MEMORANDUM DECISION Mar 26 2015, 9:05 am Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be 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 R. Patrick Magrath Gregory F. Zoeller Alcorn Goering & Sage, LLP Attorney General of Indiana Madison, Indiana Brian Reitz Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Dillon Wayne Steinert, March 26, 2015
Appellant-Defendant, Court of Appeals Cause No. 40A01-1403-CR-111 v. Appeal from the Jennings Circuit Court State of Indiana, Lower Court Cause Nos. 40C01-1311-FD-318 Appellee-Plaintiff 40C01-1209-FD-189 The Honorable Jon W. Webster, Judge
Pyle, Judge.
Court of Appeals of Indiana | Memorandum Decision 40A01-1403-CR-111 | March 26, 2015 Page 1 of 16 Statement of the Case [1] After Dillon Wayne Steinert (“Steinert”) pled guilty to two counts of Class D
felony theft,1 the trial court sentenced him, pursuant to his plea agreement, to
an aggregate four-year sentence suspended to probation. While on probation,
Steinert committed another crime. He subsequently pled guilty to and was
convicted of Class D felony receiving stolen property.2 The State filed a notice
of probation violation based on Steinert’s subsequent offense, and he admitted
to violating probation. In a consolidated hearing, the trial court: (1) revoked
Steinert’s probation and ordered him to serve his previously suspended
sentence; (2) sentenced Steinert for his subsequent conviction, imposing a two-
year sentence with one year executed and one year suspended to probation; and
(3) ordered him to pay restitution as part of his subsequent receiving stolen
property conviction.
[2] In this consolidated appeal, Steinert now appeals the revocation of his
probation, the appropriateness of his sentence from his subsequent conviction,
and the amount of restitution he was ordered to pay. Concluding that the trial
court did not abuse its discretion by revoking Steinert’s probation where he
admitted to committing an subsequent crime, that he has failed to show that his
1 Ind. Code § 35-43-4-2(a). We note that, effective July 1, 2014, a new version of this theft statute was enacted and that Class D felony aggravated battery is now a Class A misdemeanor. Because Steinert committed these crimes in 2012, we will refer to the statute in effect at that time. 2 I.C. § 35-43-4-2(b). Because Steinert committed this crime in 2013, we will refer to the statute in effect at that time.
Court of Appeals of Indiana | Memorandum Decision 40A01-1403-CR-111 | March 26, 2015 Page 2 of 16 sentence was inappropriate, and that the trial court ordered restitution for an
amount of loss involved in the crime to which Steinert pled guilty, we affirm the
trial court’s judgment in all respects.
[3] Affirmed.
Issues [4] 1. Whether the trial court abused its discretion by revoking Steinert’s probation.
2. Whether Steinert’s sentence from his subsequent conviction is inappropriate pursuant to Indiana Appellate Rule 7(B).
3. Whether the trial court abused its discretion in the amount of restitution it ordered.
Facts [5] On June 21, 2012, the State filed a petition alleging that seventeen-year-old
Steinert was a delinquent child for committing five counts of theft that would
have been Class D felonies if committed by an adult, three counts of receiving
stolen property that would have been Class D felonies if committed by an adult,
and one count of criminal mischief that would have been a Class D felony if
committed by an adult. On August 23, 2012, the trial court issued an order,
waiving Steinert into adult court. The trial court’s order concluded that
Steinert’s acts were “aggravated because they [were] part of a repetitive pattern
of delinquent acts” and that he was considered “beyond rehabilitation under the
juvenile justice system.” (App. 8).
Court of Appeals of Indiana | Memorandum Decision 40A01-1403-CR-111 | March 26, 2015 Page 3 of 16 [6] Subsequently, on September 11, 2012, the State charged Steinert with two
counts of Class D felony theft under cause number 40C01-1209-FD-189
(“Cause 189”). Immediately thereafter, Steinert entered into a written plea
agreement with the State. The plea agreement called for Steinert to plead guilty
as charged and for him to be sentenced to consecutive terms of two (2) years on
each conviction with thirty (30) days of jail time credit and the remaining
twenty-three (23) months suspended to probation. The agreement also
provided that “[u]pon successful completion of probation with NO violations,”
Steinert could seek alternative misdemeanor sentencing. (App. 33). On
September 21, 2012, Steinert pled guilty as charged, and the trial court
sentenced Steinert, pursuant to the terms of the plea agreement, to an aggregate
four (4) year sentence with the applicable credit for time served and forty-six
months suspended to probation.
[7] Just a little more than one year later, on November 20, 2013, the State charged
eighteen-year-old Steinert with Class D felony receiving stolen property under
cause number 40C01-1311-FD-318 (“Cause 318”). Specifically, the charging
information provided that, between September 26, 2013 and November 13,
2013, Steinert “knowingly or intentionally receive[d], retain[ed,] or dispose[d]
of” the following property that had “been the subject of a theft[:]” “jewelry,
camera, photography equipment, Xbox game console and games, shoes, [and a]
cellular telephone.” (App. 98).
[8] Thereafter, on November 22, 2013, the State filed a notice of probation
violation, alleging that Steinert had violated his probation by committing
Court of Appeals of Indiana | Memorandum Decision 40A01-1403-CR-111 | March 26, 2015 Page 4 of 16 another crime—receiving stolen property—and by failing to reside at the
address given to the probation department or obtain permission to reside at any
other location.
[9] On January 16, 2014, the trial court held a probation revocation hearing in
Cause 189. During this hearing, Steinert “admit[ted] the allegations of the
[revocation] Petition[,]” and the trial court found that he had “violated the
terms of his probation[.]” (App. 67).3
[10] That same day, Steinert pled guilty, pursuant to a written plea agreement, to the
Class D felony receiving stolen property charge in Cause 318. The plea
agreement provided that Steinert’s sentence would be “open” but had to be
served consecutively to his sentence in Cause 189. (App. 110). That same day,
the trial court entered an order, indicating that Steinert had “enter[ed] a plea of
guilty to the charge of Receiving Stolen Property as contained in Count I of the
Information” and that “there [wa]s a factual basis for [Steinert’s] plea of guilty.”
(App. 117).4 In the order, the trial court also indicated that it had accepted
Steinert’s plea and entered judgment of conviction.
[11] On February 7, 2014, the trial court held a consolidated hearing on Steinert’s
probation revocation in Cause 189 and his sentencing in Cause 318. During the
3 In his notice of appeal, Steinert did not request the transcription of this probation hearing. Thus, we have only what is contained in the chronological case summary and the trial court’s order from that hearing to inform us what transpired during the hearing. 4 Steinert did not request the transcription of this guilty plea hearing either. Thus, we have only the trial court’s order to inform us of any details of his guilty plea.
Court of Appeals of Indiana | Memorandum Decision 40A01-1403-CR-111 | March 26, 2015 Page 5 of 16 hearing, Steinert’s probation officer testified that her recommendation for
Steinert’s probation revocation case was for him to be “committed to the
Indiana Department of Correction for the remainder of his sentence on the
violation[.]” (Tr. 2). Her recommendation for his sentencing in Cause 318 was
“whatever the Court th[ought] [wa]s appropriate[,]” but she testified that she
did not believe that Steinert was a candidate for probation in that cause because
he had not done well on probation. (Tr. 2). Steinert’s probation officer also
testified that Steinert had previously been diagnosed with “pervasive
developmental disorder, not otherwise specified, attentive [sic] deficit
hyperactivity disorder, oppositional defiant disorder[,] and childhood
depression.” (Tr. 3).
[12] Steinert’s mother testified that he had been in the juvenile system for a long
time and that he had been diagnosed with mental health issues as a child. She
testified that his “primary diagnosis [wa]s pervasive developmental disorder
which f[ell] in the autism spectrum.” (Tr. 6). Steinert’s mother also testified
that Steinert has had behavioral problems since the age of six, including getting
kicked out of kindergarten, and that she had taken him to counseling since that
time. Steinert offered into evidence Defendant’s Exhibit A, which consisted of
a copy of a letter written by his mother and two psychological evaluations (one
done in October 2010 and the other in September 2003). Additionally,
Steinert’s mother testified that she did not want him to live at her house because
he did not follow her rules and had not gotten a job even though she had set
him up with vocational rehabilitation through some waiver services.
Court of Appeals of Indiana | Memorandum Decision 40A01-1403-CR-111 | March 26, 2015 Page 6 of 16 [13] In regard to restitution in Cause 318, the State introduced State’s Exhibit 1—
without objection from Steinert—which included an itemized statement and
letter showing that Allstate Insurance Company was requesting $5,340.06 in
restitution for the loss it incurred when it paid out insurance proceeds to its
insureds for the items involved in Steinert’s crime.5 When Steinert testified, he
challenged the amount of restitution sought in State’s Exhibit 1. He contended
that he should be required to pay restitution for the camera only because that
was the lone piece of property that he knew was stolen. Steinert requested that
the trial court suspended some of his sentence in Cause 318 and place him on
probation or in community corrections.
[14] In Cause 189, the trial court revoked Steinert’s probation and ordered him to
serve his previously suspended sentence in the Department of Correction. In
regard to Steinert’s sentence for his Class D felony receiving stolen property
conviction in Cause 318, the trial court found the following aggravating
circumstances: (1) two juvenile delinquency adjudications, including a
commitment to Indiana Boys School; (2) two felony convictions; (3)
commission of his current crime while on probation; (4) no gainful
employment; and (5) no diploma or GED. The trial court found that Steinert’s
guilty plea and his “mental health issues” were mitigating circumstances. (Tr.
23). The trial court imposed a two (2) year sentence, with one (1) year executed
in the Department of Correction and one (1) year suspended to probation.
5 State’s Exhibit 1 indicated that Allstate’s insureds, who had their property removed from their house as part of the offense at issue, suffered a $0 loss because that was the amount of their deductible.
Court of Appeals of Indiana | Memorandum Decision 40A01-1403-CR-111 | March 26, 2015 Page 7 of 16 Pursuant to Steinert’s plea agreement in Cause 318, the trial court ordered that
this sentence was to be served consecutive to his sentence in Cause 189. The
trial court also included a recommendation that Steinert receive mental health
counseling and treatment while in the Department of Correction. Finally, the
trial court ordered Steinert to pay $5,340.06 in restitution to Allstate and stated
that he had “joint and several” liability with David Eggert and Jade Stevens.
(App. 125).
[15] Steinert now appeals the revocation of his probation in Cause 189 and his
sentence and restitution in Cause 318.
Decision [16] On appeal, Steinert argues that the trial court erred by: (1) revoking his
probation; (2) sentencing him to an inappropriate sentence in his receiving
stolen property case; and (3) ordering him to pay $5,340.06 in restitution in his
receiving stolen property case. We will address each argument in turn.
1. Probation Revocation
[17] Turning to Steinert’s argument that the trial court erred by revoking his
probation, we note that “[p]robation is a matter of grace left to trial court
discretion, not a right to which a criminal defendant is entitled.” Prewitt v. State,
878 N.E.2d 184, 188 (Ind. 2007). The trial court determines the conditions of
probation and may revoke probation if the conditions are violated. Id.; see also
IND. CODE § 35-38-2-3(a). Indeed, violation of a single condition of probation
is sufficient to revoke probation. Gosha v. State, 873 N.E.2d 660, 663 (Ind. Ct.
Court of Appeals of Indiana | Memorandum Decision 40A01-1403-CR-111 | March 26, 2015 Page 8 of 16 App. 2007). When reviewing a trial court’s determination that a probation
violation has occurred, we consider only the evidence most favorable to the
judgment, and we will not reweigh the evidence or judge the credibility of the
witnesses. Sanders v. State, 825 N.E.2d 952, 955-56 (Ind. Ct. App. 2005), trans.
denied.
[18] Steinert argues that the trial court abused its discretion by revoking his
probation because it did not provide a written statement of reasons for revoking
his probation and because the trial court’s reasons were “insufficient[.]”
(Steinert’s Br. 8).6 We disagree.
[19] Here, the State alleged that Steinert had violated his probation by committing
another crime and by failing to reside at the address given to the probation
department. Although Steinert did not request that the transcript from his
probation revocation hearing be transcribed, the record before us indicates that
Steinert admitted to violating these terms of his probation. Thus, the trial court
was not required to provide a written statement setting forth the reasons for
revoking Steinert’s probation. See, e.g., Terrell v. State, 886 N.E.2d 98, 101 (Ind.
Ct. App. 2008) (holding that the trial court was not required to provide a
written statement regarding the reasons for revoking probation where the
defendant admitted to violating the term of probation), trans. denied.
6 Steinert does not make the argument regarding a written statement as a due process violation.
Court of Appeals of Indiana | Memorandum Decision 40A01-1403-CR-111 | March 26, 2015 Page 9 of 16 [20] Additionally, in the trial court’s order revoking Steinert’s probation, it first
noted that Steinert had admitted to the alleged probation violations and then
revoked his probation. Therefore, the trial court’s order sufficiently indicates
that its revocation of probation was based on Steinert’s admission that he
violated the terms of his probation when he committed and pled guilty to a new
crime. See id. at 101-02 (affirming the trial court’s order revoking probation
where it was “clear from the transcript and written order . . . that the trial
court’s reason for revoking [the defendant’s] probation was based exclusively on
[his] admitted violations of his probation conditions”). Because the record
before us reveals that Steinert admitted to violating the term of his probation,
we conclude that the trial court did not abuse its discretion by revoking his
probation. Accordingly, we affirm the trial court’s revocation of Steinert’s
probation.
2. Inappropriate Sentence
[21] We next address Steinert’s argument regarding his sentence in Cause 318.
Steinert contends that his two-year sentence, with one year executed and one
year suspended to probation, for his Class D felony conviction that he
committed while he was on probation is inappropriate.7
7 When arguing that his sentence was inappropriate, Steinert appears to amalgamate his sentence in Cause 318 and the imposition of his previously suspended sentence in Cause 189, arguing that he received an aggregate five-year sentence and that it was inappropriate. Aside from the fact that his sentence in Cause 189 was entered pursuant to his plea agreement and he cannot challenge its’ appropriateness, the sentences in these two causes are separate. Accordingly, we will address only his challenge to his sentence in Cause 318. Additionally, Steinert also seems to argue that the trial court erred when sentencing him because it
Court of Appeals of Indiana | Memorandum Decision 40A01-1403-CR-111 | March 26, 2015 Page 10 of 16 [22] 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). The
defendant has the burden of persuading us that his sentence is inappropriate.
Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). The principal role of a
Rule 7(B) review “should be to attempt to leaven the outliers, and identify some
guiding principles for trial courts and those charged with improvement of the
sentencing statutes, but not to achieve a perceived ‘correct’ result in each case.”
Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). Whether a sentence is
inappropriate ultimately turns on “the culpability of the defendant, the severity
of the crime, the damage done to others, and a myriad of other factors that
come to light in a given case.” Id. at 1224. Additionally, “[u]nder Indiana law,
several tools are available to the trial court to use in fashioning an appropriate
sentence for a convicted offender.” Sharp v. State, 970 N.E.2d 647, 650 (Ind.
2012). These “penal tools”—which include suspension of all or a portion of the
sentence, probation, . . . executed time in a Department of Correction facility, .
. . and restitution and fines—“form an integral part of the actual aggregate
penalty faced by a defendant and are thus properly considered as part of the
considered the value of the items involved in his crime as an aggravating circumstance. The record on appeal, however, does not support any such argument.
Court of Appeals of Indiana | Memorandum Decision 40A01-1403-CR-111 | March 26, 2015 Page 11 of 16 sentence subject to appellate review and revision.” Id. (citing Davidson v. State,
926 N.E.2d 1023, 1025 (Ind. 2010)).
[23] When determining whether a sentence is inappropriate, we acknowledge that
the advisory sentence “is the starting point the Legislature has selected as an
appropriate sentence for the crime committed.” Childress, 848 N.E.2d at 1081.
Here, Steinert pled guilty as charged to Class D felony receiving stolen
property. The sentencing range for a Class D felony when he committed his
crime was between six (6) months and three (3) years, with the advisory
sentence being one and one-half (1½) years. I.C. § 35-50-2-7. The trial court
imposed a two (2) year sentence, with one (1) year executed and one (1) year
suspended to probation. The trial court also recommended that Steinert
received mental health treatment while in the Department of Correction.
[24] The nature of Steinert’s offense is not completely set out in the record before us
because he pled guilty to the offense but did not request a copy of the transcript
from his guilty plea hearing; therefore, we do not have the details of the factual
basis contained therein, nor do we know if the parties agreed that the probable
cause affidavits that are contained in Steinert’s Appellant’s Appendix were
considered as part of that factual basis. Nevertheless, the trial court’s order
from the date of his guilty plea hearing indicates that Steinert “enter[ed] a plea
of guilty to the charge of Receiving Stolen Property as contained in Count I of
the Information” and “there [wa]s a factual basis for [Steinert’s] plea of guilty.”
(App. 117). The charging information for his offense provided that between
September 26, 2013 and November 13, 2013, Steinert “knowingly or
Court of Appeals of Indiana | Memorandum Decision 40A01-1403-CR-111 | March 26, 2015 Page 12 of 16 intentionally receive[d], retain[ed,] or dispose[d] of” the following property that
had “been the subject of a theft[:]” “jewelry, camera, photography equipment,
Xbox game console and games, shoes, [and a] cellular telephone.” (App. 98).
[25] Turning to Steinert’s character, we acknowledge that he pled guilty and that he
has a history of mental health issues that include a diagnosis of pervasive
developmental disorder. However, Steinert did not offer any specific
explanation of how this diagnosis was related to his crime of receiving stolen
property.
[26] Instead, the record reveals that Steinert—who was eighteen years old at the
time of his offense in Cause 318—has amassed a criminal history that includes
both juvenile adjudications and adult felony convictions. His juvenile record
includes a referral when he was six years old; an adjudication for battery
resulting in bodily injury when he was thirteen years old; an adjudication for
burglary when he was fourteen years old; and an adjudication for burglary, auto
theft, escape, possession of marijuana, possession of paraphernalia, and
criminal mischief when he was fifteen years old that resulted in commitment to
Indiana Boys School. Additionally, the juvenile court had placed Steinert on
probation from his battery adjudication, and he violated probation two times
and was then unsuccessfully discharged from probation. Steinert’s adult
convictions began when he was seventeen years old and was waived to adult
court in Cause 189. Even more troubling, Steinert was on parole from the two
theft convictions in Cause 189 when he committed the receiving stolen property
crime at issue in this case. Steinert’s criminal history, failure to complete prior
Court of Appeals of Indiana | Memorandum Decision 40A01-1403-CR-111 | March 26, 2015 Page 13 of 16 probation, and commission of this crime while on probation, reflect poorly on
Steinert’s character and show his disregard for the law and failure to reform.
[27] Despite Steinert’s failed attempts at probation, the trial court sentenced him to a
two-year sentence with one year executed and one year suspended to probation,
and it recommended that he receive mental health treatment. Thus, the trial
court utilized some of the available “penal tools” to fashion a sentence for
Steinert. See Sharp, 970 N.E.2d at 650. Steinert has not persuaded us that that
his two year-year sentence—with one year executed and one year suspended to
probation—for commission of a Class D felony conviction while on probation
is inappropriate. Therefore, we affirm the trial court’s sentence.
3. Restitution
[28] Lastly, Steinert challenges the trial court’s imposition of restitution in Cause
318. Specifically, Steinert asserts that he is challenging “the sufficiency of the
record supporting his restitution amount.” (Steinert’s Br. 9).
[29] Restitution orders are within the discretion of the trial court. Sickels v. State, 982
N.E.2d 1010, 1013 (Ind. 2013). INDIANA CODE § 35-50-5-3(a) provides that a
trial court may order a defendant “to make restitution to the victim of the
crime[.]” “Although the statute does not define the term ‘victim,’ [the Indiana
Supreme] Court has held that restitution is properly payable to those shown to
have suffered injury, harm or loss as a direct and immediate result of the
criminal acts of a defendant.” Sickels, 982 N.E.2d 1010, 1013 (Ind. 2013)
(internal quotation marks and citations omitted). “A restitution order must be
Court of Appeals of Indiana | Memorandum Decision 40A01-1403-CR-111 | March 26, 2015 Page 14 of 16 supported by sufficient evidence of actual loss sustained by the victim or victims
of a crime.” Rich v. State, 890 N.E.2d 44, 49 (Ind. Ct. App. 2008), trans. denied.
“‘The amount of actual loss is a factual matter that can be determined only
upon the presentation of evidence.’” Id. (quoting Bennett v. State, 862 N.E.2d
1281, 1287 (Ind. Ct. App. 2007). We will affirm a trial court’s restitution order
if there is sufficient evidence to support it. Id.
[30] Steinert does not challenge the trial court’s discretion to order restitution at
issue; instead, he challenges merely the amount of restitution ordered.
Specifically, Steinert contends that the trial court erred by ordering him to pay
restitution for the full amount requested in State’s Exhibit 1 because the
probable cause affidavits show that he “received” only a camera and a pair of
shoes.8 (Steinert’s Br. 9). Steinert asserts that “[t]he State presented no
evidence to support [him] having ‘received’ any of the other items which make
up the $5,340.06 value” and that, as a result, “the full figure of restitution was
an abuse of discretion[.]” (Steinert’s Br. 9-10).
[31] The State argues that the amount in the trial court’s restitution order was
supported by sufficient evidence because State’s Exhibit 1 showed the amount
that the insurance company had paid out to its insureds as a result of Steinert’s
crime. We agree.
8 The probable cause affidavit indicates that Steinert’s name was on a pawn receipt for the camera and that he was wearing a stolen pair of shoes when he was arrested.
Court of Appeals of Indiana | Memorandum Decision 40A01-1403-CR-111 | March 26, 2015 Page 15 of 16 [32] Here, Steinert was charged with Class D felony receiving stolen property for
having received, retained, or disposed of “jewelry, camera, photography
equipment, Xbox game console and games, shoes, [and a] cellular telephone.”
(App. 98). Thereafter, he pled guilty to this charge “as contained in . . . the
Information.” (App. 117). During the sentencing hearing, the State introduced
State’s Exhibit 1, showing the loss that occurred as a result of Steinert’s crime.
The trial court ordered Steinert to pay restitution for that amount listed in the
exhibit and ordered that he had joint and severable liability for that amount.
Steinert does not argue that these other items in State’s Exhibit 1 were not
involved in the crime to which he pled guilty; instead, his argument is focused
on an alleged requirement that the State was required to provide evidence at
sentencing that he had received or was in possession of these other items.
Steinert, however, pled guilty to receiving, retaining, or disposing of the items
listed in the charging information. Because the record before us reveals that the
trial court ordered restitution for an amount of loss involved in the crime to
which Steinert pled guilty, he has not shown that the trial court abused its
discretion. See e.g., Smith v. State, 990 N.E.2d 517, 519 (Ind. Ct. App. 2013)
(affirming a trial court’s restitution order where the amount of restitution was
for the loss attributable to the defendant’s crime), trans. denied. Accordingly, we
affirm the trial court’s restitution order.
Najam, J., and Bailey, J., concur.
Court of Appeals of Indiana | Memorandum Decision 40A01-1403-CR-111 | March 26, 2015 Page 16 of 16