Leonard Paul Carder v. State of Indiana (mem. dec.) ( 2016 )

MEMORANDUM DECISION FILED
Mar 17 2016, 7:20 am
Pursuant to Ind. Appellate Rule 65(D), CLERK
this Memorandum Decision shall not be Indiana Supreme Court
Court of Appeals
regarded as precedent or cited before any and Tax Court
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
Steven E. Ripstra Gregory F. Zoeller
Ripstra Law Office Attorney General of Indiana
Jasper, Indiana Tyler G. Banks
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Leonard Paul Carder, March 17, 2016
Appellant-Defendant, Court of Appeals Case No.
63A04-1509-CR-1605
v. Appeal from the Pike Circuit Court
The Honorable Jeffrey L.
State of Indiana, Biesterveld, Judge
Appellee-Plaintiff Trial Court Cause No.
63C01-1405-FC-187
Crone, Judge.
[1] Leonard Paul Carder appeals his six-year sentence for class C felony child
solicitation, asking that we reduce his sentence pursuant to Indiana Appellate
Rule 7(B). However, instead of presenting an Appellate Rule 7(B) argument,
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Carder argues that the trial court abused its discretion in weighing a mitigating
factor. We conclude that Carder has waived his Appellate Rule 7(B) claim by
failing to present a cogent argument. Furthermore, appellate courts may not
review the trial court’s weighing of mitigating factors. Therefore, we affirm.
[2] In April 2014, Carder contacted “Stacy,” who he believed was a fourteen-year-
old girl, on a social media website called Mocospace, and engaged in online
conversations of a sexual nature with her. Stacy was actually a decoy who
worked with law enforcement to identify people who commit sexual solicitation
online. After Carder and Stacy’s conversations shifted to text messaging,
Sergeant Chad McClellan of the Petersburg Police Department took over as
Stacy. Carder sent Stacy pictures of his genitals and asked her to insert her
fingers into her genitals and anus. Carder arranged to meet Stacy to engage in
sexual activity. Carder traveled for an hour and a half from his home in
Marengo to Petersburg to meet Stacy. Stacy texted Carder to meet her at
Hornady Park near the pond, where police found and arrested him. Upon his
arrest, Carder admitted to the sexual conversations and sending a picture of his
genitals, but claimed that his intention was to take Stacy to a police station.
[3] The State charged Carder with two counts of class C felony child solicitation.
Pursuant to a plea agreement, Carder pled guilty to one count of child
solicitation, and the State dismissed the second count. The plea agreement
capped Carder’s sentence at six years.
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[4] At sentencing, Carder argued that his incarceration would cause undue
hardship on his family because he lives with and provides care to his ex-wife
and stepson, who both suffer from many serious physical and mental
conditions. The trial court found two mitigating factors: Carder pled guilty,
saving the court’s time and resources; and Carder’s incarceration would create a
hardship to his family. The trial court found the following aggravating factors:
Carder’s criminal history includes prior convictions in Kentucky for first-degree
attempted sodomy and first-degree sexual abuse of his eight-year-old daughter;
he committed the current offense while being a registered sex offender; he
violated his previous parole; the Indiana risk assessment tool placed Carder in a
high-risk category to reoffend, making him a great risk to the community; he is
unlikely to benefit from a period of probation; and he is not a viable candidate
for community corrections programs. The trial court found that Carder’s
explanation to the probation department concerning his intentions in meeting
Stacy was improbable and that his lack of candor showed an absence of
remorse. The trial court found that the aggravating factors outweighed the
mitigating factors and sentenced Carder to six years in the Department of
Correction. This appeal ensued.
[5] Carder asks us to reduce his sentence pursuant to Indiana Appellate Rule 7(B),
which states, “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.” Carder has the burden to show that his sentence is inappropriate.
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Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007), clarified on reh’g, 875 N.E.2d
218.
[6] Although Carder cites Appellate Rule 7(B), he does not present any argument
that his sentence is inappropriate based on the nature of the crime or his
character. “Failure to put forth a cogent argument acts as a waiver of the issue
on appeal.” Whaley v. State, 843 N.E.2d 1, 18 n.15 (Ind. Ct. App. 2006), trans.
denied; see also Ind. Appellate Rule 46(A)(8)(a) (“The argument must contain the
contentions of the appellant on the issues presented, supported by cogent
reasoning.”). Consequently, Carder has waived his inappropriateness claim
under Appellate Rule 7(B). See McBride v. State, 992 N.E.2d 912, 920 (Ind. Ct.
App. 2013) (concluding that McBride failed to make cogent argument regarding
nature of crime or his character and therefore waived issue), trans. denied.
[7] Furthermore, Carder’s argument is unavailable for appellate review.
Essentially, he argues that the trial court abused its discretion by undervaluing
the hardship his dependents will experience because of his absence as a
mitigating factor. “However, the relative weight or value assignable to
[mitigating factors] properly found … is not subject to review for abuse of
discretion.” Sandleben v. State, 22 N.E.3d 782, 796 (Ind. Ct. App. 2014), trans.
denied (2015). Therefore, we affirm Carder’s sentence.
[8] Affirmed.
Vaidik, C.J., and Bailey, J., concur.
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