ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
ANGELA WARNER SIMS STEVE CARTER
Hulse Lacey Hardacre Austin & Shine, P.C. Attorney General of Indiana
CHRISTOPHER L. LAFUSE
Deputy Attorney General
COURT OF APPEALS OF INDIANA
H. ERSKINE CHERRY, )
vs. ) No. 48A04-0109-CR-417
STATE OF INDIANA, )
APPEAL FROM THE MADISON CIRCUIT COURT
The Honorable Fredrick Spencer, Judge
Cause No. 48C01-0101-CF-2
July 10, 2002
OPINION - FOR PUBLICATION
BROOK, Chief Judge
Appellant-defendant H. Erskine Cherry (Cherry) appeals his sentence for his convictions for one
count of Class C felony theft,
two counts of Class D felony theft,
and one count of Class C felony corrupt business influence.
in part and vacate in part.
Cherry raises four issues for our review, which we restate and reorder as
I. whether the trial court abused its discretion by failing to find Cherrys guilty
plea as a mitigating factor;
II. whether the trial court abused its discretion by failing to accord Cherrys lack
of criminal record sufficient weight as a mitigating factor;
III. whether Cherrys fourteen-year sentence is manifestly unreasonable; and
IV. whether the trial court abused its discretion in calculating Cherrys restitution.
Facts and Procedural History
Cherry was admitted to the Indiana bar in 1971. On October 21,
1997, he received $120,241.79 from client Janice Schulte (Schulte). Cherry told Schulte
that he would invest this money in a nonexistent company called Dajan Inc.
and promised Schulte that her investment would return 1.25% per month, or 15%
per annum. Instead, Cherry used the money to pay business bills.
On March 18, 1998, and June 4, 1998, Schulte gave Cherry checks for
$10,000.00 and $5000.00, respectively, thinking that Cherry would deposit them in a trust
fund for her son. Instead, Cherry cashed these checks and applied the
proceeds toward a business venture.
The State charged Cherry with one count of Class C felony theft, two
counts of Class D felony theft, and one count of Class C felony
corrupt business influence. On July 9, 2001, Cherry pled guilty to all
four counts. On August 29, 2001, the trial court sentenced Cherry as
[Cherrys counsel has] articulated every possible mitigating circumstance and most of them I
dont think are applicable. They could be but I dont know
that there is evidence that would justify my finding them to be mitigators.
There is in fact a mitigating factor that Mr. Cherry has had
a long distinguished period of productive work life. I know of my
own knowledge that he served honorabl[y] in the military. And I believe
he did and he was honorably discharged. That is a mitigator.
He was [an] elected public servant and while not everybody will agree with
some of his decisions, he generally acquitted himself well. He has no
prior criminal history.
[T]he aggravators are that he [h]as a repeated pattern
of theft of funds entrusted to him for good and worthy purposes.
And he violated the most sacred trust that there can be.
clearly feel that the aggravating circumstances outweigh the mitigators.
Alright, [Cherry] plead guilty to theft as a C in count I, he
is sentenced to the Indiana Department of Corrections for a period of eight
(8) years. He plead guilty to theft [as] a D in Count
II, he is sentenced to the Indiana Department of Corrections for a period
[t]hree (3) years. And on Count III, he is sentenced
to the Indiana Department of Corrections for theft, three (3) years. All
sentences to run consecutively for a total of fourteen (14) years. Count
IV, Corrupt Business Influence, he is sentenced to the Indiana Department of Corrections
for a period of eight (8) years. Count IV is to run
concurrently with Counts I, II and III. Restitution in the amount of
two hundred and twelve thousand dollars ($212,000.00) is ordered repaid. There is
no fine. He is ordered to pay the costs. [T]here is
[a] nine hundred fifty dollars ($950.00) cash bond. I would like to
order that paid over to Mrs. Schulte today.
Appellants App. at 25, 27-28.
Discussion and Decision
The trial court apparently based its restitution order on the $222,527.56 that Schulte
requested in her victim impact statement minus $10,000.00 in payments that Cherry had
made to Schulte prior to sentencing. On September 25, 2001, Cherry asked
the trial court to recalculate its restitution order. After a hearing on
January 14, 2002, the trial court credited Cherry for the $950.00 bond and
entered judgment on restitution of $211,050.00. Cherry now appeals.
I. Guilty Plea
Cherry contends that the trial court erred when it failed to find his
guilty plea as a mitigating circumstance. Trial courts are granted broad discretion
in imposing sentences, including the consideration of aggravators and mitigators, and we will
reverse a sentencing decision only for an abuse of that discretion. See
Davies v. State, 730 N.E.2d 726, 741 (Ind. Ct. App. 2000), trans. denied.
When enhancing a sentence, the trial court must set forth a statement of
its reasons for selecting a particular punishment.
See id. Specifically, the
court must (1) identify all significant aggravating and mitigating circumstances, (2) explain why
each circumstance is considered aggravating or mitigating, and (3) show that it evaluated
and balanced the circumstances. See Payne v. State, 687 N.E.2d 252, 255
(Ind. Ct. App. 1997). At least one aggravating factor is required to
impose an enhanced or consecutive sentence, and the same factor may both enhance
a presumptive sentence and justify consecutive sentences. Miller v. State, 716 N.E.2d
367, 371 (Ind. 1999) (citation omitted). Finding the existence of mitigating circumstances
is within the discretion of the trial court. Beason v. State, 690
N.E.2d 277, 283 (Ind. 1998). Furthermore, [t]he sentencing court is not required
to place the same value on a mitigating circumstance as does the defendant.
Id. at 283-84.
Indiana courts have recognized that a guilty plea is a significant mitigating circumstance
in some circumstances.
Trueblood v. State, 715 N.E.2d 1242, 1257 (Ind. 1999).
Nevertheless, this determination is necessarily fact sensitive, and not every plea of
guilty is a significant mitigating circumstance that must be credited by a trial
Id. Cherry argues that the trial court should have found
his guilty plea as a mitigating circumstance because it saved the State the
time and expense of preparing a case and conducting a trial; because it
spared Schulte the stress of a trial; and because it showed his acceptance
of responsibility for his crimes. See Appellants Br. at 9.
Indiana courts have often addressed these three considerations in determining whether a trial
court should have found a guilty plea to be a mitigating circumstance.
One recent case contains the following analysis:
While a guilty plea is not enough to prove remorse, it can show
an acceptance of responsibility for ones actions. Certainly, the plea saves court
time and spares the victims family the trauma of a trial. Where
the State reaps a substantial benefit from the defendants act of pleading guilty,
the defendant deserves to have a substantial benefit returned.
As for a guilty plea showing acceptance of responsibility, the court in
[v. State, 655 N.E.2d 506, 511 (Ind. 1995),] considered this circumstance as at
least partially confirm[ing] the mitigating evidence regarding ... character.
Sensback v. State, 720 N.E.2d 1160, 1164-65 (Ind. 1999) (some citations omitted, ellipsis
II. Lack of Criminal Record
Based on the record before us, we are not convinced that Cherry deserves
a substantial benefit in return for pleading guilty. First, it does not
appear that Cherrys trial would have been very costly in either time or
resources. Second, although Schulte was spared the added stress of a trial[,]
Appellants Br. at 9, we do not believe that Schultes stress would have
been significant. Finally, although Cherry claims that he accepted responsibility upon his
first contact with law enforcement[,]
id., he fails to mention that, when confronted
by Schultes counsel prior to police involvement, he wrote Schulte two $5000.00 checks
that were returned for insufficient funds. In conclusion, we cannot say that
the trial court abused its discretion in not finding Cherrys guilty plea to
be a mitigating circumstance.
Cherry contends that although the trial court identified his lack of criminal history
as a mitigating factor, the trial court failed to give any weight to
this factor and could not have given [Cherrys] lack of criminal record any
weight whatsoever. Appellants Br. at 7. Cherry cites Loveless v. State,
642 N.E.2d 974, 976 (Ind. 1994), for the proposition that a lack of
criminal record is a factor that deserves substantial mitigating weight.
As mitigators, the trial court found that Cherry had a long distinguished period
of productive work life[,] that he served honorabl[y] in the military[, that he
was an] elected public servant [who] generally acquitted himself well[, and that he
had] no prior criminal history. Appellants App. at 25. As aggravators,
the trial court cited Cherrys repeated pattern of theft of funds entrusted to
him for good and worthy purposes and his violat[ion of] the most sacred
trust that there can be[.]
Id. at 26.
There is no indication that the trial court failed to give Cherrys lack
of criminal record the substantial mitigating weight that it deserved. The trial
court found that the aggravators outweighed the mitigators, and although it did not
indicate the relative weight it assigned to each mitigator or aggravator, it was
under no obligation to do so.
Cf. Hollen v. State, 761 N.E.2d
398, 401 (Ind. 2002) (To the extent that the State requests that we
confirm that a trial court judge is not obligated to assign to each
aggravating circumstance a specific proportional weight, we do so.). The two aggravators
the trial court found in the instant case, particularly the violation of a
clients trust by an attorney, are serious and deserve to be accorded substantial
weight. In the absence of a clear indication that the trial court
failed to accord Cherrys lack of criminal record substantial mitigating weight, and in
light of the serious aggravators found by the trial court, we cannot conclude
that the trial court abused its discretion.
III. Manifestly Unreasonable Sentence
Cherry further contends that his fourteen-year sentence is manifestly unreasonable. We will
not revise a sentence that is authorized by statute unless the sentence is
manifestly unreasonable in light of the nature of the offense and the character
of the offender. As our appellate courts have stated numerous times, the
issue is not whether in our judgment the sentence is unreasonable, but whether
it is clearly, plainly, and obviously so. Louallen v. State, 755 N.E.2d
672, 678 (Ind. Ct. App. 2001) (quoting Ind. Appellate Rule 17(B), now App.
Cherry was an attorney in a fiduciary relationship with Schulte, a childhood friend
who was in poor health. As the trial court noted, Cherry violated
the most sacred trust that there can be by stealing Schultes life savings,
which she needed for medical expenses and to establish a trust fund for
See Appellants App. at 20. Given the nature of
the offenses and Cherrys character, we cannot conclude that his fourteen-year sentence is
clearly, plainly, and obviously unreasonable.
Cherry contends that the trial courts $211,050.00 restitution order is an abuse of
discretion. He argues that a trial court is not authorized to include
pre-sentence interest in a restitution order, and, in the alternative, that a trial
court should be limited to ordering pre-sentence interest no greater than that allowed
by the civil prejudgment interest statute. See Ind. Code § 34-51-4-9 (The
court shall compute the prejudgment interest at the simple rate of interest determined
by the court. The rate set by the court may not be
less than six percent (6%) per year and not more than ten percent
(10%) per year.).
As mentioned above, the trial court apparently based its restitution order on the
restitution Schulte requested in her victim impact statement minus payments Cherry made to
Schulte prior to sentencing:
plus 1.25% monthly interest
from October 27, 1997, to sentencing on
August 29, 2001
$10,000.00 plus 8% annual interest
from March 1998 to sentencing
8% annual interest from June 1998 to sentencing
fee for two insufficient-funds checks
written by Cherry to Schulte
credit to Cherry for amount received from condominium foreclosure
that he handled for Schulte
restitution Schulte requested = $222,527.56
(the trial court used $222,000.00 as gross restitution)
bond surrendered to Schulte
payments from Cherry
net restitution = $211,050.00
Indiana Code Section 35-50-5-3 governs restitution orders and provides in relevant part that
[t]he court may order the person convicted of an offense under IC 35-43-9
[e.g., theft] to make restitution to the victim of the crime. The
court shall base its restitution order upon a consideration of the amount of
money that the convicted person converted, misappropriated, or received, or for which the
convicted person conspired.
An order of restitution is within the trial courts discretion and will be
reversed only upon finding an abuse of discretion.
Kellett v. State, 716
N.E.2d 975, 980 (Ind. Ct. App. 1999). The purpose behind an order
of restitution is to impress upon the criminal defendant the magnitude of the
loss he has caused and to defray costs to the victim caused by
the offense. Carswell v. State, 721 N.E.2d 1255, 1259 (Ind. Ct. App.
Neither party has directed us to an Indiana case that addresses the issue
of pre-sentence interest with respect to criminal restitution orders, and we have been
unable to find one. Although the State has directed us to a
number of foreign decisions addressing the issue, we conclude that we need not
venture outside Indiana law to address this question of first impression.
We note initially that an order of restitution is as much a part
of a criminal sentence as a fine or other penalty.
State, 737 N.E.2d 771, 779 (Ind. Ct. App. 2000), trans. denied (2001).
Because restitution is penal in nature, the restitution statute must be strictly construed
against the State to avoid enlarging [it] by intendment or implication beyond the
fair meaning of the language used. State v. Shelton, 692 N.E.2d 947,
949 (Ind. Ct. App. 1998). Because Indiana Code Section 35-50-5-3 does not
specifically authorize a trial court to include pre-sentence interest in a restitution order,
we conclude that a trial court may not do so.
Neither does Indiana Code Section 35-50-5-3 authorize as restitution the $500.00 fee for
insufficient-funds checks written by Cherry to Schulte or the $8,338.54 credit to Cherry
for services rendered to Schulte on an unrelated matter. We note that
neither party challenges the inclusion of either amount in the trial courts restitution
calculations. However, a restitution order is part of the sentence, and [i]t
is the duty of the appellate courts to bring illegal sentences into compliance[.]
Golden v. State, 553 N.E.2d 1219, 1223-24 (Ind. Ct. App. 1990), trans.
denied (citation and quotation marks omitted). There is no statutory basis for
the inclusion of the insufficient-funds fee in the restitution calculations, and the credit
plainly has nothing to do with Cherrys thefts.
The trial court abused
its discretion by including these amounts in its restitution calculations.
We recalculate Cherrys restitution as follows:
amount Cherry received from Schulte in October 1997
amount Cherry received from Schulte
in March 1998
amount Cherry received from Schulte in June 1998
gross restitution = $135,241.70
surrendered to Schulte
payments from Cherry to Schulte
net restitution = $124,291.70
In conclusion, we affirm Cherrys sentence and vacate the trial courts order of
restitution. Pursuant to Indiana Appellate Rule 66(C)(10),
we enter a restitution order
Affirmed in part and vacated in part.
SHARPNACK, J., and FRIEDLANDER, J., concur.
Ind. Code § 35-43-4-2.
Footnote: Ind. Code § 35-45-6-2.
Footnote: A panel of this court has held that the trial court
is compelled to find that pleading guilty is a valid mitigator. Madden
v. State, 697 N.E.2d 964, 969 (Ind. Ct. App. 1998) (emphasis added), trans.
denied. The Madden court cited Singer v. State, 674 N.E.2d 11, 18
(Ind. Ct. App. 1996), for this proposition. However, Singer does not compel
a trial court to consider a guilty plea as a mitigating circumstance; it
merely recognizes that a trial court may consider a guilty plea as a
mitigating circumstance. See id. (We also recognize that pleading guilty may be
considered as a valid mitigating circumstance.) (emphasis added). The Singer court also
opined (correctly, in our view) that [i]f a reviewing court were to place
too much emphasis on a guilty plea as a mitigator, then defendants who
exercised their constitutional rights to jury trials would be precluded from benefiting from
such a mitigator, and therefore, would indirectly be punished for exercising a constitutional
The amount of this check appears variously in the record as
$120,241.79 and $120,241.70. Schulte used the latter amount in her calculations.
This is the rate of return that Cherry promised Schulte on
her investment in Dajan Inc.
Footnote: The record does not indicate why Schulte requested 8% interest on
the $10,000.00 and $5000.00 checks.
Footnote: Cherry apparently attempted to begin repaying Schulte the money he took
from her, but the checks he wrote to Schulte were returned for insufficient
funds. We note that if the restitution order does not fully compensate
Schulte for her loss, including any loss she sustained because of the insufficient-funds
checks, she may still pursue a civil action against Cherry. Indiana Code
Section 35-50-5-3(e) provides that [a]n order of restitution under subsection (a) or (i)
does not bar a civil action for
damages that the court did
not require the person to pay to the victim under the restitution order
but arise from an injury or property damage that is the basis of
restitution ordered by the court [or] other damages suffered by the victim.
Footnote: Indiana Appellate Rule 66 provides in relevant part that [t]he Court
may, with respect to some or all of the parties or issues, in
whole or in part
grant any other appropriate relief.