Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of                          Dec 31 2013, 9:09 am
establishing the defense of res judicata,
collateral estoppel, or the law of the
case.

ATTORNEY FOR APPELLANT:                         ATTORNEYS FOR APPELLEE:

JESSE R. POAG                                   GREGORY F. ZOELLER
Newburgh, Indiana                               Attorney General of Indiana

                                                MICHAEL GENE WORDEN
                                                Deputy Attorney General
                                                Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

JAMES GALLOWAY,                                 )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )        No. 82A05-1305-CR-260
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


              APPEAL FROM THE VANDERBURGH SUPERIOR COURT
                       The Honorable Richard G. D’Amour, Judge
       Cause Nos. 82D02-1109-FC-1017, 82D02-1109-FC-1023, 82D02-1109-FC-1024



                                     December 31, 2013


                MEMORANDUM DECISION - NOT FOR PUBLICATION


BROWN, Judge
        James Galloway appeals his sentence for five counts of home improvement fraud

as class C felonies, three counts of home improvement fraud as class D felonies, and

being an habitual offender. Galloway raises two issues which we consolidate and restate

as whether his sentence is inappropriate in light of the nature of the offenses and the

character of the offender. We affirm and remand.

                       FACTS AND PROCEDURAL HISTORY

        Between October 21, 2008, and April 19, 2010, Galloway entered into two home

improvement contracts that exceeded $1,000 with Agnes Miller, who was at least sixty

years old. Galloway did not intend to perform the home improvement of installing a new

roof.

        On November 9, 2009, Galloway entered into a home improvement contract with

Bobby Pathlin, who was at least sixty years old. Galloway knowingly promised to give

Pathlin a new roof and did not intend to perform the contract which was for $10,000 or

less.

        On November 10, 2010, and March 21, 2011, Galloway entered into two home

improvement contracts of $10,000 or more with Janice Smith, who was at least sixty

years old. He knowingly promised to provide a new roof, painting, and carpeting, and

did not intend to perform or knew that he would not perform.

        On February 26, 2011, Galloway knowingly promised to install a new roof for

William Hebbeler, who was sixty years old, for less than $10,000. Galloway did not

intend to perform or knew that he would not perform.



                                           2
       Between April 15, 2011, and April 30, 2011, Galloway entered into a home

improvement contract with Doris Molt, who was at least sixty years old. He promised to

paint Molt’s house and garage and replace her roof and insulation. He entered into two

contracts with Molt that exceeded $10,000 and he did not intend to perform or knew that

he would not perform. During that same time period, Galloway entered into home

improvement contracts with Mary Humm, James Schwengel, and James Porter but did

not intend to perform services.

       On September 16, 2011, the State charged Galloway with Count I, home

improvement fraud as a class C felony, and with being an habitual offender in cause

number 82D02-1109-FC-1017 (“Cause No. 1017”). On November 21, 2011, the State

charged Galloway with Count II, home improvement fraud as a class D felony; and

Count III, home improvement fraud as a class C felony, in Cause No. 1017. On January

5, 2012, the State charged Galloway with Count IV, home improvement fraud as a class

D felony, in Cause No. 1017.

       Meanwhile, on September 20, 2011, the State charged Galloway with Count I,

home improvement fraud as a class C felony; Count II, home improvement fraud as a

class D felony; and being an habitual offender under cause number 82D02-1109-FC-1023

(“Cause No. 1023”). That same day, the State charged Galloway with two counts of

home improvement fraud as class C felonies under cause number 82D02-1109-FC-1024

(“Cause No. 1024”). On October 2, 2012, the State filed a motion for joinder of offenses

under Cause Nos. 1017, 1023, and 1024, and the court granted the motion.



                                           3
      On November 15, 2012, Galloway filed a motion for psychiatric evaluation, and

the court granted the motion. In February 2013, a psychiatrist filed a forensic evaluation

which stated that Galloway showed no cognitive deficits or psychotic features which

would preclude him from understanding the charges against him and contributing in his

best interest to his defense against the charges. That same month, a psychologist filed a

report that concluded that Galloway displayed a fairly comprehensive, factual, and

rational understanding of court proceedings and a full understanding of the charges he

was facing.

      On March 8, 2013, Galloway pled guilty as charged.             The court accepted

Galloway’s guilty plea. On May 3, 2013, the court held a sentencing hearing at which

several of the victims gave statements. Other victims of Galloway including Karen

Kinney also testified. Kinney testified that Galloway was a predator who carefully chose

his victims and used “manipulation, intimidation, reverse psychology, putting his victims

on the defense, distraction, and simple mass production of propaganda.” Transcript at 27.

Galloway apologized, conceded that he had been arrogant, and requested to be placed in a

type of program where he could continue to work to pay his customers back but “never

do home improvement again.” Id. at 58.

      The court found that Galloway preyed on the elderly and had a criminal history as

aggravators and his guilty plea as a mitigator, and found that the aggravators outweighed

the mitigators. Under Cause No. 1017, the court sentenced him to four years for Count I,

home improvement fraud as a class C felony, one and one-half years for Count II, home

improvement fraud as a class D felony, four years for Count III, home improvement fraud

                                            4
as a class C felony, and one and one-half years for Count IV, home improvement fraud as

a class D felony, all to run concurrent with each other.

         Under Cause No. 1023, the court sentenced Galloway to four years for Count I,

home improvement fraud as a class C felony, and one and one-half years for Count II,

home improvement fraud as a class D felony, to be served concurrent with each other but

served consecutive to the sentence in Cause No. 1017.

         Under Cause No. 1024, the court sentenced him to four years for each of the two

counts of home improvement fraud as class C felonies to be served concurrent with each

other but consecutive to the sentences in Cause Nos. 1017 and 1023. The court also

sentenced Galloway to a twelve-year enhancement based upon his status as an habitual

offender. Thus, the court sentenced Galloway to an aggregate sentence of twenty-four

years.

                                             DISCUSSION

         The issue is whether Galloway’s sentence is inappropriate in light of the nature of

the offense and the character of the offender.1 Ind. Appellate Rule 7(B) provides that we

“may revise a sentence authorized by statute if, after due consideration of the trial court’s

decision, [we find] that the sentence is inappropriate in light of the nature of the offense
         1
          Galloway appears to argue that the trial court abused its discretion in sentencing him when it did
not specifically mention the proffered mitigators of his gambling addiction and alcohol abuse. However,
“even if the trial court is found to have abused its discretion in the process it used to sentence the
defendant, the error is harmless if the sentence imposed was not inappropriate.” Mendoza v. State, 869
N.E.2d 546, 556 (Ind. Ct. App. 2007), trans. denied; see also Windhorst v. State, 868 N.E.2d 504, 507
(Ind. 2007) (holding that in the absence of a proper sentencing order, we may either remand for
resentencing or exercise our authority to review the sentence pursuant to Ind. Appellate Rule 7(B)), reh’g
denied; Shelby v. State, 986 N.E.2d 345, 370 (Ind. Ct. App. 2013) (holding that “even if the trial court did
abuse its discretion by failing to consider the alleged mitigating factor of residual doubt, this does not
require remand for resentencing”), trans. denied. Accordingly, we need not discuss Galloway’s
contentions that the court abused its discretion in sentencing him if we determine that his sentence is not
inappropriate.
                                                     5
and the character of the offender.” Under this rule, the burden is on the defendant to

persuade the appellate court that his or her sentence is inappropriate. Childress v. State,

848 N.E.2d 1073, 1080 (Ind. 2006).

       Galloway concedes that he clearly took advantage of the elderly but points out that

there was no violence. He argues that “he could, given an appropriate sentence, make

some effort at making [the victims] whole, at righting what he has wronged.”

Appellant’s Brief at 8. He also argues that except for his diagnosed gambling addiction

he was a “solid businessman with a good reputation.” Id. He points out that he took

responsibility for his actions and was sixty-one years old at the time of sentencing. The

State argues that Galloway threatened his victims and placed them in fear and points to

Galloway’s criminal history.

       Our review of the nature of the offense reveals that Galloway committed home

improvement fraud against eight individuals that were all at least sixty years old. At the

sentencing hearing, Schwengel testified that he received calls from Galloway that were

“rude, defiant, and personally threaten[ing]” to him. Transcript at 21. Smith testified that

in just a few months her life was turned upside down. Molt described Galloway as

“dishonest, deceptive and thoughtless,” and stated that he caused her financial and

emotional distress. Id. at 23.

       Our review of the character of the offender reveals that Galloway pled guilty as

charged.   According to the presentence investigation report (“PSI”), “[t]he instant

offenses will be [Galloway’s] 11th, 12th, and 13th felony convictions.” Appellant’s

Appendix at 531.     Galloway has an extensive criminal record dating back to 1974

                                             6
including convictions for theft in 1992 and 1996, his record shows a pattern of theft and

home improvement fraud, and he has pending cases in Gibson County. The PSI indicates

that Galloway is in the moderate risk to reoffend category.

       With respect to substance abuse, Galloway began using Xanax in late 2010 and

was taking approximately two Xanax of unknown strength along with drinking alcohol

every day at the time of his arrest. He began smoking marijuana when he was seventeen

years old, became a daily user at that time, and stated that he quit smoking marijuana in

2010. He has also used heroin, LSD, hash oil, and cocaine, and has addictions to

gambling and alcohol. According to one of the psychological evaluations, Galloway

noted that he received treatment at Stepping Stones on multiple occasions both for

substance abuse and gambling, but said that while in treatment: “I wasn’t honest all the

way. I was reaching out but turning back at the same time.” Id. at 329.

       To the extent that Galloway suggests that he should have received a sentence that

allowed him to make restitution to the victims, we observe that the court stated that it was

not ordering Galloway to pay restitution because it agreed with the State that it “would

likely come or perhaps encourage Mr. Galloway to engage in future behavior of this sort

to rob Peter to pay Paul . . . .” Transcript at 67.

       After due consideration of the trial court’s decision and in light of the nature of the

offenses involving the elderly and Galloway’s extensive criminal history, we cannot say

that the sentences imposed by the trial court which included advisory sentences for the

individual offenses is inappropriate in light of the nature of the offenses and the character

of the offender.

                                               7
      The State notes that the trial court did not specify which particular underlying

felony was to be enhanced when imposing the habitual offender enhancement. The State

also notes that it appears the court imposed the habitual offender enhancement as a

separate consecutive sentence in the abstract of judgment, and suggests that this case be

remanded to correct the abstract and judgment by enhancing the underlying felony in

Count I in Cause No. 1017.

      It is well settled that a habitual offender finding does not constitute a separate

crime, nor does it result in a separate sentence. See Ind. Code § 35-50-2-8. Rather, a

habitual offender finding results in a sentence enhancement imposed upon the conviction

of a subsequent felony. Hendrix v. State, 759 N.E.2d 1045, 1048 (Ind. 2001). Here,

while the court’s order related to Cause No. 1017 lists the habitual offender enhancement

as Count “I (Part II),” the abstract also shows that the twelve-year enhancement was to be

served consecutive to Counts I through IV. Appellant’s Appendix at 119. Accordingly,

we remand for the trial court to amend the abstract of judgment to show the habitual

offender finding as an enhancement to Count I in Cause No. 1017.

                                    CONCLUSION

      For the foregoing reasons, we affirm Galloway’s aggregate sentence and remand

with respect to the habitual offender enhancement.

      Affirmed and remanded.

ROBB, C.J., and BARNES, J., concur.




                                            8
