Steven F Searing v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: September 10, 2024
• Docket: 24A-CR-00721
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.

FILED Sep 10 2024, 8:58 am

CLERK Indiana Supreme Court Court of Appeals and Tax Court

IN THE

Court of Appeals of Indiana Steven F. Searing, Appellant-Defendant

v.

State of Indiana, Appellee-Plaintiff

September 10, 2024 Court of Appeals Case No. 24A-CR-721 Appeal from the Clay Circuit Court The Honorable Joseph D. Trout, Judge Trial Court Cause No. 11C01-1903-F6-250

Memorandum Decision by Chief Judge Altice Judge Mathias concurs. Judge Bailey concurs with separate opinion.

Court of Appeals of Indiana | Memorandum Decision 24A-CR-721 | September 10, 2024 Page 1 of 12 Altice, Chief Judge.

Case Summary [1] Steven Searing pled guilty to two counts of Level 6 felony theft, and the trial

court sentenced him to one and one-half years of incarceration at the Indiana

Department of Correction (DOC) and ordered him to pay $6,300 in restitution.

Searing appeals, asserting that his sentence was inappropriate in light of the

nature of the offense and his character.

[2] We affirm.

Facts & Procedural History [3] In April 2018, Searing, then age fifty-nine, contacted Tammy Thomas on

Facebook after he saw her in a television news report describing that she

survived being shot twenty-two times by her husband. Searing told Thomas he

was a millionaire, did not want anyone else to hurt her, and would take care of

her. They met in person after she got out of the hospital and began a dating

relationship. One morning in late July 2018, Thomas went to the Clay County

Sheriff’s Department and reported that Searing had stolen money and jewelry

from her.

[4] On May 19, 2019, the State charged Searing with two counts of Level 6 felony

theft, Count I alleged theft of $6,300 in cash and Count II alleged theft of

jewelry. Over the next several years, Searing obtained a number of

continuances and failed to appear on multiple occasions, including for trial

Court of Appeals of Indiana | Memorandum Decision 24A-CR-721 | September 10, 2024 Page 2 of 12 settings, resulting in the issuance of bench warrants. In July 2023, the parties

filed a proposed plea agreement with the court and, in late August 2023,

Searing and the State appeared for a change of plea hearing. The terms of the

plea agreement were that Searing would plead guilty to Count I, the State

would dismiss Count II, and he would be sentenced to the DOC for 545 days,

with all but 34 days suspended to probation, and he would pay $12,000 in

restitution to Thomas.

[5] Thomas testified at the hearing in opposition to the plea agreement.

Summarized, she testified that Searing offered to help her handle the purchase

of a certain piece of real estate, and, for that purpose, she gave him a $6,300

cashier’s check, along with other cash, but she later learned that he used the

money to purchase a motorcycle. He took rings from her without her

knowledge or permission, including her deceased husband’s wedding ring.

Thomas stated that, while she was in surgery, he took her credit cards, racking

up $20,000 on them, and took all the cash in the house. She maintained that she

would “never see” any of the restitution money provided in the plea agreement

as Searing does not work, was removed from disability, and does not own real

property. Transcript at 51. Thomas testified that Searing deceived her, shows no

remorse, and “keeps doing this to more and more women.” Id. at 50. The trial

court rejected the proposed plea and set the matter for trial.

[6] The parties appeared for a pretrial hearing in November 2023, and Searing

requested that the trial date be continued as he would be having a heart

procedure around the scheduled trial date. Although overruling the State’s

Court of Appeals of Indiana | Memorandum Decision 24A-CR-721 | September 10, 2024 Page 3 of 12 objection to a continuance, the court granted the State’s request that Searing

provide proof to the court of having the heart procedure.

[7] The parties appeared for the scheduled bench trial on January 10, 2024, and

Searing changed his plea in open court, pleading guilty to two counts of Level 6

felony theft without a plea agreement. When the court requested proof of the

heart procedure, Searing’s counsel indicated he would provide it following the

hearing. In discussing the matter, Searing stated to the court that, since the last

court date in November, he had undergone two stent procedures to his heart

and was scheduled for a heart surgery later in January to repair a leaky valve at

St. Vincent’s Heart Center (St. Vincent’s).

[8] At some point prior to the March 6, 2024 sentencing hearing, Searing provided

two documents to the court neither of which was from St. Vincent’s: (1) an

undated EKG report and (2) a medical report, signed by an M.D. and dated

November 16, 2023, concerning an orthopedic injury to Searing’s knee. At the

start of the sentencing hearing, the trial court again asked Searing and his

counsel about the previously-ordered proof of the heart stents and heart surgery.

None was provided.

[9] Searing, who was by then remarried to someone, testified at the sentencing

hearing that he no longer was on medical leave from his employer,

International Electrical Systems (IES), where had he resumed working a couple

of months prior, and that he was also currently working full-time at Walmart

since September 2023. He claimed that, if he were ordered to serve any days of

Court of Appeals of Indiana | Memorandum Decision 24A-CR-721 | September 10, 2024 Page 4 of 12 incarceration, he would lose his anticipated $8,200/month IES pension, which

he anticipated he would start receiving at age sixty-seven. Searing testified as to

ongoing medical issues with his knees and with his heart, stating that he

underwent a stent procedure in January 2024 and was taking twelve

medications to address a leaky heart valve but that surgery was likely. Searing

testified that incarceration would impact his ability to meet his medical needs.

[10] He agreed that he desired to pay $6,300 in restitution to Thomas for using the

$6,300 to buy a motorcycle for himself, which, by some means not clear from

Searing’s testimony, was subsequently “signed [] over” to a woman named

Bobby Delvar, who Searing testified he was dating when he and Thomas “were

hanging out” and who later got a protective order against him. Transcript at

107. He acknowledged that Thomas also gave him $6,000 in cash to use for the

real estate purchase but claimed that the seller wanted more for the property so

“we spent it on things, [Thomas] and I,” and he could not remember how much

of that money he kept. Id. at 109.

[11] Searing stated that if the court would order him to probation, he could borrow

the $6,300 through his IES credit union but that, if he was sentenced to a period

of incarceration, he would not be able to access the credit union and, thus,

would be unable to pay Thomas. He told the court that his 401(k) was drained

due to medical bills.

[12] Searing acknowledged having a criminal history that included convictions for

check deception, felony theft, and conversion. He also acknowledged that he

Court of Appeals of Indiana | Memorandum Decision 24A-CR-721 | September 10, 2024 Page 5 of 12 was currently on probation out of another Indiana county for conversion. In

explaining why he chose to plead guilty to the current offense, Searing testified

that “this has been going on for five years” and he was “tired of putting [his

wife] through this” and desired to “move on with [his] life.” Id. at 96.

[13] Thomas testified about her initial online contact from Searing that resulted in a

brief romantic relationship, which ended after she started asking for receipts and

“figured out what was going on with [her] money.” Id. at 114. Thomas

described additional instances of Searing taking her money and not using it as

agreed or instructed, where he deceived her into buying items for him such as a

truck and a riding lawnmower. Thomas stated that she did not believe Searing

was working and described him as “a user” who “does this to women all the

time.” Id. at 116, 128. Thomas’s opinion was that Searing “needs go to jail.” Id.

at 121.

[14] At the March 6, 2024 sentencing hearing, the trial court found as mitigators that

Searing pled guilty and had a work history but “question[ed] the veracity” of

Searing’s claimed health issues and entirely rejected remorse as a mitigator. Id.

at 135-36. The court found as aggravating Searing’s criminal record, noting that

many of his offenses were crimes of dishonesty. The court sentenced Searing to

one and one-half years on each count, with the sentences to run concurrently,

and, per the parties’ stipulation, ordered him to pay $6,300 of restitution to

Thomas. Searing now appeals.

Court of Appeals of Indiana | Memorandum Decision 24A-CR-721 | September 10, 2024 Page 6 of 12 Discussion & Decision [15] Searing asks us to revise his sentence pursuant to Indiana Appellate Rule 7(B),

which provides that we may revise a sentence authorized by statute if, after due

consideration of the trial court’s decision, we find the sentence inappropriate in

light of the nature of the offense and the character of the offender. We apply a

“holistic approach” to our 7(B) review. Lane v. State, 232 N.E.3d 119, 127 (Ind.

2024) (quoting Connor v. State, 58 N.E.3d 215, 219 (Ind. Ct. App. 2016)). In

determining whether a sentence is inappropriate, we “‘must consider’ both

factors, but the defendant need not ‘necessarily prove’ that the sentence is

inappropriate on both counts.” Id. at 126 (quoting Connor, 58 N.E.3d at 219).

As we assess the nature of the offense and character of the offender, “we may

look to any factors appearing in the record.” Boling v. State, 982 N.E.2d 1055,

1060 (Ind. Ct. App. 2013). The appellate court’s role under Rule 7(B) is to

“leaven the outliers,” and “we reserve our 7(B) authority for exceptional cases.”

Faith v. State, 131 N.E.3d 158, 159-60 (Ind. 2019) (quotation omitted).

[16] Sentencing is principally a discretionary function in which the trial court’s

judgment should receive considerable deference. Cardwell v. State, 895 N.E.2d

1219, 1222 (Ind. 2008). “Such deference 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). Ultimately,

whether a sentence should be deemed inappropriate “turns on our sense of the

Court of Appeals of Indiana | Memorandum Decision 24A-CR-721 | September 10, 2024 Page 7 of 12 culpability of the defendant, the severity of the crime, the damage done to

others, and myriad other factors that come to light in a given case.” Cardwell,

895 N.E.2d at 1224. Searing bears the burden to show that his sentence is

inappropriate. Schaaf v. State, 54 N.E.3d 1041, 1045 (Ind. Ct. App. 2016).

[17] When considering the nature of the offense, the advisory sentence is the starting

point to determine the appropriateness of a sentence. Fuller v. State, 9 N.E.3d

653, 657 (Ind. 2014). Searing was convicted of two Level 6 felonies, the

sentencing range for which is between six months and two and a half years,

with the advisory being one year, and a fine up to $10,000.00. Ind. Code § 35-

50-2-7. The trial court sentenced Searing to concurrent sentences of one and

one-half years in the DOC for each count of Level 6 felony theft and, by

agreement of the parties, ordered him to pay $6,300 in restitution. Searing

argues “a fully-executed sentence above the advisory range was not warranted”

and asks us to revise his sentence to probation only. Appellant’s Brief at 15.

[18] As to the nature of the offense, Searing reached out to Thomas on Facebook at

a time when he knew she was recovering from a traumatizing and life-

threatening incident with her former husband. Searing falsely represented to

Thomas that he was a millionaire and told her he “would like to take care of

[her]”; instead, he stole from her. Transcript at 114. When she started asking for

proof of how he spent her money, he “disappeared” at first, then told her he

had terminal cancer and to “leave him alone because he wanted to die

peacefully.” Id. at 124. We agree with the State that Searing exploited Thomas’s

vulnerable state to develop a relationship with her in order to gain access to her

Court of Appeals of Indiana | Memorandum Decision 24A-CR-721 | September 10, 2024 Page 8 of 12 money and valuables. Searing has failed to provide compelling evidence

portraying the nature of the offense in a positive light.

[19] In considering the character of the offender, we engage in a broad consideration

of his qualities. Madden v. State, 162 N.E.3d 549, 564 (Ind. Ct. App. 2021). A

defendant’s “life and conduct” are illustrative of his character. Id. One relevant

factor to consider is a defendant’s criminal history. Denham v. State, 142 N.E.3d

514, 517 (Ind. Ct. App. 2020), trans. denied. Searing has a criminal history

beginning in 1996 and spanning over two decades, with at least ten charges for

theft or conversion. He was convicted of five felonies and five misdemeanors.

As the trial court observed, many involved crimes of dishonesty. Further, he

was on probation out of another Indiana county at the time of sentencing.

Thomas indicated that, as all this unfolded, she spoke to Delvar, as well as

other women with whom Searing had a past, and learned that he has a pattern

of manipulating women, especially ones that are vulnerable. Such conduct

reflects poorly on his character.

[20] As the State observed, Searing’s conduct during the court proceedings also

reflects poorly on his character. He failed to appear several times. And he

obtained continuances based on claims of needed medical care, yet never

provided requested documentation to the court.

[21] In seeking revision of his sentence, Searing suggests that he expressed remorse.

However, neither Searing’s testimony at the sentencing hearing, nor his written

description of the offense in his presentence investigation report – “I dated a

Court of Appeals of Indiana | Memorandum Decision 24A-CR-721 | September 10, 2024 Page 9 of 12 woman, after I broke up with her, she said I stole from her. But I didn’t most of

the money was spent on her.” – reflect remorse. Appendix at 49. In sum, we

discern no substantial virtuous traits or persistent examples of good character

that would warrant revision of Searing’s sentence.

[22] Searing has not met his burden to demonstrate that his sentence is inappropriate

in light of the nature of the offense or his character.

[23] Judgment affirmed.

Mathias, J., concurs.

Bailey, J., concurs with separate opinion.

ATTORNEY FOR APPELLANT Janet Lynn Thompson Indianapolis, Indiana

ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General

Steven J. Hosler Deputy Attorney General

Timothy M. Hamilton Certified Legal Intern Indianapolis, Indiana

Court of Appeals of Indiana | Memorandum Decision 24A-CR-721 | September 10, 2024 Page 10 of 12 Bailey, Judge, concurring.

[24] Given the egregious nature of the offenses and what is known of the extremely

poor character of the offender, I agree with the majority that Searing’s sentence

should not be revised to the advisory, as he requests. That said, my vote is

accompanied by reluctance. If anything, this sentence is inappropriately

lenient.

[25] I find it very unfortunate that the State did not ask for a harsher sentence.

Considering Searing’s history of numerous crimes of dishonesty, his apparent

dishonesty with the trial court in disclosing his medical history, the extreme

harm to the victim, and Searing’s total lack of effort to pay any restitution by

the time of sentencing (by, perhaps, selling some of the assets he stole), I would

have readily voted to affirm a maximum sentence for Searing. That said, I

acknowledge that the State does not ask us to revise Searing’s sentence upward,

and therefore, we will not do so. See, e.g., Akard v. State, 937 N.E.2d 811 (Ind.

2010).

Although the defendant’s raising of sentence reasonableness on appeal authorizes appellate consideration of whether the assigned sentence is inappropriately stern or lenient, we decline to increase the sentence here, particularly in the context of the State’s request for no greater sentence at trial and its assertion on appeal that such is an appropriate sentence. These are strong indicators that the trial court sentence is not inappropriately lenient.

Id. at 814.

Court of Appeals of Indiana | Memorandum Decision 24A-CR-721 | September 10, 2024 Page 11 of 12 [26] Given our constraints on appeal, I concur.

Court of Appeals of Indiana | Memorandum Decision 24A-CR-721 | September 10, 2024 Page 12 of 12