from the Ripley Circuit Court The Honorable Ryan King,
Special Judge Trial Court Cause No. 69D01-1601-F6-20
ATTORNEY FOR APPELLANT Leanna Weissmann Lawrenceburg, Indiana
ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General
of Indiana Tyler G. Banks Deputy Attorney General
[¶1] Steven Linville appeals following
his convictions of three counts of Level 6 felony
theft and three counts of Level 6 felony making
or delivering a false sales document. He argues his fifteen-year
sentence is inappropriate and the order that he pay $98,
310.30 in restitution is "obvious error." (Br. of
Appellant at 12.) We affirm in part, and we reverse and
remand in part.
and Procedural History
For about sixteen years, Linville was employed by Laughery
Valley AG (hereinafter, "Laughery Valley"). On
behalf of Laughery Valley, Linville delivered fuel, oil,
washer fluid, and antifreeze to about four hundred customers.
In 2015, Laughery Valley began to suspect that Linville had
been issuing false receipts to customers so that he could
steal money from the payments due to Laughery Valley. When
Laughery Valley confronted Linville, he admitted he took the
On January 29, 2016, the State filed thirty-four counts
against Linville for events occurring on seventeen separate
dates between October 6, 2014, and October 21, 2015.
Seventeen of the counts alleged Linville committed Level 6
felony theft because he "sold property belonging to
Laughery Valley AG to Bob's Service Station and accepted
a check totaling [date-specific amount]. Steven D. Linville
did not turn the funds over to the Laughery Valley AG."
(Appellant's App. Vol. 2 at 14, 15, 16, 17, 18, 19, 20,
21, 22, 23, 24, 25, 26, 27, 28, 29, 30.) Seventeen other
counts alleged Linville, on the same dates as the seventeen
thefts, "delivered a false receipt to Bob's Service
Station for property belonging to Laughery Valley AG."
(Id. at 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41,
42, 43, 44, 45, 46, 47.)
On October 23, 2017, Linville entered an agreement whereby he
would plead guilty to three counts of Level 6 felony
theft and three counts of Level 6 felony
delivering a false sales document,  in exchange for the State
dismissing the remaining twenty-eight counts. The agreement
left the sentence for each count to the Court's
discretion but required all counts be served consecutively.
Finally, the agreement provided: "Defendant shall pay
restitution to Laughery Valley AG. The restitution amount
shall be determined by the Court following a Restitution
Hearing." (Id. at 119.)
On October 24, 2017, the trial court accepted that agreement,
entered those six convictions, and ordered the production of
a presentence investigation report. The victim impact
statement filed by Laughery Valley indicated that, between
May of 2011 and November of 2015, Linville "stole at
least $369, 426.59 worth of sales proceeds through his
scheme." (Id. at 127.) At sentencing, Linville
argued the court could not order him to pay more than $35,
729.00, based on the six counts to which Linville pled
guilty. The trial court entered lengthy findings in support
of its sentencing decision:
I. Under the terms of the Plea Agreement, Defendant faces a
minimum sentence of 3 years and a maximum sentence of 15
years (180 days to 910 days on each count), with a total
Advisory Sentence of 6 years.
II. The Defense asked for a sentence of probation or
community corrections. The Prosecutor asked for a sentence of
15 years with 5 years suspended.
III. The AGGRAVATING FACTOR(S) are as follows:
a. The facts and circumstances of the crime go far beyond
that necessary to prove Level 6 Felony Thefts. The offenses
to which the Defendant pleaded guilty could have been proven
by Defendant having stolen just a few thousand dollars. The
facts of this case show that the Defendant stole tens of
thousands of dollars that he was charged with and the
evidence further shows that he had been stealing from the
victim well before the period for which he was charged. These
facts are substantially more egregious than what would be
necessary to prove the commission of the six Level 6
felonies. The significant value of the Defendant's theft
is an aggravating factor of great weight.
b. Defendant violated a position of trust. First, Defendant
violated his employer's trust when he, on many occasions,
misappropriated the employer's property knowing his
employer had entrusted him to provide a service to their
customers. Second, Defendant violated the trust of
his employer's customers. Because the Defendant violated
the position entrusted to him to serve as the middle-man
between his employer (the victim herein) and a significant
number (approximately 350-400) of customers, the Court
considers this two-prong violation of trust to be a
significant aggravating factor of great weight.
c. Defendant committed the crime of theft outside the times
alleged in this Cause. Defendant is charged with committing
crimes within a very narrow window of time; specifically, the
theft of over $98, 000 over the period of one year (October
2014 to October 2015). Defendant held his position for
Laughery Valley for several years and other thefts, not
brought within this case, were committed. The Court also
recognizes that this aggravator is a basis for not affording
the Defendant's lack of criminal history more weight,
otherwise, this aggravator would have been heavier.
Therefore, the Court considers this an aggravating factor and
affords it moderate weight.
d. Defendant's actions have damaged Laughery Valley's
business reputation in the community. According to Keith
Everheart [sic], Laughery Valley has lost customers due to
the Defendant's actions. Further, customers of Laughery
Valley, not alleged victims herein, appeared in the court
room at sentencing, as they believe that they too have been
wronged by the Defendant's actions. The damage done to
the victim from the wedge driven by the Defendant between the
victim and its customers is palpable. The Court gives this
aggravating factor moderate weight.
The MITIGATING FACTOR(S) are as follows:
a. Defendant lacks criminal history. Although the
Defendant does not have any previous convictions, the Court
finds this mitigating factor should be viewed within the
light that the evidence (Everhart testimony, Main PC, and
Boring Letter) shows that he had committed numerous offenses
over the course of many years against the victim herein.
Although Defendant is only charged with the commission of
crimes occurring between October 2014, and October 2015, the
evidence shows thefts over the course of years. While the
Court recognizes that the Defendant has no previous criminal
convictions, the Court also recognizes that Defendant had
been victimizing Laughery Valley for years before October of
2014. Therefore, the Court does not give this mitigating
factor much weight.
b. Defendant shows remorse for the commission of the offense.
Defendant recognizes that his crimes have embarrassed certain
persons that had nothing to do with his criminal enterprise.
The Court recognizes this as a mitigating factor, but because
he's now before the Court for sentencing under the terms
of a favorable plea agreement, the Court does not believe
this factor to be of substantial weight. Further, it appears
that the Defendant is more remorseful for humiliating other
persons and himself than he is remorseful for stealing from
the victim. Therefore, this is a mitigating factor, but not
of substantial weight.
V. Defendant's guilty plea is not a mitigating factor
because he already received a benefit of a Plea Agreement;
namely the dismissal of 28 counts. This was a significant
benefit to the Defendant.
(App. at 129-30 (emphases in original) (formatting altered).)
The trial court found the aggravators "significantly
outweigh" the mitigators, (id. at 130), and
imposed a fifteen-year sentence with three years suspended to
probation. The court also ordered Linville to "pay
restitution to Laughery Valley . . . in the amount of $98,
310.30." (Id. at 131.)
Linville then filed a motion to correct error that challenged
both his sentence and the restitution order. He argued the
court "relied on aggravating circumstances that are not
supported by the record or are improper as a matter of
law." (Id. at 138.) As to restitution, Linville
asserted the court's ruling was "incorrect as a
matter of law. Under Indiana law the restitution order could
not have exceeded $35, 729.00." (Id.) The trial
court denied Linville's motion to correct error in a
lengthy order that will be quoted where relevant to the
issues raised on appeal.
Linville appeals from the denial of his motion to correct
error. We generally review the trial court's grant or
denial of a motion to correct error for an abuse of the trial
court's discretion. State v. Johnston, 65 N.E.3d
1061, 1062 (Ind.Ct.App. 2016). An abuse of discretion has
occurred if the trial court's decision is "clearly
against the logic and effect of the facts and circumstances
before the court, or the reasonable, probable, and actual
deductions to be drawn therefrom." State v.
Collier, 61 N.E.3d 265, 268 (Ind. 2016) (quoting
McElfresh v. State, 51 N.E.3d 103, 107 (Ind. 2016)).
If, however, the issues raised on appeal are pure questions
of law, we review those issues de novo.
Johnston, 65 N.E.3d at 1062.
Linville first argues his fifteen-year sentence is
inappropriate. Pursuant to Indiana Appellate Rule 7(B), we
"may revise a sentence authorized by statute if, after
due consideration of the trial court's decision, [we]
find that the sentence is inappropriate in light of the
nature of the offense and the character of the
offender." As we conduct our review, we give
"substantial deference" to the decision of the
trial court. Knapp v. State, 9 N.E.3d 1274, 1292
(Ind. 2014), cert. denied 135 S.Ct. 978 (2015).
"The principal role of appellate review should be to
attempt to leaven the outliers . . . but not to achieve some
perceived 'correct' result in each case."
Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.
Ultimately the length of the aggregate sentence and how it is
to be served are the issues that matter. In the vast majority
of cases, whether these are derived from multiple or single
counts, involve maximum or minimum sentence, and are
concurrent or consecutive is of far less significance than
the aggregate term of years. And whether we regard a sentence
as appropriate at the end of the day turns on our sense of
the culpability of the defendant, the ...