*1 KOLLAR, Appellant Steven
(Defendant Below),
v. Indiana, Appellee
STATE Below). (Plaintiff
No. 71A03-8906-CR-217. Indiana, Appeals of
Court of
Third District. 25, 1990.
June *2 Lewis, Ka- Lienhoop, Newby,
Mark A. LaPorte, Jones, appellant. for minski & Gen., Pearson, Lisa M. Linley Atty. E. Gen., Paunicka, Atty. Indianapolis, Deputy appellee. for STATON, Judge. by a St. was convicted
Steven Kollar counts Superior jury Court five Joseph theft, felony,1 and one count of a class D influence, felon a class C corrupt business appeal: three issues y.2 Kollar raises sufficient the evidence was 1. Whether his convictions? to sustain effective denied the he was 2. Whether counsel? assistance of in im- erred the trial court Whether 8. his sentence? posing We affirm. shop in operated a coin
Kollar owned LaPorte, Kollar estab- Indiana. percent "one termed a what he lished purchase would whereby customers plan," the coin at maintained silver which silver, the use In return for shop. (1%)interest percent pay one Kollar would plan. participants of to the per month the silver was plan, the terms of Under any mar- price liquidation available Too, could be re- the silver hour. ketable time with any customer at turned notice. proper written 35-45-6-2(a)(3). 35-43-4-2(a). 2. West's AIC 1. West's AIC against Kollar judgment a small claims gold four boxes September $1,864.80. $212,000 were approximately worth coins Despite store. from Kollar's stolen buy Spies agreed to Marla and William until reversal, continued June of May from Kollar 738 ounces silver received several bad when Kollar $5,998.40 at that Spies' paid *3 shop Kollar's coin a coin show. checks at time, by they Kollar that and were told following thereafter. The is shortly closed in two weeks. After could have their silver the transactions Kollar en- synopsis of a passed, Kollar informed the two weeks had during the lifetime of his coin gaged difficulty experiencing Spies that directly which led to his convic- requested more time. buyer with the corrupt of theft and business influ- tions of sil- Spies later received 200 ounces ence. ver, never received the remainder of but approxi- purchase. Their loss was their 6, 1984, February Dennis Gerrard On $4,000.00. mately purchased 100 of silver under the ounces percent plan." purchased He later "one presented at trial witnesses were Several participated per- in the "one re- who had also of silver. Gerrard another ounces payments until monthly his interest ceived plan" cent had never received but shop out of business Kollar's coin went principal investment. One of these wit- month, principal neither his nesses had received The next Gerrard June of 1987. hundred attempted to reclaim his four payments. nor his interest Ad- investment Henrickson, time, expert in ditionally, David an At Kollar ounces of silver. give him several weeks asked Gerrard precious metals deal- the field of coin and the silver. Kollar later tendered obtain ing, it was neither economi- testified that commonly prac- cally accepted why the feasible nor had not been excuses as to silver precious metal dealer to tice for a coin and never received his sil- obtained. Gerrard judgment in small ver. He later obtained pay precious retain metal and the customer $3,000.00. against Kollar for claims court per percent one interest month. percent expert opinion, the "one witness' percent Eggleston entered the "one Jim pyramid scheme and plan" was similar to 1,470 purchase plan" in 1985 with a writing should have "seen the Kollar $9,996.00 Eggleston paid ounces of silver. year in advance. the wall" at least one 1986, early Eggleston for the silver. 254.) (Record 258, Kollar that he wanted out of the advised plan." After numerous de- percent "one L. Kollar, Eggle- lays excuses offered only of silver. ston received 200 ounces Sufficiency $11,162.00. approximately His loss was evidence Kollar first contends that the paid April Frank Horvath On convictions was insufficient to gold 12 ounces of and 800 oune- Kollar for one count of five counts of theft and majority es of silver. Horvath received corrupt influence. To facilitate metals, did not but he receive question orderly review of the of wheth- approximately gold worth ounces supported theft are er Kollar's convictions judg- later received a Horvath $930.00. evidence, clarify by sufficient we must first claims court. against ment small misconception regarding the elements of argu- upon the bulk of Kollar's agreed Bixler April Also in Dean premised. ments are purchase 719 ounces of silver from Kol is defined as: "Theft" $5,024.00 paid Kollar a total of lar. Bixler silver, only received four hun- intentionally exert[ing] for the but knowingly or ... property over of an- unauthorized control (497) ninety-seven ounces of his dred deprive intent requested person, other When Bixler the remain- silver. any part of its value or silver, person other ing gave numerous excuses use ... unavailability. Bixler later its obtained ty of IC exerted: pression (4) 85-48-4-2(a). [*] another creating or in the [*] Control % "unauthorized" confirming a false person; [*] over the [*] [or] if it proper- [*] im- is Miller, under under sion under (2). control For supra (6) certainly creates (1) example, promising in an unintended (4) that vitiates at 171. represents "Promising perform- an exertion a false manner performance any consent impres- under person knows by promising # [*] will not # performance [*] be performed; [*] # performed" not create paragraph ance a "false impression" a "false under since person knows impression" subparagraph proof of the creation definitionally excludes will not be under sub- (6) does *4 anTo performance. future promise of 85-48-4-1(b). the IC considered extent, can be subparagraph convicted charged and Kollar was (4) ends. subparagraph "pick up'" where to i.e., 85-48-4-1(b)(6), theft IC theft under of of Thus, Kollar's contentions disregard we person that the performance "by promising to upon failure based evidence insufficient However, performed." will not be knows existing past or misrepresentation of prove v. that, according to Miller argues Kollar fact. Ind.App., 170, reh. 35 N.E.2d (1989), State 5 by of theft key to the offense prove that denied, must also the State person that performance promising a false or confirmed "created defendant is the intent performed not be knows will pursuant person" in the other impression of control he secures person when of theft prove to 35-48-4-1(b)(4) in order to IC In 172. Miller, supra at property. cor 35-48-4-1(b)(6). As Kollar under IC under this met its burden to have order by out, of a conviction rectly points proven be subsection, must have State 85-48-4-1(b)(4) under IC pretenses false Kollar knew that doubt yond a reasonable misrepresentations showing that requires a his money from procured he at the time made facts were present past to or as per not be promises would that his victim prop of another's gain possession to order reweigh do not appeal, we On formed. Id. subparagraph this under erty. Convictions credibility of wit judge the the evidence misrepresenta upon premised be cannot cases, ex we look sufficiency nature, nesses. promissory tions which to favorable most the evidence clusively to repay loans. Coburn promises as such logically drawn inferences and all the State N.E.2d (1984), Ind.App., 461 v. State evidence If there is substantial therefrom. However, we conclude 1156-1157. the convic probative value of is errone of Miller interpretation tion, affirmed. Jewell under IC be defined it will ous; an offense proof of 959, 964. (1989), require proof 35-48-4-1(b)(6) also does not in IC 85-48-4- defined offense of the evidence argues Kollar 1(b)(4). that he had support a conclusion not does Eggle- and deprive Gerrard intent to any specification Miller, we held at the times silver money or of their ston particular under charge of theft Kollar occurred. separate purchases 35-48-4-1(b) is their sur- ICof subparagraph purchased plans argues that the 1% fatal vari- in a cannot result and plusage prior proof. Gerrard occurred Eggleston and the charge between ance gold $212,000 of worth the theft in- enumerated the various We added business, thus that his from sup- coins control" "unauthorized carnations the time of aware have been they could do because conclusion this ported be unable he would The fol- mutually exclusive. purchases to be purport requests. repayment used to language was honor lowing improvident gold coins were shows the record upon point and was seized this illustrate Eggleston September of stolen forming arguments: his Kollar silver in The record shows that Kollar re requested the return of his Febru accepted money purchasers, from Eg- peatedly ary at which time told promised delivery goods within short comply his re gleston that he would with time, periods purchasers then lulled with August repeated after quest. delivery excuses, why excuses was not had phone calls and attendant delivery purchases. made fractional 1,470 only ounces of produced 200 of the pattern began prior to Kollar's initial This preceded All the al silver owed. financial reversals and continued well after leged financially crippling gold theft of the he should have been aware that his busi Too, failing coins. Kollar's behavior failing. sup ness was This is sufficient to produce Eggleston's principal investment port the inference that Kollar never intend providing numerous excuses for that Horvath, precious ed to deliver the metals distinctly failure was similar to his behav Spies purchased him. Bixler from purchas ior investors who made their These convictions are affirmed. throughout lifetime es business. this, jury From was entitled to infer argues Kollar also that his convie return that Kollar never intended to silver corrupt unsup tion of business influence is placed keep in his under the purchased and ported by the evidence. Kollar contends plan. may proved by Intent be circum 1% that, underlying his because the evidence Anglin evidence. v. stantial State *5 insufficient, corrupt theft convictions is 721, 490 N.E.2d upon business influence based those of cannot stand. As we concluded that fenses pur- argues remaining Kollar that support sufficient to evidence is upon charges his theft chases which were offenses, underlying argument a is receipt prior based occurred However, nullity. argues that Kollar also checks forced the close of his bad which there nonetheless is insufficient evidence June of and thus regarding "pattern racketeering a of activi deprive he intent to was not shown because ty" disagree. to his conviction. We could not have foreseen that circumstance. argues that the financial rever- charged violating Kollar also West's Kollar was gold sals suffered 85-45-6-2(a)(8) which reads: AIC remaining purchases, preceded person employed by A ... who is or prove knowing deprive a intent to did not enterprise, and associated with who larger because he had suffered a reversal knowingly intentionally or conducts or past and had from it com- recovered participates otherwise the activities of unpersuaded. pletely. We are enterprise through pattern a of racketeering activity, ... commits cor- Horvath, Spies purchased Bixler and sil- influence, rupt felony. a Class C gold April May ver and from Kollar in and "pattern racketeering activity" A means: they purchasers of 1987. The were told engaging in at least incidents gold a would receive their silver or within weeks; purchasers' attempts racketeering activity that matter of have same intent, result, accomplice, or similar vie purchas- the full amount of their to recover tim, commission, or or that are method non-payment es were met with excuses for by distinguishing otherwise interrelated preceded post-dated which both inci- characteristics that are not isolated fact, receipt Spies of the bad checks. dents.... eventually money that her had was told pay for been used to "someone else's defining "pattern 85-45-6-1. IC stuff." Record at 281. Hendrickson testi- racketeering" in the context of the federal practice Corrupt Orga- fied that common business would Racketeer Influenced and purchasers placed have the metal with the (RICO), nization Act after which our RICO Supreme one of order. He also testified patterned, within week act is the United States proof that Kollar would have realized that he concluded that of the same Court showing racketeering up required could not meet his commitments to one they predicates are related and amount to year prior purchases. to these activity. trial counsel's contends that Kollar eriminal continued a threat pose or and failure continuances requests for four Bell Tele Inc. v. Northwestern J. H. - prior to Hendrickson depose or interview -, (1989), 109 S.Ct. U.S. Co. phone preparedness which a lack of evidence trial 195; LEd.2d Dellenbach of his defense. the detriment operated to N.E.2d 1309. Ind.App., 508 this court not direct Kollar does 1) is no there contends that: Kollar showing that trial specific instances plan percent one showing that the two try the case unprepared to was counsel purchases and the three transactions attempt to show trial or it went to when no 2) there was "related"; en have interview would pretrial criminal of continued showing a threat cross-examine to better trial counsel abled closed his business activity since defi fails to show Hendrickson. closing. after occurred no transactions coun part of trial on the performance cient relationship is established A disagree. We therefrom, resulting prejudice sel com- case in this predicates between assist ineffective has not shown therefore payment accepting thread of mon counsel. ance of the met- delivery of metals, promising or on of time period short als within trial, trial counsel During the course of parts all or demand, failing deliver to add Robert leave granted Kollar was of continued The threat purchases. de- for the expert witness Rush as an L. lengthy duration activity is shown proved to be what counterpoint fense to shop coin closing of the prior to scheme testimony by State's expert unfavorable to continue intention stated and Kollar's present Rush was Hendrickson. witness multi- proved The State business. the coin trial, but day of the second testify on of racke- pattern acts and a predicate ple Rush trial recessed. called before therefore activity. The evidence teering the follow- appear subpoenaed *6 corrupt busi- of convict Kollar to sufficient No appear. did not day and in fact ing influence. ness testimony offered was expert defense. II. ineffective assistance Kollar claims Counsel Assistance of Ineffective to sub failure trial counsel's in of counsel he was secondly contends Kollar Rush argues that Kollar Rush. poena counsel. of assistance effective
denied tes Hendrickson's have contradicted would claim, must over this prove order in customary practices concerning timony competence strong presumption come a and metal business precious coin and strong and Only counsel. part of on position provide thus pre will overcome convincing evidence clients were by his losses suffered that the Ind., (1984), 465 Terry v. State sumption. than rather judgment poor due for coun The standard N.E.2d intent to steal. ef reasonably is that performance sel's proffer Kollar by prevail substance as measured fective assistance testify Rush would that at trial was made v. State norms. ing professional Wickliffe position, Hendrickson's contrary to that 1387. Isolat Ind., N.E.2d (1988), 523 belong- metal precious dealers retain some mistakes, tactics or bad strategy, poor ed thereon. pay interest and others ing to necessarily establish do not inexperience testify Rush would Terry, that stated counsel. Kollar also assistance ineffective precious had lent himself ineffective Hendrickson claim that A successful supra. interest. charged people to other metal when a is established of counsel assistance admitted himself per However, Hendrickson attorney's his shows defendant per- that, the one while cross-examination his de deficient was formance accepted busi- commonly plan was per cent poor counsel's prejudiced fense economically feasible it was practice, ness (1988), 527 Lopez v. State formance. high volume consistently 1119, 1129. where N.E.2d light in occurred. We cannot conclude that Rush's sonable of the nature of the testimony significantly have added would offense and the character of offend- addition, practice to this revelation. er. offering one-percent plan itself was not manifestly A sentence is not unrea- Rather, on trial. it was the person unless no manner sonable reasonable placed which utilized the metals appropriate find could such sentence possession plan result under this which particular offense and offender ed several of his theft convictions. imposed. such sentence nothing suggest There is that Rush following judge identified the testify it would that was common business mitigating practice percent" plan to offer a "one pronouncing sentence: customers and then fail to return their The Court has considered matters in agree pursuant silver to the terms of the aggravation mitigation and finds ment. In order to ascertain whether trial young person, the defendant is a deficient, performance counsel's we physical there was no violence. These totality must look to the of the evidence to mitigation. are matters determine whether there is a reasonable partici- Court finds that defendant errors, probability that but for counsel's pated long enduring in a scheme to de- different. the outcome would have been portions public fraud who were Ind.App., Messer investing comprised persons who were 249, 253, denied, reh. trans. de typically savings their fu- toward previously light nied. of the evidence the future of their children ture or summarized, we cannot conclude particular the Court finds scheme testimony Rush's have altered the would preyed saving involved which on the in- jury's the time Kollar conclusion persons vestments of these is a matter in transactions,
{entered questioned into Moreover, aggravation. the Court finds did not intend to return the silver to its pattern lulling defendant's rightful owners. encouraging victims while other new vie- aggravation. tims is matter TIL. finds further that the Court amounts of
Sentencing particularly by Eg- losses suffered Mr. Finally, Kollar contends that the trial Spees gleston, Mr. Bixler and the [sic] *7 1) imposing by: court sentence erred significant together are amounts mitigating failing to consider certain cir- timing with the of the losses that was cumstances; 2) considering improp- several defendant, by the are matters occasioned cireumstances; 3) aggravating imposing er aggravation. The Court finds that the im- an unreasonable and excessive term of aggravation outweigh matters the 4) prisonment; ordering restitution mitigation. matters in entering requisite findings. We without form, complex 112-118. Record at regard sentence to his affirm Kollar's simplified purposes, trial court for our allegations of error remand first three but presumptive then sentenced Kollar to: findings regarding entry for Kollar's years by years term of five enhanced three ability pay restitution and establishment aggravating corrupt for cireumstances for performance. of the manner influence; presumptive two addressing regarding pro- claims II years for his Count theft convictionto be sentence, corrupt priety by are concurrently with his busi- we bound served standard of review set forth in Indiana conviction; presumptive ness influence Procedure, 17(B) Appellate Rules for Rule years theft two for each of his convictions which states: V, II to be served under Counts through consecutively corrupt influ- reviewing court will not revise a to his other; by except statute ence conviction and to each and the sentence authorized manifestly presumptive years enhanced two
where such sentence is unrea-
943 T(a)(2). This is sufficient circumstances aggravating years and consecutive the enhanced imposition After Count VI under conviction (1986), sentence, v. State this See Henderson portions of sentences. suspending ("[when the record Ind., 72 489 N.E.2d sentence an executed court entered trial engaged in imprisonment. judge the trial years indicates that sixteen simply did not processes but the evaluative trial court Kollar contends en- reasons for sufficiently articulate his mitigating the additional to consider failed the record indicates hancing sentence and indigent, re he was circumstances mani- imposed was not the sentence record, had morseful, criminal prior no had unreasonable, purposes un- then the festly age since built his business requirement have specificity derlying the un reputation outstanding business had satisfied"). been began to fail. til his business in sen discretion has broad the trial court his sentence was contends acknowledge required tencing and is severity of financial disproportionate ar mitigating cireumstances adopt all case, citing Cun losses suffered in v. Hammons State by a defendant. gued (1984), Ind.App., 469 v. ningham State 1250, 1255, reh. Ind., N.E.2d (1986), 493 denied, denied, trans. reh. N.E.2d case, the In this denied, 496 N.E.2d Cunning proposition. of this favor the addi considered judge apparently trial an executed ham, given the defendant circumstances mitigating alleged tional prison years of 16 sentence persuaded are not insignificant. We be stamps obtaining food illegally crimes of regard. in this his discretion he abused con The defendant's (theft) perjury. con the trial court contends Kollar also disclose his failure to upon rested victions factors as improper sidered Noting that the income sources. outside claims Specifically, Kollar cireumstances. case in that charged as felonies crimes that he to consider improper it was as misdemean frequently prosecuted "long enduring scheme" in a participated of the over and in view in this state ors ele they are "pattern" because that was cireumstances, which whelming mitigating influence corrupt business of his ments had defendant that the the fact included (1987), Ind. Linger v. State conviction. See support, on him for dependent five children also claims 56. He App., mani that the sentence concluded we timing of the "amount and finding that the light of the offense festly unreasonable improper be significant" losses was conclude the cannot offender. We and the does generality which it is a cause us. in the case before same re offenses particular specify why enumer- John sentence. See St. an enhanced quired significant court, including the ated N.E.2d 1353. investors, lost three money amounts of these conten not address We need lulling certain victims pattern *8 the trial court merits because on their tions invest, and theft encouraging more while identified future, investing in the money saved sentence. support sufficient from those apart crimes place these Kollar: de findings that court's stamps is of food The theft Cunningham. public who were of the "portions frauded crime. a victimless what is considered investing who were persons comprised a directed toward us crimes before savings their future toward their typically por- significant lost people who number children"; lulled cer or the future security at Kollar's future tions of their encouraging others to victims while tain sentence cannot consider We hands. significant amounts invest; stole light of this manifestly unreasonable partic victims constitute money from those fact. regarding the nature findings ularized and the as contends Finally, Kollar crimes committed cireumstances erred trial court 85-38-1- AIC concedes by West's State contemplated 944 1984, 81, ordering pay 17, him restitution vice- December silver on December paid the and June 1985. Kollar determining whether he was
tims without specifying until he went out of making percent restitution or one interest capable of 85-88-2-2(a)(5) re payment. manner of IC business, but he did not deliver the silver that, reparation by or quires purchased when restitution Gerrard. Gerrard obtained here, probation, $3,000 a condition of as which Kollar owed judgment and ... support court "shall fix the amount ... him. There is no evidence to The trial court performance." manner Kollar, inference that at the time Gerrard purchases, knew he would be ability made the must also determine the defendant's ordered. pay the amount of restitution Instead, to deliver the silver. unable (1983), Ind.App., 455 Maxwell v. State that time Kollar had evidence shows that at sources In fail ample income from other business trans. denied. findings, the trial court ing to enter such percent The one purchase the silver. abused its discretion. plan only part of Kollar's business. percent testified that the one Hendrickson affirmed. The cause The convictions are years, plan for several but that could work instruc- is remanded to the trial court with plan known the would Kollar should have ability to tions to ascertain the defendant's year collapsed. it at least a before work pay- fix manner of make restitution purchase Gerrard made his last ment. years in 1985-two before charge involving failed. Unlike the GARRARD, J., concurs. no evidence or reason- Egglestons, there is MILLER, J., part dissents with that Kollar knew inference therefrom able separate opinion. be unable to deliver Gerrard's would MILLER, Judge, dissenting. purchases. made the silver when Gerrard (1984), Ind.App., 461 1 and 8. See Coburn v. State I dissent on issues (a misrepresentation to fu- N.E.2d 1154 as First, I there was insufficient evi- believe events, promissory char- ture acts or on support dence to Kollar's conviction acter, support will not a conviction for II, predicate offenses Count one of Therefore, theft). I the con- would reverse Second, (racketeering). underlying I Count II. viction on Count circumstances recited support the trial court of enhanced I, corrupt I would also reverse on Count improper- sentences are both consecutive influence, (RICO) because the evi- of elements of the merely restatements support a conviction dence is insufficient to insufficiently particu- charged crimes-and on II. To sustain a conviction on Count larized. finding by jury Count I there must be racketeering of at least two incidents of II, charged Kollar was Count 85-45-6-2(a)(8). activity. IC this case Theft occurs theft from Dennis Gerrard. general judgment and we do not we have a prop an accused secures control over when predicate jury offenses the know which two promising performance erty another supporting as the conviction for considered performed. the accused knows will not be I. Count key in is the IND.CODE 35-48-4-1. time he secures of the accused at the
tent Federal cases which have examined property. Miller v. control of State holding that a RICO con issue Ind.App., N.E.2d 170. Count II racketeering multiple 5 predicated viction exerting unauthorized charges Kollar with acts cannot stand where the evidence *9 specific property on control over Gerard's legally any underlying the acts is one of prior to the failure dates. Each date was is unable to de insufficient and the court of Kollar's business. for the acts formed the basis termine which (3rd Cir. percent plan on RICO conviction. U.S. v. Vastola entered the one Gerrard 6, 1984, February by buying 100 ounces of 211; (3rd 1990) F.2d U.S. v. Brown 899 denied, Cir.1978), 659, cert. 440 purchases of 583 F.2d made additional silver. He
945
456 cient
consecu-
1217,
support enhancement
59 L.Ed.2d
99 S.Ct.
U.S.
example, Campbell
For
sentences.
tive
(1979).
(1990), Ind.App., 551 N.E.2d
v. State
the situa
is identical
present case
The
manager
the defendant
Brown,
defendants
supra. The
tion in
campus stole
University-Kokomo
Indiana
of mail fraud
of four counts
convicted
were
University
pe-
over a
$257,908.00
the
from
statu
federal RICO
the
counts of
and two
court found
years. The trial
of five
riod
reversed two
Appeals
of
te.1 The Court
circumstances:
following aggravating
the
mail fraud
of
be
counts
predicate
of the
defendant,
The court
L.
evidence.
Richard
the
cause of insufficient
1. That
trust
position of
stating:
violated his
Campbell,
counts
the RICO
then reversed
University;
the
within
might
relied
case
have
in this
Jury
The
mail
two
5 or 6
Counts
on either
[the
Campbell
violated a
Richard L.
2. That
found
for which we have
trust and confidence
position of
fraud
counts]
reaching
its ver-
evidence
community;
insufficient
within the local
had created
18 and
under
guilty
Counts
dict of
Richard
crimes to which
That
3.
Accordingly,
racketeering counts].
[the
Guilty
a multi-
pled
have
Campbell has
of both
the convictions
must reverse
we
University,
victims, (Le. Indiana
tude of
two counts.
under these
defendants
teachers,
tax-
and
administrators
fellow
omitted).
(footnote
Indiana,
repu-
Id. at 669-670
of
of the State
payers
University, and last but
remained
of Indiana
in Brown there
tation
We observe
offenses
underlying predicate
students);
least,
proper
the RICO
supported
have
could
which
Further,
Richard
crime to which
4.
and, still,
reversed.
the court
charges;
Guilty was
has been found
Campbell
in-
case,
jury
was
where
present
plan
secrecy. That it was
committed
predi-
only two
to find
it needed
structed
involved
others which
to deceive
part of a
as
were committed
offenses
cate
pat-
Campbell of a
building by Richard
two of-
know which
scheme,
cannot
we
University and
within the
of trust
tern
as the basis
jury
found
fenses
continuing pattern
community and was
would,
there-
I
racketeering
conviction.
that trust.
of violation
this issue.
fore,
remand on
reverse
three rea
the first
majority held that
The
sentencing.
the issue of
I also dissent
circumstanc
aggravating
proper
sons were
majority concludes:
the crime
es,
fact
but
findings
Kollar: de-
not,
court's
because
secrecy
committed
were
public who
of the
"portions
involving
frauded
"substantially all crimes
investing
were
persons
who
comprised
secrecy." committed
forgery are
fu-
savings
toward
typically their
argued that
dissent, Judge Sullivan
children";
future of their
very
ture or
"the
essence
trust
is
violation
encouraging
citing
Lin
forgery,"
victims while
of theft
certain
the acts
lulled
invest;
significant
stole
others
Ind.App.,
ger
victims
money from those
amounts
theft from
held that
this court
in which
findings regard-
particularized
constitute
proper
not a
employer
circumstances
argued:
nature and
ing the
also
Judge Sullivan
circumstance.
contemplated
as
committed
crimes
in translat
erred
further
trial court
35-38-1-7(a)(2).
is suf-
This
AIC
West's
or sense
outrage
moral
ing the inferred
imposition
support the
ficient
geographi-
within
disappointment
sentences.
consecutive
enhanced
into a con-
communities
academic
cal and
948).
disagree.
I
(Maj. opinion
actual
groups
these
clusion
Such
offenses.
the eriminal
victims
has exhibited
First,
this court
I note that
every crime
stating that
non-statutory
tantamount
identifying
some confusion
sen-
enhanced
carry an
should
committed
suffi-
are
1962.
§
18 U.S.C.
*10
people
use
funds to invest
society
who
borrowed
all
is the victim
tence because
protection
to
that those
less entitled
who
crime.
savings? There is no evidence
use their
Sullivan,
agree
Judge
Although I
with
people who were in-
targeted
that Kollar
problem
is illustrative of
Campbell
In
vesting
savings.
all theft cases
reviewing non-
court when
by this
faced
money
deprived
victim is
or
statutory aggravating circumstances.
for oth-
property which he could have used
essentially
from the
ad hoc
problem stems
of theft are
purposes.
er
While all victims
I
circumstances.
be-
of such
consideration
deprived
property,
of their
the value
general
a
this court should articulate
lieve
irrelevant.
they place
property
such
determining
propriety of non-
rule for
may
A victim
be far more distressed
In
statutory
aggravating
circumstances.
wedding ring,
grandmother's
theft of his
support enhanced or consecutive
order to
television,
no
than the theft of a
but this is
aggravating
circumstance
sentences
justification
imposing
greater
a
sen-
normally associated with
one not
should be
ring. To do so
tence for the theft of the
our
This court and
charged.
crime
highly unpredictable
sen-
would result
this
generally followed
supreme court have
tencing
solely on the trial court's
based
explana-
rule,
requires further
however it
property
perception of the value of
has held that
supreme court
tion. Our
the victim.2
of the crime
recitation of a element
mere
or consecutive
justify
enhanced
does
court also found that Kollar's
encourag-
lulling victims while
sentences. Townsend
"pattern of
also,
supra.
Linger,
Id. at served be better society would family, and recited an merely Here, court has the trial long term of given a if Kollar was charges. of the element spe- did not trial court incarceration. these letters cifically mention found that court Finally, the trial In report. presentence However, this is attached "significant." losses were supreme our may Townsend, It mean finding. supra, particularized anot mitigat- find "Failure to explained: court involved a substantial losses supported clearly when circumstances ing mean that may it money or amount of give rise to reasonably may the record for the financial difficulties caused losses overlooked, hence they were belief to consider If we were victims. Here, is no there properly considered." money taken as amount considered trial court indication circumstance, worse it would be then cireumstanc- mitigating and the letters than $50,000 a multimillionaire from steal that the suggests This in them. liv- es recited elderly person from an $50.00 to steal mitigating cireum- court overlooked trial if we security. ing on social stances. impact on the victim consider security recipient social from the of $50.00 ag- nothing in the conclusion, I find spell the difference worse, may it as by the trial given gravating hungry. going eating and between oth- apart from crime sets court which are imposed addition, addition, the sentences type. same crimes er miti- circum- to consider has failed with the court the trial inconsistent court supported example, the trial For given. gating circumstances stances of loss suffered amount found that Therefore, I dissent. record. signifi- Spies Bixler and Eggleston, Kollar to however, cant; it sentenced three charge, and Eggleston on the
years Bixler on the respectively, years, four fact despite charges Spies greater substantially lost Eggleston Spies. Bixler or either than amount to two sentenced also trial court charge the Gerrard concurrent years money than more lost though Gerrard
even sentence) (consecutive Horvath
both