MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Nov 10 2015, 8:55 am regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Tia R. Brewer Gregory F. Zoeller Marion, Indiana Indianapolis, Indiana George P. Sherman Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Artie Pence, November 10, 2015 Appellant-Defendant, Court of Appeals Case No. 27A05-1410-CR-488 v. Appeal from the Grant Superior Court State of Indiana, The Honorable Warren Haas, Appellee-Plaintiff Judge Trial Court Cause No. 27D03-1312-FB-88
Altice, Judge.
Case Summary
[1] Artie Pence pleaded guilty to five counts of securities fraud involving multiple
victims. In addition to a twenty-eight-year sentence, most of which was
Court of Appeals of Indiana | Memorandum Decision 27A05-1410-CR-488| November 10, 2015 Page 1 of 6 suspended to probation, the trial court ordered restitution in the total amount of
$162,100. The trial court ordered Pence, as a condition of his probation, to pay
one-half of his net monthly income toward restitution and to sell his residence
and pay any net proceeds toward restitution. On appeal, Pence challenges only
the order to sell his primary residence. Pence, however, directs us to no
relevant authority in support of this issue and provides little if any cogent
argument.
[2] We affirm.
Facts & Procedural History
[3] On December 18, 2013, the State charged Pence with fifteen counts (fourteen as
class C felonies and one as a class B felony) related to securities fraud, broker-
dealer registration violations, and securities registration violations. On July 22,
2014, Pence entered into a plea agreement in which he pleaded guilty to four
class C felonies and one class B felony. Pursuant to the agreement, the State
dismissed the remaining charges. Sentencing was left to the discretion of the
trial court, as well as the amount and manner of restitution.
[4] Following a sentencing hearing, the trial court imposed an aggregate term of
three years executed and twenty-five years suspended to supervised probation.
With respect to restitution, the court ordered Pence to pay restitution to the
victims in the total amount of $162,100, an amount agreed to by Pence. While
on probation, the court ordered him to pay restitution on a monthly basis in the
Court of Appeals of Indiana | Memorandum Decision 27A05-1410-CR-488| November 10, 2015 Page 2 of 6 amount of one-half of his net monthly income.1 Additionally, the court ordered
Pence to “sell his home in a commercially reasonable manner and apply any
net proceeds to pay toward his restitution obligation.” Appellant’s Appendix at
29. Pence appeals the portion of the order directing him to sell his primary
residence.
Discussion & Decision
[5] The trial court enjoys wide latitude in crafting the terms of a defendant’s
probation. Kays v. State, 963 N.E.2d 507, 509 (Ind. 2012). Accordingly, we will
set aside the terms of a probation order only where the trial court has abused its
discretion. Id. “An order of restitution lies within this discretion and will
likewise be reversed only for abuse of discretion.” Id.
[6] On appeal, Pence initially directs us to Kays, but he does not explain how this
case is applicable. It is not. In Kays, the Supreme Court held that “social
security benefits may be considered by a trial court in determining a defendant’s
ability to pay restitution” because even though the State could not levy against
that income, “it does reflect an important part of the person’s total financial
picture”. Id. at 510-11. Unlike in Kays, the issue in the instant case has nothing
1 The court explained: “‘net monthly income’, as used in this context means the Defendant’s gross income, from any source, minus reasonable tax withholding, minus his probation fees, minus any amounts that he is required to pay to his former wife”. Appellant’s Appendix at 29.
Court of Appeals of Indiana | Memorandum Decision 27A05-1410-CR-488| November 10, 2015 Page 3 of 6 to do with Pence’s ability to pay. Rather, Pence is challenging the manner of
performance fixed by the trial court.
[7] The Court noted in Kays that “although not authoritative we find persuasive the
decisions of other courts that have permitted consideration of income or other
assets that cannot be levied against in assessing a defendant’s overall ability to
pay fines or restitution.” Id. at 511. In addition to other contexts, the Court
observed:
In similar fashion federal courts have also held that a defendant’s partial interest in his home is a “‘financial resource’ that the court may properly consider” in imposing a fine, even though the government could not necessarily “levy upon [the defendant’s] concurrent interest in the residence or proceeds from its sale.” United States v. Gresham, 964 F.2d 1426, 1430 (4th Cir.1992); see also United States v. Lampien, No. 96–3337, 1997 WL 800850, at *2 (7th Cir. Dec. 31, 1997) (“[A]lthough the court lacks the power to order [the defendant] to rent her home, it still may consider the income that [the defendant] reasonably could earn through the rental of her home while incarcerated in deciding what payments she can presently make in restitution.” (emphasis in original)).
Id. With no further analysis,2 Pence provides this excerpt from Kays to support
his claim that the trial court could not order him to sell his home.
2 Ind. Appellate Rule 46(A)(8)(a) requires an appellant’s argument to “contain the contentions of the appellant on the issues presented, supported by cogent reasoning.” Where an appellant fails to abide by this rule, we will not abdicate our role as an impartial tribunal and become an advocate for him. See Shepherd v. Truex, 819 N.E.2d 457, 463 (Ind. Ct. App. 2004) (while appellant cited some authority, he “wholly fail[ed] to explain in what way, if at all, the referenced authority affect[ed] or relate[d] to the present case”).
Court of Appeals of Indiana | Memorandum Decision 27A05-1410-CR-488| November 10, 2015 Page 4 of 6 [8] A review of Gresham and Lampien, however, reveals that they offer no support
for Pence’s claim. In Gresham, the appellant claimed that the district court erred
in considering appellant’s partial interest in his home, which he owned with his
wife as tenants by the entirety. The Fourth Circuit observed that under
Maryland law, no individual creditor, including the government, could levy
upon his concurrent interest in the home absent dissolution of the estate by the
entirety. Regardless, the court held that it was proper to consider his interest in
the home as a financial resource relevant to the determination of his criminal
fine. Gresham, 964 F.2d at 1430. This case sheds no light on the issue at hand.
[9] In Lampien, the Seventh Circuit interpreted, in an unpublished opinion, the
federal Victim and Witness Protection Act (the VWPA) and concluded that the
“limited terms of the VWPA…compel[led]” the court to reverse a restitution
order directing the appellant to rent out her home while in prison. Lampien,
1997 WL 800850, at *2.
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Nov 10 2015, 8:55 am regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Tia R. Brewer Gregory F. Zoeller Marion, Indiana Indianapolis, Indiana George P. Sherman Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Artie Pence, November 10, 2015 Appellant-Defendant, Court of Appeals Case No. 27A05-1410-CR-488 v. Appeal from the Grant Superior Court State of Indiana, The Honorable Warren Haas, Appellee-Plaintiff Judge Trial Court Cause No. 27D03-1312-FB-88
Altice, Judge.
Case Summary
[1] Artie Pence pleaded guilty to five counts of securities fraud involving multiple
victims. In addition to a twenty-eight-year sentence, most of which was
Court of Appeals of Indiana | Memorandum Decision 27A05-1410-CR-488| November 10, 2015 Page 1 of 6 suspended to probation, the trial court ordered restitution in the total amount of
$162,100. The trial court ordered Pence, as a condition of his probation, to pay
one-half of his net monthly income toward restitution and to sell his residence
and pay any net proceeds toward restitution. On appeal, Pence challenges only
the order to sell his primary residence. Pence, however, directs us to no
relevant authority in support of this issue and provides little if any cogent
argument.
[2] We affirm.
Facts & Procedural History
[3] On December 18, 2013, the State charged Pence with fifteen counts (fourteen as
class C felonies and one as a class B felony) related to securities fraud, broker-
dealer registration violations, and securities registration violations. On July 22,
2014, Pence entered into a plea agreement in which he pleaded guilty to four
class C felonies and one class B felony. Pursuant to the agreement, the State
dismissed the remaining charges. Sentencing was left to the discretion of the
trial court, as well as the amount and manner of restitution.
[4] Following a sentencing hearing, the trial court imposed an aggregate term of
three years executed and twenty-five years suspended to supervised probation.
With respect to restitution, the court ordered Pence to pay restitution to the
victims in the total amount of $162,100, an amount agreed to by Pence. While
on probation, the court ordered him to pay restitution on a monthly basis in the
Court of Appeals of Indiana | Memorandum Decision 27A05-1410-CR-488| November 10, 2015 Page 2 of 6 amount of one-half of his net monthly income.1 Additionally, the court ordered
Pence to “sell his home in a commercially reasonable manner and apply any
net proceeds to pay toward his restitution obligation.” Appellant’s Appendix at
29. Pence appeals the portion of the order directing him to sell his primary
residence.
Discussion & Decision
[5] The trial court enjoys wide latitude in crafting the terms of a defendant’s
probation. Kays v. State, 963 N.E.2d 507, 509 (Ind. 2012). Accordingly, we will
set aside the terms of a probation order only where the trial court has abused its
discretion. Id. “An order of restitution lies within this discretion and will
likewise be reversed only for abuse of discretion.” Id.
[6] On appeal, Pence initially directs us to Kays, but he does not explain how this
case is applicable. It is not. In Kays, the Supreme Court held that “social
security benefits may be considered by a trial court in determining a defendant’s
ability to pay restitution” because even though the State could not levy against
that income, “it does reflect an important part of the person’s total financial
picture”. Id. at 510-11. Unlike in Kays, the issue in the instant case has nothing
1 The court explained: “‘net monthly income’, as used in this context means the Defendant’s gross income, from any source, minus reasonable tax withholding, minus his probation fees, minus any amounts that he is required to pay to his former wife”. Appellant’s Appendix at 29.
Court of Appeals of Indiana | Memorandum Decision 27A05-1410-CR-488| November 10, 2015 Page 3 of 6 to do with Pence’s ability to pay. Rather, Pence is challenging the manner of
performance fixed by the trial court.
[7] The Court noted in Kays that “although not authoritative we find persuasive the
decisions of other courts that have permitted consideration of income or other
assets that cannot be levied against in assessing a defendant’s overall ability to
pay fines or restitution.” Id. at 511. In addition to other contexts, the Court
observed:
In similar fashion federal courts have also held that a defendant’s partial interest in his home is a “‘financial resource’ that the court may properly consider” in imposing a fine, even though the government could not necessarily “levy upon [the defendant’s] concurrent interest in the residence or proceeds from its sale.” United States v. Gresham, 964 F.2d 1426, 1430 (4th Cir.1992); see also United States v. Lampien, No. 96–3337, 1997 WL 800850, at *2 (7th Cir. Dec. 31, 1997) (“[A]lthough the court lacks the power to order [the defendant] to rent her home, it still may consider the income that [the defendant] reasonably could earn through the rental of her home while incarcerated in deciding what payments she can presently make in restitution.” (emphasis in original)).
Id. With no further analysis,2 Pence provides this excerpt from Kays to support
his claim that the trial court could not order him to sell his home.
2 Ind. Appellate Rule 46(A)(8)(a) requires an appellant’s argument to “contain the contentions of the appellant on the issues presented, supported by cogent reasoning.” Where an appellant fails to abide by this rule, we will not abdicate our role as an impartial tribunal and become an advocate for him. See Shepherd v. Truex, 819 N.E.2d 457, 463 (Ind. Ct. App. 2004) (while appellant cited some authority, he “wholly fail[ed] to explain in what way, if at all, the referenced authority affect[ed] or relate[d] to the present case”).
Court of Appeals of Indiana | Memorandum Decision 27A05-1410-CR-488| November 10, 2015 Page 4 of 6 [8] A review of Gresham and Lampien, however, reveals that they offer no support
for Pence’s claim. In Gresham, the appellant claimed that the district court erred
in considering appellant’s partial interest in his home, which he owned with his
wife as tenants by the entirety. The Fourth Circuit observed that under
Maryland law, no individual creditor, including the government, could levy
upon his concurrent interest in the home absent dissolution of the estate by the
entirety. Regardless, the court held that it was proper to consider his interest in
the home as a financial resource relevant to the determination of his criminal
fine. Gresham, 964 F.2d at 1430. This case sheds no light on the issue at hand.
[9] In Lampien, the Seventh Circuit interpreted, in an unpublished opinion, the
federal Victim and Witness Protection Act (the VWPA) and concluded that the
“limited terms of the VWPA…compel[led]” the court to reverse a restitution
order directing the appellant to rent out her home while in prison. Lampien,
1997 WL 800850, at *2. The court, however, determined that the reasonable
rental value could be considered in ascertaining the appellant’s ability to make
monthly payments toward her restitution obligation. Again, this case is
inapposite to the instant case.
[10] Next, Pence asserts that the restitution order requiring the sale of his residence
violates Article 1, Section 30 of the Indiana Constitution, which provides: “No
conviction shall work corruption of blood, or forfeiture of estate.” He provides
no meaningful argument or citation to case law. Accordingly, his argument is
waived. See $100 v. State, 822 N.E.2d 1001, 1013 (Ind. Ct. App. 2005), trans.
denied.
Court of Appeals of Indiana | Memorandum Decision 27A05-1410-CR-488| November 10, 2015 Page 5 of 6 [11] Pence asserts only that “there can be no doubt that [this constitutional
provision] was directly designed to prevent EXACTLY what the trial court has
ordered in the present case.” Appellant’s Brief at 4-5. Without addressing in
detail the merits of this waived issue, we direct Pence to $100 v. State, 822
N.E.2d at 1016 (observing that Article 1, Section 30 prohibits only the automatic
forfeiture to the State of property upon conviction) and Ballard v. Bd. of Trustees of
the Police Pension Fund of the City of Evansville, 324 N.E.2d 813, 817 (Ind. 1975)
(“the term ‘estate’ ordinarily means the whole of the property owned” by the
defendant and not one “fungible thing”).
[12] In sum, we conclude that Pence has wholly failed to establish error.
[13] Judgment affirmed.
[14] Riley, J., and Brown, J., concur.
Court of Appeals of Indiana | Memorandum Decision 27A05-1410-CR-488| November 10, 2015 Page 6 of 6