Morton v. State
| Decision Date | 11 December 2013 |
| Docket Number | No. 64A05–1305–CR–222.,64A05–1305–CR–222. |
| Citation | 999 N.E.2d 118 (Table) |
| Parties | Kenneth MORTON, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff. |
| Court | Indiana Appellate Court |
Aimee C. Schultz, Portage, IN, Attorney for Appellant.
Gregory F. Zoeller, Attorney General of Indiana, Andrew Falk, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Kenneth Morton appeals his sentence for four counts of class D felony Theft.1 Morton raises the following issues on appeal:
We affirm.
Morton helped establish two nonprofit organizations in Porter County, known as Rebuilding Portage Together and Portage Parks. Morton served as the treasurer for both organizations for twelve years, and he used his position to steal over $75,000 from the organizations. Morton wrote 95 checks to himself, totaling $46,500, from Rebuilding Portage Together, and 115 checks, totaling $29,859, from Portage Parks. Morton's crimes were discovered when the organizations went to change some names on the accounts and discovered that they contained less than $1,000. As a result of Morton's thefts, the organizations have had difficulty raising funds because donors are now skeptical of the organizations' ability to properly manage their accounts.
On February 15, 2011, the State charged Morton with four counts of class D felony theft. On October 29, 2012, Morton pleaded guilty to all four felonies. A sentencing hearing was held on January 28, 2013, at which the trial court sentenced Morton to an executed three-year term on the first count and suspended two-year terms on each of the three remaining counts, with all terms to be served consecutively. Thus, Morton received an aggregate term of nine years, with three years executed and six years suspended to probation. Morton was also ordered to pay $76,359 in restitution. Morton now appeals.
As an initial matter, we note that the State argues that Morton's claims of sentencing error are waived because he has failed to provide us with a transcript of his guilty plea hearing and a copy of his pre-sentence investigation report. See Nasser v. State, 727 N.E.2d 1105 (Ind.Ct.App.2000) (), trans. denied. This court, however, has sometimes addressed the merits of sentencing arguments notwithstanding the defendant's failure to provide such documents. See Eiler v. State, 938 N.E.2d 1235 (Ind.Ct.App.2010). We remind Morton that it is his burden to present this court with a complete record, and that his failure to do so hampers our ability to consider his appellate arguments. See id. Nevertheless, we will conduct appellate review of Morton's sentence to the extent permitted by the scant record before us.
Morton argues that the trial court abused its discretion in imposing consecutive sentences. Specifically, he argues that the trial court's imposition of consecutive sentences violates Ind.Code Ann. § 35–50–1–2(c) (), which provides, in relevant part, as follows:
[E]xcept for crimes of violence, the total of the consecutive terms of imprisonment ... to which the defendant is sentenced for felony convictions arising out of an episode of criminal conduct shall not exceed the advisory sentence for a felony which is one (1) class of felony higher than the most serious of the felonies of which the person has been convicted.
Morton argues that his crimes were part of a single, continuing episode of criminal conduct and, as a result, the trial court erred in imposing consecutive sentences exceeding four years, the advisory sentence for a class C felony. See I.C. § 35–50–2–6 (). On the record before us, we disagree.
“Episode of criminal conduct” is statutorily defined as “offenses or connected series of offenses that are closely related in time, place, and circumstance.” I.C. § 35–50–1–2(b). In considering whether offenses are sufficiently related, emphasis has been placed on the timing of the offenses and whether they were committed simultaneously or contemporaneously. Gootee v. State, 942 N.E.2d 111 (Ind.Ct.App.2011), trans. denied. Additionally, we may consider “whether the conduct is so closely related in time, place, and circumstance that a complete account of one charge cannot be related without referring to details of the other charge[,]” though this consideration is not dispositive. Id. at 114;see also Reed v. State, 856 N.E.2d 1189 (Ind.2006).
Here, there is nothing in the record establishing that the acts on which Morton's four theft convictions were based are closely connected in time, place, and circumstance. Indeed, because Morton has not included the charging information in his Appellant's Appendix, we are unable to even discern the dates on which the charged offenses occurred. Although it seems apparent that Morton carried out each of the thefts in a similar fashion—i.e., by writing checks to himself on the organizations' accounts—this is not the relevant test. See Goo tee v. State, 942 N.E.2d 111 (). The State asserts that Morton “cites to no evidence that the 210 individual instances of writing checks to himself, from two different organizations, over an unknown period of time, occurring with an unknown frequency, constituted a single episode of criminal conduct.” Appellee's Brief at 10. We agree with the State's assessment and conclude that Morton has not established that his thefts were part of a single episode of criminal conduct.
Morton also argues that the trial court abused its discretion in imposing consecutive sentences despite its finding that the aggravating and mitigating circumstances were “somewhat equal[.]” Transcript at 21. As a general matter, the decision to impose consecutive sentences lies within the discretion of the trial court. Gilliam v. State, 901 N.E.2d 72 (Ind.Ct.App.2009). This court has held, however, that it is an abuse of discretion to impose consecutive sentences where the aggravating and mitigating circumstances are in balance. Feeney v. State, 874 N.E.2d 382 (Ind.Ct.App.2007). In this case, we doubt the trial court's statement that the aggravating and mitigating circumstances were “somewhat equal” was intended to be a pronouncement that they were, in fact, in equipoise. But even assuming that the trial court made such a finding, and consequently erred in imposing consecutive sentences, we need not remand for resentencing. Instead, we choose to exercise our authority to review the sentence under Indiana Appellate Rule 7(B). See Feeney v. State, 874 N.E.2d 382 (citing Windhorst v. State, 868 N.E.2d 504 (Ind.2007) ); see also Mendoza v. State, 869 N.E.2d 546, 556 (Ind.Ct.App.2007) (), trans. denied. As we explain below, we do not find Morton's sentence to be inappropriate, and we therefore affirm.
Morton argues that his sentence is inappropriate in light of the nature of the offense and his character. Article 7, section 4 of the Indiana Constitution grants our Supreme Court the power to review and revise criminal sentences. Pursuant to App. R. 7, the Supreme Court has authorized this court to perform the same task. Cardwell v. State, 895 N.E.2d 1219 (Ind.2008). Per App. R. 7(B), we may revise a sentence “if, after due consideration of the trial court's decision, the Court finds that the sentence is inappropriate in light of the nature of the offense and the character of the offender.” Wilkes v. State, 917 N.E.2d 675, 693 (Ind.2009), cert. denied, 131 S.Ct. 414 (2010). Nevertheless, “we must and should exercise deference to a trial court's sentencing decision, both because Rule 7(B) requires us to give ‘due consideration’ to that decision and because we understand and recognize the unique perspective a trial court brings to its sentencing decisions.” Stewart v. State, 866 N.E.2d 858, 866 (Ind.Ct.App.2007). Accordingly, “the question under Appellate ...
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