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09/08/87 DAVID A. WILLIS v. STATE INDIANA

Filed: September 8, 1987.

DAVID A. WILLIS, APPELLANT (DEFENDANT BELOW),
v.
STATE OF INDIANA, APPELLEE (PLAINTIFF BELOW)



APPEAL FROM THE PORTER SUPERIOR COURT The Honorable Roger V. Bradford, Judge, Cause No. 85-PSCr-49.

Staton, J.; Garrard, P.j., Concurs in Result; Buchanan, J., Concurs.

Author: Staton

STATON, J.

David A. Willis appeals his conviction for theft, a class D felony, and the determinate prison term of two (2) years. This appeal raises six issues:

1. Whether the trial court committed reversible error when it imposed the presumptive sentence of two (2) years for a class D felony.

2. Whether the trial court committed reversible error when it did not grant a mistrial.

3. Whether the trial court committed reversible error when it allowed into evidence testimony regarding a prior offense committed by the defendant.

4. Whether the trial court committed reversible error when it allowed into evidence testimony regarding an attorney's utilization of trust accounts and general accounts.

5. Whether the defendant was denied a fair trial because law books and periodicals were located in areas accessible to the jury.

6. Whether the trial Judge committed reversible error when he refused to recuse himself.

We affirm.

In August, 1981, David Willis was employed by Carol Durkin (Carol) to represent her three (3) children in litigation over her former deceased husband's life insurance proceeds. As a result of that litigation, on November 19, 1984, checks were issued to Carol's children, Steven and Lydia,[Footnote 1] in the amount of fourteen thousand eight hundred eighteen dollars and forty-six cents ( $14,818.46) each and mailed to Willis for distribution. Willis also received a check for attorney's fees in the amount of four thousand five hundred twenty-seven dollars and eighty-six cents ( $4,527.86).

On November 30, 1984, Willis printed Steve's name, as well as his own, on the check payable to Steve and deposited it into his trust account.[Footnote 2] Also on November 30, 1984, Willis transferred eight hundred eleven dollars and fifty-four cents ( $811.54) from his general account into his trust account, making a total deposit of fifteen thousand six hundred thirty dollars ( $15,630.00) into his trust account that day.[Footnote 3]

On December 1, 1984, Willis wrote a check, from his trust account, payable to the Chesterton State Bank in the amount of fifteen thousand five hundred ninety-four dollars and sixteen cents ( $15,594.16). This check was delivered pursuant to a plea agreement entered into between Willis and the State on August 31, 1984. The plea agreement arose from a check deception charge filed against Willis on March 30, 1984. Under the agreement, the check deception charge would be dismissed if Willis made restitution within ninety (90) days, otherwise, he would be convicted of check deception and would be imprisoned for thirty (30) days.

Willis had never reached Carol or Steve to let them know the lawsuit had been settled and that he had the checks. However, Steve found out and appeared in Willis' office on February 18, 1985 to get his check. Willis wrote a check to Steve from his trust account for the sum of fourteen thousand eight hundred eighteen dollars and forty-six cents ( $14,818.46). After Steve deposited the check, it was returned to him due to insufficient funds. On April 8, 1985, after Steve had sent a letter to Willis demanding payment, Steve received a cashier's check for fifteen thousand five hundred dollars ( $15,500.00).

I. Sentence

The first issue Willis raises is: after finding no mitigating circumstances and considering Willis's status as a former attorney, did the trial court commit reversible error by imposing a presumptive sentence of two (2) years?[Footnote 4]

The Indiana Rules for the Appellate Review of Sentences Rule 2 provides:

(1) The reviewing court will not revise a sentence authorized by statute except where such sentence is manifestly unreasonable in light of the nature of the offense and the character of the offender.

(2) A sentence is not manifestly unreasonable unless no reasonable person could find such sentence appropriate to the particular offense and offender for which such sentence was imposed. (Emphasis supplied.)

Fointno v. State (1986), Ind., 487 N.E.2d 140, 144. Willis contends that the sentence of two (2) years for him is manifestly unreasonable because the trial Judge failed to consider mitigating circumstances. However, at the sentencing hearing, the trial Judge specifically found that there were no mitigating circumstances. A finding of mitigating factors is made within the discretion of the trial court. Stark v. State (1986), Ind., 489 N.E.2d 43, 48. When a defendant argues mitigating circumstances to a trial court, the sentencing Judge is not obligated to explain why he has chosen not to make a finding of mitigation. Hammons v. State (1986), Ind., 493 N.E.2d 1250, 1254.

Willis also contends the sentence is manifestly unreasonable because the trial Judge considered his status as a former attorney[Footnote 5] when determining the sentence. In Hiller v. State (1980), Ind.App., 412 N.E.2d 293, 294, this court affirmed an aggravated sentence where the trial Judge found as an aggravating factor that the defendant was an attorney in a fiduciary position of trust and was an Officer of the Court. It would make no sense to say that the trial Judge may ...


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