MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                            FILED
regarded as precedent or cited before any                              Sep 07 2017, 8:27 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
Jacob P. Wahl                                            Curtis T. Hill, Jr.
Ripstra Law Office                                       Attorney General of Indiana
Jasper, Indiana
                                                         Larry D. Allen
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Sammy Dale Joles,                                        September 7, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         63A01-1704-CR-813
        v.                                               Appeal from the Pike Circuit Court
                                                         The Honorable Jeffrey L.
State of Indiana,                                        Biesterveld, Judge
Appellee-Plaintiff.                                      Trial Court Cause No.
                                                         63C01-1609-F5-628



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 63A01-1704-CR-813 | September 7, 2017         Page 1 of 10
[1]   Sammy Dale Joles appeals his conviction for home improvement fraud as a

      level 5 felony. Joles raises one issue which we revise and restate as:


          I.      Whether the trial court abused its discretion in sentencing him; and

          II.     Whether his sentence is inappropriate in light of the nature of the
                  offense and the character of the offender.

      We affirm.


                                      Facts and Procedural History

[2]   Joles, a home improvement supplier, entered into a home improvement

      contract involving over $10,000 with Dennis Johnson, a person over sixty years

      of age, and misrepresented a material fact relating to the terms of the home

      improvement contract.


[3]   On September 23, 2016, the State charged Joles with home improvement fraud

      as a level 5 felony. The trial court scheduled a jury trial for March 1, 2017. On

      February 13, 2017, the court held a final pretrial conference. On February 16,

      2017, Joles filed a motion to continue, and the court granted the motion and

      rescheduled the jury trial to March 21, 2017.


[4]   On February 24, 2017, Joles filed a Motion to Vacate Jury Trial and Set

      Change of Plea Hearing. On February 28, 2017, the court held a hearing, Joles




      Court of Appeals of Indiana | Memorandum Decision 63A01-1704-CR-813 | September 7, 2017   Page 2 of 10
      pled guilty, and the court accepted his plea and entered judgment of

      conviction.1


[5]   On March 28, 2017, the court held a sentencing hearing. Mary McCandless

      testified that she had been engaged to Joles for two years and shared a

      residence with him, that he helped pay bills, that they live with her elderly

      mother, and that he was employed at McCandless Septic at the time of his

      arrest. Joles testified:


               Um, well, Your Honor, I was – just to be – I mean I was tired of
               the way that I was living and I know I made a lot of mistakes in
               the past. And I was ready to accept responsibility for my actions
               and change the way that I was living um, and get this [taken]
               care of. Get Mr. Johnson paid back. And be able to, you know,
               get a job and provide for my family. And uh, I do apologize to
               everybody. And, you know, Mr. Johnson. My – my family, for
               – for the way that I was. And uh, I – I just hope that whatever
               your sentence is that I can still pay restitution to Mr. Johnson
               and still provide for my family. I mean I – I – I – my drug
               problem has, you know, come and go over the years. At the time
               I was working for Mr. Johnson, it kind of flared up, so that I
               wasn’t able to complete the job in a – in a reasonable amount of
               time. That’s why the job never got finished and why Mr.
               Johnson got upset with me, so.


      Transcript Volume II at 16.




      1
       The record does not contain a transcript of this hearing. In his notice of appeal, Joles requested a transcript
      of only the March 28, 2017 sentencing hearing.

      Court of Appeals of Indiana | Memorandum Decision 63A01-1704-CR-813 | September 7, 2017             Page 3 of 10
[6]   The court considered the presentence investigation report (“PSI”) which stated

      his criminal history, that he was a high risk to reoffend, prior lenient treatment

      had not been successful, he was on parole or probation at the time of the

      offense, the harm suffered by the victim was significant and greater than the

      elements necessary to prove the commission of the offense, he has a history of

      similar offenses involving theft and financial exploitation of elderly or disabled

      individuals, his attitude during the presentence investigation showed little

      remorse for his actions, and Joles has a history of non-appearance and has been

      extradited on two occasions for failure to appear in Missouri. The court found

      Joles’s guilty plea and diagnosis of post-traumatic stress disorder (“PTSD”) as

      mitigating factors and found that the aggravating factors substantially

      outweighed the mitigating factors and sentenced him to six years executed in

      the Department of Correction. The court also ordered Joles to pay restitution

      in the amount of $34,524.


                                                  Discussion

                                                        I.


[7]   The first issue is whether the trial court abused its discretion in sentencing Joles.

      We review the sentence for an abuse of discretion. Anglemyer v. State, 868

      N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218. An abuse of

      discretion occurs if the decision is “clearly against the logic and effect of the

      facts and circumstances before the court, or the reasonable, probable, and actual

      deductions to be drawn therefrom.” Id. A trial court abuses its discretion if it:

      (1) fails “to enter a sentencing statement at all;” (2) enters “a sentencing
      Court of Appeals of Indiana | Memorandum Decision 63A01-1704-CR-813 | September 7, 2017   Page 4 of 10
      statement that explains reasons for imposing a sentence—including a finding of

      aggravating and mitigating factors if any—but the record does not support the

      reasons;” (3) enters a sentencing statement that “omits reasons that are clearly

      supported by the record and advanced for consideration;” or (4) considers

      reasons that “are improper as a matter of law.” Id. at 490-491. If the trial court

      has abused its discretion, we will remand for resentencing “if we cannot say

      with confidence that the trial court would have imposed the same sentence had

      it properly considered reasons that enjoy support in the record.” Id. at 491.

      The relative weight or value assignable to reasons properly found, or those

      which should have been found, is not subject to review for abuse of discretion.

      Id.


[8]   Joles appears to argue that the trial court improperly failed to consider his

      ability to work and willingness to pay restitution with his ability to work and

      the hardship upon his dependents as mitigators. The State argues that there

      was no reason for the trial court to credit these circumstances as mitigating.


[9]   The determination of mitigating circumstances is within the discretion of the

      trial court. Rogers v. State, 878 N.E.2d 269, 272 (Ind. Ct. App. 2007), trans.

      denied. The court is not obligated to accept the defendant’s argument as to what

      constitutes a mitigating factor, and the court is not required to give the same

      weight to proffered mitigating factors as does a defendant. Id. An allegation

      that the trial court failed to identify or find a mitigating factor requires the

      defendant to establish that the mitigating evidence is both significant and clearly

      supported by the record. Anglemyer, 868 N.E.2d at 493. If the court does not

      Court of Appeals of Indiana | Memorandum Decision 63A01-1704-CR-813 | September 7, 2017   Page 5 of 10
       find the existence of a mitigating factor after it has been argued by counsel, it is

       not obligated to explain why it has found that the factor does not exist. Id.


[10]   “[A]bsent special circumstances, trial courts are not required to find that

       imprisonment will result in an undue hardship.” Dowdell v. State, 720 N.E.2d

       1146, 1154 (Ind. 1999); see also Benefield v. State, 904 N.E.2d 239, 247-248 (Ind.

       Ct. App. 2009) (recognizing that incarceration “almost always” works a

       hardship on others and concluding that the defendant failed to show “special

       circumstances” because there were other people who could take care of the

       defendant’s mother while she was incarcerated), trans. denied. The PSI states

       that Joles was earning approximately $600 to $800 per week, was living rent

       free with his fiancée, and yet owed $813.13 in child support arrears. Under the

       heading “Dependents,” the PSI indicates that Joles and his ex-wife have two

       children who live with Joles’s mother in Wisconsin due to Joles’s history of

       crimes and drug abuse. Appellant’s Confidential Appendix Volume II at 63.

       We cannot say that he has demonstrated that hardship on his dependents is

       both significant and clearly supported by the record.


[11]   As to his argument regarding his willingness to pay restitution, the charging

       information alleged that Joles entered into a home improvement contract

       between June 26, 2015, and October 15, 2015, and he does not point to the

       record to indicate that he paid any restitution prior to the date of the sentencing

       hearing on March 28, 2017. The PSI states:

               During the interview, [Joles] minimized the offense and
               demonstrated little to no remorse when discussing how his
       Court of Appeals of Indiana | Memorandum Decision 63A01-1704-CR-813 | September 7, 2017   Page 6 of 10
               actions have impacted the victim. He stated, “I would have
               finished the job, but he fired me before I could”. When I read the
               Victim Impact Statement to [Joles], he made reference that,
               although he shouldn’t have kept all of the defendant’s [sic]
               money, the victim shouldn’t be suffering from that much
               hardship. During the entire interview, [Joles] showed absolutely
               no emotion.


       Id. at 64. Under the circumstances, we cannot say that the court abused its

       discretion in not finding Joles’s willingness to pay restitution as a mitigator or

       that the court abused its discretion in sentencing him.


                                                         II.


[12]   The next issue is whether Joles’s sentence is inappropriate in light of the nature

       of the offense and his character. 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 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).


[13]   Joles points to his PTSD, his guilty plea, his willingness and ability to pay

       restitution, and the hardship upon his dependents in arguing that he should

       receive less than the maximum sentence or a sentence that includes some

       portion on community corrections. The State argues that his sentence is not

       inappropriate to his offense and character.



       Court of Appeals of Indiana | Memorandum Decision 63A01-1704-CR-813 | September 7, 2017   Page 7 of 10
[14]   Our review of the nature of the offense reveals that Joles, a home improvement

       supplier, entered into a home improvement contract involving over $10,000

       with Dennis Johnson, a person over sixty years of age, and misrepresented a

       material fact relating to the terms of the home improvement contract. The

       victim impact statement states:


               I paid Sammy Dale Joles a total of $34,524.00. I paid $24,000.00
               for a special ordered new shed which I never received. I paid for
               labor and items such as building materials more than once, for
               the same items. I feel I should receive compensation for my
               losses. I have experienced financial hardship, stress and a
               distrust of strangers. I don’t think this man should be allowed to
               go free to scam others.


       Appellant’s Confidential Appendix Volume II at 67.


[15]   Our review of the character of the offender reveals that Joles, who was born on

       January 7, 1980, pled guilty five months after being charged. He was convicted

       of theft as a class C felony in 2004 and theft as a misdemeanor in 2012. he PSI

       indicates that he was charged with failure to support child as a felony in 2012,

       but lists the disposition as unknown. He was convicted of “Financial

       Exploitation-Elder” and theft as class C felonies in 2014. Id. at 62. That same

       year, he was convicted of possession of a controlled substance as a

       misdemeanor. The PSI states that Joles has convictions in Indiana, Missouri,

       Iowa, and Wisconsin, that he had an active warrant with full extradition in

       Missouri for a probation violation, he had a pending misdemeanor charge in

       Missouri, and that he reported he had been extradited twice to Missouri for


       Court of Appeals of Indiana | Memorandum Decision 63A01-1704-CR-813 | September 7, 2017   Page 8 of 10
       failure to appear for hearings. The PSI further states that his overall risk

       assessment score using the Indiana risk assessment system places him in the

       high risk to reoffend category.


[16]   Under the heading “Mental Health,” the PSI indicates that Joles reported he

       was diagnosed with having PTSD in early 2015 and that he stated: “I was on an

       extradition bus that crashed on the interstate. I had four guys on top of me; one

       was bloody and not moving.” Id. at 64. He reported he was prescribed

       Alprazolam for PTSD treatment, but he had not been taking his medication as

       prescribed.


[17]   Joles reported he had been addicted to illegal drugs for a majority of his adult

       life and had spent approximately $70,000 to $100,000 on illegal drugs. He was

       a daily user of methamphetamine prior to his arrest, and his substances of

       choice are opiates and Xanax. He has also used or abused “Adderall,

       Barbituates, cocaine powder, amphetamines, codeine, Librium/Valium,

       Ativan, crack cocaine, inhalents [sic], Morphine, synthetic marijuana, bath

       salts, Xanax, Oxycontin, Lortabs, Hydrocodone, Klonopin, and Salvia.” Id. In

       2014, a Polk County court ordered Joles to complete a drug/alcohol evaluation,

       but no treatment was recommended. He reported to the probation officer

       completing the PSI that he had intentionally lied and was dishonest to the

       counselor because he did not want to attend treatment. He reported that he

       would be willing to participate in any type of substance abuse treatment so he

       could start living a sober life.



       Court of Appeals of Indiana | Memorandum Decision 63A01-1704-CR-813 | September 7, 2017   Page 9 of 10
[18]   The PSI states that Joles “minimized the offense and demonstrated little to no

       remorse when discussing how his actions have impacted the victim.” Id. The

       PSI also states that prior leniency from the courts has not deterred Joles’s

       criminal behavior.


[19]   After due consideration, we conclude that Joles has not sustained his burden of

       establishing that his sentence of six years is inappropriate in light of the nature

       of the offense and his character.


                                                   Conclusion

[20]   For the foregoing reasons, we affirm Joles’s sentence.


[21]   Affirmed.


       Najam, J., and Kirsch, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 63A01-1704-CR-813 | September 7, 2017   Page 10 of 10
