                                                                          Mar 10 2016, 9:36 am




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Dorothy Ferguson                                          Gregory F. Zoeller
Anderson, Indiana                                         Attorney General of Indiana
                                                          Richard C. Webster
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Tricia A. Davis Williams,                                March 10, 2016

Appellant-Defendant,                                     Court of Appeals Case No.
                                                         29A02-1506-CR-528
        v.                                               Appeal from the Hamilton Superior
                                                         Court.
                                                         The Honorable Wayne A. Sturtevant,
State of Indiana,                                        Judge.
Appellee-Plaintiff.                                      Cause No. 29D05-1407-FD-6098




Darden, Senior Judge




Court of Appeals of Indiana | Opinion 29A02-1506-CR-528| March 10, 2016                          Page 1 of 12
                                          Statement of the Case
[1]   Tricia A. Davis Williams appeals from the trial court’s sentencing order after
                                                                          1
      pleading guilty to one count of Class D felony theft, and the State cross-appeals

      contending that Williams’ appeal should be dismissed. We affirm.


                                                     Issues
[2]   Because the issue could be dispositive, we address the State’s cross-appeal first,

      which presents the following issue for our review:

                 I.       Whether Williams’ appeal should be dismissed because
                          she waived her right to appeal a discretionary sentencing
                          decision as part of her plea agreement.
      Williams presents the following consolidated and restated issue for our review:

                 II.      Whether the trial court abused its discretion or otherwise
                          imposed an inappropriate sentence given evidence of
                          Williams’ true change of behavior and good character.

                                   Facts and Procedural History
[3]   Matthew Huddleston was the owner of H & R Construction Services, LLC, a

      small business entity, and Williams was the office manager. In May of 2014,

      Linda Huddleston discovered that Williams had been embezzling money from

      her son’s company. Linda confronted Williams, who admitted that she issued

      checks to herself without authorization or eligibility for the money. The




      1
          Ind. Code § 35-43-4-2 (2009).


      Court of Appeals of Indiana | Opinion 29A02-1506-CR-528| March 10, 2016          Page 2 of 12
      company books were audited after which it was determined that Williams paid

      herself on thirty-four separate occasions for commissions, expense

      reimbursements, and mileage reimbursements from January 1, 2013 to May 2,

      2014, totaling $21,721.40. Williams also had falsely claimed overtime on

      twenty-four separate occasions during that time period in an amount totaling

      $4,008.88. When interviewed by Detective John Bunch of the Noblesville

      Police Department, Williams admitted the allegations.


[4]   The State charged Williams with one count of Class D felony theft, and later

      added an allegation that Williams was an habitual offender. Williams and the

      State entered into a plea agreement whereby Williams would plead guilty to

      Class D felony theft and the State would dismiss the habitual offender

      allegation. The trial court took the plea agreement under advisement, set the

      matter for disposition, and ultimately accepted it.


[5]   Williams testified at her sentencing hearing about efforts she had made to

      improve herself since her arrest. In particular, she sought mental health

      treatment, counseling, and medication. She had become active in a church and

      took on-line courses to become a faith-based counselor. She had become a

      Mary Kay agent and was the primary caregiver for her three and one-half year

      old son. She also testified that she was in an abusive marriage and that her

      actions occurred because of the stress and fear resulting from that relationship.


[6]   Huddleston testified that he had previously fired Williams after she was caught

      making unauthorized personal purchases on a business credit card. Later,


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      Huddleston decided to give Williams a second chance and rehired Williams

      when she requested to return to the company after getting married and the birth

      of her child. During the time period leading up to the instant charges against

      Williams, H & R Construction, LLC, was on the brink of bankruptcy, such that

      Huddleston had to borrow money to keep the company solvent.


[7]   Williams agreed that a fair sentence for her offense would be thirty-six months

      incarceration in the Department of Correction, but asked the trial court to order

      that the sentence be executed on home detention. The probation department

      recommended a three-year sentence to the Department of Correction with two

      years executed and one year suspended to probation. The State agreed with the

      probation department’s recommendation. After considering the evidence and

      argument of counsel, the trial court sentenced Williams to three years executed

      in the Department of Correction.


                                    Discussion and Decision
                                                  I. Waiver
[8]   The State contends that Williams cannot challenge the sentence she received

      because she waived the right to do so, pursuant to the terms of her plea

      agreement. “A plea agreement is contractual in nature, binding the defendant,

      the state, and the trial court, once the judge accepts it.” St. Clair v. State, 901

      N.E.2d 490, 492 (Ind. 2009). Additionally, “a defendant may waive the right to

      appellate review of his sentence as part of a written plea agreement.” Creech v.

      State, 887 N.E.2d 73, 75 (Ind. 2008).


      Court of Appeals of Indiana | Opinion 29A02-1506-CR-528| March 10, 2016      Page 4 of 12
[9]    Resolution of this issue turns on the specific terms of the plea agreement, which

       the State, Williams, and the trial court signed. Each specific term of that plea

       agreement was initialed by Williams.


[10]   The terms that are pertinent to this issue provide as follows:

               The minimum and maximum sentence for each crime charged to
               which he [sic] is pleading is:
               Class D Felony: a fixed term of imprisonment of between six (6)
               months and three (3) years, with an advisory sentence being one
               and one-half (1 ½) years; in addition, a fine of not more than ten
               thousand dollars ($10,000.00). Further, the defendant
               acknowledges that his/her attorney has advised him/her that
               pursuant to statute, the Court in certain instances may only be
               able to suspend that part of a sentence in excess of the minimum
               sentence if the defendant has a prior unrelated felony conviction
               and that such prior conviction(s) may possibly be used by the
               Court to increase the possible sentence and/or the possibility of
               the imposition of consecutive sentences. Further, the defendant
               acknowledges that his/her attorney has advised him/her that the
               Court, pursuant to statute, can impose consecutive and/or
               concurrent sentences pursuant to statute.
               That the Defendant’s prior felony or misdemeanor convictions
               may increase the possible sentence or may prevent the Court
               from suspending all of the sentence;
               ....
               The defendant acknowledges that he [sic] may have a right,
               pursuant to the Sixth Amendment to the United States
               Constitution and Article I, Section 13 of the Indiana Constitution
               to have a jury determine, by proof beyond a reasonable doubt,
               the existence of any fact or aggravating circumstance that would
               allow the Court to impose a sentence in excess of the statutory
               presumptive sentence and to have the State of Indiana provide
               written notification of any such fact or aggravating circumstance.
       Court of Appeals of Indiana | Opinion 29A02-1506-CR-528| March 10, 2016   Page 5 of 12
               The defendant hereby waives such rights and requests that the
               Judge of this Court make the determination of the existence of
               any aggravating and/or mitigating circumstances and impose
               sentence, after considering the presentence investigation report
               and any appropriate evidence and argument presented at the
               sentencing hearing.
               ....
               The Defendant understands that he/she has a right to appeal his
               [sic] sentence if there is an open plea. An open plea is an
               agreement which leaves the sentence entirely to the Judge’s
               discretion, without any limitations or the dismissal of any
               charges. The Defendant acknowledges that his [sic] plea is not
               an open plea and the Defendant hereby waives his [sic] right to
               appeal his [sic] sentence so long as the Judge sentences the
               Defendant within the terms of the plea agreement.
       Appellant’s App. p. 22-23.


[11]   The foregoing demonstrates the discretion the plea agreement left in the hands

       of the trial court with respect to sentencing. The State argues that because

       Williams agreed that her plea of guilty was not an open plea, she is foreclosed

       from challenging her sentence on direct appeal. We disagree.


[12]   “An ‘open’ plea is one in which the sentence imposed is left to the discretion of

       the court.” Allen v. State, 865 N.E.2d 686, 689 (Ind. 2007). Where “a defendant

       pleads guilty to what has been characterized as an ‘open plea’ the freedom and

       latitude of the trial court to impose a particular sentence is readily apparent.”

       Childress v. State, 848 N.E.2d 1073, 1078 (Ind. 2006) (footnote omitted). “Under

       such circumstances the trial court’s discretion is limited only by the

       Constitution and relevant statutes.” Id. In an open plea situation, the sentence


       Court of Appeals of Indiana | Opinion 29A02-1506-CR-528| March 10, 2016    Page 6 of 12
       must be challenged, if at all, by way of a direct appeal. Allen, 865 N.E.2d at

       689.


[13]   The terms of Williams’ plea agreement are in conflict and thus we find the plea

       agreement to be ambiguous with respect to her right to appeal. First, Williams

       initialed indicating that she was advised of the statutory maximum, minimum,

       and advisory sentence for a Class D felony, to which she was pleading guilty

       and the statutory limitations on the trial court’s discretion in imposing the

       sentence. Secondly, her initials indicate that she was waiving her right to have

       a jury determine the existence of any aggravating factors and requested the trial

       court to find any aggravating and mitigating circumstances after considering the

       presentence investigation report and evidence and argument of counsel at the

       sentencing hearing. Thirdly, the plea agreement provides that Williams had the

       right to appeal a sentence imposed on an open plea, but waived her right to

       appeal the sentence imposed because hers was not an open plea, at least as was

       defined in the plea agreement (“An open plea is an agreement which leaves the

       sentence entirely to the Judge’s discretion, without any limitations or the

       dismissal of any charges.”). Appellant’s App. p. 23.


[14]   “We construe contracts against the drafting party, ‘which, in the case of plea

       agreements, is the State.’” Russell v. State, 34 N.E.3d 1223, 1227 (Ind. 2015)

       (quoting Grider v. State, 976 N.E.2d 783, 786 (Ind. Ct. App. 2012)). As such, we

       conclude that this was in fact an open plea, that the parties mistakenly

       characterized as not being so. Nevertheless, per the terms of the plea

       agreement, Williams was allowed the opportunity to appeal her sentence from

       Court of Appeals of Indiana | Opinion 29A02-1506-CR-528| March 10, 2016    Page 7 of 12
       the open plea and may do so here on direct appeal. This conclusion comports

       with the trial court’s sentencing statement on the record after imposing

       sentence. (“Since this was an open sentence, I will advise you of your rights to

       appeal in this matter.”). Tr. p. 40. At that point the State did not object to the

       trial court’s comments or correct the record pursuant to the plea agreement.

       We decline to dismiss Williams’ appeal.


                                       II. Abuse of Discretion
[15]   Williams characterizes her claim as, an alleged abuse of discretion in

       sentencing, by the failure to consider proffered mitigating circumstances and

       makes a passing reference to our authority to review and revise sentences under

       Indiana Appellate Rule 7(B). However, Williams argues that the mitigating

       circumstance of her true change of behavior and good character mitigates

       against her sentence being served at the Indiana Department of Correction. As

       a result at the sentencing hearing, Williams specifically requested the trial court

       “to order her 36 months to the DOC but executed on in-home detention.” Tr.

       p. 32.


[16]   “The location where a sentence is to be served is an appropriate focus for

       application of our review and revise authority.” King v. State, 894 N.E.2d 265,

       267 (Ind. Ct. App. 2008). We will not, however, conduct a review for an abuse

       of discretion. Id. A defendant faces a challenging task of prevailing on a claim

       that a placement is inappropriate, because appellate review under Appellate

       Rule 7(B) requires us to consider not whether another sentence is more

       appropriate, but whether the sentence imposed is inappropriate. Id. at 267-68.
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[17]   The trial court found the following aggravating circumstances: (1) Williams

       twice violated a position of trust with the company; (2) she had a history of

       committing the same type of offense; (3) she was on probation for a similar

       offense when she committed the instant offense; (4) previous terms of probation

       were unsuccessful in rehabilitating Williams and deterring her from committing

       new offenses; (5) psychological services and counseling had not been successful;

       (6) Williams’ previous period of home detention with electronic monitoring did

       not alter her behavior; (7) her crimes took conscious planning and action; and

       (8) the impact of Williams’ crimes on Huddleston’s small business was severe,

       continuing to steal from him while knowing it was causing him financial

       difficulty.


[18]   Regarding the mitigating circumstances, the trial court found as follows: (1)

       Williams pleaded guilty and by doing so saved the State the time and expense

       of a trial; (2) long term incarceration would impose an undue hardship on

       Williams’ child; (3) she agreed to make restitution in the amount agreed upon

       in the plea agreement even though Huddleston’s losses were greater than that

       sum; (4) Williams had resumed mental health treatment; and (5) she is

       employed in a job where she is not responsible for handling money.


[19]   However, as for Williams’ acceptance of responsibility for her offenses, the trial

       court observed and listened to Williams in court, considered the presentence

       investigation report, and, having done so, could not say that Williams fully

       accepted responsibility for her crime. Regarding restitution, the trial court

       questioned Williams’ credibility based in part on her statement in the

       Court of Appeals of Indiana | Opinion 29A02-1506-CR-528| March 10, 2016   Page 9 of 12
       presentence investigation report that it was sometimes acceptable to lie to

       protect herself and her son, causing the trial court to be skeptical of Williams’

       statements and plans to make restitution. Ultimately, the trial court found that

       the aggravating circumstances outweighed the mitigating circumstances,

       accepted the plea agreement, entered judgment of conviction, ordered

       restitution, and sentenced Williams to three years executed in the Department

       of Correction.


[20]   In her challenge of the placement of her executed sentence, she asserts that the

       trial court failed to properly consider her argument that she had a true change of

       behavior and good character. An assessment of that proffered mitigating

       circumstance necessarily entails an evaluation of Williams’ credibility. It is

       proper for a trial court to make a determination of credibility during sentencing.

       Pickens v. State, 767 N.E.2d 530, 535 (Ind. 2002). The trial court acknowledged

       Williams’ efforts at rehabilitation, but doubted Williams’ credibility. A trial

       court is not obligated to credit proffered mitigating factors in the same manner

       as the defendant, nor explain why a proffered mitigating circumstance was not

       found. Henderson v. State, 769 N.E.2d 172, 179 (Ind. 2002).


[21]   “When considering the nature of the offense, the advisory sentence is the

       starting point to determine the appropriateness of a sentence.” Johnson v. State,

       986 N.E.2d 852, 856 (Ind. Ct. App. 2013). “One factor we consider when

       determining the appropriateness of a deviation from the advisory sentence is

       whether there is anything more or less egregious about the offense committed

       by the defendant that makes it different from the ‘typical’ offense accounted for

       Court of Appeals of Indiana | Opinion 29A02-1506-CR-528| March 10, 2016   Page 10 of 12
       by the legislature when it set the advisory sentence.” Holloway v. State, 950

       N.E.2d 803, 806-07 (Ind. Ct. App. 2011).


[22]   When reviewing the sentence with respect to the character of the offender, we

       engage in a broad consideration of a defendant’s qualities. Aslinger v. State, 2

       N.E.3d 84, 95 (Ind. Ct. App. 2014), clarified on other grounds on reh’g, 11 N.E.3d

       571.


[23]   Regarding the nature of the offense, initially Williams had violated a position of

       trust with Huddleston which led to the termination of her first employment.

       When Williams asked for the opportunity to resume working for Huddleston as

       office manager, he allowed her to do so, despite her prior theft from his

       company. Subsequently, she issued checks for which she was ineligible on

       thirty-four separate occasions for commissions, expense reimbursements, and

       mileage reimbursements from January 1, 2013 to May 2, 2014, totaling

       $21,721.40. Williams also had falsely claimed overtime on twenty-four

       separate occasions during that time period in an amount totaling $4,008.88.


[24]   Regarding the character of the offender, Williams had twice violated a position

       of trust with the small company, had a history of committing the same type of

       offense, and was on probation for a similar offense when she committed the

       instant offense. Previous terms of probation were unsuccessful in rehabilitating

       Williams and deterring her from committing new offenses. Psychological

       services that were provided to Williams were not successful and counseling had

       failed. Williams’ previous period of home detention with electronic monitoring


       Court of Appeals of Indiana | Opinion 29A02-1506-CR-528| March 10, 2016   Page 11 of 12
       did not alter her behavior. Additionally, her crimes took conscious planning

       and action on her part over a lengthy period of time. She committed these acts

       while knowing that Huddleston’s small company was suffering financially, and

       that she was the primary caregiver for her young son. Williams has not

       persuaded us that her placement in the Department of Correction is

       inappropriate.


                                                 Conclusion
[25]   In light of the foregoing, we affirm the trial court’s decision.


[26]   Affirmed.


       Baker, J., and Altice, J., concur.




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