Willie Bontempo v. State of Indiana (mem. dec.) ( 2015 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), Dec 03 2015, 5:29 am
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
John C. Bohdan Gregory F. Zoeller
Deputy Public Defender Attorney General of Indiana
Fort Wayne, Indiana
Karl M. Scharnberg
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Willie Bontempo, December 3, 2015
Appellant-Defendant, Court of Appeals Case No.
02A03-1505-CR-446
v. Appeal from the Allen Superior
Court
State of Indiana, The Honorable Frances C. Gull,
Appellee-Plaintiff Judge
Trial Court Cause No.
02D06-1412-F5-125
Baker, Judge.
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[1] Willie Bontempo appeals the sentence he received for Level 5 Felony Failure to
Register.1 He asks us to revise his sentence. Finding his sentence not
inappropriate, we affirm.
Facts
[2] On August 15, 2005, Willie Bontempo was convicted of child molesting and
sentenced to ten years. He was released on parole, and on November 14, 2014,
he registered his address as a room at a local Holiday Inn. Police went there to
check that that was his place of residence, but the owner informed them that
Bontempo had stayed there for only one night. On November 24, Bontempo
was arrested on an unrelated warrant and was asked about his residence.
Initially, he said he had moved out of the room less than three days prior—
which would have put him within the 72-hour safe harbor period for a change
in principal residence, Ind. Code § 11-8-8-8(c)—but when confronted with the
knowledge that he had only stayed there for one night, he conceded that he was
in violation of his sex offender registration requirements. App. at 15.
[3] On March 23, 2015, Bontempo pleaded guilty, without the benefit of a plea
agreement, to failure to register as a sex offender, a Level 5 felony. At the April
23, 2015, sentencing hearing, the trial court heard testimony that this was not
Bontempo’s first failure to register—“The first time it was intentional, he went
on the run,” sent. tr. 9—and that the first failure to register and underlying child
1
Ind. Code § 11-8-8-11.
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molestation convictions were not his only criminal history: he has three juvenile
adjudications that would have been felony convictions if committed by an
adult. In addition to the adult convictions of child molesting and the first
failure to register, Bontempo had also been convicted of possession of
marijuana, and he was on probation at the time of the instant offense. Against
these aggravators, the trial court weighed the mitigators of the “plea of guilty,
[the] acceptance of responsibility, and the family support” Bontempo presented
at the hearing. Id. at 15. The trial court sentenced him to the advisory sentence
of three years executed. Bontempo now appeals.
Discussion and Decision
[4] Bontempo has one argument on appeal: that his sentence is inappropriate.
Indiana Appellate Rule 7(B) provides, “The Court 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.” The principal role of such review is to
attempt to leaven the outliers, but not to achieve a perceived “correct” sentence.
Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). Sentencing is principally a
discretionary function in which the trial court’s judgment should receive
considerable deference. Id. at 1222.
[5] Turning to the nature of Bontempo’s offense, we concede that his offense of not
registering was not particularly grave. This was not a case of being
unregistered, or fraudulently registered, for years; this was a matter of days. Up
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until November 2014, Bontempo had properly registered his previous places of
residence. On the other hand, his previous compliance with the registration
duties shows that he knew what was required of him. Moreover, it is not as if
Bontempo turned himself in; he only came into the custody of the police after
being arrested on an unrelated warrant.
[6] Turning to Bontempo’s character, we find substantial reasons not to reduce his
sentence. He has an extensive juvenile record, including three adjudications
that would have been felonies if committed by an adult. In addition, he has
previously been convicted of failure to register. Moreover, he was on probation
at the time he committed the instant offense.
[7] As the conjunction in Rule 7(B) makes clear, we can only find a sentence
inappropriate in light of both the nature of the offense and the character of the
offender. Even if the nature of Bontempo’s offense is not particularly grave, his
character and criminal history sufficiently justify the trial court’s decision to
sentence him to the advisory sentence of three years. While we might have
sentenced him differently, sentencing is primarily the job of the trial court, and
the trial court did not abuse its discretion.
[8] The judgment of the trial court is affirmed.
Bradford, J., and Pyle, J., concur.
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