MEMORANDUM DECISION
                                                                            FILED
Pursuant to Ind. Appellate Rule 65(D), this                           May 30 2017, 10:00 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the                          CLERK
                                                                        Indiana Supreme Court
                                                                           Court of Appeals
purpose of establishing the defense of res judicata,                         and Tax Court
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                        ATTORNEYS FOR APPELLEE
Joel C. Wieneke                                               Curtis T. Hill, Jr.
Wieneke Law Office LLC                                        Attorney General of Indiana
Brooklyn, Indiana
                                                              Jodi Kathryn Stein
                                                              Deputy Attorney General
                                                              Indianapolis, Indiana


                                              IN THE
      COURT OF APPEALS OF INDIANA
                          1
Lacee M. Garber, n/k/a Lacee                                 May 30, 2017
M. Cochran,                                                  Court of Appeals Case No.
                                                             34A02-1609-CR-2039
Appellant-Defendant,
                                                             Appeal from the Howard Superior
         v.                                                  Court.
                                                             The Honorable Timothy P. Spahr,
                                                             Special Judge.
State of Indiana,                                            Trial Court Cause No.
                                                             34D02-1407-FC-151
Appellee-Plaintiff.




    Sharpnack, Senior Judge




1
 Because she was referred to as Lacee Garber in the pleadings and in the transcript, we refer to her by that
name in the opinion.

Court of Appeals of Indiana | Memorandum Decision 34A02-1609-CR-2039 | May 30, 2017                Page 1 of 7
                                          Statement of the Case
[1]   Lacee M. Garber appeals from the trial court’s restitution order after she
                                                                           2
      pleaded guilty to two counts of Class C felony forgery and one count of Class
                            3
      D felony theft. We affirm.


                                                    Issue
[2]   The dispositive issue in this appeal is whether Garber waived review of the trial

      court’s restitution order by agreeing to leave calculation of the amount of

      restitution to the trial court’s discretion.


                                   Facts and Procedural History
[3]   Garber was employed as a paralegal and office manager in the law office of

      Michael Krebes from 2005 to 2013. Krebes was a deputy prosecutor, receiving

      a stipend from the prosecutor’s office, but he also maintained a civil practice.

      Garber was compensated for her work in Krebes’ private office from the stipend

      Krebes received from his work at the prosecutor’s office. However, Krebes told

      Garber that if the civil practice could not be financially self-sustaining, he

      planned to close it.




      2
          Ind. Code § 35-43-5-2(b)(1) (2014).
      3
          Ind. Code § 35-43-4-2 (2014).


      Court of Appeals of Indiana | Memorandum Decision 34A02-1609-CR-2039 | May 30, 2017   Page 2 of 7
[4]   Krebes paid for some of his personal bills from stipend funds, and he sometimes

      used funds from his civil practice to pay his personal mortgage and for use as

      spending money.


[5]   At some point, Garber began to pay her own personal expenditures from the

      business and client trust accounts to which she had been granted access by

      Krebes. No records were kept of the amount taken from those accounts for

      such purpose.


[6]   Several clients retained Krebes to represent them in bankruptcy court and

      presented their retainer payments to Garber. Garber did not initiate the

      bankruptcy filings but kept the money. Garber also settled cases without

      Krebes’ permission and kept the settlement money. Two of the clients who

      were deprived of their settlement checks were Delores Pendergrass and Thomas

      Melton.


[7]   Disciplinary complaints started to arrive at Krebes’ office. Garber responded to

      some of them on her own and hid others in an office closet. She also instructed

      clients to contact her directly by her cell phone number to bypass Krebes.


[8]   The civil practice began to fail financially, and Garber kept the situation hidden

      from Krebes for as long as possible by moving money between accounts. By

      the fall of 2013, Krebes became aware that the civil practice was failing and told

      Garber that he planned to close it by the end of the year. By December,

      however, Krebes became aware of the grave and extensive nature of Garber’s

      misconduct after speaking with several clients.

      Court of Appeals of Indiana | Memorandum Decision 34A02-1609-CR-2039 | May 30, 2017   Page 3 of 7
[9]    Krebes was disciplined for his failure to supervise Garber and for allowing her

       to practice law without a license. He received a two-year license suspension,

       which was withheld upon completion of certain requirements. Krebes hired

       several other attorneys to complete his client work, was the subject of civil suits

       filed by clients, and spent $10,000 to defend the disciplinary actions he faced.

       Krebes valued his loss due to Garber’s criminal actions at $123,818.45.


[10]   After charges were filed against her, Garber entered into a written plea

       agreement, pleading guilty to two counts of Class C felony forgery for her

       actions involving Thomas Melton and Delores Pendergrass, and one count of

       Class D felony theft for stealing from Krebes. The State agreed to dismiss the

       remaining counts. The plea agreement set forth specific sentencing provisions,

       and also represented that the parties “disagree on the amount of restitution, and

       arguments thereon shall be made at the sentencing hearing.” Appellant’s App.

       p. 138. At the hearing during which sentencing and restitution were addressed,

       Garber’s counsel stated, “so, we’ll leave that to the Court’s discretion as to how

       to calculate restitution and what amount that should ultimately be. Umm, but

       we ask to, that you please consider her ability to pay when you, when you

       fashion that.” Tr. p. 121.


[11]   The trial court ordered restitution in the amount of $100,000, with payment of

       $20,200 as a condition of probation and $79,800 as a civil judgment. Garber

       now appeals.




       Court of Appeals of Indiana | Memorandum Decision 34A02-1609-CR-2039 | May 30, 2017   Page 4 of 7
                                    Discussion and Decision
[12]   Garber challenges the trial court’s restitution order, contending that the amount

       is too high. By statute, a trial court is allowed to order a defendant to pay

       restitution to a victim as a condition of probation, so long as the defendant’s

       ability to pay has been considered before the restitution order is entered. Ind.

       Code § 35-38-2-2.3(a)(6) (2013). “A trial court’s determinations in setting

       probation are set aside only where the trial court has abused its discretion.” Bell

       v. State, 59 N.E.3d 959, 962 (Ind. 2016). “An order of restitution lies within this

       discretion and will likewise be reversed only for abuse of discretion.” Id.

       (quoting Kays v. State, 963 N.E.2d 507, 509 (Ind. 2012)).


[13]   The State argues that Garber has waived this argument by stating that she

       would leave the issue of calculation of restitution to the trial court’s discretion.

       We agree.


[14]   In Bell, our Supreme Court addressed the issue of whether a defendant waived

       her ability to challenge a trial court’s restitution order on appeal due to her

       failure to object to the order at the time it was entered. The Court stated as

       follows:

               This Court and the Court of Appeals review many claims of
               sentencing error (improper consideration of an aggravating
               circumstance, failure to consider a proper mitigating
               circumstance, inaccurate weighing of aggravating and mitigating
               circumstances, etc.) without insisting that the claim first be
               presented to the trial judge. Although there have been cases in
               which appeals on restitution were waived due to the failure to

       Court of Appeals of Indiana | Memorandum Decision 34A02-1609-CR-2039 | May 30, 2017   Page 5 of 7
               make an objection at trial, the vast weight of the recent case law
               in this state indicates that appellate courts will review a trial
               court’s restitution order even when the defendant did not object
               based on the rationale that a restitution order is part of the
               sentence, and it is the duty of the appellate courts to bring illegal
               sentences into compliance.
       59 N.E.3d at 962 (internal citations and quotations omitted).


[15]   “Waiver is an affirmative act and mere silence, acquiescence or inactivity does

       not constitute waiver unless there was a duty to speak.” Ryan v. Janovsky, 999

       N.E.2d 895, 901 (Ind. Ct. App. 2013) (quoting Pohle v. Cheatham, 724 N.E.2d

       655, 659 (Ind. Ct. App. 2000)), trans. denied. Here, Garber challenged the

       amount offered by Krebes, but did not provide the trial court with an

       alternative, lesser amount, and expressly left the calculation to the trial court’s

       discretion.


[16]   Waiver notwithstanding, Garber’s claim fails. Without objection, Krebes

       testified about and produced a document he prepared outlining his losses

       attributable to Garber’s criminal activity. The amount he claimed was

       $123,818.45. In contrast, Garber testified that she did not know how much

       money she had stolen from Krebes. Krebes did acknowledge his use of money

       from his business accounts to pay his mortgage and for personal spending. He

       testified to the amount of the mortgage payment. Based on this testimony, the

       trial court reduced the amount claimed by Krebes to $100,000. We find no

       abuse of discretion here.




       Court of Appeals of Indiana | Memorandum Decision 34A02-1609-CR-2039 | May 30, 2017   Page 6 of 7
                                                Conclusion
[17]   In light of the foregoing, we affirm the trial court’s judgment.


[18]   Affirmed.


       Vaidik, C.J., and Najam, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 34A02-1609-CR-2039 | May 30, 2017   Page 7 of 7
