The Indiana Court of Appeals upheld a woman’s 36-month sentence for theft after it found the self-improvements she made were not enough to justify a lesser sentence.
Tricia A. Davis Williams pleaded guilty to Class D felony theft after she admitted to embezzling money from H&R Construction Services LLC. In a plea deal, a habitual offender charge against her was dropped. At her trial, Williams said she had tried to improve herself since her arrest, seeking mental health counseling and becoming a faith-based counselor. She was also a Mary Kay agent and the primary caregiver for her 3 ½-year-old child.
She asked for a three-year sentence on home detention, but the trial court sentenced her to three years in the Department of Correction.
She appealed the sentencing decision and the state cross-appealed, saying she couldn’t challenge the decision because she agreed not to in her plea agreement. Specifically, the state said because Williams agreed her plea was not an open plea, she was foreclosed from challenging her sentence on direct appeal.
The COA disagreed, saying the terms of her agreement are in conflict and therefore it is ambiguous with respect to her right to appeal. The COA construed the agreement going against the state, citing Russell v. State, 34 N.E.3d 1223, 1227 (Ind. 2015). Because of that, it was an open plea, and the COA will not deny hearing her appeal.
Williams claimed the court abused its discretion by not considering mitigating circumstances, specifically the efforts she took to improve herself since her arrest. The court said it can look at the placement to see if it was correct, but would not review for an abuse of discretion.
The COA said Williams’ sentence was correct after it looked at her credibility. Williams said she had changed her ways, but she had violated a term of trust previously because H&R Construction had already fired her once for embezzling funds. The second time she embezzled over and over again, writing checks to herself and claiming overtime she did not work. Psychological services did not work as well. Plus, her crimes took conscious planning and action over a lengthy period of time.
The case is Tricia A. Davis Williams v State of Indiana, 29A02-1506-CR-258.