MEMORANDUM DECISION
                                                                       FILED
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                             May 23 2016, 8:46 am

regarded as precedent or cited before any                              CLERK
                                                                   Indiana Supreme Court
court except for the purpose of establishing                          Court of Appeals
                                                                        and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


APPELLANT PRO SE                                        ATTORNEYS FOR APPELLEE
Philip H. Chamberlain                                   Gregory F. Zoeller
Bloomington, Indiana                                    Attorney General

                                                        Lyubov Gore
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Philip H. Chamberlain,                                  May 23, 2016
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        53A04-1507-CR-1016
        v.                                              Appeal from the Monroe Circuit
                                                        Court
State of Indiana,                                       The Honorable Teresa D. Harper,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        53C09-0805-FC-480



Vaidik, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 53A04-1507-CR-1016 | May 23, 2016        Page 1 of 9
                                               Case Summary
[1]   After this Court remanded this case to the trial court to determine the amount

      of restitution, if any, the victim was entitled to for Philip H. Chamberlain’s

      counterfeiting conviction, the trial court revised the amount of restitution from

      $15,000 to $10,000.

[2]   Chamberlain now appeals the trial court’s revised restitution order, contending

      that the court credited the victim’s testimony over his and that the court should

      have ordered him to pay the amount to the victim’s company, and not to the

      victim individually. Because the victim testified that Chamberlain still owed

      him $10,000 and the victim was the sole member of the now-dissolved limited-

      liability company, we conclude that the trial court did not abuse its discretion in

      ordering Chamberlain to pay $10,000 in restitution to the victim individually.



                                Facts and Procedural History
[3]   In May 2008 the State charged Chamberlain, an Indiana attorney,1 with five

      felonies stemming from his involvement in securing investors for the

      development of a southern Indiana golf course owned by Dwight Hart.2




      1
       Chamberlain received an interim suspension of his law license pending resolution of this appeal. See In re
      Chamberlain, Cause No. 53S00-1303-DI-191 (Ind. June 11, 2013 & June 2, 2014).
      2
          It is unclear whether Hart or Hart’s company owned the golf course, but this does not affect our decision.


      Court of Appeals of Indiana | Memorandum Decision 53A04-1507-CR-1016 | May 23, 2016                  Page 2 of 9
[4]   After four years of delays and continuances, in October 2012 Chamberlain and

      the State entered into a plea agreement in which Chamberlain agreed to plead

      guilty to Amended Count I: Class D felony counterfeiting, which alleged that

      “between September 1, 2006 and May 2007 . . . Chamberlain[] did knowingly

      or intentionally make or utter a written instrument, in such a manner that it

      purports to have been made by authority of one who did not give authority.”

      Appellant’s App. p. 49. The basis for this conviction was a $36,750 check that

      investor Shannon Ramey wrote to Hart’s company, JRock Capital Investment

      Group LLC (“JRock LLC"), on April 1, 2007; Hart was the only member of

      JRock LLC. Ramey gave Chamberlain the check to give to Hart. But instead

      of giving the check to Hart, Chamberlain, without Hart’s authority, endorsed

      the check in the name of JRock LLC and signed his name underneath as

      “director” even though he was not a director. The next day, Chamberlain,

      again without authority, split the check into two cashier checks: one for $26,750

      and the other for $10,000. Chamberlain gave the $26,750 check to Hart,

      representing that it was the full amount from Ramey, and deposited the $10,000

      check into the bank account of Hillcrest Shoppes, in which Chamberlain had an

      ownership interest. See Oct. 19, 2012 Tr. p. 17-23 (factual basis).


[5]   Pursuant to the plea agreement, the trial court had discretion to: (1) enter

      judgment as a Class D felony or Class A misdemeanor; (2) determine the length

      of the sentence; and (3) determine the amount, if any, of restitution. The trial

      court accepted the plea agreement and entered judgment of conviction as a

      Class D felony. The court sentenced Chamberlain to 540 days, suspended to


      Court of Appeals of Indiana | Memorandum Decision 53A04-1507-CR-1016 | May 23, 2016   Page 3 of 9
      probation, and 120 hours of community service. The court explained that upon

      successful completion of probation, Chamberlain’s Class D felony could be

      reduced to a Class A misdemeanor.3


[6]   At the restitution hearing, the State stipulated that it would not seek more than

      $16,750 in restitution, which was based upon the $10,000 that Chamberlain

      kept from Ramey’s $36,750 check, a $5000 loan that Chamberlain never repaid

      to Hart, and a $1750 fee that Chamberlain claimed Hart owed to Ramey’s

      company but that Chamberlain kept for himself. Chamberlain, who

      represented himself, testified that he gave Hart a cashier’s check for $25,500 in

      2008 (after the investigation into his dealings began but before he was officially

      charged) and that this $25,500 check covered the $10,000 that he kept from

      Ramey’s $36,750 check. Hart, however, testified that as a result of his dealings

      with Chamberlain, he ended up paying $124,000—including paying back

      Ramey the full $36,750—and that even with Chamberlain’s $25,500 check he

      was still short $44,103. The trial court ordered Chamberlain to pay $15,000 in

      restitution to Hart.

[7]   Chamberlain appealed, arguing that the trial court erred in ordering him to pay

      $15,000 in restitution to Hart. He made several arguments, including that the

      $15,000 amount erroneously included the $5000 unpaid loan because the loan

      was not covered by Amended Count I and that the trial court failed to credit



      3
       Indeed, the trial court reduced Chamberlain’s Class D felony conviction to a Class A misdemeanor in June
      2014.

      Court of Appeals of Indiana | Memorandum Decision 53A04-1507-CR-1016 | May 23, 2016            Page 4 of 9
him for the $25,500 check he gave Hart. We explained that unless a defendant

agrees, a restitution order cannot be based on an incident for which the

defendant was not convicted. Chamberlain v. State, No. 53A01-1305-CR-247,

slip op. at 8 (Ind. Ct. App. Apr. 16, 2014). And notably, Chamberlain did not

agree to pay more than the amount his counterfeiting conviction covered;

rather, Chamberlain maintained that he did not owe any restitution to Hart

because the $25,500 check he gave Hart in 2008 covered the $10,000 that he

kept from Ramey’s $36,750 check. Id. But because we did not have the

transcript from Chamberlain’s guilty-plea hearing, we could not tell what

written instrument Amended Count I covered. In addition, we could not tell if

the trial court credited Chamberlain with the $25,500 check he gave Hart in

2008. Accordingly, we vacated the restitution order and remanded with the

following instructions:

        But because we do not have the transcript from Chamberlain’s
        guilty-plea hearing, we cannot consult the factual basis for his
        counterfeiting conviction to see what written instrument it
        covered. Without this information, we cannot determine the
        amount of restitution, if any, Hart is entitled to after taking into
        account that Chamberlain has already paid Hart $25,500. We
        must therefore remand this case to the trial court for it to
        determine the amount of restitution, if any, Hart is entitled to for
        the counterfeiting conviction only, taking into consideration
        Chamberlain’s $25,500 payment to Hart.


Chamberlain, No. 53A01-1305-CR-247 at 8-9.




Court of Appeals of Indiana | Memorandum Decision 53A04-1507-CR-1016 | May 23, 2016   Page 5 of 9
[8]   On remand, the trial court did not hold a hearing but issued a detailed, six-page

      order in February 2015. In its order, the court set forth the conflicting

      testimony from Chamberlain and Hart at the restitution hearing regarding the

      $10,000 that Chamberlain kept from Ramey’s $36,750 check and whether

      Chamberlain’s $25,500 check to Hart in 2008 covered that $10,000. It then

      concluded:

              The Court now amends its restitution order to $10,000. Mr.
              Chamberlain took Mr. Ramey’s $36,750 check and divided it
              into two checks, one for $26,750 which he gave to Mr. Hart and
              one for $10,000 which he deposited into the account of Hillside
              Shop[pes], his own business. The Court does not believe the record
              establishes that this $10,000 was repaid.


      Appellant’s Amended Br. p. 32 (emphasis added). Chamberlain filed a motion

      to correct error raising numerous issues. In denying the motion, the court

      reaffirmed that Chamberlain’s $25,500 check to Hart did not cover the $10,000:

              Defendant gave Mr. Hart the [$25,500] check when he was
              unaware Defendant had taken $10,000. . . . By arguing that he
              had covered the $10,000 check he had deposited into his own
              account, Defendant is picking and choosing which debt was
              covered. Because Mr. Hart was “in the dark” about the money
              Defendant had diverted, he was not aware that Defendant
              believed he had paid it back. Defendant is deciding what debt
              was paid because Mr. Hart was unaware of Defendant’s
              wrongdoing.


              The Court after weighing the evidence and judging the credibility
              of the witnesses found that the amount of the check, the subject



      Court of Appeals of Indiana | Memorandum Decision 53A04-1507-CR-1016 | May 23, 2016   Page 6 of 9
                of the counterfeiting conviction, was not covered by Defendant’s
                check and was properly owing to Mr. Hart as restitution.


       Id. at 36.


[9]    Chamberlain, pro se, now appeals.



                                    Discussion and Decision
[10]   Chamberlain contends that the trial court erred in ordering him to pay $10,000

       in restitution to Hart.4

[11]   A trial court has the authority to order a defendant convicted of a crime to

       make restitution to the victim of the crime. Smith v. State, 990 N.E.2d 517, 520

       (Ind. Ct. App. 2013), trans. denied. The amount of a victim’s loss is a factual

       matter that can be determined only on presentation of evidence. Id. An order

       of restitution is a matter within the trial court’s discretion. Sickels v. State, 982

       N.E.2d 1010, 1013 (Ind. 2013). An abuse of discretion occurs when the trial

       court’s decision is clearly against the logic and effect of the facts and

       circumstances before it. Id.             In determining whether the trial court has abused




       4
         Hart also contends that the trial court did not follow our instructions on remand. To the contrary, the trial
       court complied with our instructions by determining whether the counterfeiting conviction included the
       $5000 unpaid loan and by taking into consideration Chamberlain’s $25,500 payment to Hart. The trial court
       found that Amended Count I did not cover the $5000 unpaid loan and that the $25,500 check did not cover
       the $10,000.

       Court of Appeals of Indiana | Memorandum Decision 53A04-1507-CR-1016 | May 23, 2016                 Page 7 of 9
       its discretion, we neither reweigh evidence nor judge witness credibility. Mogg

       v. State, 918 N.E.2d 750, 755 (Ind. Ct. App. 2009).


[12]   Chamberlain does not contest that as a result of his dealings with Hart, Hart

       ended up paying $124,000 or that he was still short $44,103. Rather,

       Chamberlain argues that the $25,500 check he gave Hart in 2008 covered the

       $10,000 that was the basis of his counterfeiting conviction. As the trial court

       explained, when Chamberlain gave Hart the $25,500 check, Hart did not know

       that Chamberlain had diverted the $10,000. Because Hart was “left in the

       dark” about the diverted $10,000, the court concluded that Chamberlain could

       not pick and choose what debt his $25,500 check covered. In arguing that the

       court gave “greater weight” to Hart’s testimony than his testimony by failing to

       credit his $25,500 check to the $10,000, see Appellant’s Amended Br. p. 9,

       Chamberlain is asking us to reweigh the evidence and reject Hart’s testimony,

       which we will not do. Accordingly, the trial court did not abuse its discretion in

       ordering Chamberlain to pay $10,000 in restitution.

[13]   Chamberlain also argues that the trial court erred in ordering him to pay the

       $10,000 in restitution to Hart individually, as opposed to Hart’s now-dissolved

       limited-liability company. It is true that Ramey wrote the $36,750 check to

       JRock LLC and not to Hart individually. However, it is also true that Hart was

       the only member of JRock LLC. But as the trial court noted in its order

       denying Chamberlain’s motion to correct error, Chamberlain “did not

       sufficiently develop this issue during the at least seven hours of hearings on

       sentencing and restitution. . . . The Court considers the issue waived for his

       Court of Appeals of Indiana | Memorandum Decision 53A04-1507-CR-1016 | May 23, 2016   Page 8 of 9
       failure to raise it and support it during the sentencing/restitution hearings.”

       Appellant’s Amended Br. p. 35 n.1.

[14]   Any waiver notwithstanding, we find that because Hart was a victim of

       Chamberlain’s crime, the trial court properly ordered Chamberlain to make

       restitution to Hart individually, and not to JRock LLC. Indiana Code section

       35-50-5-3(a) provides that a court may order a defendant “to make restitution to

       the victim of the crime.” The record shows that Hart was indeed a victim of the

       counterfeiting conviction: Hart was the sole member of JRock LLC, which

       operated the golf course; Ramey agreed to loan money “to Mr. Hart doing

       business as JRock” for purposes of developing the golf course, Jan. 29, 2013 Tr.

       p. 13; Hart filed for bankruptcy in 2009 or 2010 and has never returned to the

       golf course; and when Hart paid back the $124,000, he did so individually and

       not as JRock LLC. In addition, according to the Indiana Secretary of State’s

       website, JRock LLC was administratively dissolved in 2008.5 Based on these

       considerations, the trial court did not abuse its discretion in ordering

       Chamberlain to pay $10,000 in restitution to Hart individually.

[15]   Affirmed.

       Barnes, J., and Mathias, J., concur.




       5
        See Indiana Secretary of State, Business Services Division, Business Search,
       https://bsd.sos.in.gov/PublicBusinessSearch/BusinessInformation?businessId=671423 (search
       conducted May 4, 2016).



       Court of Appeals of Indiana | Memorandum Decision 53A04-1507-CR-1016 | May 23, 2016         Page 9 of 9
