts and circumstances of the crime go far beyond that necessary to prove Level 6 Felony Thefts. The offenses to which the Defendant pleaded guilty could have been proven by Defendant having stolen just a few thousand dollars. The facts of this case show that the Defendant stole tens of thousands of dollars that he was charged with and the evidence further shows that he had been stealing from the victim well before the period for which he was charged. These facts are substantially more egregious than what would be necessary to prove the commission of the six Level 6 felonies. The significant value of the Defendant's theft is an aggravating factor of great weight.

b. Defendant violated a position of trust. First, Defendant violated his employer's trust when he, on many occasions, misappropriated the employer's property knowing his employer had entrusted him to provide a service to their customers. Second, Defendant violated the trust of his employer's customers. Because the Defendant violated the position entrusted to him to serve as the middle-man between his employer (the victim herein) and a significant number (approximately 350-400) of customers, the Court considers this two-prong violation of trust to be a significant aggravating factor of great weight.

c. Defendant committed the crime of theft outside the times alleged in this Cause. Defendant is charged with committing crimes within a very narrow window of time; specifically, the theft of over $ 98,000 over the period of one year (October 2014 to October 2015). Defendant held his position for Laughery Valley for several years and other thefts, not brought within this case, were committed. The Court also recognizes that this aggravator is a basis for not affording the Defendant's lack of criminal history more weight, otherwise, this aggravator would have been heavier. Therefore, the Court considers this an aggravating factor and affords it moderate weight.

d. Defendant's actions have damaged Laughery Valley's business reputation in the community. According to Keith Everheart [sic], Laughery Valley has lost customers due to the Defendant's actions. Further, customers of Laughery Valley, not alleged victims herein, appeared in the court room at sentencing, as they believe that they too have been wronged by the Defendant's actions. The damage done to the victim from the wedge driven by the Defendant between the victim and its customers is palpable. The Court gives this aggravating factor moderate weight.

IV. The MITIGATING FACTOR(S) are as follows:

a. Defendant lacks criminal history. Although the Defendant does not have any previous convictions, the Court finds this mitigating factor should be viewed within the light that the evidence (Everhart testimony, Main PC, and Boring Letter) shows that he had committed numerous offenses over the course of many years against the victim herein. Although Defendant is only charged with the commission of crimes occurring between October 2014, and October 2015, the evidence shows thefts over the course of years. While the Court recognizes that the Defendant has no previous criminal convictions, the Court also recognizes that Defendant had been victimizing Laughery Valley for years before October of 2014. Therefore, the Court does not give this mitigating factor much weight.

b. Defendant shows remorse for the commission of the offense. Defendant recognizes that his crimes have embarrassed certain persons that had nothing to do with his criminal enterprise. The Court recognizes this as a mitigating factor, but because he's now before the Court for sentencing under the terms of a favorable plea agreement, the Court does not believe this factor to be of substantial weight. Further, it appears that the Defendant is more remorseful for humiliating other persons and himself than he is remorseful for stealing from the victim. Therefore, this is a mitigating factor, but not of substantial weight.

V. Defendant's guilty plea is not a mitigating factor because he already received a benefit of a Plea Agreement; namely the dismissal of 28 counts. This was a significant benefit to the Defendant.

(App. at 129-30 (emphases in original) (formatting altered).) The trial court found the aggravators "significantly outweigh" the mitigators, (id. at 130), and imposed a fifteen-year sentence with three years suspended to probation. The court also ordered Linville to "pay restitution to Laughery Valley ... in the amount of $ 98,310.30." (Id. at 131.)

[6] Linville then filed a motion to correct error that challenged both his sentence and the restitution order. He argued the court "relied on aggravating circumstances that are not supported by the record or are improper as a matter of law." (Id. at 138.) As to restitution, Linville asserted the court's ruling was "incorrect as a matter of law. Under Indiana law the restitution order could not have exceeded $ 35,729.00." (Id. ) The trial court denied Linville's motion to correct error in a lengthy order that will be quoted where relevant to the issues raised on appeal.

Discussion and Decision

[7] Linville appeals from the denial of his motion to correct error. We generally review the trial court's grant or denial of a motion to correct error for an abuse of the trial court's discretion. State v. Johnston , 65 N.E.3d 1061, 1062 (Ind. Ct. App. 2016). An abuse of discretion has occurred if the trial court's decision is "clearly against the logic and effect of the facts and circumstances before the court, or the reasonable, probable, and actual deductions to be drawn therefrom." State v. Collier , 61 N.E.3d 265, 268 (Ind. 2016) (quoting McElfresh v. State , 51 N.E.3d 103, 107 (Ind. 2016) ). If, however, the issues raised on appeal are pure questions of law, we review those issues de novo . Johnston , 65 N.E.3d at 1062.

Sentence Length

[8] Linville first argues his fifteen-year sentence is inappropriate. Pursuant to Indiana Appellate Rule 7(B), we "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." As we conduct our review, we give "substantial deference" to the decision of the trial court. Knapp v. State , 9 N.E.3d 1274, 1292 (Ind. 2014), cert....