Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be                                    Oct 16 2013, 5:30 am
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the
case.


ATTORNEY FOR APPELLANT:                          ATTORNEYS FOR APPELLEE:

JARED MICHEL THOMAS                              GREGORY F. ZOELLER
Evansville, Indiana                              Attorney General of Indiana

                                                 RICHARD C. WEBSTER
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

JOHN NEAL CLARK,                                 )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )       No. 82A01-1302-CR-69
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


                 APPEAL FROM THE VANDERBURGH CIRCUIT COURT
                         The Honorable Kelli E. Fink, Magistrate
                            Cause No. 82C01-1209-FC-1136



                                      October 16, 2013


                MEMORANDUM DECISION - NOT FOR PUBLICATION


BROWN, Judge
       John Neal Clark appeals his sentence for conspiracy to commit forgery as a class

C felony and argues that his sentence is inappropriate in light of the nature of the offense

and his character. We affirm.

                        FACTS AND PROCEDURAL HISTORY

       At some point during the summer of 2012, Clark and Larry Goble worked for All

Star Auto Detail, a company owned by Brandon Brucken. Clark and Goble came into

possession of business checks for All Star Auto Detail. On September 11, 2012, Clark

contacted Jamie Gooch and asked her if she “wanted to make some money” and that he

“was looking for somebody that was, that fit close to the description of the ID that he had

because they was trying to cash checks.” Transcript at 160-161. Clark and Goble drove

to Gooch’s apartment and showed her the identification, which was a Kentucky driver’s

license belonging to Samantha Bruce. Although her hair color was different from that of

the woman on the license, Gooch was convinced by Clark and Goble to “try and cash a

check that they had.” Id. at 162.

       Clark drove Goble and Gooch to a store which cashed checks, where Goble filled

out a check for $1,000 and gave it and the license to Gooch, and Gooch went inside and

attempted to cash the check but was told that the company would not cash it because of

the amount. Clark drove back to Gooch’s apartment building, and Gooch asked Bonita

Walden, from whom she rented her apartment, if she would help her cash some checks.

Clark and Goble told Walden that Goble “was part owner of the business that they work

for and that their business was going down.” Id. at 165. Clark then drove Goble, Gooch,

and Walden to several locations where Gooch and Walden attempted, unsuccessfully, to

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cash the checks, and eventually, after another person joined the group and they picked up

another vehicle, the group traveled to a branch of Banterra Bank.

       Gooch and Walden, each with a check, entered the Banterra Bank branch. Walden

handed the check in her possession to the bank teller, who indicated the check was not

signed and returned it to Walden, and Walden exited the bank to have it signed. Gooch

then presented the check in her possession to the teller. The teller noticed that the check

was written to Samantha Bruce by All Star Auto Detail and that the name Samantha

Bruce had been signed on the back of the check. The teller compared the signature on the

check to the signature on the signature card of the owner of the account which the bank

had on file.   The teller showed the bank manager the signatures on the check and

signature card, and the manager agreed that the signature on the check did not look like

that of Brucken, the owner of All Star Auto Detail.

       The manager called Brucken, explained the situation, and asked if he could verify

that he had written a check to Samantha Bruce, and Brucken responded that he had not

written the check. Brucken also confirmed that some of the checks for his company were

missing and advised of the check number of the last check he had written. While the

manager was on the phone with Brucken, Walden returned with a check which was

signed. The manager informed Gooch and Walden that the checks they presented were

stolen and that the bank would have to keep them, and the bank made a copy of the

driver’s license belonging to Bruce. Gooch and Walden exited the bank and left with

Clark and the others in the two vehicles.




                                            3
       Officers with the Evansville Police Department spoke with Brucken and the bank

employees and obtained the checks and a copy of the driver’s license as well as

surveillance photographs of Gooch and Walden.           The officers drove to Walden’s

apartment, located her at Gooch’s apartment, and, as they were speaking with her, Clark,

Goble, and Gooch entered the apartment. The police arrested Clark, Goble, and Gooch.

       On September 13, 2012, the State charged Clark with conspiracy to commit

forgery as a class C felony and theft as a class D felony. The theft charge was dismissed

upon motion by the State prior to trial. A jury found Clark guilty of conspiracy to

commit forgery as a class C felony.

       At the sentencing hearing, Clark’s counsel argued that “there’s no restitution due,”

that “[t]he victim, who was his employer, told the Probation Department that he just

wanted [] Clark to get his life together” and “[t]hat sounds to me like he’s not demanding

any kind of harsh punishment,” that Clark “didn’t forge any checks, he didn’t present any

checks, Jamie Gooch did,” and that Gooch “presented false ID and attempted to get some

money.” Sentencing Transcript at 14. Clark’s counsel argued that the State allowed

Gooch to testify for the State and that the State allowed her to plead guilty to identity

deception as a class D felony, dismissed a forgery count against her, and recommended

the minimum sentence which was six months. Clark’s counsel also argued that Walden

was never charged and that “[t]he State and the Police accepted her version that she

didn’t realize there was anything illegal about this even though when she went to the

bank and attempted to cash the check, they refused it, she took it out to the car and a man

named Larry Go[b]le signed somebody else’s name on it, and she took it back into the

                                            4
bank again to try and pass it.” Id. at 15. Clark’s counsel argued that “the sentences in

these cases should be somewhat consistent.” Id. He also stated that Goble’s case was

pending, that he was on work release as a condition of bond, that he had “been revoked

on that,” and that he was back in the county jail. Id. Clark’s counsel stated that “[t]he

Probation Department wants eight years . . . , which . . . is far in excess of what he

deserves in light of his activities in this case,” that he did not “know why Probation

Officers even make recommendations,” that “they don’t know the facts of the case,” and

that “they’re just kind of shooting from the hip and say give him the maximum because

he’s got a record.”    Id. at 15-16.    He also argued that “[h]e is employed or he’s

employable.” Id. at 16.

       Clark stated that he hoped for some leniency so that he could work and provide for

his family, that he “know[s] [he] messed up by being involved in this case in some type

of manner,” and then asked the court: “if you can see it . . . to let me get one shot to

actually try to make it this time, house arrest, Work Release, AAPS and DAPS, Drug

Court, I’ll take all that, and if I mess up one time, you can send me back to prison on it,

it’s just I need one more chance to actually try to prove to my family before I let them

down again ‘cause I know I can do it, and I do have employment.” Id. at 16-17. Clark

stated, with respect to his involvement in the case, that he “was just there” and that he

was “going to take full responsibility for [his] involvement in that case.” Id. at 17-18.

Clark stated that he did not steal the checks, but that he did know about it, and that “[a]s

long as [he] didn’t say nothing to the boss or anything, [he] was gonna get initial cash

funds.” Id. at 18. Clark indicated he had two children and a fiancée. Clark’s counsel

                                             5
argued that an appropriate sentence would be eight years with four years executed to

work release and four years suspended to probation.

        The State argued that Clark was part of the scheme, that he worked for the

company, and that he knew the checks were stolen. The State said that Clark was

incorrect as to Gooch’s sentence, that she was sentenced to two years with six months

executed and the balance served through the drug abuse probation services program, and

that Gooch did not have Clark’s criminal record and was not on parole at the time of the

offense like Clark.   The State argued that Clark has a lengthy criminal history, including

prior felony convictions for dealing in methamphetamine and robbery. The State also

noted that Gooch was cooperative, admitted her responsibility, and did not force the State

to take her to trial, that Clark did not do those things, and that is why Gooch received a

deal.

        The trial court found the mitigating circumstances to be that Clark had children

who would be affected by the sentence, that he had health issues involving his knee and

back, that the crime was non-violent, and that he admitted responsibility to some extent.

The court found the aggravating circumstances to be that Clark was on parole at the time

of the offense and that he had a criminal history which included convictions for dealing

in methamphetamine, robbery, several DUI offenses, and possession of marijuana. The

court noted Clark had been previously revoked from the work release program and thus

believed that he was not an appropriate candidate for work release. The court also noted

that it was not going to sentence Clark to the maximum as it did not think it was




                                             6
appropriate based on the offense, and sentenced Clark to six years in the Department of

Correction.

                                             DISCUSSION

        The issue is whether Clark’s 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] 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).

        Clark argues that, while he has a fairly extensive criminal history, “the convictions

of the other co-conspirators were vastly more lenient” than his sentence. Appellant’s

Brief at 8. Clark further argues that the majority of his convictions occurred over six

years prior to the instant charges, that no restitution was required, and that the victim did

not request jail time. Clark also contends that he should not have been considered the

worst of the worst of his alleged co-conspirators.1 The State maintains that Clark fails to

        1
           Clark also appears to argue, without citation to authority to support his position, that the trial
court abused its discretion in sentencing him because the court failed to take into account that there was
no restitution required, to take “into consideration as a mitigating circumstance that the victim in this case
did not request jail time,” and to take into account “the convictions of the alleged co-conspirators as a
mitigating circumstance,” and that the court “gives no weight to the mitigating circumstances” it found.
Appellant’s Brief at 11. However, “even if the trial court is found to have abused its discretion in the
process it used to sentence the defendant, the error is harmless if the sentence imposed was not
inappropriate.” Mendoza v. State, 869 N.E.2d 546, 556 (Ind. Ct. App. 2007), trans. denied; see also
Windhorst v. State, 868 N.E.2d 504, 507 (Ind. 2007) (holding that in the absence of a proper sentencing
order, we may either remand for resentencing or exercise our authority to review the sentence pursuant to
Ind. Appellate Rule 7(B)), reh’g denied; Shelby v. State, 986 N.E.2d 345, 370 (Ind. Ct. App. 2013)
(holding that “even if the trial court did abuse its discretion by failing to consider the alleged mitigating
factor of residual doubt, this does not require remand for resentencing”), trans. denied. Accordingly, we
need not address Clark’s contentions that the court abused its discretion in sentencing him if we determine
that his sentence is not inappropriate. Even if we were to consider Clark’s abuse of discretion arguments,
we would not find them to be persuasive. An order of restitution in this case was unnecessary because the
                                                      7
present cogent argument regarding the inappropriateness of his sentence in light of the

nature of his offense or character and has waived this court’s review of his claim.

        Our review of the nature of the offense reveals that Clark and Goble worked for

All Star Auto Detail and that Clark contacted Gooch and asked for her help with cashing

checks from All Star Auto Detail using Bruce’s driver’s license. He told Walden that

Goble was part owner of a business, and drove Gooch and the others to several locations

where Gooch and Walden attempted to cash the checks. Clark waited outside Banterra

Bank as Gooch and Walden entered and attempted to cash the checks, and was there

when the women exited the bank. Gooch and Walden exited the bank and left with Clark

and the others in the two vehicles.

        Our review of the character of the offender reveals that Clark stated that he was

sorry, has two children, and has some health issues.                  According to the presentence

investigation report (the “PSI”),2 as a juvenile Clark was adjudicated a delinquent for

operating a vehicle with an alcohol concentration equivalent to at least .08 but less than


Banterra Bank personnel discovered that the presented checks had been stolen and Clark never received
any money from the bank or from the account of All Star Auto Detail. Further, the record does not
contain information related to the sentencing of Clark’s co-conspirators, namely, their criminal histories,
backgrounds, and any other information which may have been taken into account at their sentencing
hearings.
        2
          Clark has included his PSI on white paper in his appendix. We remind counsel that Indiana
Appellate Rule 9(J) requires that “[d]ocuments and information excluded from public access pursuant to
Administrative Rule 9(G)(1) shall be filed in accordance with Trial Rule 5(G).” Administrative Rule
9(G)(1)(b)(viii) provides that “all pre-sentence reports pursuant to Ind. Code § 35-38-1-13” are “excluded
from public access” and “confidential.” The inclusion of the PSI printed on white paper in the appendix
is inconsistent with Trial Rule 5(G), which states, in pertinent part: “Every document filed in a case shall
separately identify documents that are excluded from public access pursuant to Admin. R. 9(G)(1) as
follows: (1) Whole documents that are excluded from public access pursuant to Administrative Rule
9(G)(1) shall be tendered on light green paper or have a light green coversheet attached to the document,
marked ‘Not for Public Access’ or ‘Confidential.’” See Hape v. State, 903 N.E.2d 977, 1001 n.13 (Ind.
Ct. App. 2009) (observing that the inclusion of the PSI printed on white paper in the appendix is
inconsistent with Appellate Rule 9(J) and Trial Rule 5(G)), trans. denied.
                                                     8
.15 in 1999 and theft as a class D felony if committed by an adult in 2000. As an adult,

Clark was convicted of public intoxication in 2001; possession of marijuana as a

misdemeanor, illegal consumption of an alcoholic beverage, and operating a vehicle

while intoxicated as a misdemeanor in 2001; public intoxication in 2004 and 2006;

operating a vehicle with alcohol concentration equivalent to .15 or more with a prior as a

class D felony and robbery resulting in bodily injury as a class C felony in 2007; and

dealing methamphetamine as a class B felony in 2009. The PSI noted that the instant

offense is Clark’s fourth felony conviction, that he has previously been revoked from

parole, and that he was on parole when he committed the instant offense. The PSI also

indicated: “The victim stated that the defendant needs to get his life together and stay out

of trouble.” Appellant’s Appendix at 44. The PSI further states that Clark reported that

he had worked for All Star Auto Detail for two months prior to his arrest, that he

previously worked for another company for four months, that he was previously

incarcerated in the DOC for thirty-four actual months, and that he worked for another

company for approximately one year. The PSI indicates that the results of Clark’s risk

assessment show that his overall risk assessment score puts him in the high risk to

reoffend category. The PSI also noted the probation department’s recommendation that

Clark be sentenced to eight years. We also note that Clark received a six-year sentence

and not the possible maximum eight-year sentence for a class C felony. See Ind. Code §

35-50-2-6.

       Under the circumstances and after due consideration of the trial court’s decision

and of the record, we conclude that Clark has not sustained his burden of establishing that

                                             9
his sentence of six years is inappropriate in light of the nature of the offense and his

character.

                                    CONCLUSION

       For the foregoing reasons, we affirm Clark’s sentence for conspiracy to commit

forgery as a class C felony.

       Affirmed.

NAJAM, J., and MATHIAS, J., concur.




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