      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                         Nov 10 2015, 8:55 am
      regarded as precedent or cited before any
      court except for the purpose of establishing
      the defense of res judicata, collateral
      estoppel, or the law of the case.


      ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
      Tia R. Brewer                                           Gregory F. Zoeller
      Marion, Indiana                                         Indianapolis, Indiana
                                                              George P. Sherman
                                                              Indianapolis, Indiana



                                                IN THE
          COURT OF APPEALS OF INDIANA

      Artie Pence,                                            November 10, 2015
      Appellant-Defendant,                                    Court of Appeals Case No.
                                                              27A05-1410-CR-488
              v.                                              Appeal from the Grant Superior
                                                              Court
      State of Indiana,                                       The Honorable Warren Haas,
      Appellee-Plaintiff                                      Judge
                                                              Trial Court Cause No.
                                                              27D03-1312-FB-88



      Altice, Judge.


                                               Case Summary


[1]   Artie Pence pleaded guilty to five counts of securities fraud involving multiple

      victims. In addition to a twenty-eight-year sentence, most of which was

      Court of Appeals of Indiana | Memorandum Decision 27A05-1410-CR-488| November 10, 2015   Page 1 of 6
      suspended to probation, the trial court ordered restitution in the total amount of

      $162,100. The trial court ordered Pence, as a condition of his probation, to pay

      one-half of his net monthly income toward restitution and to sell his residence

      and pay any net proceeds toward restitution. On appeal, Pence challenges only

      the order to sell his primary residence. Pence, however, directs us to no

      relevant authority in support of this issue and provides little if any cogent

      argument.


[2]   We affirm.


                                      Facts & Procedural History


[3]   On December 18, 2013, the State charged Pence with fifteen counts (fourteen as

      class C felonies and one as a class B felony) related to securities fraud, broker-

      dealer registration violations, and securities registration violations. On July 22,

      2014, Pence entered into a plea agreement in which he pleaded guilty to four

      class C felonies and one class B felony. Pursuant to the agreement, the State

      dismissed the remaining charges. Sentencing was left to the discretion of the

      trial court, as well as the amount and manner of restitution.


[4]   Following a sentencing hearing, the trial court imposed an aggregate term of

      three years executed and twenty-five years suspended to supervised probation.

      With respect to restitution, the court ordered Pence to pay restitution to the

      victims in the total amount of $162,100, an amount agreed to by Pence. While

      on probation, the court ordered him to pay restitution on a monthly basis in the



      Court of Appeals of Indiana | Memorandum Decision 27A05-1410-CR-488| November 10, 2015   Page 2 of 6
      amount of one-half of his net monthly income.1 Additionally, the court ordered

      Pence to “sell his home in a commercially reasonable manner and apply any

      net proceeds to pay toward his restitution obligation.” Appellant’s Appendix at

      29. Pence appeals the portion of the order directing him to sell his primary

      residence.


                                           Discussion & Decision


[5]   The trial court enjoys wide latitude in crafting the terms of a defendant’s

      probation. Kays v. State, 963 N.E.2d 507, 509 (Ind. 2012). Accordingly, we will

      set aside the terms of a probation order only where the trial court has abused its

      discretion. Id. “An order of restitution lies within this discretion and will

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


[6]   On appeal, Pence initially directs us to Kays, but he does not explain how this

      case is applicable. It is not. In Kays, the Supreme Court held that “social

      security benefits may be considered by a trial court in determining a defendant’s

      ability to pay restitution” because even though the State could not levy against

      that income, “it does reflect an important part of the person’s total financial

      picture”. Id. at 510-11. Unlike in Kays, the issue in the instant case has nothing




      1
        The court explained: “‘net monthly income’, as used in this context means the Defendant’s gross income,
      from any source, minus reasonable tax withholding, minus his probation fees, minus any amounts that he is
      required to pay to his former wife”. Appellant’s Appendix at 29.

      Court of Appeals of Indiana | Memorandum Decision 27A05-1410-CR-488| November 10, 2015         Page 3 of 6
      to do with Pence’s ability to pay. Rather, Pence is challenging the manner of

      performance fixed by the trial court.


[7]   The Court noted in Kays that “although not authoritative we find persuasive the

      decisions of other courts that have permitted consideration of income or other

      assets that cannot be levied against in assessing a defendant’s overall ability to

      pay fines or restitution.” Id. at 511. In addition to other contexts, the Court

      observed:

              In similar fashion federal courts have also held that a defendant’s
              partial interest in his home is a “‘financial resource’ that the court
              may properly consider” in imposing a fine, even though the
              government could not necessarily “levy upon [the defendant’s]
              concurrent interest in the residence or proceeds from its sale.”
              United States v. Gresham, 964 F.2d 1426, 1430 (4th Cir.1992); see
              also United States v. Lampien, No. 96–3337, 1997 WL 800850, at
              *2 (7th Cir. Dec. 31, 1997) (“[A]lthough the court lacks the
              power to order [the defendant] to rent her home, it still may
              consider the income that [the defendant] reasonably could earn
              through the rental of her home while incarcerated in deciding
              what payments she can presently make in restitution.” (emphasis
              in original)).


      Id. With no further analysis,2 Pence provides this excerpt from Kays to support

      his claim that the trial court could not order him to sell his home.




      2
        Ind. Appellate Rule 46(A)(8)(a) requires an appellant’s argument to “contain the contentions of the
      appellant on the issues presented, supported by cogent reasoning.” Where an appellant fails to abide by this
      rule, we will not abdicate our role as an impartial tribunal and become an advocate for him. See Shepherd v.
      Truex, 819 N.E.2d 457, 463 (Ind. Ct. App. 2004) (while appellant cited some authority, he “wholly fail[ed] to
      explain in what way, if at all, the referenced authority affect[ed] or relate[d] to the present case”).

      Court of Appeals of Indiana | Memorandum Decision 27A05-1410-CR-488| November 10, 2015            Page 4 of 6
[8]    A review of Gresham and Lampien, however, reveals that they offer no support

       for Pence’s claim. In Gresham, the appellant claimed that the district court erred

       in considering appellant’s partial interest in his home, which he owned with his

       wife as tenants by the entirety. The Fourth Circuit observed that under

       Maryland law, no individual creditor, including the government, could levy

       upon his concurrent interest in the home absent dissolution of the estate by the

       entirety. Regardless, the court held that it was proper to consider his interest in

       the home as a financial resource relevant to the determination of his criminal

       fine. Gresham, 964 F.2d at 1430. This case sheds no light on the issue at hand.


[9]    In Lampien, the Seventh Circuit interpreted, in an unpublished opinion, the

       federal Victim and Witness Protection Act (the VWPA) and concluded that the

       “limited terms of the VWPA…compel[led]” the court to reverse a restitution

       order directing the appellant to rent out her home while in prison. Lampien,

       1997 WL 800850, at *2. The court, however, determined that the reasonable

       rental value could be considered in ascertaining the appellant’s ability to make

       monthly payments toward her restitution obligation. Again, this case is

       inapposite to the instant case.


[10]   Next, Pence asserts that the restitution order requiring the sale of his residence

       violates Article 1, Section 30 of the Indiana Constitution, which provides: “No

       conviction shall work corruption of blood, or forfeiture of estate.” He provides

       no meaningful argument or citation to case law. Accordingly, his argument is

       waived. See $100 v. State, 822 N.E.2d 1001, 1013 (Ind. Ct. App. 2005), trans.

       denied.

       Court of Appeals of Indiana | Memorandum Decision 27A05-1410-CR-488| November 10, 2015   Page 5 of 6
[11]   Pence asserts only that “there can be no doubt that [this constitutional

       provision] was directly designed to prevent EXACTLY what the trial court has

       ordered in the present case.” Appellant’s Brief at 4-5. Without addressing in

       detail the merits of this waived issue, we direct Pence to $100 v. State, 822

       N.E.2d at 1016 (observing that Article 1, Section 30 prohibits only the automatic

       forfeiture to the State of property upon conviction) and Ballard v. Bd. of Trustees of

       the Police Pension Fund of the City of Evansville, 324 N.E.2d 813, 817 (Ind. 1975)

       (“the term ‘estate’ ordinarily means the whole of the property owned” by the

       defendant and not one “fungible thing”).


[12]   In sum, we conclude that Pence has wholly failed to establish error.


[13]   Judgment affirmed.


[14]   Riley, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 27A05-1410-CR-488| November 10, 2015   Page 6 of 6
