Percy Lee Blake v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: August 21, 2015
• Docket: 45A05-1412-CR-563
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), Aug 21 2015, 8:42 am 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 Mark A. Bates Gregory F. Zoeller Office of the Lake County Public Attorney General of Indiana Defender Karl M. Scharnberg Crown Point, Indiana Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Percy Lee Blake, August 21, 2015 Appellant-Defendant, Court of Appeals Case No. 45A05-1412-CR-563 v. Appeal from the Lake Superior Court State of Indiana, The Honorable Diane Ross Appellee-Plaintiff Boswell, Judge Trial Court Cause No. 45G03-1112-FC-154

Baker, Judge.

Court of Appeals of Indiana | Memorandum Decision 45A05-1412-CR-563 | August 21, 2015 Page 1 of 4 [1] Percy Blake pleaded guilty to theft after making purchases with Citibank credit

cards that he obtained fraudulently. The trial court ordered him to pay

restitution to Citibank in the amount of $8,715.87. Blake appeals, arguing that

this amount is too high. Finding sufficient evidence to support this amount, we

affirm.

Facts [2] On December 22, 2011, the State charged Blake with fraud on a financial

institution, a class C felony, and synthetic identity deception, a class D felony.

On July 18, 2014, the State amended the charge, adding one count of theft, a

class D felony. That same day, Blake entered into a plea agreement, in which

he agreed to plead guilty to theft in exchange for dismissal of the two original

counts. The agreement left sentencing open, allowing both parties to argue

their positions at a later hearing.

[3] On October 30, 2014, the trial court held this hearing. After accepting Blake’s

guilty plea, the trial court sentenced him to three years in the Department of

Correction, to be served in the Lake County Community Corrections

Kimbrough Work Program. It also ordered that he pay Citibank $8,715.87 in

restitution, as a Citibank representative testified at the hearing that Blake had

used fraudulently obtained credit cards to make purchases in this amount.

Blake now appeals, challenging the amount of restitution.

Court of Appeals of Indiana | Memorandum Decision 45A05-1412-CR-563 | August 21, 2015 Page 2 of 4 Discussion and Decision [4] Blake believes the evidence presented at the hearing was insufficient to support

the trial court’s award of restitution in the amount of $8,715.87. We review a

trial court’s order of restitution for an abuse of discretion. Rich v. State, 890

N.E.2d 44, 49 (Ind.Ct.App.2008). An order of restitution must be supported by

sufficient evidence of the actual loss sustained by the victim. Id. “The amount

of actual loss is a factual matter that can be determined only upon the

presentation of evidence.” Id. (quotations omitted). Under an abuse of

discretion standard, we will not reverse the trial court “if there is any rational

basis in the record supporting its determination.” Shady v. Shady, 858 N.E.2d

128, 143 (Ind. Ct. App. 2006).

[5] At the hearing, the State called Bryan Rozanski, a representative of Citibank, to

testify. Rozanski testified that, after reviewing Citibank’s records, he believed

that Blake had made $8,715.87 in purchases using fraudulently obtained credit

cards while in Indiana. Tr. p. 19. The records that Rozanski relied on were not

entered into evidence. On cross-examination, Rozanski testified that he was

not aware of who had signed for the purchases. Tr. p. 20. Blake presented no

evidence of his own, but argued to the trial court that he believed he had only

made approximately $3,000 worth of fraudulent purchases while in Indiana.

Tr. p. 21. The trial court found Rozanski’s testimony to be credible, and

ordered Blake to pay restitution in the amount of $8,715.87.

Court of Appeals of Indiana | Memorandum Decision 45A05-1412-CR-563 | August 21, 2015 Page 3 of 4 [6] While Blake disagrees with the trial court’s decision, we believe this evidence

was sufficient to allow the trial court to reasonably conclude as it did. Here,

Blake had admittedly exerted unauthorized control over Citibank credit cards.

Tr. p. 8-10. Following Rozanski’s testimony, Blake did not contend that he did

not make fraudulent purchases using the accounts that Rozanski referenced nor

did he question Rozanski’s ability to review the records of those accounts

properly. In fact, he assured the trial court that he was not taking issue with the

amounts reflected in those records. Tr. p. 37. His argument boiled down to

little more than the insinuation that someone else could have used the cards to

make some of the purchases, an argument he reiterates on appeal. 1 Tr. p. 35-37.

[7] Blake has not shown that the evidence supporting the trial court’s conclusion is

insufficient, he merely proposes a different set of facts. However, we leave

factual determinations to the trial court and, on appeal, we do not reweigh the

evidence or judge the credibility of the witnesses. Shady, 858 N.E.2d at 143.

Accordingly, we may not entertain Blake’s request.

[8] The judgment of the trial court is affirmed.

Riley, J., and Brown, J., concur.

1 Blake argued that there was more than one authorized user on the account and that, because the State could not produce evidence of who had signed for the purchases, it could not show that Blake had made the purchases. However, the State pointed out that Blake was not signing under his own name and that, had the case gone to trial, it would have introduced evidence that Blake was acting as both authorized users under two aliases and that he had been caught carrying false identification corresponding to both of those aliases. Blake did not object to these assertions. Tr. p. 28-31.

Court of Appeals of Indiana | Memorandum Decision 45A05-1412-CR-563 | August 21, 2015 Page 4 of 4