MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                               FILED
regarded as precedent or cited before any                                       Jun 12 2019, 6:39 am
court except for the purpose of establishing
the defense of res judicata, collateral                                             CLERK
                                                                                Indiana Supreme Court
                                                                                   Court of Appeals
estoppel, or the law of the case.                                                    and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Sally Skodinski                                          Curtis T. Hill, Jr.
South Bend, Indiana                                      Attorney General of Indiana
                                                         Laura R. Anderson
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Karrie Lutzke,                                           June 12, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-2459
        v.                                               Appeal from the St. Joseph
                                                         Superior Court
State of Indiana,                                        The Honorable Elizabeth C.
Appellee-Plaintiff.                                      Hurley, Judge
                                                         Trial Court Cause No.
                                                         71D08-1708-F6-779




Tavitas, Judge.



Court of Appeals of Indiana | Memorandum Decision 18A-CR-2459 | June 12, 2019                           Page 1 of 9
                                                Case Summary

[1]   Karrie Lutzke 1 appeals her sentence after her convictions for home

      improvement fraud, a Class B misdemeanor, and theft, a Level 6 felony. We

      affirm.


                                                        Issue

[2]   Lutzke raises one issue on appeal, which we restate as whether the trial court

      abused its discretion in sentencing Lutzke.


                                                        Facts

[3]   Lutzke met Donna Mullins (“Donna”) at Donna’s store in Mishawaka,

      Indiana, which is located inside Donna’s home, and they became friends. At

      some point while Lutzke was visiting Donna’s store, Donna and Lutzke spoke

      about the repairs that Donna needed on her approximately 120-year-old home.

      Lutzke told Donna that Lutzke and her husband, John, had the resources and

      skills to complete the projects that Donna wanted completed.


[4]   The work on the home included installing a new roof, replacing the floor in the

      basement, repairing and improving the porch, painting the gutters and trim of

      the home, power washing, repainting the foundation, installing new vents

      where needed, installing beams in the home where needed, installing new

      carpeting, and replacing the doors in the home. Lutzke prepared the contract




      1
        Lutzke has since changed her name to Karrie Hesselink; however, for simplicity, we will continue to
      identify her as Lutzke.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2459 | June 12, 2019                    Page 2 of 9
      for Donna and Donna’s husband, Ronald, to sign. The parties executed the

      agreement on July 29, 2015. The agreed contract price was $23,100.00.

      Pursuant to the parties’ agreement, Donna and Ronald would pay Lutzke and

      John fifty percent of the contract price up front, twenty-five percent after all the

      materials were delivered, and the remaining twenty-five percent once the job

      was completed.


[5]   Donna and Ronald paid the initial installment for $10,500.00 to Lutzke.

      Approximately three to five weeks later, the materials that should have been

      delivered were not yet delivered. Still, Lutzke requested Donna to pay her the

      next installment so Lutzke could pay the carpet supplier. Although Lutzke and

      John were to begin work on the home right away, they did not. Donna

      ultimately paid John an additional $500.00 for gas because John indicated that,

      otherwise, he could not afford to drive from Michigan to Donna’s and Ronald’s

      home in Mishawaka.


[6]   In the end, most of the work was not completed or was done improperly. 2

      Further, Donna and Ronald had to pay several suppliers directly because

      Lutzke and John failed to pay them. According to Donna, her home looks

      “horrible” and worse than it did before Lutzke and John began the renovations.

      Tr. Vol. II p. 53. Accordingly, Donna and Ronald did not pay the remaining

      twenty-five percent of the contract price, and Lutzke and John filed a




      2
        At trial, a contractor and home inspector testified regarding the work that Lutzke and John completed on
      the home.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2459 | June 12, 2019                    Page 3 of 9
      mechanic’s lien on the home on December 16, 2015. Ronald and Donna then

      sought legal advice. 3


[7]   On August 23, 2017, the State charged Lutzke with Count I, home

      improvement fraud, a Class B misdemeanor, and Count II, theft, a Level 6

      felony. A jury trial was held on July 26 and 27, 2018, and the jury found

      Lutzke guilty on both counts.


[8]   The trial court held a sentencing hearing on September 12, 2018. At the

      sentencing hearing, the trial court stated,


              In your case you have a lengthy [criminal] history. I know
              [Lutzke’s attorney] has said he doesn’t believe much of it should
              be considered because of its age. I disagree. There are many
              offenses throughout here that are financial in nature. I guess
              most recently looking at a 2011 felony conviction for financial
              transaction device out of Michigan. So that’s the most recent
              felony conviction of what I would call a financial nature other
              than the failure to pay child support conviction also from 2011.
              Also financial in nature but maybe not related to what we are
              looking at here.


              So I do find your criminal history a significant aggravating factor.
              We are talking nineteen prior convictions, four of which are
              felonies. So this is your fifth felony conviction. That is
              significant no matter what.




      3
        Donna and Ronald obtained a civil judgment against Lutzke and John in the amount of $42,904.39;
      however, as of the date of trial, Donna and Ronald had not yet collected any monies from that civil
      judgment.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2459 | June 12, 2019                  Page 4 of 9
      Tr. Vol. III pp. 168-69. In addition to Lutzke’s criminal history, the trial court

      also found, as an aggravating factor, that the amount of loss in the case to the

      victims “is so much greater than what is necessary to prove a Level 6 felony.”

      Id. at 169. As a mitigator, the trial court found that Lutzke was educated and

      has maintained regular employment. Ultimately, however, the trial court found

      that “the factors in aggravation substantially outweigh the factors in

      mitigation.” Id. at 170. Accordingly, the trial court sentenced Lutzke to 180

      days on Count I, and 30 months on Count II to run concurrently. Lutzke’s

      executed sentence was for a period of one year, and the remaining time was

      suspended to probation. Lutzke was also ordered to pay restitution in the

      amount of $44,138.39. Lutzke now appeals her sentence. 4


                                                        Analysis

[9]   Lutzke claims the trial court abused its discretion in sentencing her because the

      trial court relied on improperly summarized information in the pre-sentence

      investigation report (“PSI”) with regard to Lutzke’s prior convictions.

      Sentencing is a discretionary function of the trial court, and we afford

      considerable deference to the trial court’s judgment. See Stephenson v. State, 29

      N.E.3d 111, 122 (Ind. 2015). Deference to the trial court “prevail[s] unless

      overcome by compelling evidence portraying in a positive light the nature of the

      offense (such as accompanied by restraint, regard, and lack of brutality) and the




      4
          On September 28, 2018, Lutzke petitioned to modify her sentence. The trial court denied Lutzke’s petition.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2459 | June 12, 2019                      Page 5 of 9
       defendant’s character (such as substantial virtuous traits or persistent examples

       of good character).” Id. In sentencing a defendant, the trial court must enter a

       sentencing statement that includes “reasonably detailed reasons or

       circumstances for imposing a particular sentence.” Ackerman v. State, 51 N.E.3d

       171, 193 (Ind. 2016) (citing Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007),

       clarified on reh’g, 875 N.E.2d 218). Indiana Code Section 35-38-1-7.1 provides a

       non-exhaustive list of potential aggravating or mitigating circumstances a court

       must consider.


[10]   “This court has consistently held that, having been afforded the opportunity to

       review the [PSI], if the defendant fails to register an objection to the information

       contained therein, any such objection is waived for appellate review.” Dillard v.

       State, 827 N.E.2d 570, 576 (Ind. Ct. App. 2005), trans. denied. “It is enough that

       the defendant had the chance to review the report. Whether the defendant

       chooses to take advantage of the opportunity to review the report makes no

       difference with respect to preserving the right to appeal the accuracy of the

       information contained in the presentence investigation report.” Id. at 577

       (emphasis supplied).


[11]   Neither Lutzke nor Lutzke’s counsel objected to the incorrect information in

       the PSI. 5 In fact, even Lutzke’s counsel notes, “there are several things in the




       5
         There is a moment in the sentencing transcript where it appears as if Lutzke’s counsel intends to draw the
       trial court’s attention to an error in the PSI; however, Lutzke intervenes. At the hearing, counsel stated:
                [LUTZKE’S COUNSEL]: If I could, we only have one error on the –


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2459 | June 12, 2019                      Page 6 of 9
       past. But those things are so far back in time, so we don’t think they should

       have any effect on the sentencing here.” Tr. Vol. III p. 162. Moreover, when

       the State indicated that Lutzke has “a lengthy criminal history, nineteen

       convictions[, f]ifteen misdemeanor and four felonies,” neither Lutzke nor her

       counsel objected. Id. at 164. Lutzke’s argument is waived.


[12]   Waiver notwithstanding, the trial court did not abuse its discretion in

       sentencing Lutzke. Lutzke was found guilty of home improvement fraud, a

       Class B misdemeanor, and theft, a Level 6 felony. A Class B misdemeanor is

       punishable by “a fixed term of not more than one hundred eighty (180) days.”

       Ind. Code § 35-50-3-3. Lutzke was sentenced to the full 180 days on the Class

       B misdemeanor conviction. A Level 6 felony is punishable by a “fixed term of

       between six (6) months and two and one-half (2 ½) years, with the advisory

       sentence being one (1) year.” I.C. § 35-50-2-7(b). Lutzke was sentenced to

       thirty months, or two and one-half years, with one year executed, on the Level

       6 felony.


[13]   Lutzke’s main contention is that the trial court relied on the PSI preparer’s

       incorrect summary of Lutzke’s criminal history. Although, as Lutzke admits,

       the list of criminal charges and convictions in the PSI is accurate, the preparer,




                THE COURT: Okay.

                [LUTZKE]: Just let it go.

       Tr. Vol. III p. 157.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2459 | June 12, 2019   Page 7 of 9
       and subsequently the trial court, improperly summarized the convictions and

       included in its count of convictions some charges that were dismissed. Our

       review of the PSI indicates that Lutzke has an extensive criminal history

       consisting of at least nineteen convictions—both felonies and misdemeanors—

       prior to the instant offense. As far as felony convictions, besides the instant

       offense, Lutzke has been convicted 6 of one felony for stealing or retaining a

       financial transaction device. Lutzke has been charged with other felonies;

       however, the charges were either dismissed, or resulted in no prosecution.


[14]   While the trial court incorrectly stated the number of Lutzke’s felony

       convictions as four instead of one, the trial court correctly noted the numerous

       criminal convictions in Lutzke’s PSI. Moreover, the trial court also properly

       noted that several of Lutzke’s offenses were financial related crimes. These

       crimes include misdemeanor convictions for insufficient funds on six occasions

       and an attempt to avoid paying child support. Lutzke’s long criminal record

       was considered by the trial court, and we would agree with the trial court that

       Lutzke’s extensive criminal history is a valid aggravator. Whether Lutzke’s

       criminal history demonstrated one or four prior criminal felony convictions is

       immaterial in light of Lutzke’s long criminal record, which included theft and

       fraud-related charges.




       6
         The PSI is deficient in several areas with regard to Lutzke’s criminal history. On more than one occasion,
       the PSI does not indicate whether the conviction was a misdemeanor or felony. In our count of felony
       convictions, we will only include those that are clearly marked in the PSI as felony convictions.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2459 | June 12, 2019                     Page 8 of 9
[15]   Regardless, the trial court identified another aggravating factor—the severity of

       the offenses—which Lutzke does not challenge. The severity of Lutzke’s

       offenses was such that she was ordered to pay nearly twice the amount that

       Lutzke initially contracted with Donna and Ronald in restitution. Moreover,

       the trial court noted that Donna and Ronald obtained a civil judgment in the

       amount of $42,904.39, and that, using that number as a benchmark, “the

       amount of loss is so much greater than what is necessary to prove a Level 6

       Felony.” 7 Tr. Vol. III p. 169. Accordingly, Lutzke failed to demonstrate that

       the trial court abused its discretion in sentencing her.


                                                       Conclusion

[16]   The trial court did not abuse its discretion in sentencing Lutzke. We affirm.


[17]   Affirmed.


       Crone, J., and Bradford, J., concur.




       7
         Pursuant to Indiana Code Section 35-43-4-2, theft is a Level 6 felony if “the value of the property is at least
       seven hundred fifty dollars ($750) and less than fifty thousand dollars ($50,000).”

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2459 | June 12, 2019                         Page 9 of 9
