Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT:
ATTORNEYS FOR APPELLEE:
PETER L. BOYLES
Martz & Boyles
Valparaiso, Indiana
STEVE CARTER
Attorney General of Indiana
MARA McCABE
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
HERBERT STEPHERSON, JR.,
Appellant-Defendant,
vs.
STATE OF INDIANA,
Appellee-Plaintiff.
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No. 64A03-0607-CR-338
APPEAL FROM THE PORTER SUPERIOR COURT
The Honorable Roger V. Bradford, Judge
Cause Nos. 64D01-0304-FC-2936 and 64D01-0508-FB-6925
May 14, 2007
MEMORANDUM DECISION - NOT FOR PUBLICATION
CRONE, Judge
Case Summary
Herbert Stepherson, Jr., 1 appeals his sentence imposed following a plea agreement in
which he pled guilty to class D felony theft and admitted that he violated probation. We
affirm.
Issue
Stepherson raises one issue, which we restate as whether his sentence is inappropriate
in light of the nature of the offense and his character.
Facts and Procedural History
In January 2003, Stepherson was the secretary/treasurer for the International
Longshoremen’s Association Local 2038. Appellant’s App. at 4. Stepherson deposited four
checks totaling $7800, forged in the name of Valerie Thill, into the union’s “Beta Growth”
account and then withdrew $5150. Id.
On April 8, 2003, the State charged Stepherson with class C felony forgery and class
D felony theft under cause number 64D01-0304-FC-2936.
On February 28, 2005,
Stepherson entered into a written plea agreement with the State, in which he pled guilty to
forgery and the State dismissed the theft charge. Id. at 38. Pursuant to the plea agreement,
the parties would argue sentencing with the restriction that any incarceration would be
capped at two years. Id. The trial court sentenced Stepherson to four years in the
Department of Correction with all but ninety-one days suspended. Id. at 46. Stepherson
1
According to the presentence investigation report, appellant’s name on the charging information
was given as “Herbert E. Stepherson, Sr.” but his true name is “Herbert Elmer Stepherson, Jr.” Appellant’s
App. at 134. Herbert E. Stepherson, III, is appellant’s son. Id. at 141.
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received credit for one day served prior to sentencing, and the remaining ninety days were to
be served on home detention. Id. The trial court placed Stepherson on formal probation for
the suspended portion of his sentence, subject to the normal and usual conditions of
probation. Id.
On July 29, 2005, Stepherson had been released from home detention and was living
in an apartment that shared a common living area with Charles Gajewski. Id. at 51-2. Based
on a prior arrangement with Zachary Duis, Stepherson left the door to Gajewski’s residence
unlocked so that Duis could enter to steal cash and other items. Id. Duis stole $2800 in U.S.
currency and two wristwatches. Id. Stepherson received $1000 from the theft, which he
used to bond his son out of jail. Id.
On August 17, 2005, the State charged Stepherson with class B felony aiding in
burglary under cause number 64D01-0508-FB-6925. Based on this charge, a petition to
revoke probation was filed in cause number FC-2936. On May 22, 2006, Stepherson entered
into a plea agreement disposing of both causes: he pled guilty to class D felony aiding in
theft in cause number FB-6925 and admitted that he violated probation in cause number FC2936. Id. at 91. The plea agreement permitted the parties to argue sentencing without
restriction. Id.
At the change of plea hearing in cause number FB-6925, the trial court advised
Stepherson that he could be sentenced from six months to three years for class D felony
aiding in theft. Change of Plea Tr. at 7. The trial court also informed him that all or part of
his previously suspended sentence could be imposed for his probation violation and that “it is
required by statute that any sentence for the aiding in a theft must run consecutive to any
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sentence imposed on the probation revocation.” Id. at 8. 2
On June 26, 2006, the trial court sentenced Stepherson to two years’ imprisonment for
class D felony aiding in theft. For the probation revocation, the trial court ordered him to
serve the three years that had been previously suspended, consecutive to the sentence for
theft. Stepherson appeals.
Discussion and Decision
Stepherson asserts that his sentence is inappropriate. Article 7, Section 6 of the
Indiana Constitution authorizes this Court to review and revise criminal defendants’
sentences pursuant to the rules of our supreme court. Indiana Appellate Rule 7(B) provides
that we “may revise a sentence authorized by statute if, after due consideration of the trial
court’s decision, the Court finds that the sentence is inappropriate in light of the nature of the
offense and the character of the offender.” Our review under Appellate Rule 7(B) is
extremely deferential to the trial court. Pennington v. State, 821 N.E.2d 899, 903 (Ind. Ct.
App. 2005).
In arguing that his sentence is inappropriate, Stepherson focuses entirely on his
character, completely ignoring the nature of the offenses. 3 He argues that he had led a lawabiding life for eighteen years prior to committing the offense in cause number FC-2936, but
2
See Ind. Code § 35-50-1-2(d) (requiring consecutive terms where, after being arrested for one
crime, a person commits another crime before he or she is discharged from probation, parole, or a term of
imprisonment imposed for the first crime).
3
Given the paucity of Stepherson’s argument, it would not be unreasonable to find that it is waived.
See Ind. Appellate Rule 46(A)(8)(a) (requiring that argument be supported by coherent reasoning); Davis v.
State, 835 N.E.2d 1102, 1113 (Ind. Ct. App. 2005) (observing that failure to present a cogent argument
constitutes waiver of issue for appellate review), trans. denied. We address Stepherson’s claim due to our
preference to resolve cases on their merits.
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we cannot ignore that he has three prior misdemeanor convictions (one for theft and two for
bad checks) and two burglary convictions that are similar in nature to his most recent
offenses. Appellant’s App. at 133. All are crimes of dishonesty that suggest an opportunistic
and deceitful character. His references to his on-the-job injury, drug addiction, and job loss
are unfortunate, but they do not excuse his behavior. Essentially, his argument can be boiled
down to the fact that he completed the Porter County Jail forty-five-hour chemical
dependency and addictions program. His completion of the Porter County jail addictions
program is a laudable first step, but whether this accomplishment accurately reflects his
character is unclear given that he had previously been ordered to complete drug counseling
and had not done so.
Regarding the nature of the offenses, we note that Stepherson had been recently
released from home detention and was on probation when he took advantage of his living
arrangements to assist the theft from his neighbor. He also took advantage of his position as
secretary/treasurer for the local longshoremen’s union, thereby betraying the trust that had
been placed in him. In sum, the five-year aggregate sentence is not inappropriate.
Affirmed.
SULLIVAN, J., and SHARPNACK, J., concur
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