MEMORANDUM DECISION
                                                                               FILED
Pursuant to Ind. Appellate Rule 65(D),                                    Jun 12 2018, 10:28 am
this Memorandum Decision shall not be
                                                                               CLERK
regarded as precedent or cited before any                                  Indiana Supreme Court
                                                                              Court of Appeals
court except for the purpose of establishing                                    and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Victoria L. Bailey                                       Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         Lee M. Stoy, Jr.
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Penny K. Hisey,                                          June 12, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         25A04-1708-CR-1743
        v.                                               Appeal from the Fulton Superior
                                                         Court
State of Indiana,                                        The Honorable Wayne E. Steele,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         25D01-1506-FC-301



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 25A04-1708-CR-1743 | June 12, 2018               Page 1 of 7
                                Case Summary and Issue
[1]   Following a jury trial, Penny Hisey was convicted of eleven counts of theft:

      two counts as Class C felonies; four counts as Class D felonies; two counts as

      Level 5 felonies; and three counts as Level 6 felonies. The trial court entered

      judgment of conviction on all counts and sentenced Hisey to an aggregate

      sentence of thirty-one years, with twenty-two of those years ordered executed in

      the Indiana Department of Correction. Hisey now appeals, raising the sole

      issue of whether her sentence is inappropriate in light of the nature of her

      offense and her character. Concluding her sentence is not inappropriate, we

      affirm.



                            Facts and Procedural History
[2]   Rochester Iron and Metal (“RIM”) is a company in the business of purchasing

      scrap metal from both individual and commercial customers and reselling it for

      a profit. RIM is owned by Maurice Lewis and Jason Grube. Barb Lewis,

      Maurice’s wife and Jason’s mother, is RIM’s office manager. Lewis and Hisey

      have been best friends for almost thirty years. Since 2010, RIM employed

      Hisey, first as a secretary and eventually as their cashier. RIM made Hisey

      their cashier in 2012 specifically because they wanted someone in that position

      that they could trust. Over the course of her employment as RIM’s cashier,

      Hisey stole at least $829,595.85 through an elaborate scheme.




      Court of Appeals of Indiana | Memorandum Decision 25A04-1708-CR-1743 | June 12, 2018   Page 2 of 7
[3]   RIM uses two software programs to keep track of its funds and expenses,

      Quickbooks and ScrapRight. Quickbooks is directly connected to RIM’s

      checking account and was reconciled by the company on a monthly basis.

      ScrapRight is RIM’s purchasing system and contained a cash drawer. RIM

      reconciled this system on a daily basis to check for overages and shortages. The

      two systems are not linked and do not communicate with each other. When

      RIM made a purchase of scrap metal, the customer could elect to be paid by

      cash or check. A customer electing to be paid with cash would be paid from the

      cash drawer and ScrapRight, while a customer electing to be paid by check

      would receive a check generated by Quickbooks. Because the two systems were

      not linked, cash payments needed to be manually entered into the Quickbooks

      system.


[4]   Hisey stole from RIM in three different ways. In one scenario, when a

      customer elected to receive a check, Hisey would note the customer was paid by

      cash rather than a check. Hisey would issue a check to the customer but still

      withdraw cash from the drawer. Hisey did this in a number of different

      manners, such as creating multiple cash withdrawals to equal the amount of the

      check. In a second scenario, Hisey would pay the customer their check, and

      then proceed to void the customer’s ticket. After voiding the ticket, Hisey

      would replicate the ticket to show that it was paid in cash rather than by check.

      Finally, Hisey would simply create a fraudulent transaction and withdraw

      money from the cash drawer.




      Court of Appeals of Indiana | Memorandum Decision 25A04-1708-CR-1743 | June 12, 2018   Page 3 of 7
[5]   Eventually, Hisey was arrested and the State charged her with eleven counts of

      theft. A jury trial was held on May 24, 2017. At trial, Dan Zieger, a controller

      at RIM, testified about the effects of Hisey’s actions on the company. Zieger

      stated that of Hisey’s seven hundred and twenty days working as a cashier, she

      stole from RIM on five hundred of those days. Moreover, due to the substantial

      loss of revenue, RIM was unable to give raises and other benefits to its other

      employees and if Hisey’s actions had continued, RIM would have had to shut

      down. A jury found Hisey guilty as charged and the trial court sentenced Hisey

      to an aggregate sentence of thirty-one years, with twenty-two of those years

      ordered executed in the Department of Correction. Hisey now appeals her

      sentence.



                                 Discussion and Decision
[6]   Hisey’s sole argument is that her sentence is inappropriate. Indiana Appellate

      Rule 7(B) provides that this court may revise a sentence authorized by statute if,

      after due consideration of the trial court’s decision, we find the sentence is

      inappropriate in light of the nature of the offense and the character of the

      offender. The burden of persuading this court that the sentence is inappropriate

      lies with the defendant. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).

      Whether we regard a sentence as inappropriate turns on the “culpability of the

      defendant, the severity of the crime, the damage done to others, and myriad

      other factors that come to light in a given case.” Cardwell v. State, 895 N.E.2d

      1219, 1224 (Ind. 2008).


      Court of Appeals of Indiana | Memorandum Decision 25A04-1708-CR-1743 | June 12, 2018   Page 4 of 7
[7]   When determining whether a sentence is inappropriate, the advisory sentence is

      the starting point the legislature has selected as an appropriate sentence for the

      crime committed. Childress, 848 N.E.2d at 1081. Here, Hisey was convicted of

      two Class C felonies, four Class D felonies, two Level 5 felonies, and three

      Level 6 felonies. For each Class C felony, Hisey received an eight-year

      sentence, with two of those years suspended. The sentencing range for a Class

      C felony is from two to eight years, with an advisory sentence of four years.

      Ind. Code § 35-50-2-6(a). For each Class D felony, Hisey received a three-year

      sentence, with one year suspended. The sentencing range for a Class D felony

      is from six months to three years, with an advisory sentence of one and one-half

      years. Ind. Code § 35-50-2-7(a). For each Level 5 felony, Hisey received a six-

      year sentence, with two years suspended. The sentencing range for a Level 5

      felony is from one to six years, with an advisory sentence of three years. Ind.

      Code § 35-50-2-6(b). For each Level 6 felony, Hisey received a two-year

      sentence. The sentencing range for a Level 6 felony is from six months to two

      and one-half years, with an advisory sentence of one year. Ind. Code § 35-50-2-

      7(b). Thus, Hisey received a sentence at or near the maximum sentence for

      each conviction.


[8]   As to the nature of the offense, Hisey stole nearly one million dollars, over the

      course of several years, from a company that placed her in a position of trust.

      Hisey methodically stole money on more than half the days she worked as a

      cashier and took great efforts to cover up her crimes. The loss of stolen revenue

      had devastating effects upon RIM and Hisey’s actions affected her coworkers,


      Court of Appeals of Indiana | Memorandum Decision 25A04-1708-CR-1743 | June 12, 2018   Page 5 of 7
      with the company being unable to provide raises or other benefits for them. In

      other words, Hisey and her family benefitted from the negative effects she had

      on her company, coworkers, and friends. Had she been able to continue in her

      position, RIM would have had to shut down due to her theft. After considering

      the nature of Hisey’s offense, we cannot say her sentence is inappropriate.1


[9]   Turning to Hisey’s character, we examine “the offender’s life and conduct.”

      Washington v. State, 940 N.E.2d 1220, 1222 (Ind. Ct. App. 2011), trans. denied.

      With respect to her character, Hisey points to the fact she is active in her

      church, has support in the community, has raised a family, and is a well-loved

      and generous friend. Appellant’s Brief at 17. While this may be, Hisey’s

      character also demonstrates an employee who stole nearly one million dollars

      from her employer while putting her company and fellow coworkers at risk.

      Moreover, Hisey was placed in the position of cashier specifically because RIM

      trusted her. Hisey betrayed this trust, and the trust of someone who considered

      her a best friend, for her own gain and took great efforts to conceal her crimes.

      Hisey’s character does not persuade us her sentence is inappropriate.



                                                 Conclusion


      1
        Hisey also claims the prosecutor “could have charged a single count of Theft to encompass all the losses
      suffered by [RIM].” Appellant’s Brief at 16. Hisey alleges this court should consider the prosecutor’s
      charging decision in our review of her sentence. While charging decisions are relevant to our review, it is
      clear in this case the prosecutor also could have charged Hisey with more than eleven counts of theft, given
      the numerous days on which she stole from RIM. In our view, Hisey received a benefit from only being
      charged with eleven counts of theft.

      Court of Appeals of Indiana | Memorandum Decision 25A04-1708-CR-1743 | June 12, 2018               Page 6 of 7
[10]   Hisey has failed to meet her burden of persuasion that her sentence is

       inappropriate. Accordingly, we affirm her sentence.


[11]   Affirmed.


       Najam, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 25A04-1708-CR-1743 | June 12, 2018   Page 7 of 7
