Ann Casildo v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: November 2, 2016
• Docket: 46A03-1603-CR-532
• Status: Published

Opinion

MEMORANDUM DECISION FILED Nov 02 2016, 8:01 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 Jennifer L. Koethe Gregory F. Zoeller LaPorte, Indiana Attorney General of Indiana Angela Sanchez Deputy Attorney General of Indiana Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Ann Casildo, November 2, 2016

Appellant-Defendant, Court of Appeals Case No. 46A03-1603-CR-532 v. Appeal from the LaPorte Circuit Court. The Honorable Thomas J. Alevizos, State of Indiana, Judge. Appellee-Plaintiff. Cause No. 46C01-1402-FC-78

Darden, Senior Judge

Court of Appeals of Indiana | Memorandum Decision 46A03-1603-CR-532 November 2, 2016 Page 1 of 6 Statement of the Case 1 [1] Ann Casildo pleaded guilty to forgery as a Class C felony. She was sentenced

to six years’ imprisonment with no time suspended. She appeals the sentence.

We affirm.

Issues [2] The issues Casildo raises for our review are whether the trial court abused its

discretion in sentencing her; and, whether her six-year sentence is inappropriate

in light of the nature of her offense and her character.

Facts and Procedural History [3] On July 18, 2013, Victor Moyar reported to the police that several of his credit

cards had been fraudulently used, that approximately $32,000.00 had been

charged to his credit cards without his permission, and that a line of credit had

been established without his permission. Moyar suspected Casildo, his

daughter, of the unauthorized activity. Moyar also reported that he believed

Casildo had, without his permission, removed money from his bank account

and deposited the money into her bank account.

[4] Detective Scott Boswell interviewed Casildo regarding the use of Moyar’s credit

cards and the money that had been removed from his bank account. Casildo

admitted that she used Moyar’s credit cards, but claimed she had his permission

1 Ind. Code § 35-43-5-2(b)(1) (2006).

Court of Appeals of Indiana | Memorandum Decision 46A03-1603-CR-532 November 2, 2016 Page 2 of 6 to do so. She also admitted that she filled out three checks totaling $5,500.00,

signed Moyar’s name to the checks, and deposited the funds into her bank

account.

[5] On February 20, 2014, Casildo was charged with forgery as a Class C felony,

two counts of fraud, as Class D felonies, and identity deception as a Class D

felony. Under a plea agreement, Casildo pleaded guilty to the forgery charge

and the State agreed to dismiss all of the other charges.

[6] The presumptive sentence for a Class C felony is four years, with not more than

four years added for aggravating circumstances, and not more than two years

subtracted for mitigating circumstances. See Ind. Code § 35-50-2-6 (2005). At

sentencing, the trial court found that aggravating circumstances outweighed the

mitigating circumstances and sentenced Casildo to six years executed, with no

time suspended. Casildo appeals.

Discussion and Decision I. Abuse of Discretion

[7] Casildo argues the trial court abused its discretion in imposing the six-year

sentence because the court gave “little weight” to Casildo’s mitigating

circumstances of mental illness and substance abuse. Appellant’s Br. p. 6.

Sentencing is generally left to the discretion of the trial court, and we will only

reverse a trial court’s sentencing decision based on an abuse of that discretion.

Losch v. State, 834 N.E.2d 1012, 1014 (Ind. 2005). The trial court has discretion

to determine whether a presumptive sentence will be increased or decreased

Court of Appeals of Indiana | Memorandum Decision 46A03-1603-CR-532 November 2, 2016 Page 3 of 6 because of aggravating or mitigating circumstances. Klein v. State, 698 N.E.2d

296, 300 (Ind. 1998).

[8] Regarding Casildo’s argument, it is well established that appellate courts no

longer review for an abuse of discretion the weight or lack thereof a trial court

attributes to particular mitigating circumstances. See Anglemyer v. State, 868

N.E.2d 482, 491 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007). No

error occurred here.

II. Inappropriateness

[9] Casildo next argues that her six-year sentence is inappropriate in light of the

nature of the offense and her character. We may revise a sentence if it is

“inappropriate in light of the nature of the offense and the character of the

offender.” Ind. Appellate Rule 7(B). Casildo bears the burden of persuading us

that her sentence is inappropriate. Reid v. State, 876 N.E.2d 1114, 1116 (Ind.

2007).

[10] Looking at the nature of Casildo’s offense, we are not persuaded. Casildo took

advantage and violated the trust of her father, who was over sixty years old at

the time the crimes were committed. Without his permission, she used his

credit cards in excess of seventy times and charged thousands of dollars to his

credit cards, and forged his signature several times on checks so that she could

remove over $5,000.00 from his bank account and deposit the funds into her

bank account. According to her father’s victim impact statement, Casildo

betrayed his trust to such a degree that he felt he could no longer trust anyone

Court of Appeals of Indiana | Memorandum Decision 46A03-1603-CR-532 November 2, 2016 Page 4 of 6 again. Based on the foregoing, we conclude that the nature of Casildo’s offense

does not render her six-year sentence inappropriate.

[11] Casildo also has not shown her sentence to be inappropriate in light of her

character. When considering the character of the offender, one relevant fact is

the defendant’s criminal history. Johnson v. State, 986 N.E.2d 852, 857 (Ind. Ct.

App. 2013). The significance of criminal history varies based on the gravity,

nature, and number of prior offenses in relation to the current offense. Id.

[12] Casildo has a criminal history that began in 1997 and continues to the present,

including: six convictions for misdemeanor driving while license suspended

(1997-2000); Class D felony fraud and theft (1999); misdemeanor disorderly

conduct (2002); Class D felony neglect of a dependent (2002); misdemeanor

operating a vehicle with alcohol concentration equivalent to .15 or more (2003);

Class D felony operating a vehicle as a habitual traffic violator (2003); Class C

felony welfare fraud (2005); misdemeanor operating a vehicle with alcohol

concentration equivalent to .15 or more, and operating a vehicle while

intoxicated in a manner that endangers a person (2008); misdemeanor

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

than .15, and operating a vehicle while intoxicated (2011); and Class C felony

forgery (2013). Two of Casildo’s prior felony convictions for credit card and

welfare fraud damages were in excess of $35,000.00. She failed to appear for

court on numerous occasions. She was placed on probation, which was later

revoked. She also was placed in community correction and on electronic

monitoring, but violated both programs.

Court of Appeals of Indiana | Memorandum Decision 46A03-1603-CR-532 November 2, 2016 Page 5 of 6 [13] Under these facts and circumstances herein, we cannot conclude that Casildo’s

six-year sentence for Class C felony forgery is inappropriate in light of the

nature of the offense and her character.

Conclusion [14] For the reasons stated, we conclude the trial court did not abuse its discretion in

sentencing Casildo, and Casildo’s sentence is not inappropriate given the nature

of the offense and her character.

[15] Affirmed.

Baker, J., and Najam, J., concur.

Court of Appeals of Indiana | Memorandum Decision 46A03-1603-CR-532 November 2, 2016 Page 6 of 6