Jerry Hatten v. State of Indiana (mem. dec.) ( 2018 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any Dec 21 2018, 9:19 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Valerie K. Boots Curtis T. Hill, Jr.
Marion County Public Defender Agency Attorney General of Indiana
Indianapolis, Indiana
Laura R. Anderson
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jerry Hatten, December 21, 2018
Appellant-Defendant, Court of Appeals Case No.
18A-CR-1182
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Elizabeth Christ,
Appellee-Plaintiff Judge
Trial Court Cause Nos.
49G24-1312-FD-79000
49G24-1508-F6-28434
49G24-1608-F6-30031
49G24-1707-F6-25553
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1182 | December 21, 2018 Page 1 of 6
[1] Jerry Hatten appeals the sentence imposed by the trial court after he pleaded
guilty to three counts of Level 6 Felony Theft and one count of Level 6 Felony
Check Deception from four separate causes, arguing that placement in the
Department of Correction (DOC) for his entire sentence was inappropriate in
light of the nature of the offenses and his character. Finding that the placement
is not inappropriate, we affirm.
Facts
[2] From 2001 until 2017, Hatten operated and managed a general contracting
business; during this time, Hatten committed numerous offenses involving use
of bad checks, fraud, mismanagement of funds, and unauthorized possession of
equipment tied to the business.
[3] The numerous offenses not at issue in this case are as follows: in 2004, Hatten
was found guilty of Class D felony check fraud and was placed on probation for
a 537-day suspended sentence. The trial court later revoked Hatten’s probation
in 2006 and sentenced him to 240 days on community corrections. In late 2005,
Hatten was found guilty of Class D felony theft/receiving stolen property and
was sentenced to 545 days with 180 days executed, 356 days suspended, and
365 days ordered to probation. In 2007, Hatten was found guilty of Class D
felony theft, was sentenced to 180 days on community corrections, and was
ordered to pay $500 in restitution. In 2008, Hatten pleaded guilty to two counts
of Class A misdemeanor check deception and was sentenced to time served. In
2009, Hatten was found guilty of Class C felony fraud on a financial
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1182 | December 21, 2018 Page 2 of 6
institution.1 In sum, Hatten has a long criminal history related to his general
contracting business.
[4] The four offenses at issue in this case are as follows: (1) in Cause Number
49G24-1212-FD-079000, Hatten was charged with one count of Level 6 felony
theft;2 (2) in Cause Number 49G15-1508-F6-028434, Hatten was charged with
one count of Level 6 felony theft; (3) in Cause Number 49G24-1608-F6-030031,
Hatten was charged with one count of Level 6 felony check deception; (4) and
in Cause Number 49G24-1704-F6-025553, Hatten was charged with one count
of Level 6 felony theft.3 All of these offenses relate to Hatten’s business
operations.
[5] On April 23, 2018, Hatten entered into a consolidated guilty plea agreement in
all four causes, pursuant to which he agreed to plead guilty to the above-
described charges; to pay $41,669.56 in restitution to various entities; and to
serve consecutive 730-day (two-year) executed sentences for each of the four
counts for an aggregate of eight years, with placement open to the court’s
discretion. Tr. Vol. II p. 60-62. The trial court ordered that Hatten serve the
entirety of his sentence in the DOC. Id. At sentencing, the trial court
1
Neither the record nor the parties’ briefs state Hatten’s punishment for this conviction.
2
We note that Hatten committed this theft in August 2013, one year before the General Assembly
reclassified what was then a Class D felony theft as a Level 6 felony theft. Notwithstanding this
reclassification, the statutory citation, criminal elements, and sentencing guidelines remained the same.
3
The State charged Hatten with multiple other offenses for each cause number. However, for the sake of
brevity, we focus only on the acts to which Hatten ultimately pleaded guilty.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1182 | December 21, 2018 Page 3 of 6
admonished Hatten for his multiple offenses and his lack of accepting
culpability for his actions:
You may have learned a lot in your 255 days in the Marion
County jail, but I think you have a long way to go to take
complete ownership for your role in the criminal acts that you
committed.
***
[L]ooking at crimes of dishonest [sic] listed consistently
throughout here you’ve got to really reevaluate[.] . . . [W]hat’s
clear to me is what has been most effective to you and what I
believe is merited is incarceration and punishment.
Id. Hatten now appeals.
Discussion and Decision
[6] Hatten argues that ordering him to serve the entirety of his eight-year sentence
in the DOC is inappropriate in light of the nature of the offenses and his
character.4 Hatten claims that because his acts resulted only in pecuniary losses
to his victims and because he showed a “willingness and desire” to make
restitution, id. at 43, 46, 47, 50, placement in the DOC for his whole sentence is
unwarranted.
4
Generally, Hatten would have waived his right to appeal his sentence by pleading guilty. In this case,
however, Hatten retained his right to appeal because the trial court mistakenly advised him that he could
appeal. See Ricci v. State, 894 N.E.2d 1089, 1093-94 (Ind. Ct. App. 2008) (holding that even when defendant
waives his right to an appeal in a written guilty plea, he may nevertheless appeal his sentence if the trial court
advises him that he may still appeal). We agree, so we will address Hatten’s central argument.
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[7] Indiana Appellate Rule 7(B) states that a “Court may revise a sentence . . . if,
after due consideration of the trial court’s decision, the Court finds that the
sentence is inappropriate in light of the nature of the offense and the character
of the offender.” The defendant bears the burden of persuading us that his
sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).
Additionally, we have held that “[t]he place where a sentence is to be served is
subject to review under [Indiana Appellate] Rule 7(B).” Moon v. State, Cause
No. 18A-CR-879, slip. op. at 9 (Ind. Ct. App. Sept. 9, 2018).
[8] First, as to the nature of the offenses, Hatten committed serious crimes
involving dishonesty and fraud. He wrote bad checks, stole equipment, and
defrauded creditors and business entities. Furthermore, this is not the first time
Hatten committed the four acts at the center of this case. After having been
convicted of or pleading guilty to multiple other offenses of the same nature,
Hatten clearly knew how to defraud individuals under the guise of standard
business practices and continued to do so. In sum, Hatten was deceitful,
fraudulent, and dishonest in his criminal deeds. And even though his actions
resulted “only” in pecuniary losses, the damage is both substantial and
significant, amounting to more than $40,000 owed in restitution. We do not
find that the nature of the offenses renders Hatten’s placement in the DOC
inappropriate.
[9] Second, as to Hatten’s character, we do not find Hatten’s show of “remorse” for
his actions to be convincing, given his lengthy history of committing these same
crimes. See Fonner v. State, 876 N.E.2d 340, 344 (Ind. Ct. App. 2007) (holding
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1182 | December 21, 2018 Page 5 of 6
that even if the crimes committed are not “particularly egregious,” the fact that
defendant has several prior convictions for similar charges impinges on his
character). The trial court was unconvinced by Hatten’s remorse, admonishing
him for refusing to acknowledge the severity of his crimes. Additionally, the
trial court pointed out that Hatten was granted—and violated—probation, was
given suspended sentences, and was sentenced to community corrections on
several occasions, all to no avail. It is apparent that Hatten refuses to
acknowledge the gravity of his actions, despite the fact that he promised to
“make good” on paying restitution. We do not find that Hatten’s character
renders his placement in the DOC inappropriate.
[10] In sum, we will not revise Hatten’s placement as part of his sentence pursuant
to Indiana Appellate Rule 7(B).
[11] The judgment of the trial court is affirmed
May, J., and Tavitas, J., concur.
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