Forrest Brown v. State of Indiana (mem. dec.) ( 2015 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this Feb 19 2015, 9:19 am
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
Cody Cogswell Gregory F. Zoeller
Anderson, Indiana Attorney General of Indiana
Kenneth E. Biggins
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Forrest Brown, February 19, 2015
Appellant-Defendant, Court of Appeals Cause No.
48A02-1405-CR-309
v. Appeal from the Madison Circuit
Court.
The Honorable David A. Happe,
State of Indiana, Judge.
Appellee-Plaintiff Cause No. 48C04-1112-FC-2414
Baker, Judge.
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[1] Forrest Brown appeals the sentence imposed by the trial court following his
conviction for Nonsupport of a Dependent Child,1 a Class C felony. Brown
asserts that the trial court abused its discretion when sentencing Brown.
Specifically, he argues that the trial court improperly relied on the amount that
Brown owed in child support as an aggravating factor. Further, Brown claims
that the six-year sentence was inappropriate in light of the nature of the offense
and his character. Finding no error, we affirm.
Facts
[2] Brown is the father of a minor child, F.B. On December 30, 2011, the State
charged Brown with a class C felony, nonsupport of a dependent child. Brown
claims that he paid child support between the years of 2005 and 2008. In 2008,
Brown was diagnosed with Crohn’s Disease. Brown admitted that he did not
pay child support after his diagnosis, but claimed that he would, on occasion,
give money to F.B.’s mother. However, Brown was unable to show that he
paid any money in child support between July 1, 2005, and November 30,
2011. On February 18, 2014, a jury found Brown guilty as charged. At the
time that the trial court sentenced Brown, he owed $33,500 in child support.
[3] At the sentencing hearing, the trial court found that Brown’s medical condition
was a mitigating factor. Tr. p. 197. The trial court also considered Brown’s
prior criminal history to be a “slight aggravator.” Id. at 198. The trial court
1
Ind. Code 35-46-1-5(a).
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stated that the “large amount of arrearage [was] a significant aggravating
factor” in the sentencing. Id. The trial court highlighted that the sum of child
support owed by Brown was more than twice the amount required to make this
a class C felony offense. Id. Moreover, the trial court found that Brown was
not remorseful. Id. The trial court found that the aggravating factors
outweighed the mitigating factors. Id. at 199. As such, the trial court sentenced
Brown to six years, with eighteen months executed and fifty-four months
suspended to probation. Id. at 200. Brown now appeals.
Discussion and Decision
I. Arrearage in Child Support as an
Aggravating Factor
[4] Brown first argues that the trial court abused its discretion by considering an
improper aggravator. In Indiana, it is well established that “[s]entencing
decisions rest within the trial court’s discretion, and are reviewed on appeal
only for an abuse of discretion.” Smallwood v. State, 773 N.E.2d 259, 263 (Ind.
2002). “An abuse of discretion occurs if the decision is clearly against the logic
and effect of the facts and circumstances.” Jones v. State, 812 N.E.2d 820, 826
(Ind. Ct. App. 2004). Brown contends that the trial court improperly relied on
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the arrearage that Brown owed in child support as an aggravating factor. At the
time of Brown’s offense, Indiana Code section 35-46-1-5(a)2 provided,
A person who knowingly or intentionally fails to provide support to
the person’s dependent child commits nonsupport of a child, a Class D
felony. However, the offense is a Class C felony if the total amount of
unpaid support that is due and owing for one (1) or more children is at
least fifteen thousand dollars ($15,000).
This Court has held that “[t]he amount of arrearage is a proper aggravating
circumstance and may be used to enhance [a defendant’s] sentence.” Jones, 812
N.E.2d at 826.
[5] Here, the trial court found the sum of Brown’s arrearage to be an aggravating
factor. Tr. p. 198. The trial court reasoned that the arrearage amount showed
that Brown held a complete lack of regard to his duties under the law and his
duties as a father. Id. at 198-99. By considering Brown’s substantial child
support arrearage as an aggravator, the trial court acted squarely in line with
precedent laid down by this Court. Jones, 812 N.E.2d at 826. We find no error
on this basis.
II. Appropriateness of Sentence
[6] Further, Brown next claims that his sentence is inappropriate in light of the
nature of the offense and his character. Under Indiana Appellate Rule 7(B), the
2
This statute section was amended by the Indiana Legislature, with an effective date of July 1, 2014. The
language quoted above is the language of the statute in place at the time Brown committed the offense and is
applicable to this case.
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“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.” We must
“conduct [this] review with substantial deference and give ‘due consideration’
to the trial court’s decision—since the ‘principal role of [our] review is to
attempt to leaven the outliers,’ and not to achieve a perceived ‘correct’ sentence
. . . .” Knapp v. State, 9 N.E.3d 1274, 1292 (Ind. 2014) (quoting Chambers v.
State, 989 N.E.2d 1257, 1259 (Ind. 2013)).
[7] The statute in effect at the time the offense was committed stated that “[a]
person who commits a Class C felony shall be imprisoned for a fixed term of
between two (2) and eight (8) years, with the advisory sentence being four (4)
years.” Ind. Code § 35-50-2-6. Our Supreme Court has held that such advisory
sentences are the “starting point” for a trial court in determining the length of a
sentence. Brown v. State, 10 N.E.3d 1, 4 (Ind. 2014).
[8] With respect to the nature of Brown’s offense, we note that Brown’s arrearage is
more than double the amount required to qualify the offense as a class C felony,
and that Brown failed to pay any child support for six years. Tr. p. 198; See
Jones, 812 N.E.2d at 826 (holding that “[t]he length of time for nonpayment of
child support and the amount of arrearage go to the severity of the crime and
the proper length of sentence”).
[9] With respect to Brown’s character, the trial court found that he had no remorse
for his actions. Tr. p. 198. Furthermore, by not paying child support, Brown
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has disregarded his financial responsibility as a father and his duty under the
law. Id. at 199. This, in addition to his prior criminal history, shows a lack of
respect for the law. Id. at 198-99.
[10] Accordingly, we do not find the six-year sentence imposed by the trial court to
be inappropriate in light of the nature of the offense and Brown’s character.
[11] The judgment of the trial court is affirmed.
Vaidik, C.J., and Riley, J., concur.
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