Pursuant to Ind.Appellate Rule 65(D),                                     Nov 08 2013, 5:37 am
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT:                          ATTORNEYS FOR APPELLEE:

PATRICIA CARESS McMATH                           GREGORY F. ZOELLER
Indianapolis, Indiana                            Attorney General of Indiana

                                                 MICHAEL GENE WORDEN
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana




                              IN THE
                    COURT OF APPEALS OF INDIANA

JAN A. RIDDLE,                                   )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )       No. 84A01-1304-CR-185
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


                      APPEAL FROM THE VIGO SUPERIOR COURT
                          The Honorable David R. Bolk, Judge
                            Cause No. 84D03-1003-FD-1053



                                      November 8, 2013


                MEMORANDUM DECISION - NOT FOR PUBLICATION


NAJAM, Judge
                            STATEMENT OF THE CASE

      Jan A. Riddle appeals her sentence and order of restitution following her conviction

for theft, as a Class D felony, pursuant to a plea agreement.         Riddle presents the

following issues for our review:

       1.     Whether her sentence is inappropriate under Indiana Appellate Rule
              7(B).

       2.     Whether the trial court abused its discretion when it ordered Riddle
              to pay restitution.

       We affirm in part, reverse in part, and remand with instructions.

                       FACTS AND PROCEDURAL HISTORY

       In 2009, Riddle was serving as the representative payee for L.P.’s SSI disability

checks when Riddle used some of L.P.’s money to pay Riddle’s satellite television bill.

The State charged Riddle with two counts of theft, as Class D felonies. Riddle ultimately

pleaded guilty to one count of theft, as a Class D felony, and the State dismissed the

second count in exchange for her plea. The parties’ plea agreement capped Riddle’s

executed sentence at one and one-half years and left open the possibility of alternative

placements through the Vigo County Community Corrections program. Following a

hearing, the trial court accepted Riddle’s plea and sentenced her to one and one-half years

executed at the Department of Correction. The trial court also ordered Riddle to pay L.P.

$520 in restitution. This appeal ensued.




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                            DISCUSSION AND DECISION

                                  Issue One: Sentence

       Riddle contends that her sentence is inappropriate under Appellate Rule 7(B).

Although a trial court may have acted within its lawful discretion in determining a

sentence, Article VII, Sections 4 and 6 of the Indiana Constitution “authorize [ ]

independent appellate review and revision of a sentence imposed by the trial court.”

Roush v. State, 875 N.E.2d 801, 812 (Ind. Ct. App. 2007) (alteration original). This

appellate authority is implemented through Indiana Appellate Rule 7(B). Id. Revision of

a sentence under Appellate Rule 7(B) requires the appellant to demonstrate that his

sentence is inappropriate in light of the nature of his offenses and his character. See App.

R. 7(B); Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007). We assess the

trial court’s recognition or non-recognition of aggravators and mitigators as an initial

guide to determining whether the sentence imposed was inappropriate. Gibson v. State,

856 N.E.2d 142, 147 (Ind. Ct. App. 2006). However, “a defendant must persuade the

appellate court that his or her sentence has met th[e] inappropriateness standard of

review.” Roush, 875 N.E.2d at 812 (alteration original).

       The Indiana Supreme Court has also stated that “sentencing is principally a

discretionary function in which the trial court’s judgment should receive considerable

deference.” Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008). Indiana’s flexible

sentencing scheme allows trial courts to tailor an appropriate sentence to the

circumstances presented. See id. at 1224. The principal role of appellate review is to

attempt to “leaven the outliers.”     Id. at 1225.    Whether we regard a sentence as


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inappropriate at the end of the day turns on “our sense of the culpability of the defendant,

the severity of the crime, the damage done to others, and myriad other facts that come to

light in a given case.” Id. at 1224.

       Here, Riddle’s sole contention is that, given her myriad health ailments, which

require frequent visits to her physicians’ offices in Indianapolis and for which she takes

seventeen different medications daily, she should have been placed on home detention.

Riddle also asserts that she takes care of her husband, who has several health issues, as

well. And Riddle points out that Vigo County Community Corrections evaluated her and

approved her for home detention. Under the circumstances, Riddle maintains, “serving

her sentence at DOC is inappropriate.” Brief of Appellant at 3.

       In King v. State, 894 N.E.2d 265, 267-68 (Ind. Ct. App. 2008), we addressed this

type of claim under Appellate Rule 7(B) and stated:

       The location where a sentence is to be served is an appropriate focus for
       application of our review and revise authority. Biddinger v. State, 868
       N.E.2d 407, 414 (Ind. 2007). It is not, however, subject to review for abuse
       of discretion. See id. Nonetheless, we note that it will be quite difficult for
       a defendant to prevail on a claim that the placement of his sentence is
       inappropriate. Fonner v. State, 876 N.E.2d 340, 343 (Ind. Ct. App. 2007).
       This is because the question under Appellate Rule 7(B) is not whether
       another sentence is more appropriate; rather, the question is whether the
       sentence imposed is inappropriate. Id. at 344. A defendant challenging the
       placement of a sentence must convince us that the given placement is itself
       inappropriate. Id. As a practical matter, trial courts know the feasibility of
       alternative placements in particular counties or communities. Id. at 343.
       For example, a court is aware of the availability, costs, and entrance
       requirements of community corrections placements in a specific locale. Id.
       at 343-44.

       Here, as the State points out, Riddle was on probation, on home detention, for

prior theft convictions at the time she committed the instant offense. On that basis, alone,


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Riddle has demonstrated that she is not a good candidate for home detention. Further,

Riddle’s victim was especially vulnerable in that L.P. lived with a debilitating brain

injury. And Riddle was the representative payee for L.P.’s SSI payments. As such,

Riddle was in a position of trust and violated her fiduciary duty when she stole from L.P.

We cannot say that Riddle’s placement with the Department of Correction is

inappropriate under Appellate Rule 7(B).

                                 Issue Two: Restitution

       Riddle contends, and the State agrees, that the trial court erred when it ordered

Riddle to pay L.P. $520 in restitution. The State had charged Riddle with two counts of

theft in amounts totaling $520, but the State dismissed the second count in exchange for

Riddle’s plea. At sentencing, Riddle “explicitly agree[d] to pay restitution in the amount

of $267.40” based upon the first theft count. Brief of Appellant at 4. On appeal, the

State asks that we instruct the trial court to revise the restitution order as requested by

Riddle. We reverse the restitution order and remand with instructions that the trial court

order Riddle to pay L.P. $267.40 in restitution.

       Affirmed in part, reversed in part, and remanded with instructions.

MATHIAS, J., and BROWN, J., concur.




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