Steven F Searing v. State of Indiana ( 2024 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not
binding precedent for any court and may be cited only for persuasive value
or to establish res judicata, collateral estoppel, or law of the case.
FILED
Sep 10 2024, 8:58 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
IN THE
Court of Appeals of Indiana
Steven F. Searing,
Appellant-Defendant
v.
State of Indiana,
Appellee-Plaintiff
September 10, 2024
Court of Appeals Case No.
24A-CR-721
Appeal from the Clay Circuit Court
The Honorable Joseph D. Trout, Judge
Trial Court Cause No.
11C01-1903-F6-250
Memorandum Decision by Chief Judge Altice
Judge Mathias concurs.
Judge Bailey concurs with separate opinion.
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Altice, Chief Judge.
Case Summary
[1] Steven Searing pled guilty to two counts of Level 6 felony theft, and the trial
court sentenced him to one and one-half years of incarceration at the Indiana
Department of Correction (DOC) and ordered him to pay $6,300 in restitution.
Searing appeals, asserting that his sentence was inappropriate in light of the
nature of the offense and his character.
[2] We affirm.
Facts & Procedural History
[3] In April 2018, Searing, then age fifty-nine, contacted Tammy Thomas on
Facebook after he saw her in a television news report describing that she
survived being shot twenty-two times by her husband. Searing told Thomas he
was a millionaire, did not want anyone else to hurt her, and would take care of
her. They met in person after she got out of the hospital and began a dating
relationship. One morning in late July 2018, Thomas went to the Clay County
Sheriff’s Department and reported that Searing had stolen money and jewelry
from her.
[4] On May 19, 2019, the State charged Searing with two counts of Level 6 felony
theft, Count I alleged theft of $6,300 in cash and Count II alleged theft of
jewelry. Over the next several years, Searing obtained a number of
continuances and failed to appear on multiple occasions, including for trial
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settings, resulting in the issuance of bench warrants. In July 2023, the parties
filed a proposed plea agreement with the court and, in late August 2023,
Searing and the State appeared for a change of plea hearing. The terms of the
plea agreement were that Searing would plead guilty to Count I, the State
would dismiss Count II, and he would be sentenced to the DOC for 545 days,
with all but 34 days suspended to probation, and he would pay $12,000 in
restitution to Thomas.
[5] Thomas testified at the hearing in opposition to the plea agreement.
Summarized, she testified that Searing offered to help her handle the purchase
of a certain piece of real estate, and, for that purpose, she gave him a $6,300
cashier’s check, along with other cash, but she later learned that he used the
money to purchase a motorcycle. He took rings from her without her
knowledge or permission, including her deceased husband’s wedding ring.
Thomas stated that, while she was in surgery, he took her credit cards, racking
up $20,000 on them, and took all the cash in the house. She maintained that she
would “never see” any of the restitution money provided in the plea agreement
as Searing does not work, was removed from disability, and does not own real
property. Transcript at 51. Thomas testified that Searing deceived her, shows no
remorse, and “keeps doing this to more and more women.” Id. at 50. The trial
court rejected the proposed plea and set the matter for trial.
[6] The parties appeared for a pretrial hearing in November 2023, and Searing
requested that the trial date be continued as he would be having a heart
procedure around the scheduled trial date. Although overruling the State’s
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objection to a continuance, the court granted the State’s request that Searing
provide proof to the court of having the heart procedure.
[7] The parties appeared for the scheduled bench trial on January 10, 2024, and
Searing changed his plea in open court, pleading guilty to two counts of Level 6
felony theft without a plea agreement. When the court requested proof of the
heart procedure, Searing’s counsel indicated he would provide it following the
hearing. In discussing the matter, Searing stated to the court that, since the last
court date in November, he had undergone two stent procedures to his heart
and was scheduled for a heart surgery later in January to repair a leaky valve at
St. Vincent’s Heart Center (St. Vincent’s).
[8] At some point prior to the March 6, 2024 sentencing hearing, Searing provided
two documents to the court neither of which was from St. Vincent’s: (1) an
undated EKG report and (2) a medical report, signed by an M.D. and dated
November 16, 2023, concerning an orthopedic injury to Searing’s knee. At the
start of the sentencing hearing, the trial court again asked Searing and his
counsel about the previously-ordered proof of the heart stents and heart surgery.
None was provided.
[9] Searing, who was by then remarried to someone, testified at the sentencing
hearing that he no longer was on medical leave from his employer,
International Electrical Systems (IES), where had he resumed working a couple
of months prior, and that he was also currently working full-time at Walmart
since September 2023. He claimed that, if he were ordered to serve any days of
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incarceration, he would lose his anticipated $8,200/month IES pension, which
he anticipated he would start receiving at age sixty-seven. Searing testified as to
ongoing medical issues with his knees and with his heart, stating that he
underwent a stent procedure in January 2024 and was taking twelve
medications to address a leaky heart valve but that surgery was likely. Searing
testified that incarceration would impact his ability to meet his medical needs.
[10] He agreed that he desired to pay $6,300 in restitution to Thomas for using the
$6,300 to buy a motorcycle for himself, which, by some means not clear from
Searing’s testimony, was subsequently “signed [] over” to a woman named
Bobby Delvar, who Searing testified he was dating when he and Thomas “were
hanging out” and who later got a protective order against him. Transcript at
107. He acknowledged that Thomas also gave him $6,000 in cash to use for the
real estate purchase but claimed that the seller wanted more for the property so
“we spent it on things, [Thomas] and I,” and he could not remember how much
of that money he kept. Id. at 109.
[11] Searing stated that if the court would order him to probation, he could borrow
the $6,300 through his IES credit union but that, if he was sentenced to a period
of incarceration, he would not be able to access the credit union and, thus,
would be unable to pay Thomas. He told the court that his 401(k) was drained
due to medical bills.
[12] Searing acknowledged having a criminal history that included convictions for
check deception, felony theft, and conversion. He also acknowledged that he
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was currently on probation out of another Indiana county for conversion. In
explaining why he chose to plead guilty to the current offense, Searing testified
that “this has been going on for five years” and he was “tired of putting [his
wife] through this” and desired to “move on with [his] life.” Id. at 96.
[13] Thomas testified about her initial online contact from Searing that resulted in a
brief romantic relationship, which ended after she started asking for receipts and
“figured out what was going on with [her] money.” Id. at 114. Thomas
described additional instances of Searing taking her money and not using it as
agreed or instructed, where he deceived her into buying items for him such as a
truck and a riding lawnmower. Thomas stated that she did not believe Searing
was working and described him as “a user” who “does this to women all the
time.” Id. at 116, 128. Thomas’s opinion was that Searing “needs go to jail.” Id.
at 121.
[14] At the March 6, 2024 sentencing hearing, the trial court found as mitigators that
Searing pled guilty and had a work history but “question[ed] the veracity” of
Searing’s claimed health issues and entirely rejected remorse as a mitigator. Id.
at 135-36. The court found as aggravating Searing’s criminal record, noting that
many of his offenses were crimes of dishonesty. The court sentenced Searing to
one and one-half years on each count, with the sentences to run concurrently,
and, per the parties’ stipulation, ordered him to pay $6,300 of restitution to
Thomas. Searing now appeals.
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Discussion & Decision
[15] Searing asks us to revise his sentence pursuant to Indiana Appellate Rule 7(B),
which provides that we may revise a sentence authorized by statute if, after due
consideration of the trial court’s decision, we find the sentence inappropriate in
light of the nature of the offense and the character of the offender. We apply a
“holistic approach” to our 7(B) review. Lane v. State, 232 N.E.3d 119, 127 (Ind.
2024) (quoting Connor v. State, 58 N.E.3d 215, 219 (Ind. Ct. App. 2016)). In
determining whether a sentence is inappropriate, we “‘must consider’ both
factors, but the defendant need not ‘necessarily prove’ that the sentence is
inappropriate on both counts.” Id. at 126 (quoting Connor, 58 N.E.3d at 219).
As we assess the nature of the offense and character of the offender, “we may
look to any factors appearing in the record.” Boling v. State, 982 N.E.2d 1055,
1060 (Ind. Ct. App. 2013). The appellate court’s role under Rule 7(B) is to
“leaven the outliers,” and “we reserve our 7(B) authority for exceptional cases.”
Faith v. State, 131 N.E.3d 158, 159-60 (Ind. 2019) (quotation omitted).
[16] Sentencing is principally a discretionary function in which the trial court’s
judgment should receive considerable deference. Cardwell v. State, 895 N.E.2d
1219, 1222 (Ind. 2008). “Such deference should prevail 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 defendant’s
character (such as substantial virtuous traits or persistent examples of good
character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015). Ultimately,
whether a sentence should be deemed inappropriate “turns on our sense of the
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culpability of the defendant, the severity of the crime, the damage done to
others, and myriad other factors that come to light in a given case.” Cardwell,
895 N.E.2d at 1224. Searing bears the burden to show that his sentence is
inappropriate. Schaaf v. State, 54 N.E.3d 1041, 1045 (Ind. Ct. App. 2016).
[17] When considering the nature of the offense, the advisory sentence is the starting
point to determine the appropriateness of a sentence. Fuller v. State, 9 N.E.3d
653, 657 (Ind. 2014). Searing was convicted of two Level 6 felonies, the
sentencing range for which is between six months and two and a half years,
with the advisory being one year, and a fine up to $10,000.00. Ind. Code § 35-
50-2-7. The trial court sentenced Searing to concurrent sentences of one and
one-half years in the DOC for each count of Level 6 felony theft and, by
agreement of the parties, ordered him to pay $6,300 in restitution. Searing
argues “a fully-executed sentence above the advisory range was not warranted”
and asks us to revise his sentence to probation only. Appellant’s Brief at 15.
[18] As to the nature of the offense, Searing reached out to Thomas on Facebook at
a time when he knew she was recovering from a traumatizing and life-
threatening incident with her former husband. Searing falsely represented to
Thomas that he was a millionaire and told her he “would like to take care of
[her]”; instead, he stole from her. Transcript at 114. When she started asking for
proof of how he spent her money, he “disappeared” at first, then told her he
had terminal cancer and to “leave him alone because he wanted to die
peacefully.” Id. at 124. We agree with the State that Searing exploited Thomas’s
vulnerable state to develop a relationship with her in order to gain access to her
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money and valuables. Searing has failed to provide compelling evidence
portraying the nature of the offense in a positive light.
[19] In considering the character of the offender, we engage in a broad consideration
of his qualities. Madden v. State, 162 N.E.3d 549, 564 (Ind. Ct. App. 2021). A
defendant’s “life and conduct” are illustrative of his character. Id. One relevant
factor to consider is a defendant’s criminal history. Denham v. State, 142 N.E.3d
514, 517 (Ind. Ct. App. 2020), trans. denied. Searing has a criminal history
beginning in 1996 and spanning over two decades, with at least ten charges for
theft or conversion. He was convicted of five felonies and five misdemeanors.
As the trial court observed, many involved crimes of dishonesty. Further, he
was on probation out of another Indiana county at the time of sentencing.
Thomas indicated that, as all this unfolded, she spoke to Delvar, as well as
other women with whom Searing had a past, and learned that he has a pattern
of manipulating women, especially ones that are vulnerable. Such conduct
reflects poorly on his character.
[20] As the State observed, Searing’s conduct during the court proceedings also
reflects poorly on his character. He failed to appear several times. And he
obtained continuances based on claims of needed medical care, yet never
provided requested documentation to the court.
[21] In seeking revision of his sentence, Searing suggests that he expressed remorse.
However, neither Searing’s testimony at the sentencing hearing, nor his written
description of the offense in his presentence investigation report – “I dated a
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woman, after I broke up with her, she said I stole from her. But I didn’t most of
the money was spent on her.” – reflect remorse. Appendix at 49. In sum, we
discern no substantial virtuous traits or persistent examples of good character
that would warrant revision of Searing’s sentence.
[22] Searing has not met his burden to demonstrate that his sentence is inappropriate
in light of the nature of the offense or his character.
[23] Judgment affirmed.
Mathias, J., concurs.
Bailey, J., concurs with separate opinion.
ATTORNEY FOR APPELLANT
Janet Lynn Thompson
Indianapolis, Indiana
ATTORNEYS FOR APPELLEE
Theodore E. Rokita
Indiana Attorney General
Steven J. Hosler
Deputy Attorney General
Timothy M. Hamilton
Certified Legal Intern
Indianapolis, Indiana
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Bailey, Judge, concurring.
[24] Given the egregious nature of the offenses and what is known of the extremely
poor character of the offender, I agree with the majority that Searing’s sentence
should not be revised to the advisory, as he requests. That said, my vote is
accompanied by reluctance. If anything, this sentence is inappropriately
lenient.
[25] I find it very unfortunate that the State did not ask for a harsher sentence.
Considering Searing’s history of numerous crimes of dishonesty, his apparent
dishonesty with the trial court in disclosing his medical history, the extreme
harm to the victim, and Searing’s total lack of effort to pay any restitution by
the time of sentencing (by, perhaps, selling some of the assets he stole), I would
have readily voted to affirm a maximum sentence for Searing. That said, I
acknowledge that the State does not ask us to revise Searing’s sentence upward,
and therefore, we will not do so. See, e.g., Akard v. State, 937 N.E.2d 811 (Ind.
2010).
Although the defendant’s raising of sentence reasonableness on
appeal authorizes appellate consideration of whether the assigned
sentence is inappropriately stern or lenient, we decline to increase
the sentence here, particularly in the context of the State’s request
for no greater sentence at trial and its assertion on appeal that
such is an appropriate sentence. These are strong indicators that
the trial court sentence is not inappropriately lenient.
Id. at 814.
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[26] Given our constraints on appeal, I concur.
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