MEMORANDUM DECISION
                                                                                     FILED
Pursuant to Ind. Appellate Rule 65(D),                                          Mar 29 2016, 6:17 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
Kara A. Hancuff                                          Gregory F. Zoeller
Monroe County Public Defender                            Attorney General of Indiana
Bloomington, Indiana
                                                         Paula J. Beller
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana




                                          IN THE
    COURT OF APPEALS OF INDIANA

Scott Giles,                                             March 29, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         53A01-1508-CR-1244
        v.                                               Appeal from the Monroe Circuit
                                                         Court
State of Indiana,                                        The Honorable Marc R. Kellams,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         53C02-1410-FC-1018



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 53A01-1508-CR-1244 | March 29, 2016          Page 1 of 10
[1]   Scott Giles appeals his sentence for forgery and theft as class C felonies. Giles

      raises one issue which we revise and restate as 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]   Richard Wells employed Giles for ten years as a property manager maintenance

      technician for Richard Wells Rentals. Between August 1, 2013, and June 30,

      2014, Giles stole various checks from Wells. Giles then filled out those checks,

      signed Wells’s name to them without any authority, and cashed the checks.

      The largest check cashed was for $1,500. Giles ultimately stole a total of

      $189,000 from Wells during that period of time.


[3]   On October 27, 2014, the State charged Giles with forgery and theft as class C

      felonies. On July 20, 2015, the court held a hearing, and Giles pled guilty as

      charged. The court explained that the two charges were considered an episode

      of criminal conduct and that the maximum sentence could not exceed the

      advisory sentence for a felony which is one class higher than the most serious of

      the felonies charged, or ten years.


[4]   Giles testified that he “used the money to, um, procure materials that I needed

      for work, um, with his business,” but admitted that most of the money was

      taken for his own benefit. Transcript at 10. When asked what he did with the

      money, Giles stated: “Um, provided for my family, gave them whatever they




      Court of Appeals of Indiana | Memorandum Decision 53A01-1508-CR-1244 | March 29, 2016   Page 2 of 10
      wanted [inaudible].” Id. at 11. The court accepted the pleas and entered

      judgment of conviction under each count.


[5]   The trial court then proceeded to a sentencing hearing. Giles stated: “I wish I’d

      never done it. Um, but I kind of lost my mind in that – that point in time and I

      understand that it really destroyed my life at this point.” Id. at 12-13. He

      testified that Wells was good to him for the ten years that Wells employed him.

      The court then told Giles to turn around and tell Wells that face to face, and

      Giles then stated:

              Mr. Wells, you were good to me for the ten (10) years I worked
              for you and my grief got the best of me and I’m sorry for, uh,
              jeopardizing your health and your job. Um, I wish I could do it
              over, I would do much better by you.


      Id. at 13.


[6]   Giles testified that he spent all the money and that he had nothing to show for

      it. When asked by his counsel whether he tried to procure some funds to pay

      Wells back, Giles testified that he went to a couple of banks looking for a loan

      but they would not give him a loan because his credit was not good, and

      “[a]lso, they told me I had to get an account with them.” Id. Giles stated that

      he was working and wanted to start paying back the money at the rate of at

      least $100 per month. When asked by his counsel regarding how much he

      would pay if he acquired a second job, Giles stated: “Then even more, um, up

      to hopefully two hundred, if more. I, I do have child support, um, I’m

      supporting my child and two other children that are my wife’s.” Id. at 14.

      Court of Appeals of Indiana | Memorandum Decision 53A01-1508-CR-1244 | March 29, 2016   Page 3 of 10
[7]   Giles asked that he serve any time on home detention and stated: “I just don’t

      want to be separated from my family. I want to work and get this taken care of

      and do my time and just get back to being normal again and not having to

      worry about this stuff.” Id. at 15. The court observed that it would take 157.5

      years to pay off the amount stolen at $100 per month. The prosecutor argued

      for the maximum aggregate sentence of ten years and emphasized that Wells

      had to defer his retirement, the discovery of the theft caused him serious illness

      and a heart attack, and there is no way that Giles would ever pay the money

      back during Wells’s life or even after his death.


[8]   The court noted that Giles was forty years old and had no prior criminal history

      and no drug and alcohol involvement, and that the Indiana Risk Assessment

      System showed him as a low risk to re-offend. The court found that it was an

      aggravating factor that Wells was at least sixty-five years of age, “in fact, in

      excess of that, sufficiently to really aggravate the circumstances.” 1 Id. at 17.

      Giles’s counsel then stated:

                 I was just going to mention one other thing and, um, that is that
                 unlike many people we deal with Mr. Giles has never denied that
                 he did this. He has – he’s wanted a plea agreement this whole
                 time and obviously none is coming. He has admitted to it
                 practically from the start. Even admitted to it under oath in
                 another trial in which he was the victim.




      1
          According to his victim impact statement, Wells was eighty-six years old.


      Court of Appeals of Indiana | Memorandum Decision 53A01-1508-CR-1244 | March 29, 2016   Page 4 of 10
       Id.


[9]    After a recess, the court stated:


               Well, there’s a number of ways to look at this situation, Scott.
               Um, first, as the prosecutor looked at it, and as is reasonable to
               look at it, you had a victim of advanced years, and you stole a lot
               of money. This wasn’t just a couple hundred dollars, this is
               thousands and thousands of dollars, which, although I’m never
               sure what the Court of Appeals will do, I believe, because it’s
               such an outrageously large amount of money, would justify a
               maximum sentence. Then you look at it from the prospective
               [sic] of you have no prior criminal history, um, and you pled
               guilty which saved the State and the victim the requirement of
               going through a trial, which is deserving of some consideration.


       Id. at 19-20. The court stated that “[i]t is a serious – it is a serious crime and the

       victim was greatly harmed as a result and it demands I believe, um, a term of

       incarceration.” Id. at 21-22. The court sentenced Giles to eight years for each

       count and ordered the sentences to be served concurrent with each other.


                                                   Discussion

[10]   The issue is whether Giles’s sentence is inappropriate in light of the nature of

       the offense and the character of the offender. 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).


       Court of Appeals of Indiana | Memorandum Decision 53A01-1508-CR-1244 | March 29, 2016   Page 5 of 10
       Relief is available if, after due consideration of the trial court’s sentencing

       decision, this court finds that in our independent judgment, the sentence is

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

       offender. Hines v. State, 30 N.E.3d 1216, 1225 (Ind. 2015). “[S]entencing is

       principally a discretionary function in which the trial court’s judgment should

       receive considerable deference.” Id. (quoting Cardwell v. State, 895 N.E.2d 1219,

       1222 (Ind. 2008)). “[A]ppellate review should focus on the forest – the

       aggregate sentence – rather than the trees – consecutive or concurrent, number

       of counts, or length of the sentence on any individual count.” Cardwell, 895

       N.E.2d at 1225. “[W]hether we regard a sentence as appropriate at the end of

       the day turns on our sense of 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.” Hines, 30 N.E.3d at 1225 (quoting Cardwell, 895 N.E.2d at

       1224).


[11]   Giles argues that the maximum sentence on each count was inappropriate. He

       asserts that he accepted responsibility for his conduct, has no prior criminal

       history, supports his wife’s two children and plans to adopt them, and is current

       on his child support obligations with respect to his biological son. He also

       argues that he is unlikely to commit another crime and is likely to respond

       positively to probation or short-term imprisonment. He points to his testimony

       that he was employed at a new job and would make payments to Wells of at

       least $100 per month.




       Court of Appeals of Indiana | Memorandum Decision 53A01-1508-CR-1244 | March 29, 2016   Page 6 of 10
[12]   The State argues that Giles’s theft was almost twice the threshold amount for

       theft as a class C felony, that the offense occurred over a period of several

       months and involved 224 stolen checks, and that Wells believes he must work

       into his nineties in order to recoup the stolen funds. The State also contends

       that, while Giles does not have a criminal history, his character is such that he

       is willing to violate the trust and abuse the generosity of his elderly employer. It

       also asserts that Giles’s guilty plea is likely a pragmatic decision based on the

       fact that there were 224 checks made out to him in his handwriting.


[13]   To the extent that Giles argues he received the maximum sentence on each

       count, we observe that he received the maximum sentence for each count,2 but

       not the maximum aggregate sentence. At the guilty plea hearing, the trial court

       explained that the two charges were considered an episode of criminal conduct

       and that the maximum sentence could not exceed the advisory sentence for a

       felony which is one class higher than the most serious of the felonies charged,

       or ten years. At the time of the offenses, Ind. Code § 35-50-1-2 provided in part:

                [E]xcept for crimes of violence, the total of the consecutive terms
                of imprisonment, exclusive of terms of imprisonment under IC
                35-50-2-8 and IC 35-50-2-10, to which the defendant is sentenced
                for felony convictions arising out of an episode of criminal
                conduct shall not exceed the advisory sentence for a felony which




       2
         At the time of the offenses, Ind. Code § 35-50-2-6 provided that “[a] person who commits a Class C felony
       shall be imprisoned for a fixed term of between two (2) and eight (8) years, with the advisory sentence being
       four (4) years.”

       Court of Appeals of Indiana | Memorandum Decision 53A01-1508-CR-1244 | March 29, 2016             Page 7 of 10
               is one (1) class of felony higher than the most serious of the
               felonies for which the person has been convicted.


       Thus, assuming that the offenses constituted an episode of criminal conduct as

       stated by the trial court,3 Giles could have been sentenced to a maximum

       sentence of ten years, which is the advisory sentence for a class B felony, the

       felony one class higher than the class C felonies with which Giles was charged.

       Accordingly, we cannot say that Giles received the maximum aggregate

       sentence.


[14]   Our review of the nature of the offense reveals Giles worked for Wells for ten

       years and that between August 1, 2013, and June 30, 2014, he stole various

       checks from Wells, filled them out, and cashed them. The largest check Giles

       cashed was for $1,500. During the period of eleven months, Giles stole a total

       of $189,000, which corresponds to an average of $17,181.81 per month.

       According to Wells’s victim impact statement, Wells was charged fees and

       penalties from different businesses that had not received their automatic

       payments because Giles had depleted his account. Most of the money was

       stolen from a combined operating account and retirement account, it will take

       Wells nearly five years of operating his business to recover the stolen funds, and

       he was eighty-six years old at the time of sentencing. Wells also stated that he

       believed the realization of the amount of money stolen led to his heart attack on




       3
        At the time of the offenses, Ind. Code § 35-50-1-2(b) provided that an “‘episode of criminal conduct’ means
       offenses or a connected series of offenses that are closely related in time, place, and circumstance.”

       Court of Appeals of Indiana | Memorandum Decision 53A01-1508-CR-1244 | March 29, 2016           Page 8 of 10
       October 2, 2014, and that Giles was a trusted worker for ten years and lived

       rent free for years in a $600 per month house.


[15]   Our review of the character of the offender reveals that Giles pled guilty almost

       nine months after being charged and has no prior criminal history. Giles

       reported that he has a nine-year-old son and is current with his obligation to pay

       ninety-three dollars per week in child support. The presentence investigation

       report (“PSI”) indicates that Giles reported that he has two stepchildren and

       that he voiced a desire to eventually adopt them. Giles reported that he has

       smoked marijuana no more than one to two times per week. The PSI indicates

       that his overall risk assessment score placed him in the low risk to reoffend

       category. According to Wells’s victim impact statement, the house where Giles

       had been staying was inspected on December 2, 2014, and Giles’s white cat was

       found starving inside the house, the side door was ajar, and the house “was a

       total mess.” Appellant’s Appendix at 32. Wells also asserted that Giles had not

       vacated the premises since receiving a letter in October 2014 instructing him to

       do so and that he had failed to pay the water, electric, and gas bills.


[16]   After due consideration of the trial court’s decision, and in light of the repeated

       withdrawals and amount of the loss, we cannot say that the aggregate sentence

       of eight years is inappropriate in light of the nature of the offense and the

       character of the offender.


                                                   Conclusion

[17]   For the foregoing reasons, we affirm Giles’s sentence.


       Court of Appeals of Indiana | Memorandum Decision 53A01-1508-CR-1244 | March 29, 2016   Page 9 of 10
[18]   Affirmed.


       Kirsch, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 53A01-1508-CR-1244 | March 29, 2016   Page 10 of 10
