Smith v. State
Decision Date | 22 September 2015 |
Docket Number | No. 24A01–1501–CR–1.,24A01–1501–CR–1. |
Citation | 44 N.E.3d 82 |
Parties | Jerry A. SMITH, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff. |
Court | Indiana Appellate Court |
Robert W. Hammerle, Victoria L. Bailey, Indianapolis, IN, Attorneys for Appellant.
Gregory F. Zoeller, Attorney General of Indiana, Ellen H. Meilaender, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
, Judge.
[1] Jerry Smith appeals his forty-year sentence and order of restitution following his convictions for five counts of Class C felony conducting business as a broker-dealer without registering with the Indiana Secretary of State. We reverse and remand.
[2] The issues we address are:
We described the facts in Smith's first appeal in this matter as follows:
, our statutory double jeopardy provision pertaining to prosecution by dual sovereigns. The Franklin Circuit Court dismissed Counts 11 through 25 setting out the charges alleging that Smith committed securities fraud and securities fraud involving a victim over sixty years of age on the basis that the conduct alleged was the same or substantially the same as the conduct alleged in the federal indictment to which Smith pleaded guilty. However, the trial court denied Smith's motion to dismiss Counts 1 through 10 setting out the charges alleging that Smith engaged in unlawful acts related to the offer or sale of a security and alleging Smith's failure to comply with the requirement of broker-dealer registration.
Smith v. State, 993 N.E.2d 1185, 1187–88 (Ind.Ct.App.2013)
, trans. denied.
[4] On appeal, this court held the trial court erred in failing to dismiss counts 1 through 5 of the information, which had alleged that Smith violated Indiana Code Section 23–19–3–1
by selling securities that had not been registered with the Indiana Secretary of State. Id. at 1190. However, we held that Smith could face prosecution under counts 6 through 10 for engaging in business as a broker-dealer without having registered as a broker-dealer. Id. at 1190–91.
[5] On remand following the appeal, Smith elected to plead guilty to the remaining counts of the information, with sentencing left to the trial court. At the sentencing hearing, counsel for Smith noted that he had already been ordered to pay restitution to the Indiana victims of the Ponzi scheme in the federal proceeding and requested that Smith not be ordered to pay restitution twice. Counsel did not object to the State's introduction of evidence related to restitution amounts for the Indiana victims. The trial court imposed maximum sentences of eight years for each conviction, to be served consecutively for a total term of forty years, with twenty years suspended to probation. It also ordered Smith to pay a total of $410,189.16 in restitution to the victims. Smith now appeals.
C.H. v. State, 15 N.E.3d 1086, 1096 (Ind.Ct.App.2014), trans. denied. In Iltzsch v. State, 972 N.E.2d 409, 412 (Ind.Ct.App.2012), this court held that we should review unobjected-to restitution orders based upon our duty to bring illegal sentences into compliance with the law. Our supreme court granted transfer in this case but summarily affirmed this portion of our opinion. Iltzsch v. State, 981 N.E.2d 55, 57 (Ind.2013). We elect to review the restitution order against Smith, even if he did not clearly object to the order.
[7] We review a trial court's order of restitution for an abuse of discretion. Bickford v. State, 25 N.E.3d 1275, 1279 (Ind.Ct.App.2015)
, trans. denied. The purpose of restitution is to impress upon a defendant the magnitude of the loss he or she has caused, as well as to vindicate the rights of society. Id. A victim entitled to restitution is one who has suffered injury, harm, or loss as a direct and immediate result of the criminal acts of a defendant. Id. Restitution awards generally should not cover crimes to which a defendant does not plead guilty or is not convicted of, and for which the defendant does not explicitly agree to pay restitution. Morris, 2 N.E.3d at 9 ( ); see also
James v. State, 868 N.E.2d 543, 549 (Ind.Ct.App.2007).
[8] Here, Smith pled guilty to five counts of failing to register as a broker-dealer. The statute in question states, “It is unlawful for a person to transact business in Indiana as a broker-dealer or agent unless the person is registered under this article as a broker-dealer or is exempt from registration as a broker-dealer....” Ind.Code § 23–19–4–1(a)
.1 Prior to July 1, 2014, a knowing violation of this provision was a Class C felony. I.C. § 23–19–5–8.2 In Smith's first appeal, we addressed whether this crime was the same as the offenses to which he had pled guilty in federal court for purposes of the statutory double jeopardy protection found in Indiana Code Section 35–41–4–5. We noted, “Both the federal indictment and the state charges arise from the overarching Ponzi scheme involving numerous victims in multiple states who were harmed by the actions of Smith and Snelling.” Smith, 993 N.E.2d at 1190
. Additionally, we observed that the federal court's judgment ordered Smith to pay restitution of $5 million, which specifically included restitution to the Indiana victims named in the state charges.
[9] We ultimately held with respect to the statutory double jeopardy question:
To continue reading
Request your trial-
McCarty v. State
... ... did not object based on the rationale that a restitution ... order is part of the sentence, and it is the duty of the ... appellate courts to bring illegal sentences into compliance ... Id. (internal quotation omitted); see also Smith ... v. State, 44 N.E.3d 82, 86 (Ind.Ct.App. 2015), ... ("[A] number of cases have emphasized this court's ... preference for reviewing a trial court's restitution ... order even absent an objection by the defendant, unless a ... defendant has affirmatively agreed to ... ...
-
McCarty v. State
...duty of the appellate courts to bring illegal sentences into compliance.Id. (internal quotation omitted); see also Smith v. State, 44 N.E.3d 82, 86 (Ind. Ct. App. 2015), ("[A] number of cases have emphasized this court's preference for reviewing a trial court's restitution order even absent......
- Stockert v. State