Janet M. (Davis) Sierra v. State of Indiana (mem. dec.)

MEMORANDUM DECISION FILED
Mar 15 2018, 9:15 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as CLERK
Indiana Supreme Court
precedent or cited before any court except for the Court of Appeals
and Tax Court
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Jeremy K. Nix Curtis T. Hill, Jr.
Huntington, Indiana Attorney General of Indiana
Katherine Cooper
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Janet M. (Davis) Sierra, March 15, 2018
Appellant-Defendant, Court of Appeals Case No.
35A05-1711-CR-2552
v. Appeal from the Huntington Circuit
Court
State of Indiana, The Hon. Thomas M. Hakes, Judge
Trial Court Cause No.
Appellee-Plaintiff.
35C01-1301-FC-5
Bradford, Judge.
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Case Summary
[1] Between July and November of 2011 Appellant-Defendant Janet Sierra (then
Davis) worked for Huntington Heating and Cooling (“the Company”). On one
occasion, Sierra forged a customer’s name to a loan application that happened
to be for far more than the customer believed himself to be borrowing. On
other occasions, Sierra accepted cash payments from customers that were never
passed on to the Company. Sierra was convicted of one count of Class C felony
forgery and four counts of Class D felony theft, and the trial court sentenced her
to an aggregate term of fifteen years of incarceration, with seven suspended to
probation. Sierra contends that the consecutive sentences imposed for her theft
convictions violate limitations on sentencing for crimes arising out of a single
episode of criminal conduct and that her sentence is inappropriately harsh.
Because we disagree, we affirm.
Facts and Procedural History
[2] Sierra was employed by the Company between July 30, 2010, and November 9,
2011, starting in customer service and later working in sales. In October of
2010, Michael Hall spoke to Sierra about installing a geothermal system and
completed an application to finance the cost of installation. When Sierra
informed Hall that he was not approved for financing, he contacted his father to
cosign the application. Although Sierra initially told Hall that his father had
not been approved either, she later contacted Hall to report that he had been
approved and that Hall did not need to sign any additional paperwork. Hall did
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not sign the credit application that was ultimately submitted to the Company,
and the application that was submitted by Sierra misspelled Hall’s name and
misstated both the length of time he had been living at his residence and his
income. As it happened, the loan application was approved; however, although
Hall thought that he was borrowing $9500.00, the application submitted was for
$18,000.00. Hall discovered that there was a problem when the financing
company called him and told him that he owed approximately $20,000.00.
[3] Between June of 2011 and November 9, 2011, Sierra met separately with four
homeowners or sets of homeowners, Nancy and David Rudy, Terry and
Jennifer Dillingham, James Williams, and Jackie and John Hancock about
installing geothermal units in their residences. Sierra reached agreements with
the Rudys, the Dillinghams, Williams, and the Hancocks, and Sierra requested
that each client pay in cash rather than by check, telling them that they would
receive a discount thereby. On June 24, 2011, the Rudys made a $2000.00 cash
payment to Davis. On July 19 and 29, 2011, the Dillinghams made two cash
payments to Sierra of $7275.00 and $7261.42. On August 22, 2011, Williams
made a $5000.00 cash payment to Sierra. On October 14 and 25, 2011, the
Hancocks made two cash payments to Sierra of $7352.50 each. Although
Sierra collected the cash payments, she never submitted them to the Company.
When all was said and done, the damages to Sierra’s victims totaled
$29,135.80.
[4] On January 4, 2013, the State charged Sierra with one count of Class C felony
forgery and four counts of Class D felony theft. On August 10, 2017, a jury
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found Sierra guilty as charged. At sentencing on October 9, 2017, the trial
court ordered that Sierra pay restitution to Hall, the Rudys, the Dillinghams,
Williams, and the Hancocks. The trial court found, as mitigating
circumstances, Sierra’s lack of criminal history and that she has two children
and an ill mother. The trial court found, as aggravating circumstances, the
serious harm done to the Company and the violation of the trust that had been
placed in her. The trial court found that the aggravating circumstances
outweighed the mitigating and sentenced Sierra to seven years of incarceration
(with three suspended) for forgery and to two years (with one suspended) for
each theft conviction, to be served consecutively, for an aggregate sentence of
fifteen years with seven suspended to probation.
Discussion and Decision
I. Single Episode of Criminal Conduct
[5] Sierra contends that her four thefts are all part of a single episode of criminal
conduct. When Sierra committed her thefts, as a general rule, if crimes were
part of a single episode of criminal conduct, then the consecutive terms of
imprisonment could not aggregate to an amount higher than that of the
advisory sentence for the felony one class higher than the most serious crime.
Ind. Code § 35-50-1-2 (2011).
[6] We conclude that the four thefts committed by Sierra were not simultaneous or
contemporaneous in nature as to constitute a single episode of criminal
conduct, as she alleges. When a full account of a crime can be given without
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referring to the other offenses, the offenses are not a single “episode of criminal
conduct.” Tedlock v. State, 656 N.E.2d 273, 276 (Ind. Ct. App. 1995). In Smith
v. State, 770 N.E.2d 290 (Ind. 2002), the Indiana Supreme Court cited the
Tedlock court’s emphasis on “the ‘simultaneous’ and ‘contemporaneous’ nature
of the crimes which would constitute a single episode of criminal conduct.” Id.
at 294 (quoting Tedlock, 656 N.E.2d at 276).
[7] With Tedlock’s approach in mind, the Smith Court concluded that even where
the defendant’s six forgeries occurred throughout the same afternoon, because
they occurred at separate times and places, and with separate amounts of
money, the conduct was not a single episode of forgery. Id. at 294. We reach
the same conclusion in this case. The fact that Sierra’s four thefts were similar
in character does not mean that they, involving different victims and occurring
at different locations on many separate days with separate amounts of money,
constituted a single episode of criminal conduct. The trial court properly
treated the thefts as not being part of a single episode of criminal conduct. We
conclude that Sierra has failed to establish that her consecutive theft sentences
run afoul of statutory limitations.
II. Appropriateness of Sentence
[8] This Court will revise a sentence authorized by statute only “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.” Ind. Appellate Rule 7(B). The question is not whether another
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sentence is more appropriate, but whether Sierra’s sentence is inappropriate.
King v. State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008). The “nature of the
offense” refers to a defendant’s actions in comparison with the elements of the
offense. Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008). The “character of
the offender” refers to “general sentencing considerations and the relevant
aggravating and mitigating circumstances.” Douglas v. State, 878 N.E.2d 873,
881 (Ind. Ct. App. 2007).
[9] Sierra has the burden of proving that her sentence is inappropriate in light of the
nature of the offense and her character. Childress v. State, 848 N.E.2d 1073,
1080 (Ind. 2006). “[Deference to trial courts] 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).
[10] The nature of Sierra’s offenses was that she stole from the customers of the
company she worked for and which had placed her in a position of trust. The
damages to her direct victims came to more than $29,000.00. As for the
Company, Robert Zahm, President of the Company, indicated that the damage
to its reputation caused by Sierra’s actions was “brutal” and that the company
suffered losses of $106,437.00 in 2011 and $221,542.00 in 2012 as a result.
Appellant’s App. Vol. III p. 67. Zahm wrote the trial court that the Company
had lost over 100 good customers, the Company had to borrow $100,000.00 to
keep operating, and Zahn had to delay his planned retirement by ten years
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because of Sierra. Sierra’s crimes damaged and seriously inconvenienced her
direct victims and nearly put the Company out of business.
[11] As for Sierra’s character, we cannot say that, despite her lack of other criminal
convictions, it weighs in her favor. Despite the negative impact of her crimes,
Sierra is unrepentant, characterizing the episode as a “misunderstanding” and a
“tragic event in [her] life.” Appellant’s App. Vol. III pp. 65, 66. Sierra claimed
that she “was unaware what I was doing was a criminal offense” and that her
crimes were “mistakes[.]” Appellant’s App. Vol. III p. 66. Sierra has yet to
accept responsibility for her actions or appreciate their negative consequences,
which does her no credit. The record also indicates that Sierra left the
jurisdiction during this case (soon after an arrest warrant had been issued for
her) and remained a fugitive from July of 2013 until March of 2017, when she
was arrested in Florida. Moreover, as of sentencing in this case, Sierra had
charges for forgery and theft pending and set for a plea hearing in another
Indiana county. Given the negative impact of Sierra’s crimes and her negative
character, she has failed to establish that her fifteen-year sentence, with seven
years suspended to probation, is inappropriate.
[12] We affirm the judgment of the trial court.
Robb, J., and Crone, J., concur.
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