MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any                              Jan 22 2020, 5:55 am
court except for the purpose of establishing                                CLERK
the defense of res judicata, collateral                                 Indiana Supreme Court
                                                                           Court of Appeals
                                                                             and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Kyle K. Dugger                                           Curtis T. Hill, Jr.
Monroe County Public Defender                            Attorney General of Indiana
Bloomington, Indiana
                                                         J.T. Whitehead
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Curtis Gene Palmer,                                      January 22, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-1702
        v.                                               Appeal from the
                                                         Monroe Circuit Court
State of Indiana,                                        The Honorable
Appellee-Plaintiff.                                      Mary Ellen Diekhoff, Judge
                                                         Trial Court Cause No.
                                                         53C05-1401-FC-40



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1702 | January 22, 2020                Page 1 of 11
[1]   Curtis Gene Palmer (“Palmer”) pleaded guilty to three counts of theft,1 each as

      a Class D felony, and admitted to being a habitual offender.2 At the time,

      Palmer entered into a restitution agreement by which he would pay his victim

      restitution instead of being immediately sentenced. Palmer later failed to meet

      his restitution obligation, and the trial court sentenced him to 910 days for each

      of his Class D felony theft convictions, to be served consecutively, and 1,635

      days for being a habitual offender for an aggregate sentence of twelve years.

      Palmer appeals his sentence and raises the following restated issues:


                 I.       Whether his sentence is inappropriate in light of the nature
                          of the offense and the character of the offender; and


                 II.      Whether the trial court abused its discretion when it
                          sentenced Palmer by erroneously stating that he did not
                          have the right to appeal his sentence.


[2]   We affirm.


                                       Fact and Procedural History
[3]   In early 2013, Palmer encountered Scott Mundell (“Mundell”), whom he had

      known since the two were teenagers in the same youth group at church. Tr.

      Vol. 2 at 8-9. When the two reconnected in 2013, Mundell was a homebuilder,

      and his business had been suffering since 2008. Id. at 9. Palmer informed



      1
       See Ind. Code § 35-43-4-2. Palmer committed his crimes in 2013 and was therefore charged and convicted
      under the statute that was applicable at that time.
      2
          See Ind. Code § 35-50-2-8.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1702 | January 22, 2020             Page 2 of 11
      Mundell that he had been making large amounts of money on investments in

      short amounts of time on behalf of a small list of clients that included Larry

      Bird. Appellant’s Conf. App. Vol. II at 29. Mundell became involved in financial

      transactions with Palmer, with the belief that Palmer would invest the money

      Mundell gave to him. Id.


[4]   In February 2013, Mundell made an initial transfer in the amount of $40,000 to

      Palmer, and in March 2013, he transferred $55,000. Id. Mundell transferred

      $6,000 in June 2013 for alleged accounting fees, and in August 2013, he

      transferred another $12,000, for a total transfer to Palmer of $113,000. Id. The

      funds that Mundell transferred comprised virtually all of Mundell’s assets,

      including his savings and his retirement accounts. Tr. Vol. 2 at 10. In October

      2013, Mundell realized that he had been cheated by Palmer, and he contacted

      law enforcement, beginning with the FBI, who then directed him to the Indiana

      State Police. Appellant’s Conf. App. Vol. II at 29.


[5]   Indiana State Police Trooper Jan Kruse (“Trooper Kruse”) met with Mundell

      and interviewed him and his wife about the alleged investments. Id. Trooper

      Kruse was unable to contact Palmer in person but did speak with him by phone

      and was able to obtain banking records for Palmer’s accounts, which showed

      transfers from Mundell’s accounts totaling $113,000. Id. Instead of being

      invested, it appeared that the money transferred by Mundell was used to pay off

      credit card debt, for vacation expenses, and to purchase luxury items. Id.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1702 | January 22, 2020   Page 3 of 11
[6]   On January 15, 2014, the State charged Palmer with one count of theft as a

      Class C felony. Appellant’s App. Vol. II at 15. On January 20, 2015, the State

      filed a “Motion for Order and Entry on Restitution,” stating that the parties had

      reached a plea agreement. Id. at 19. On February 17, 2015, the State filed a

      Notice of Intent to Seek Habitual Offender Status, and on March 31, 2015, the

      State amended the charging information and charged Palmer with three counts

      of Class D felony theft. Id. at 22, 38. On March 31, 2015, Palmer pleaded

      guilty to three counts of Class D felony theft and admitted to being a habitual

      offender. Id. at 5; Tr. Vol. 2 at 5-6. Pursuant to the plea agreement, Palmer was

      required to pay restitution to Mundell in the amount of $2,500 each month until

      the total amount of $113,000 was paid in full. Appellant’s App. Vol. II at 5, 40.

      Failure to complete the payments would result in Palmer being remanded into

      the custody of the Monroe County Sheriff. Id. Palmer also agreed that he

      would be on supervised probation during periods of unemployment. Id. at 40.

      The trial court signed the amended restitution agreement and order. Id. at 5.


[7]   The case was set for change of plea hearing on June 3, 2015, but if payments

      were made, Palmer was not required to appear, and the case would be reset

      each month. Id. Such hearings were held on June 3, 2015, July 1, 2015,

      August 26, 2015, September 23, 2015, and October 21, 2015; at each of those

      hearings, it was found that Palmer had made payment as directed and was not

      required to appear. Id. at 5-6. At the November 18, 2015 change of plea

      hearing, the case was set for review on November 25, 2018, but that hearing

      was vacated despite payment not being timely made by Palmer and was

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1702 | January 22, 2020   Page 4 of 11
      rescheduled for December 16, 2015. Id. at 6. The trial court ordered that it

      would not entertain further late payments. Id. At the December 16, 2015

      hearing, the trial court granted a temporary modification of the payment

      arrangement at Palmer’s request, reducing the monthly amount due to $1,500,

      beginning December 28, 2015, and continuing through the 28th of January,

      February, and March, at which time payment arrangements would be revisited.

      Id.


[8]   At the hearings held on December 30, 2015 and January 28, 2016, Palmer had

      made the required payments; the February hearing was reset for March 24,

      2016, and, at the March 24 hearing, the trial court ordered Palmer to make

      payments of $2,000 a month for the next three months and scheduled the next

      hearing for May 5, 2016. Id. Palmer made payments as ordered through

      August 30, 2016, and he was ordered to appear for the next change of plea

      hearing set for September 27, 2016. Id. at 7. Palmer failed to appear for the

      September hearing, and a warrant was issued for his arrest. Id. The trial court

      ordered that if Palmer was able to pay $4,000 past due, he would be released on

      his own recognizance. Id. The trial court also granted Palmer’s motion to reset

      the sentencing hearing for November 17, 2016 and ordered him to appear and

      that if he met the requirements, he would be returned to the original terms of

      the restitution agreement, requiring him to make payments of $2,500 per

      month. Id.


[9]   On October 26, 2016, the trial court was informed that Palmer had made the

      required payments and released him on his own recognizance without the

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1702 | January 22, 2020   Page 5 of 11
       requirement of posting bail. Id. at 7-8. On November 17, 2016, the trial court

       ordered Palmer to return to the original terms of payments of $2,500 per month

       in restitution. Id. at 8. Palmer was again not required to appear at the

       scheduled monthly hearings if he made the payments. Id. Palmer stopped

       making payments in November 2017 and failed to appear at his sentencing

       hearing set for December 14, 2017. Id. at 10; Tr. Vol. 2 at 6-7. The trial court

       issued a warrant, and the warrant was served February 13, 2019. Appellant’s

       App. Vol. II at 10; Tr. Vol. 2 at 7. On March 11, 2019, the State filed a motion

       requesting a sentencing hearing, and that motion was granted. Appellant’s App.

       Vol. II at 10.


[10]   The sentencing hearing was held on June 24, 2019, and the trial court sentenced

       Palmer to 910 days for each of his three Class D felony theft convictions, to be

       served consecutively, and enhanced by 1,635 days for being a habitual offender,

       for an aggregate sentence of twelve years. Appellant’s App. Vol. II at 45, 48-49.

       At sentencing, the trial court informed Palmer that he had the right to consult

       an attorney and file an appeal. Tr. Vol. 2 at 37-38. Palmer now appeals.


                                      Discussion and Decision

                                     I.       Inappropriate Sentence
[11]   Palmer argues that his sentence is inappropriate. Pursuant to Indiana Appellate

       Rule 7(B), this court “may revise a sentence authorized by statute if, after due

       consideration of the trial court’s decision, the [c]ourt finds that the sentence is

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


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1702 | January 22, 2020   Page 6 of 11
       offender.” Our Supreme Court has explained that the principal role of appellate

       review should be to attempt to leaven the outliers, “not to achieve a perceived

       ‘correct’ result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.

       2008). We independently examine the nature of Palmer’s offense and his

       character under Appellate Rule 7(B) with substantial deference to the trial

       court’s sentence. Satterfield v. State, 33 N.E.3d 344, 355 (Ind. 2015). “In

       conducting our review, we do not look to see whether the defendant’s sentence

       is appropriate or if another sentence might be more appropriate; rather, the test

       is whether the sentence is ‘inappropriate.’” Barker v. State, 994 N.E.2d 306, 315

       (Ind. Ct. App. 2013), trans. denied. Whether a sentence is inappropriate

       ultimately depends upon “the culpability of the defendant, the severity of the

       crime, the damage done to others, and a myriad of other factors that come to

       light in a given case.” Cardwell, 895 N.E.2d at 1224. Palmer bears the burden

       of persuading us that his sentence is inappropriate. Id.


[12]   Palmer argues that his twelve-year-sentence is inappropriate in light of the

       nature of the offense and his character. Specifically, he contends that, as to the

       nature of the offense, his crimes were monetary-based and nonviolent, and the

       offenses had been significantly mitigated by his payment of over half of the

       restitution, which he would no longer be able to repay if incarcerated for such a

       substantial amount of time. As to his character, Palmer asserts that he has a

       nonviolent criminal history, no history of drug or alcohol abuse, and family

       who rely on him for support. He further maintains that he has demonstrated

       through his past payment of a substantial amount of his restitution that he has a


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1702 | January 22, 2020   Page 7 of 11
       heightened earning capacity and an ability to find lawful work in order to

       achieve the goal of repaying his debt.


[13]   Here, Palmer pleaded guilty to three counts of Class D felony theft and

       admitted to being a habitual offender. The sentencing statute for Class D

       felonies provides that “[a] person who commits a Class D felony shall be

       imprisoned for a fixed term of between six (6) months and three (3) years, with

       the advisory sentence being one and one-half (1½ ) years.” Ind. Code § 35-50-

       2-7.3 The trial court shall “sentence a person found to be a habitual offender to

       an additional fixed term that is not less than the advisory sentence for the

       underlying offense nor more than three (3) times the advisory sentence for the

       underlying offense.” Ind. Code § 35-50-2-8. The trial court imposed a sentence

       of 910 days, or two and a half years, for each Class D felony theft conviction.

       Appellant’s App. Vol. II at 45, 48-49. The trial court imposed 1,635 days, or four

       and a half years, for Palmer’s habitual offender status, which is three times the

       advisory sentence for a Class D felony conviction. Id.


[14]   As this court has recognized, the nature of the offense is found in the details

       and circumstances of the commission of the offense and the defendant’s

       participation. Perry v. State, 78 N.E.3d 1, 13 (Ind. Ct. App. 2017). “When

       determining the appropriateness of a sentence that deviates from an advisory

       sentence, we consider whether there is anything more or less egregious about



       3
         Because Palmer committed his crimes in 2013, we apply the sentencing statutes that were applicable at that
       time.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1702 | January 22, 2020                Page 8 of 11
       the offense as committed by the defendant that ‘makes it different from the

       typical offense accounted for by the legislature when it set the advisory

       sentence.’” Moyer v. State, 83 N.E.3d 136, 142 (Ind. Ct. App. 2017) (quoting

       Holloway v. State, 950 N.E.2d 803, 807 (Ind. Ct. App. 2011)), trans. denied. In

       the present case, Palmer defrauded Mundell of more than one hundred

       thousand dollars over a period of several months in 2013, knowing that

       Mundell believed that he was transferring money to Palmer to invest on

       Mundell’s behalf. These multiple transfers included an initial transfer of

       $40,000, a $55,000 transfer, a $6,000 transfer in June, and finally, a transfer of

       $12,000, for a total transfer to Palmer of $113,000. Appellant’s Conf. App. Vol. II

       at 29. The funds that Mundell transferred to Palmer encompassed virtually all

       of Mundell’s assets, including his savings and his retirement accounts. Tr. Vol.

       2 at 10. Therefore, the impact of Palmer’s crimes on Mundell was extreme.

       Further, although Palmer did not hold a traditional position of trust with

       Mundell, he was a childhood friend that Mundell had initially met through a

       church youth group and a person Mundell believed he could trust to invest his

       money. Despite the fact that Palmer did repay approximately $59,000 of the

       money he stole from Mundell, Palmer eventually stopped making payments

       and was not able to fulfill his restitution agreement to pay back the $113,000 he

       owed Mundell. Palmer has not shown that his sentence is inappropriate in light

       of the nature of the offense.


[15]   The character of the offender is found in what we learn of the offender’s life and

       conduct. Perry, 78 N.E.3d at 13. When considering the character of the


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1702 | January 22, 2020   Page 9 of 11
       offender, one relevant fact is the defendant’s criminal history. Johnson v. State,

       986 N.E.2d 852, 857 (Ind. Ct. App. 2013). The evidence showed that Palmer

       had an extensive criminal record, which extended over twenty-five years and

       was comprised of misdemeanor and felony convictions, all involving crimes of

       deception and theft. Beginning in 1992, Palmer was convicted of Class A

       misdemeanor check deception and Class C felony fraud on a financial

       institution. Appellant’s Conf. App. Vol. II at 26. In 1995, he was again convicted

       of Class A misdemeanor check deception, and in 1997, he pleaded guilty to two

       counts of Class D felony theft. Id. at 27. In 2006, he was convicted of Class C

       felony forgery, and in 2007, he pleaded guilty to Class D felony theft and two

       counts of Class D felony check fraud. Id. at 28. Therefore, Palmer’s significant

       criminal history showed that he has repeatedly committed crimes involving

       deceit and theft and has not been deterred from committing further offenses

       through prior placement on probation, on community supervision, or in

       incarceration. We, therefore, conclude that Palmer has not shown that his

       sentence is inappropriate in light of the nature of the offense and his character.


                                  II.      Ability to Appeal Sentence
[16]   Palmer argues that the trial court abused its discretion in sentencing him

       because the trial court stated that he was unable to appeal his sentence due to

       his plea agreement. At sentencing, the trial court initially stated it did not

       believe that Palmer was able to appeal his sentence because he pleaded guilty

       pursuant to a negotiated plea agreement, which presumably contained a

       provision waiving his right to an appeal, and that the terms of the plea

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1702 | January 22, 2020   Page 10 of 11
       agreement were explained to him at the time he pleaded guilty. Tr. Vol. 2 at 37.

       The record on appeal does not contain a copy of the negotiated plea agreement,

       making it impossible to determine what the terms of the plea agreement stated.

       However, it is not necessary to do so because the trial court went on to inform

       Palmer, “if you believe that you somehow were sentenced unconstitutionally or

       in violation of the plea agreement you have a right to consult with the attorney

       and file an appeal.” Id. The trial court’s second statement informed Palmer

       that he had the right to appeal his sentence. Further, we find Palmer’s claim to

       be moot since under the first section of this opinion, Palmer exercised his right

       to appeal his sentence, and we have rendered a determination as to whether

       that sentence is inappropriate. See Hamed v. State, 852 N.E.2d 619, 621 (Ind. Ct.

       App. 2006) (“The long-standing rule in Indiana courts has been that a case is

       deemed moot when no effective relief can be rendered to the parties before the

       court.”).4


[17]   Affirmed.


[18]   Bailey, J., and Mathias, J., concur.




       4
         Palmer additionally argues that the trial court abused its discretion when, in response to defense counsel’s
       question as to what the total sentence was, it stated “[o]ne thousand, nine hundred and eighty days.” Tr. Vol.
       2 at 38. Although the trial court made this statement, earlier in the sentencing hearing, the trial court had
       correctly stated the sentence, and the written sentencing statement and abstract of judgment likewise
       contained the correct sentence. See id. at 35; Appellant’s App. Vol. II at 45, 48-49. We do not believe that
       Palmer’s claimed misstatement of his sentence caused any confusion as to the length of his sentence when it
       had been accurately pronounced both in the oral and written sentencing statements.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1702 | January 22, 2020                Page 11 of 11
