Jackie Pratt v. State of Indiana ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jun 21 2019, 8:09 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Mark S. Lenyo Curtis T. Hill, Jr.
South Bend, Indiana Attorney General of Indiana
Lauren A. Jacobsen
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jackie Pratt, June 21, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-3099
v. Appeal from the St. Joseph Circuit
Court
State of Indiana, The Honorable John E. Broden,
Appellee-Plaintiff. Judge
The Honorable Andre B.
Gammage, Magistrate
Trial Court Cause No.
71C01-1302-FC-9
Najam, Judge.
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Statement of the Case
[1] Jackie Pratt appeals the trial court’s restitution order and his sentence following
his conviction for nonsupport of a dependent child, as a Class C felony. Pratt
presents two issues for our review:
1. Whether the trial court abused its discretion when it
ordered him to pay $66,059.46 in restitution for his child
support arrearage.
2. Whether his sentence is inappropriate in light of the nature
of the offense and his character.
[2] We affirm in part, reverse in part, and remand for further proceedings.
Facts and Procedural History
[3] In February 2013, the State charged Pratt with nonsupport of a dependent
child, as a Class C felony. The charging information alleged that, between
August 29, 2000, and January 31, 2013, Pratt had failed to provide child
support for two of his dependent children in an amount that was at least
$15,000. The probable cause affidavit stated that Pratt’s arrearage for those
dates was $39,188.66. In January 2018, the State amended the information and
alleged that the dates of Pratt’s nonpayment of child support were August 29,
2000, through August 3, 2010, in an amount that was at least $15,000.
[4] On July 18, Pratt pleaded guilty as charged without an agreement. The trial
court accepted Pratt’s plea. At sentencing, Pratt disputed the amount of his
child support arrearage, stating that he thought he owed approximately
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$20,000. The State argued, but did not submit evidence, that Pratt owed
$66,059.46 in child support. In its order dated December 12, the trial court
ordered Pratt to pay restitution in the amount of $66,059.46, and the court
sentenced Pratt to six years, with three years suspended to probation. On
December 14, Pratt filed with the trial court an objection to the restitution
amount, and he stated that the correct amount should be approximately
$26,500. The trial court denied that objection. This appeal ensued.
Discussion and Decision
Issue One: Restitution Order
[5] Pratt contends that the State presented no evidence to support the amount of
restitution ordered by the trial court. “The purpose of a restitution order is to
impress upon the criminal defendant the magnitude of the loss he has caused
and to defray costs to the victims caused by the offense.” Bennett v. State, 862
N.E.2d 1281, 1286 (Ind. Ct. App. 2007). It is within the trial court’s discretion
to order restitution, and we will reverse only for an abuse of that discretion. Id.An abuse of discretion occurs if the trial court’s decision is clearly against the
logic and effect of the facts and circumstances before it, or if the trial court
misinterprets or misapplies the law. Id.[6] Indiana Code Section 35-50-5-3(a) provides that, in addition to any sentence
imposed for a felony or misdemeanor, a court may order the payment of
restitution to the victim of the crime. A trial court’s restitution order must be
supported by sufficient evidence of actual loss sustained by the victim of a
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crime. Rich v. State, 890 N.E.2d 44, 49 (Ind. Ct. App. 2008), trans. denied.
“‘The amount of actual loss is a factual matter that can be determined only
upon the presentation of evidence.’” Id. (quoting Bennett, 862 N.E.2d at 1286).
[7] The State concedes that it did not present any evidence of Pratt’s child support
arrearage at the sentencing hearing. But the State maintains that the trial court
had authority to take judicial notice of the amount Pratt owes. In particular,
the State asserts that it “did present and discussion [sic] a substantial amount of
information from the civil case, and provided the court with [Pratt’s] ISETS[ 1]
number. This was enough for the court to take judicial notice of the support
orders and arrearage amount.” Appellee’s Br. at 9.
[8] We cannot agree that “this was enough.” While the trial court’s order refers to
the ISETS database, the court did not state that it took judicial notice of any
court records or identify those records. Evidence is required for appellate
review of a restitution order. We do not have access to the civil case or to
ISETS. Without any evidence in the record on appeal to support the restitution
order, our review is significantly hindered.
[9] Our Supreme Court recently addressed whether a trial court that takes judicial
notice of facts not in evidence should enter supporting documentation in the
record to aid appellate review. The Court stated as follows:
1
ISETS stands for the Indiana Support Enforcement Tracking System.
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Indiana Rule of Evidence 201 permits courts to take judicial
notice of certain material, including facts “not subject to
reasonable dispute” and facts “readily determined from sources
whose accuracy cannot reasonably be questioned.” For years,
Rule 201 did not permit a trial court to take judicial notice of
court records, even if they were “its own records in another case
previously before the court on a related subject with related
parties.” Gray v. State, 871 N.E.2d 408, 413 (Ind. Ct. App. 2007)
(emphasis omitted), trans. denied. Effective January 1, 2010,
amended Rule 201(b)(5) now permits courts to take judicial
notice of “records of a court of this state,” precisely as the trial
court did here. But that Rule is silent on whether a court must
enter that document into the record.
On one hand, it is vital for the parties to know the exact
evidentiary basis on which the judgment turned—and for
appellate courts to know likewise to facilitate review. On the
other hand, the ultimate purpose of judicial notice is efficient
consideration of uncontroversial facts, see Baran v. State, 639
N.E.2d 642, 647 (Ind. 1994)—efficiency that would be
undermined to the point of uselessness for judicial records if
simply “tak[ing] judicial notice of the court’s own records . . . [in]
the 0201-CM-195 case” obligated the court to physically
incorporate that entire file into the record in the present case.
Judicial notice “encompasses facts ascertainable from sources
that cannot reasonably be questioned, and presumably court
records are such sources,” in the absence of evidence tending to
rebut that presumption. Brown v. Jones, 804 N.E.2d 1197, 1202
(Ind. Ct. App. 2004) (addressing judicial notice of the court’s file
in the same proceeding, before enactment of Evidence Rule
201(b)(5), for similar notice of other court records), trans. denied.
But as the Court of Appeals has emphasized, failing to
incorporate noticed court records into the record on appeal
hinders appellate review. In Graham v. State, 947 N.E.2d 962(Ind. Ct. App. 2011), a post-conviction court took judicial notice
of the record in the underlying criminal trial but did not make it
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part of the post-conviction record on appeal. The Court of
Appeals noted,
[I]f a PCR court purports to take judicial notice of
other court records and relies upon those records in
ruling upon a PCR petition, but those records are not
made part of the PCR record, it places a substantial
burden upon this court on appeal to either track
down those records and have them transmitted to this
court, or to attempt to decide the case without benefit
of those records.
Graham, 947 N.E.2d at 965. . . .
Horton v. State, 51 N.E.2d 1154, 1160-61 (Ind. 2016).
[10] Here, again, we do not have access to either the child support orders in the civil
case, which are not available on Odyssey, or to Pratt’s case information through
the ISETS database. Further, the State did not ask the trial court to take
judicial notice of the amount of Pratt’s arrearage, and nothing in the record or
in the court’s order indicates that the trial court in fact took judicial notice of
this verifiable information.
[11] Given the record on appeal, we are obliged to say that the evidence is
insufficient to support the restitution order. Accordingly, we reverse and
remand to the trial court for further proceedings on this issue. The parties may
submit evidence to the trial court to support their arguments regarding the
amount of Pratt’s arrearage, or the trial court may take judicial notice of the
amount of the arrearage, providing documentation to aid our appellate review
should Pratt seek review after remand.
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Issue Two: Sentence
[12] Pratt also contends that his six-year sentence, with three years suspended, is
inappropriate in light of the nature of the offense and his character. Indiana
Appellate Rule 7(B) provides that “[t]he 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.” This Court has recently held that “[t]he
advisory sentence is the starting point the legislature has selected as an
appropriate sentence for the crime committed.” Sanders v. State, 71 N.E.3d 839,
844 (Ind. Ct. App. 2017). And the Indiana Supreme Court has explained that:
The principal role of appellate review should be to attempt to
leaven the outliers . . . but not achieve a perceived “correct”
result in each case. Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.
2008). Defendant has the burden to persuade us that the
sentence imposed by the trial court is inappropriate. [Anglemyer,
868 N.E.2d at 494].
Shoun v. State, 67 N.E.3d 635, 642 (Ind. 2017) (omission in original).
[13] Indiana’s flexible sentencing scheme allows trial courts to tailor an appropriate
sentence to the circumstances presented, and the trial court’s judgment “should
receive considerable deference.” Cardwell, 895 N.E.2d at 1222. Whether we
regard a sentence as inappropriate at the end of the day turns on “our sense of
the culpability of the defendant, the severity of the crime, the damage done to
others, and myriad other facts that come to light in a given case.” Id. at 1224.
The question is not whether another sentence is more appropriate, but rather
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whether the sentence imposed is inappropriate. King v. State, 894 N.E.2d 265,
268 (Ind. Ct. App. 2008). Deference to the trial court “prevail[s] unless
overcome by compelling evidence portraying in a positive light the nature of the
offense (such as accompanied by restraint, regard, and lack of brutality) and the
defendant’s character (such as substantial virtuous traits or persistent examples
of good character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015).
[14] Where, as here, the offense was committed before July 1, 2014, the sentencing
range for a Class C felony is two years to eight years, with an advisory sentence
of four years. I.C. § 35-50-2-6. Pratt asserts that his sentence is inappropriate in
light of the nature of the offense because the reason “his child support arrearage
got out of control” was because he “had not worked for about ten (10) years
due to health problems.” Appellant’s Br. at 15. But at the time of sentencing,
despite his persistent health issues, Pratt was employed. That he could now
work despite his health issues undermines his contention that he should be
excused for having not paid child support for ten years because of his health
issues. And, even if Pratt’s assertions are correct, his proper remedy was to
timely request a modification of his child support obligation, not to simply
disregard that obligation. We cannot say that Pratt’s three-year executed
sentence is inappropriate in light of the nature of the offense.
[15] Pratt contends that his sentence is inappropriate in light of his character because
his criminal history is minor and remote in time and because he pleaded guilty.
However, we agree with the State that Pratt’s criminal history, while relatively
insignificant, still reflects his poor character. And, in any event, Pratt has not
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presented evidence of “substantial virtuous traits or persistent examples of good
character” to justify a revised sentence. See Stephenson, 29 N.E.3d at 122.
Moreover, Pratt’s guilty plea came more than five years after the initial
charging information, and we cannot say as a matter of law that such a plea
requires mitigating weight. Thus, we cannot say that Pratt’s sentence is
inappropriate in light of his character.
[16] Affirmed in part, reversed in part, and remanded for further proceedings.
Baker, J., and Robb, J., concur.
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