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. Court of Appeals of Indiana | Memorandum Decision 35A05-1711-CR-2552 | March 15, 2018 Page 1 of 7

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

Court of Appeals of Indiana | Memorandum Decision 35A05-1711-CR-2552 | March 15, 2018 Page 2 of 7

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

Court of Appeals of Indiana | Memorandum Decision 35A05-1711-CR-2552 | March 15, 2018 Page 3 of 7

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

Court of Appeals of Indiana | Memorandum Decision 35A05-1711-CR-2552 | March 15, 2018 Page 4 of 7

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

Court of Appeals of Indiana | Memorandum Decision 35A05-1711-CR-2552 | March 15, 2018 Page 5 of 7

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

Court of Appeals of Indiana | Memorandum Decision 35A05-1711-CR-2552 | March 15, 2018 Page 6 of 7

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.

Court of Appeals of Indiana | Memorandum Decision 35A05-1711-CR-2552 | March 15, 2018 Page 7 of 7