Opinion
24A-CR-851
09-18-2024
Kenneth Eugene Tharpe, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff.
ATTORNEY FOR APPELLANT Ruth A. Johnson Freetown, Indiana ATTORNEY FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Katherine A. Cornelius Deputy Attorney General Indianapolis, Indiana
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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Pulaski Superior Court The Honorable Crystal A. Kocher, Judge Trial Court Cause Nos. 66D01-2211-F6-172 66D01-2211-F6-178
66D01-2211-F6-179 66D01-2212-F6-185
ATTORNEY FOR APPELLANT Ruth A. Johnson Freetown, Indiana
ATTORNEY FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Katherine A. Cornelius Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
Baker, Senior Judge.
Statement of the Case
[¶1] Kenneth Eugene Tharpe pleaded guilty to six counts of Level 6 felony theft, disposing of four cases against him. He appeals, contending the trial court abused its discretion by failing to consider Tharpe's guilty plea and his remorse as mitigating factors during sentencing. Concluding that the trial court nonetheless would have imposed the same sentence, we affirm.
Facts and Procedural History
[¶2] Tharpe owned Tharpe Garage Doors, a garage door installation company. In each of the four cases against Tharpe, he was charged with theft of deposits given to him for work he never completed. The details about the events leading to each of those charges follows.
[¶3] In case number 66D01-2211-F6-172 (case 172), the victims, Brenda Krulik and her husband, paid Tharpe over $50,000.00 to install nine commercial-quality garage doors. Tharpe cashed the payment, but did not order or install the doors. The Kruliks waited for over a year for Tharpe to install the doors before hiring and paying someone else to complete the work. Over the course of the year before the work was completed, the inside of the building was damaged by birds and sand. The waiting and having to hire someone else caused a strain on their budget and caused additional stress. They felt that they had been unfairly penalized by their attempt to support a local business owner.
[¶4] Dale Pelsey was another victim identified in case 172. He paid Tharpe $14,650.00 to install new garage doors in his pole building in March 2023. Tharpe cashed the checks, but he did not order the doors or perform any work. Pelsey needed the garage doors installed on that building because he was moving supplies and equipment from another location to be stored there. By November and early December 2023, water started to seep into the building, risking damage to the building's heated floors. Ultimately, Pelsey had to pay to have the door openings framed in and insulated to preserve the building from further damage.
[¶5] Trent Krulik, the Kruliks' son, was the victim in case number 66D01-2211-F6-178 (case 178). Trent paid Tharpe $3,100.00 to install garage doors. Trent confronted Tharpe after he failed to install the doors. Tharpe lied to him by blaming production issues, and by representing that the doors would be delivered in a couple of weeks. The difficulties associated with Tharpe's failures and lies caused him stress. And Trent testified that he suffered the additional financial stress of purchasing doors from another installer and by not being able to use his building for a year. During that year, the building was open to the elements with sand entering the storage facility and settling onto equipment stored inside. The investigation into the allegations in case 178 led to the revelation that Tharpe had multiple transactions for over $100,000 at area casinos.
[¶6] Dalton Tunis was another victim identified in case 178. He paid Tharpe $3,100.00 on September 2, 2022 to install a new garage door on the addition to his house. Tunis did not have contact with Tharpe again until November 8, 2022, when Tharpe explained that the door was ordered from Safe Way Garage Doors and the work would be completed by December 2, 2022. Tunis contacted Safe Way Garage Doors to ask about his order. Around November 14, someone with Safe Way Garage Doors informed Tunis that there was no order in his name, nor was there any record of a payment for the same. Tharpe did not complete the job.
[¶7] Brandon Vansickle was the victim in case number 66D01-2211-F6-179 (case 179). Vansickle paid $3,932.25 to Tharpe for the installation of new garage doors for his house, but Tharpe did not perform any work. He waited fifteen to sixteen months for the work to begin, during which time, one garage door fell on his wife's car while she was cleaning it, and the cables on the second one broke on the Saturday prior to Tharpe's sentencing hearing. Vansickle could not afford to hire someone else to do the work.
[¶8] Harvey Gutwein was the victim in case number 66D01-2212-F6-185 (case 185). Gutwein paid Tharpe $10,165.00 for garage doors. Tharpe presented a receipt to Gutwein, indicating that the doors had been ordered; however, the doors had not been ordered, and Tharpe did not perform any work. Gutwein testified that he had to leave the building open to the elements until he could hire another company to install the doors.
[¶9] After he was charged, Tharpe absconded while on pretrial release from December 7, 2022 to March 8, 2023.
[¶10] On March 12, 2024, Tharpe pleaded guilty as charged. The sentencing range for a Level 6 felony is a fixed term of between six months and two and one-half years, with an advisory sentence of one year. Ind. Code § 35-50-2-7(b) (2019). Tharpe pleaded guilty to six counts of Level 6 felony theft involving six victims and resolving the four cases against him. He faced a maximum sentence of fifteen years.
[¶11] The court sentenced Tharpe to an aggregate sentence of ten years executed at the Department of Correction. Tharpe received the maximum sentence for each count charged against him. However, the sentences imposed for the two counts in cases 172 and 178 were to be served concurrently. Otherwise, the sentences for cases 172, 178, 179, and 185 were to be served consecutively to each other. And the sentences imposed under case 179 and case 185 could be served on work release should Tharpe be found eligible. The court also ordered Tharpe to pay restitution to his victims.
Discussion and Decision
[¶12] Tharpe appeals from the court's sentencing order, contending that the trial court abused its discretion by failing to find his remorse and his guilty plea as mitigating factors.
[¶13] "Sentencing decisions rest within the sound discretion of the trial court."
Hudson v. State, 135 N.E.3d 973, 979 (Ind.Ct.App. 2019). "An abuse of discretion will be found where the 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." Id. "A trial court may abuse its discretion in a number of ways, including: (1) failing to enter a sentencing statement at all; (2) entering a sentencing statement that includes aggravating and mitigating factors that are unsupported by the record; (3) entering a sentencing statement that omits reasons that are clearly supported by the record; or (4) entering a sentencing statement that includes reasons that are improper as a matter of law." Id.
[¶14] "The finding of mitigating factors is not mandatory and rests within the discretion of the trial court, and the trial court is not required to accept the defendant's arguments as to what constitutes a mitigating factor." Williams v. State, 997 N.E.2d 1154, 1163 (Ind.Ct.App. 2013). "Further, the trial court is not required to give the same weight to proffered mitigating factors as the defendant does, nor is it obligated to explain why it did not find a factor to be significantly mitigating." Id. at 1163-64.
[¶15] "In reviewing a sentencing decision in a non-capital case, we are not limited to the written sentencing statement but may consider the trial court's comments in the transcript of the sentencing proceedings." Corbett v. State, 764 N.E.2d 622, 631 (Ind. 2002). And an allegation that the court failed to identify or find a mitigating factor requires the defendant to establish the mitigating factor is significant as well as clearly supported by the record. Anglemyer v. State, 868 N.E.2d 482, 493 (Ind. 2007), clarified on reh'g, 875 N.E.2d 218 (2007).
[¶16] Tharpe argues the trial court abused its discretion by failing to consider his remorse as a mitigating factor. Our supreme court has found "the court's [remorse] determination to be similar to a determination of credibility." Pickens v. State, 767 N.E.2d 530, 535 (Ind. 2002). "Without evidence of some impermissible consideration by the court, we accept its determination of credibility." Id.
[¶17] During Tharpe's allocution, he expressed regret for what he had done to the victims. He also stated that he did not challenge any of the charges, instead wanting to admit to his wrongdoing. He also apologized to the victims who were present at the sentencing hearing. His final comment was that he "would love to get back to work, and I am willing to do what I can to get everybody rectified." Tr. Vol. 2, p. 99.
[¶18] In its oral sentencing statement, when speaking of Tharpe's remorse, the court discounted that mitigating factor. The court observed, "You absconded. You were provided with the opportunity to go out and continue working and provide to these individuals, who you have indicated that you wish to repay, and that you regretted doing this to. You were provided the opportunity to do that on the front end, and you did not do that. You took off, and I am not sure exactly where you were, but you certainly were not making restitution to these individuals." Id. at 106. As a result, the court stated it did not assign "much weight" to Tharpe's remorse as a mitigating factor. Id.
[¶19] Consequently, we cannot say that the court did not find or consider Tharpe's alleged remorse as a mitigating factor. That mitigating factor was advanced and discussed with the court ultimately concluding it was not entitled to much weight. Thus, Tharpe has not demonstrated that his remorse was a significant factor. As the trial court noted, instead of using his pretrial release as an opportunity to pay restitution to the victims, he absconded. Therefore, we accept the trial court's credibility determination and, finding no impermissible considerations, find no error.
[¶20] Next, Tharpe maintains that the trial court abused its discretion by failing to consider his guilty plea to all charges as a mitigating factor. We agree that the court should have recognized Tharpe's guilty plea as a mitigating circumstance. "[A] defendant who pleads guilty deserves 'some' mitigating weight be given to the plea in return[.]" McElroy v. State, 865 N.E.2d 584, 591 (Ind. 2007). However, even if the trial court abused its discretion in this regard, remand for resentencing is unnecessary "if we can "say with confidence that the trial court would have imposed the same sentence had it properly considered reasons that enjoy support in the record." Anglemyer, 868 N.E.2d at 491.
[¶21] The trial court found Tharpe had an extensive criminal history involving crimes of dishonesty. In August 2000, he pleaded guilty to one count of Class A misdemeanor conversion with restitution ordered in the amount of $900.00. In August 2022, Tharpe pleaded guilty to two separate counts of Class A misdemeanor check deception and was ordered to pay restitution in both cases. In 2005, he pleaded guilty to one count of Class B misdemeanor battery resulting in bodily injury and was placed on probation. He also pleaded guilty to one count of Class A misdemeanor check deception and was ordered to pay restitution in the amount of $732.05 in 2005 or 2006.
[¶22] In 2015, Tharpe was charged with Level 6 felony check fraud, but the matter was dismissed. In 2019, Tharpe resolved two counts of Class B misdemeanor home improvement fraud by entering into a pretrial diversion agreement. In 2023, he pleaded guilty to one count of Level 6 felony fraud and was ordered to pay restitution in the amount of $24,449.50. Tharpe also had cases pending in Starke County at the time of sentencing.
[¶23] The trial court found that his prior criminal history in large part consisted of crimes of dishonesty. The court also found the harm, injury, loss, or damage suffered by the victims of his offenses was significant and greater than the elements required to prove the commission of the offenses. Additionally, the court found that he had recently violated the conditions of probation, parole, or community corrections placement, or pretrial release.
[¶24] "A single aggravating circumstance may be sufficient to enhance a sentence." Hackett v. State, 716 N.E.2d 1273, 1278 (Ind. 1999). Here, the trial court identified several valid aggravators. Any one of the aggravating circumstances, and all of them combined, supports Tharpe's enhanced sentence.
[¶25] Therefore, even though the trial court should have given some mitigating weight to Tharpe's guilty plea, we can say with confidence that the trial court would have imposed the same sentence had it noted Tharpe's guilty plea in its written sentencing order.
Conclusion
[¶26] In light of the foregoing, we affirm the trial court's judgment.
[¶27] Affirmed.
Vaidik, J., and Foley, J., concur.