MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                              FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                                Dec 21 2018, 9:19 am

court except for the purpose of establishing                                  CLERK
                                                                          Indiana Supreme Court
the defense of res judicata, collateral                                      Court of Appeals
                                                                               and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Valerie K. Boots                                        Curtis T. Hill, Jr.
Marion County Public Defender Agency                    Attorney General of Indiana
Indianapolis, Indiana
                                                        Laura R. Anderson
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Jerry Hatten,                                           December 21, 2018
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        18A-CR-1182
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable Elizabeth Christ,
Appellee-Plaintiff                                      Judge
                                                        Trial Court Cause Nos.
                                                        49G24-1312-FD-79000
                                                        49G24-1508-F6-28434
                                                        49G24-1608-F6-30031
                                                        49G24-1707-F6-25553



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1182 | December 21, 2018                 Page 1 of 6
[1]   Jerry Hatten appeals the sentence imposed by the trial court after he pleaded

      guilty to three counts of Level 6 Felony Theft and one count of Level 6 Felony

      Check Deception from four separate causes, arguing that placement in the

      Department of Correction (DOC) for his entire sentence was inappropriate in

      light of the nature of the offenses and his character. Finding that the placement

      is not inappropriate, we affirm.


                                                   Facts
[2]   From 2001 until 2017, Hatten operated and managed a general contracting

      business; during this time, Hatten committed numerous offenses involving use

      of bad checks, fraud, mismanagement of funds, and unauthorized possession of

      equipment tied to the business.


[3]   The numerous offenses not at issue in this case are as follows: in 2004, Hatten

      was found guilty of Class D felony check fraud and was placed on probation for

      a 537-day suspended sentence. The trial court later revoked Hatten’s probation

      in 2006 and sentenced him to 240 days on community corrections. In late 2005,

      Hatten was found guilty of Class D felony theft/receiving stolen property and

      was sentenced to 545 days with 180 days executed, 356 days suspended, and

      365 days ordered to probation. In 2007, Hatten was found guilty of Class D

      felony theft, was sentenced to 180 days on community corrections, and was

      ordered to pay $500 in restitution. In 2008, Hatten pleaded guilty to two counts

      of Class A misdemeanor check deception and was sentenced to time served. In

      2009, Hatten was found guilty of Class C felony fraud on a financial

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1182 | December 21, 2018   Page 2 of 6
      institution.1 In sum, Hatten has a long criminal history related to his general

      contracting business.


[4]   The four offenses at issue in this case are as follows: (1) in Cause Number

      49G24-1212-FD-079000, Hatten was charged with one count of Level 6 felony

      theft;2 (2) in Cause Number 49G15-1508-F6-028434, Hatten was charged with

      one count of Level 6 felony theft; (3) in Cause Number 49G24-1608-F6-030031,

      Hatten was charged with one count of Level 6 felony check deception; (4) and

      in Cause Number 49G24-1704-F6-025553, Hatten was charged with one count

      of Level 6 felony theft.3 All of these offenses relate to Hatten’s business

      operations.


[5]   On April 23, 2018, Hatten entered into a consolidated guilty plea agreement in

      all four causes, pursuant to which he agreed to plead guilty to the above-

      described charges; to pay $41,669.56 in restitution to various entities; and to

      serve consecutive 730-day (two-year) executed sentences for each of the four

      counts for an aggregate of eight years, with placement open to the court’s

      discretion. Tr. Vol. II p. 60-62. The trial court ordered that Hatten serve the

      entirety of his sentence in the DOC. Id. At sentencing, the trial court




      1
          Neither the record nor the parties’ briefs state Hatten’s punishment for this conviction.
      2
        We note that Hatten committed this theft in August 2013, one year before the General Assembly
      reclassified what was then a Class D felony theft as a Level 6 felony theft. Notwithstanding this
      reclassification, the statutory citation, criminal elements, and sentencing guidelines remained the same.
      3
       The State charged Hatten with multiple other offenses for each cause number. However, for the sake of
      brevity, we focus only on the acts to which Hatten ultimately pleaded guilty.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1182 | December 21, 2018                   Page 3 of 6
      admonished Hatten for his multiple offenses and his lack of accepting

      culpability for his actions:


               You may have learned a lot in your 255 days in the Marion
               County jail, but I think you have a long way to go to take
               complete ownership for your role in the criminal acts that you
               committed.

                                                            ***

               [L]ooking at crimes of dishonest [sic] listed consistently
               throughout here you’ve got to really reevaluate[.] . . . [W]hat’s
               clear to me is what has been most effective to you and what I
               believe is merited is incarceration and punishment.


      Id. Hatten now appeals.


                                 Discussion and Decision
[6]   Hatten argues that ordering him to serve the entirety of his eight-year sentence

      in the DOC is inappropriate in light of the nature of the offenses and his

      character.4 Hatten claims that because his acts resulted only in pecuniary losses

      to his victims and because he showed a “willingness and desire” to make

      restitution, id. at 43, 46, 47, 50, placement in the DOC for his whole sentence is

      unwarranted.




      4
       Generally, Hatten would have waived his right to appeal his sentence by pleading guilty. In this case,
      however, Hatten retained his right to appeal because the trial court mistakenly advised him that he could
      appeal. See Ricci v. State, 894 N.E.2d 1089, 1093-94 (Ind. Ct. App. 2008) (holding that even when defendant
      waives his right to an appeal in a written guilty plea, he may nevertheless appeal his sentence if the trial court
      advises him that he may still appeal). We agree, so we will address Hatten’s central argument.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1182 | December 21, 2018                      Page 4 of 6
[7]   Indiana Appellate Rule 7(B) states that a “Court 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.” The defendant bears the burden of persuading us that his

      sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).

      Additionally, we have held that “[t]he place where a sentence is to be served is

      subject to review under [Indiana Appellate] Rule 7(B).” Moon v. State, Cause

      No. 18A-CR-879, slip. op. at 9 (Ind. Ct. App. Sept. 9, 2018).


[8]   First, as to the nature of the offenses, Hatten committed serious crimes

      involving dishonesty and fraud. He wrote bad checks, stole equipment, and

      defrauded creditors and business entities. Furthermore, this is not the first time

      Hatten committed the four acts at the center of this case. After having been

      convicted of or pleading guilty to multiple other offenses of the same nature,

      Hatten clearly knew how to defraud individuals under the guise of standard

      business practices and continued to do so. In sum, Hatten was deceitful,

      fraudulent, and dishonest in his criminal deeds. And even though his actions

      resulted “only” in pecuniary losses, the damage is both substantial and

      significant, amounting to more than $40,000 owed in restitution. We do not

      find that the nature of the offenses renders Hatten’s placement in the DOC

      inappropriate.


[9]   Second, as to Hatten’s character, we do not find Hatten’s show of “remorse” for

      his actions to be convincing, given his lengthy history of committing these same

      crimes. See Fonner v. State, 876 N.E.2d 340, 344 (Ind. Ct. App. 2007) (holding

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1182 | December 21, 2018   Page 5 of 6
       that even if the crimes committed are not “particularly egregious,” the fact that

       defendant has several prior convictions for similar charges impinges on his

       character). The trial court was unconvinced by Hatten’s remorse, admonishing

       him for refusing to acknowledge the severity of his crimes. Additionally, the

       trial court pointed out that Hatten was granted—and violated—probation, was

       given suspended sentences, and was sentenced to community corrections on

       several occasions, all to no avail. It is apparent that Hatten refuses to

       acknowledge the gravity of his actions, despite the fact that he promised to

       “make good” on paying restitution. We do not find that Hatten’s character

       renders his placement in the DOC inappropriate.


[10]   In sum, we will not revise Hatten’s placement as part of his sentence pursuant

       to Indiana Appellate Rule 7(B).


[11]   The judgment of the trial court is affirmed


       May, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1182 | December 21, 2018   Page 6 of 6
