Felix C. Sickels v. State of Indiana ( 2012 )

FILED
Jan 06 2012, 8:24 am
FOR PUBLICATION
CLERK
of the supreme court,
court of appeals and
tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
NANCY A. MCCASLIN GREGORY F. ZOELLER
McCaslin & McCaslin Attorney General of Indiana
Elkhart, Indiana
NICOLE M. SCHUSTER
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
FELIX C. SICKELS, )
)
Appellant-Defendant, )
)
vs. ) No. 20A03-1102-CR-66
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE ELKHART SUPERIOR COURT
The Honorable David C. Bonfiglio, Judge
Cause No. 20D06-0109-CF-845
January 6, 2012
OPINION - FOR PUBLICATION
NAJAM, Judge
STATEMENT OF THE CASE
Felix C. Sickels appeals his three convictions for nonsupport of a dependent child,
two as Class C felonies and one as a Class D felony, and his resulting ten-year aggregate
sentence, following a bench trial. Sickels raises four issues for our review, which we
reorganize and restate as the following five issues:
1. Whether Sickels’ three convictions are contrary to federal or state
principles against double jeopardy because he violated only a single
order for child support.
2. Whether the trial court erred when it denied his motion for discharge
pursuant to Indiana Criminal Rule 4(C).
3. Whether the State denied Sickels’ right to a speedy trial under the
Sixth Amendment to the United States Constitution.
4. Whether the trial court lacked personal jurisdiction over Sickels.
5. Whether the trial court abused its discretion when it sentenced him.
We affirm in part and reverse and remand in part.
FACTS AND PROCEDURAL HISTORY
On August 17, 1992, the Elkhart Superior Court dissolved the marriage of Sickels
and Kathy Sickels. The court awarded custody of their three minor children, G.S., M.S.,
and B.S., to Kathy. The court ordered Sickels to pay $118 in child support per week
(“the civil support order”), and concluded that he had a then-existing arrearage of $3,905.
At the time of the court’s order, Sickels lived in Three Rivers, Michigan, and Kathy and
the three children lived in Goshen, Indiana.
2
Between June 1, 1997, and August 31, 1999, Sickels did not pay any of his court-
ordered child support payments. Sometime later in 1999, Kathy moved to New York
with M.S. and B.S. G.S. had reached the age of majority and chose to remain in Indiana.
On September 26, 2001, the State charged Sickels with three counts of nonsupport
of a dependent, each as a Class C felony. Count I of the State’s information (as later
amended) alleged that, between June 1, 1997, and August 31, 1999, Sickels had failed to
pay support for G.S. Count II alleged that, between the same dates, Sickels had failed to
pay support for M.S. And Count III alleged that Sickels had failed to pay support for
B.S. over the same timeframe. Each count alleged that Sickels had accumulated an
arrearage in excess of $15,000 per child.1 See Appellant’s App. at 10. That same day,
the trial court issued a bench warrant for Sickels’ arrest.
Nearly a decade later, on July 30, 2010, the State of Michigan extradited Sickels to
Indiana. On October 5, 2010, Sickels filed a motion to discharge the State’s charges
against him for failure to prosecute a speedy trial, pursuant to Indiana Rule of Criminal
Procedure 4(C) and the Sixth Amendment to the United States Constitution. The State
filed an objection to Sickels’ motion and, after an evidentiary hearing, the court denied
the motion in a written order. Specifically, the trial court found:
1. That the Defendant was charged with Non[-]Support of a Dependent
Child, Class C Felony, three counts, by filing of an Information and
Affidavit of Probable Cause with the Court on September 26, 2001. The
Court found probable cause and issued a warrant for the Defendant’s arrest.
1
As discussed below, under the statute in effect during the timeframe of the alleged crimes the
State needed to show only $10,000 in arrearage to elevate Sickels’ crimes from Class D felonies to Class
C felonies. See Ind. Code § 35-46-1-5(a) (West 1998). But the difference between those two amounts
was immaterial to Sickels’ trial and convictions, and we, therefore, do not consider it.
3
2. That the Defendant was arrested in the State of Michigan on a
Fugitive charge on March 20, 2002[,] and bonded out the next day.
3. That he attended hearings set in Michigan by the Michigan Court on
April 19, 2002, May 20, 2002[,] and June 16, 2002[.] Those charges were
dismissed on June 17, 2002. The Defendant was never extradited to
Indiana.
4. That in 2002, the Elkhart County Prosecuting Attorney was not
notified of his arrest.
5. That the Defendant was arrested in Michigan on July 20, 2005[,] on
a Fugitive charge and bonded out the next day.
6. That he attended hearings set in Michigan set by the Michigan Court
on August 19, 2005, September 20, 2005[,] and October 20, 2005. The
Elkhart County Prosecuting Attorney was never contacted concerning this
arrest. The Defendant was never extradited and the Fugitive charges were
dismissed on October 20, 2005.
7. That the Elkhart County Prosecuting Attorney was first advised of
the Defendant’s arrest in a letter dated February 27, 2006. This was the
first word the Elkhart County Prosecutor had that the Defendant had been
located. In that letter the [Michigan] Court advised the Prosecutor that the
Defendant had come in contact with St. Joseph County, Michigan[,]
Sheriff’s Department. The Michigan Court advised that it had directed the
Sheriff to not arrest the Defendant. The Court requested that the Prosecutor
advise the Court of the Prosecutor’s intentions in regard to the Defendant in
that the computer systems LEIN [Law Enforcement Information Network,
maintained by Michigan] and NCIC [National Crime Information Center,
maintained by the FBI] still showed an outstanding warrant . . . . The
Elkhart County Prosecutor responded on March 8, 2006[,] that the Court’s
letter was its first indication the Defendant had been arrested. The Deputy
Elkhart County Prosecutor that responded indicated that[, under] the usual
process[,] when a defendant refuses to waive the formal process of
jurisdiction when arrested in another state, the Elkhart Sheriff’s Department
contacts the Elkhart Prosecutor and the Elkhart Prosecutor prepares the
application for the Governor’s Warrant, which is then submitted to the
Indiana Attorney General’s Office. He further indicated when Defendant is
next arrested that the Elkhart Prosecutor would prepare the application of
the Governor’s Warrant.
8. That the Elkhart County Prosecutor’s Office was contacted by
Michigan authorities on October 2, 2006[,] indicating that Defendant was
4
charged with a Fugitive charge. The Defendant was arrested [on]
September 26, 2006[,] and bonded [on] October 2, 2006. That Elkhart
County Prosecutor’s Office obtained an Indiana Governor’s Warrant on
November 15, 2006[,] directed to the State of Michigan. The Governor’s
Warrant was never served. The Defendant was not extradited to Indiana.
The Fugitive charges were dismissed on December 28, 2006[,] in
Michigan.
9. An additional Governor’s Warrant was obtained by the Elkhart
County Prosecutor on October 27, 2008. Again the Governor’s Warrant
was not served and the Defendant was not extradited to Indiana. A third
Governor’s Warrant was issued on May 17, 2010. The Defendant was
arrested on July 27, 2010[,] and that Governor’s Warrant was served on
him and he was extradited to Indiana. An Initial Hearing was held on
August 4, 2010[,] in this Court by this Court’s Magistrate.
10. [Sickels] lived in Elkhart, Indiana[,] from 1958 until 1991, . . . he
has one sister that lives in Elkhart and . . . another sister lives in Bristol,
Indiana[,] which is located in Elkhart County. He reported “regular
contact” with his siblings. He also has a daughter, 35 years of age, from a
prior relationship [who] resides in Elkhart, Indiana[,] and he reports
“regular contact” with this adult child. He attended Elkhart Memorial High
School in Elkhart, Indiana[,] and . . . he has been employed in Michigan the
past thirteen years at Mr. B’s Dairy Bar. The Court notes that the distance
between Three Rivers and Elkhart County is less than thirty miles.
11. That the Defendant represented to the Michigan Court in 2002 that
he was working on turning himself in and making payments with Elkhart.
That Defendant represented to the Michigan Court in 2005: Attorney
expects to have handled by next week. Payments have been made. The
Michigan Court’s next notation to that entry is “CLOSE—NO GOVS
WARR[.]” The Defendant did not have an attorney in the Indiana case and
he did not make the reported payments. The Michigan Court records
attached to Defendant’s pleadings reveal in May 2010: That Dave Gizzi
[an investigative agent] from Indiana met with the Court, Defendant still
wanted, that Gizzi showed the Court and the Court copied the 2008
Governor’s [W]arrant that the Michigan Court had never received. Further
notation was that a new Governor’s Warrant was in process and then the
final entry, the Defendant in custody July 27, 2010[,] and that the Court had
the Indiana Governor’s Warrant.
12. That at no time did the Defendant make the 20 mile trip to the Elkhart
Courthouse to appear on this matter, although he had regular contact with
two siblings and one child who live in Elkhart County. Nor did he appear
5
in the underlying civil cause of action; 20D03-9107-DR-00205, . . . or
make any child support payments with an arrearage of over $80,000 of
which he admitted at hearing on this Motion.
13. That prior to his arrest on July 27, 2010, he spent a total of nine days
in [a] Michigan jail on the various fugitive warrants as hereinabove stated.
Id. at 66-69 (citations to the record omitted). The trial court then concluded that the
“triggering mechanism” for Indiana Criminal Rule 4(C) and the Sixth Amendment was
the “execution of the Indiana Governor’s Warrant on July 27, 2010” and, therefore, there
had been no delay under our speedy trial rules. Id. at 69, 73.
On January 7, 2011, the court held a bench trial on the State’s allegations, after
which the court found Sickels guilty of three counts of nonsupport, two as Class C
felonies and one as a Class D felony. Thereafter, the court entered the following
sentencing statement:
[My earlier] finding that there was $86,420 in unpaid support . . . is now
reduced to restitution order [sic] to Ms. Sickels in this case and [I] also
assess you the maximum fine of $10,000 and suspend that on the condition
you do make your very best efforts over the period of your supervision to
pay off that $86,420 to Ms. Sickels . . . . As far as . . . your actual sentence,
what we did when I entered the convictions because of recent Appellate
Court decisions, it was the view that we would enter the convictions on
Counts I and II as C Felonies and we entered a conviction on Count III as a
D Felony.[2] I’m going to order you to serve four years on Count I, four
years on Count II, and two years on Count III[,] which accumulates to a
ten[-]year sentence and the reasons for the maximum sentence [are] you do
have a prior criminal history, that you just pretty blatantly failed to pay
your child support, you lived in a neighboring county over the state line.
The evidence before the Court certainly is that you returned to Elkhart
County on a number of occasions having family here, that you had
employment, you just simply blew it off. You had at least two, maybe
three, I can’t remember exactly the number of contacts with law
enforcement in Michigan and the Courts in Michigan, and clearly
misinformed the Courts there about your situations and your intentions. So
2
It is not clear which recent decisions the trial court relied on to reduce one of Sickels’ three
convictions to a Class D felony.
6
I believe that if I don’t put you in a . . . supervised community corrections
program that you’re not going to make your best efforts to pay this
$86,400. As I said, I’m giving you the maximum sentence. I am doing a
direct commitment to Elkhart County Community Corrections for that
rather than putting you in jail in a jail cell. That certainly does not seem
like a good use of resources or—the purpose here . . . is to make full
restitution . . . and, therefore, I will make a commitment—direct
commitment to community corrections.
Transcript at 87-88. This appeal ensued.
DISCUSSION AND DECISION
Issue One: Double Jeopardy
Sickels appeals his convictions on multiple grounds, but we first discuss his
allegation that, under the federal and state constitutions, he should have been charged and
convicted of one count of nonsupport rather than three. As our supreme court has
explained:
two or more offenses are the “same offense” in violation of Article I,
Section 14 of the Indiana Constitution, if, with respect to either the
statutory elements of the challenged crimes or the actual evidence used to
convict, the essential elements of one challenged offense also establish the
essential elements of another challenged offense.
Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999) (emphasis original). The “statutory
elements” test under the Indiana Constitution is “substantially equivalent to the ‘same
elements’ test used in [the] federal double jeopardy analysis under Blockburger v. United
States, 284 U.S. 299 (1932).” Lee v. State, 892 N.E.2d 1231, 1233 (Ind. 2008).
As an initial matter, we note that Sickels’ convictions are based on allegations of
nonsupport of his dependents between 1997 and 1999. “The general rule . . . is that the
law in effect at the time that the crime was committed is controlling.” Holsclaw v. State,
7
270 Ind. 256, 261, 384 N.E.2d 1026, 1030 (1979). According to the statute in effect at
the time of Sickels’ crimes:
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 amount of unpaid support
that is due and owing is at least ten thousand dollars ($10,000).
Ind. Code § 35-46-1-5(a) (West 1998). The statute was amended in 2001. 3 See P.L. 123-
2001 § 4. Before the statutory amendment, this court had interpreted the law to require
the State to show a per-dependent arrearage of at least $10,000 to support each alleged
Class C felony. See State v. Moore, 688 N.E.2d 917, 918 (Ind. Ct. App. 1997); see also
Geans v. State, 623 N.E.2d 435, 436-38 (Ind. Ct. App. 1993) (Rucker, J.) (holding that
the State could pursue a Class D felony conviction for each unsupported dependent).4
3
The current version of the statute is based on the 2001 amendment and reads:
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).
I.C. § 35-46-1-5(a) (West 2011).
4
In State v. Moore, the State argued to this court that it could support three Class C felony
convictions when the defendant had three dependents and the total arrearage was in excess of $10,000,
even though the per-dependent arrearage did not exceed that amount. 688 N.E.2d at 918. We disagreed,
holding that “the language of the statute does not support this construction” and that, to prove one Class C
felony, the State had to show that the defendant “owed more than $10,000 in child support with respect to
any individual child.” Id.The General Assembly’s 2001 amendment to the statute appears to have been an attempt to adopt
the State’s argument in Moore, since the amended statute allows the State to prosecute a Class C felony if
it can show that the “total amount of unpaid support that is due and owing for one (1) or more children” is
at least $15,000. See I.C. § 35-46-1-5(a) (West 2011). However, it is now unclear whether the current
version of the statute permits the prosecution of multiple Class C felonies for multiple, unsupported
dependents, even if the per-dependent arrearage is at least $15,000. Compare Sanjari v. State, 942 N.E.2d
134 (Ind. Ct. App. 2011) (holding that multiple Class C felony convictions are contrary to the “one (1) or
more children” language of the statute, regardless of the number of dependents affected), vacated by grant
of transfer (Ind. May 6, 2011) (docket), and Porter v. State, 935 N.E.2d 1228 (Ind. Ct. App. 2010)
(holding that the State could seek only one Class C felony but multiple Class D felony convictions for
multiple, unsupported dependents), with Gilliam v. State, 901 N.E.2d 72 (Ind. Ct. App. 2009) (affirming
8
Here, Sickels contends that his multiple convictions for nonsupport violate double
jeopardy principles because his nonsupport violates only one civil order, which is an “in
gross” support order. That is, the civil support order requires Sickels to pay a sum certain
per week rather than per child. It is apparently irrelevant to Sickels’ double jeopardy
argument that he was convicted of two Class C felonies and one Class D felony. The
difference between the two levels of conviction is that a Class C felony requires an
arrearage of at least $10,000. See I.C. § 35-46-1-5(a) (West 1998).
Sickels’ double jeopardy arguments recently found support from this court in
Sanjari v. State, 942 N.E.2d 134 (Ind. Ct. App. 2011), vacated by grant of transfer (Ind.
May 6, 2011) (docket). In that case, another panel of this court concluded that, under the
language of the current version of the statute, multiple convictions for nonsupport of a
dependent violated the Double Jeopardy Clause of Indiana’s Constitution. Specifically,
that panel stated as follows:
[Defendant] Sanjari also asserts that his convictions for two counts
of class C felony nonsupport of a dependent child violate the constitutional
prohibition against double jeopardy. . . .
Originally, the State charged Sanjari with two counts of class C
felony nonsupport, one pertaining to A.S. and one pertaining to M.S., with
each count listing an arrearage of $17,728 as of August 31, 2006. . . .
three Class C felony convictions based on three civil support orders without addressing the restriction that
the “total amount of unpaid support . . . is due and owing for one (1) or more children”). We also note
that the State has on occasion, but not consistently, based the number of Class C felony allegations on the
number of civil support orders violated rather than the number of dependents unsupported. See, e.g.,
Culbertson v. State, 929 N.E.2d 900 (Ind. Ct. App. 2010), trans. denied; Flickner v. State, 908 N.E.2d 270(Ind. Ct. App. 2009); Gilliam, 901 N.E.2d 72; but see Sanjari, 942 N.E.2d 134, vacated; Porter, 935
N.E.2d 1228.
In this appeal, Sickels contends that his multiple Class C felony convictions violate double
jeopardy because he violated only a single civil order. We address that argument accordingly. But
Sickels does not suggest, and we therefore do not consider, that the State was prohibited from seeking
multiple Class C felony convictions based on the plain language of the prior version of the statute, under
which he was convicted. See Ind. Appellate Rule 46(A)(8)(a); Moore, 688 N.E.2d at 918.
9
Sanjari now claims that, due to double jeopardy constraints, the trial
court could enter judgment of conviction on only one of the two class C
felony counts. He predicates his claim on the fact that only one child
support order exists. That support order is an “in gross” order covering
both of Sanjari’s children. Indiana Code Section 35-46-1-5(a) states,
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).
(Emphasis added.)
The record supports Sanjari’s double jeopardy argument. The actual
evidence used to convict Sanjari of two class C felony counts was one “in
gross” support order. Although he has harmed more than one victim, he
has committed only one crime: failure to pay at least $15,000 in support to
one or more children. As such, conviction on both class C felony counts
amounted to multiple punishments for the same offense in violation of his
double jeopardy rights. Accordingly, we vacate his conviction on Count II
class C felony nonsupport. We affirm his conviction and sentence on
Count I, class C felony nonsupport.
Id. at 143-44 (citation to the record omitted). The State sought, and our supreme court
granted, transfer of jurisdiction in Sanjari.5 Accordingly, that decision has been vacated.6
See Ind. Appellate Rule 58(A).
5
The defendant also sought transfer, but our supreme court denied his petition on the same date
it granted the State’s.
6
Although our supreme court has granted transfer in Sanjari, it has not yet issued an opinion in
that case. We emphasize that a vacated case is not precedent and we do not regard it as such. See
McGowan v. State, 674 N.E.2d 174, 175 (Ind. 1996) (“Upon granting the petition to transfer, the decision
of the Court of Appeals is deemed vacated and held for naught.”). Rather, we mention Sanjari merely to
give context to the legal framework of the issues raised by the facts in the instant case. See, e.g., Bd. of
Sch. Trs. v. Barnell by Duncan, 678 N.E.2d 799, 804 n.2 (Ind. Ct. App. 1997); see also Senn v. State, 766
N.E.2d 1190, 1198-99 (Ind. Ct. App. 2002) (discussing Martin v. State, 748 N.E.2d 428 (Ind. Ct. App.
2001), trans. granted, while noting, “[a]lthough transfer has been granted and the opinion has been
vacated in Martin, we note Judge Robb’s dissent . . . .”).
10
Insofar as the panel in Sanjari reached its conclusion based on the current version
of the statute, that decision is inapposite here because the current statutory language is
materially different from the language in effect at the time Sickels committed his crimes.
Under the prior version of the statute, it was well established that the State could
prosecute multiple felonies for multiple dependents, even if there was only one support
order. See Moore, 688 N.E.2d at 918; Geans, 623 N.E.2d at 437. Sanjari’s reliance on
the language of the current version of the statute simply does not apply to Sickels’
prosecution.
However, the Sanjari panel’s conclusion that the use of one civil order to support
multiple convictions violates the Richardson actual evidence test would, if accurate,
apply with equal force on these facts as it did in that case. But we are not persuaded that
Sanjari is accurate in that respect. The statute proscribes the nonsupport of dependents,
not the violation of civil support orders. See Porter v. State, 935 N.E.2d 1228 (Ind. Ct.
App. 2010) (holding, under the current version of the statute, that the State could seek
multiple Class D felonies convictions for multiple, unsupported dependents); Geans, 623
N.E.2d at 437 (holding the same under the prior version of the statute). In the language
of double jeopardy, we conclude that Sickels’ three convictions do not violate the same
elements test of the United States Constitution or the statutory elements test or the actual
evidence test of the Indiana Constitution.
We first consider the same elements test and the statutory elements test. As our
supreme court has stated:
This inquiry is quite simple when a facial comparison of the charged crimes
clearly shows that separate offenses are involved. For example, if a
11
defendant is charged with murdering A and murdering B, further inquiry
into whether the offenses are the “same offense” for double jeopardy
purposes is not warranted because the charged crimes are different on their
face. They involve different victims. Similarly, if a defendant is charged
with robbing a particular store on Monday and then again on Friday, the
offenses are, facially, not the same.
Richardson, 717 N.E.2d 32, 50 n.40.
Here, the State charged Sickels with having committed three counts of nonsupport
of a dependent. Each of the State’s allegations was based on a different victim, namely,
one of Sickels’ dependent children. As Sickels himself acknowledges, on the face of the
charging information the State alleged three different crimes. See Appellant’s Br. at 45.
Stated another way, each alleged offense “require[d] proof of a fact that the other d[id]
not,” namely, the nonsupport of a particular dependent child. Id. at 50 n.41 (discussing
the Blockburger standard). Thus, the State’s allegations did not violate the same
elements test or the statutory elements test.
Similarly, neither do Sickels’ three convictions violate the actual evidence test.
According to our supreme court:
To show that two challenged offenses constitute the same offense under the
actual evidence test, “a defendant must demonstrate a reasonable possibility
that the evidentiary facts used by the fact-finder to establish the essential
elements of one offense may also have been used to establish the essential
elements of a second challenged offense.” [Richardson, 717 N.E.2d at 53.]
Application of the actual evidence test requires the reviewing court
to identify the essential elements of each of the challenged crimes and to
evaluate the evidence from the jury’s perspective, considering where
relevant the jury instructions, argument of counsel, and other factors that
may have guided the jury’s determination. Richardson, 717 N.E.2d at 54
n.48; see, e.g., Burnett v. State, 736 N.E.2d 259, 262-63 (Ind. 2000). The
Richardson actual evidence test was carefully and deliberately crafted to
provide a general formulation for the resolution of all actual evidence test
claims. The language expressing the actual evidence test explicitly requires
12
evaluation of whether the evidentiary facts used to establish the essential
elements of one offense may also have been used to establish the essential
elements of a second challenged offense. The test is not merely whether
the evidentiary facts used to establish one of the essential elements of one
offense may also have been used to establish one of the essential elements
of a second challenged offense. In other words, under the Richardson
actual evidence test, the Indiana Double Jeopardy Clause is not violated
when the evidentiary facts establishing the essential elements of one
offense also establish only one or even several, but not all, of the essential
elements of a second offense. Application of this principle has been
articulated in different ways. Compare Richardson, 717 N.E.2d at 54 (“the
defendant has demonstrated a reasonable possibility that the evidentiary
facts used by the jury to establish the essential elements of robbery were
also used to establish the essential elements of the class A misdemeanor
battery”), with Chapman v. State, 719 N.E.2d 1232, 1234 (Ind. 1999) (“the
same evidence used by the jury to establish the essential elements of
murder was also included among the evidence establishing the essential
elements of robbery as a Class A felony”).
Spivey v. State, 761 N.E.2d 831, 832-33 (Ind. 2002) (emphasis added, footnote omitted).
That is, to avoid a double jeopardy violation, “each conviction require[s] proof of at least
one unique evidentiary fact.” Bald v. State, 766 N.E.2d 1170, 1172 (Ind. 2002).
An essential element of the crime of nonsupport of a dependent is the existence of
a dependent child. See I.C. § 35-46-1-5(a). Thus, an essential element of the State’s first
charge against Sickels was the existence of G.S. An essential element of the State’s
second charge was the existence of M.S. And an essential element of the third charge
was the existence of B.S. As such, each of the State’s three allegations “required proof of
at least one unique evidentiary fact.” Bald, 766 N.E.2d at 1172. And the proof of one
child’s existence is a discrete and unique fact that does not prove the existence of another
child. Thus, Sickels’ three convictions did not violate to the actual evidence test.7 Id.7
We also note that the State’s evidence consisted of more than just the civil support order. The
State called two witnesses, Kathy and a deputy prosecutor from the Elkhart County prosecutor’s office,
child support division. During the deputy prosecutor’s testimony, the State had six exhibits admitted into
13
Issue Two: Criminal Rule 4(C)
Sickels next argues that the trial court failed to grant him a speedy trial under
Indiana Criminal Rule of Procedure 4(C). The right of an accused to a speedy trial is
guaranteed by the Sixth Amendment to the United States Constitution and by Article I,
Section 12 of the Indiana Constitution. Clark v. State, 659 N.E.2d 548, 551 (Ind. 1995).
This “fundamental principle of constitutional law” has long been zealously guarded by
our courts. Id. (quoting Castle v. State, 237 Ind. 83, 143 N.E.2d 570, 572 (1957)). To
this end, the provisions of Indiana Criminal Rule 4 implement the defendant’s speedy
trial right. Id.Rule 4(C) provides:
No person shall be held on recognizance or otherwise to answer a criminal
charge for a period in aggregate embracing more than one year from the
date the criminal charge against such defendant is filed, or from the date of
his arrest on such charge, whichever is later; except where a continuance
was had on his motion, or the delay was caused by his act, or where there
was not sufficient time to try him during such period because of congestion
of the court calendar; provided, however, that in the last-mentioned
circumstance, the prosecuting attorney shall file a timely motion for
continuance as under subdivision (A) of this rule. Provided further, that a
trial court may take note of congestion or an emergency without the
necessity of a motion, and upon so finding may order a continuance. Any
continuance granted due to a congested calendar or emergency shall be
reduced to an order, which order shall also set the case for trial within a
reasonable time. Any defendant so held shall, on motion, be discharged.
Ind. Criminal Rule 4(C). We review a trial court’s ruling on a Rule 4(C) motion for
abuse of discretion. Curtis v. State, 948 N.E.2d 1143, 1149 (Ind. 2011).
Our supreme court recently reiterated several important points about Rule 4(C):
the record, including the chronological case summary, the dissolution decree, the support docket showing
the amount of support received from Sickels, two payment histories showing period-by-period arrearage,
and a court extension sheet.
14
We recognize that the State contends it should not be “faulted” . . . . But
the focus of Criminal Rule 4 is not fault; it is to ensure early trials. Carr v.
State, 934 N.E.2d 1096, 1100 (Ind. 2010) (“The Rule does not involve
assessment or attribution of any fault or accountability on the part of the
State, but generally imposes upon the justice system the obligation to bring
a defendant to trial within a set time period . . . .”). The rule places an
affirmative duty on the State to bring [the defendant] to trial and allows for
limited exceptions to that timeframe. See Cook [v. State], 810 N.E.2d
[1064, 1065 (Ind. 2004)].
Id. at 1151. “We may not attribute delays in proceedings to trial to the defendant where
the record is void regarding the reason for the delay.” Id. (quotation omitted).
The following dates and occurrences are relevant to our analysis:
 September 26, 2001: the State charges Sickels with three counts of
nonsupport of a dependent, each as a Class C felony.
 March 20, 2002: Sickels is arrested in Michigan as a fugitive based on the
Elkhart Superior Court’s outstanding bench warrant. Michigan authorities
do not inform Indiana authorities of Sickels’ arrest.
 April 19, 2002: Sickels tells the Michigan trial court that he is “working on
turning self in [and] making pymts w/Elkhart.” Appellant’s App. at 51.
 July 15, 2002: Sickels is released by the Michigan court due to the lack of
an Indiana governor’s warrant.
 July 20, 2005: Sickels is arrested in Michigan as a fugitive. Michigan
authorities do not inform Indiana authorities of the arrest.
 September 20, 2005: Sickels tells the Michigan court that his “atty [is]
working on Elkhart Cty case.” Id. at 54.
 October 20, 2005: Sickels is released by the Michigan court due to the lack
of a governor’s warrant and after he tells the court that his “atty expects to
have [the case] handled by next week. Pymts have been made.” Id. September 26, 2006: Sickels is again arrested in Michigan as a fugitive.
 October 2, 2006: Michigan authorities inform Indiana authorities of
Sickels’ arrest.
15
 November 15, 2006: An Indiana governor’s warrant8 is issued but “never
served.” Id. at 67.
 December 28, 2006: Michigan releases Sickels due to the lack of a
governor’s warrant.
 October 27, 2008: The Elkhart County prosecutor obtains an additional
governor’s warrant, but that warrant was “not served.” Id. July 27, 2010: Sickels is again arrested in Michigan. Michigan authorities
immediately serve Sickels with an outstanding Indiana governor’s warrant
and inform authorities in Elkhart County.
 July 30, 2010: Sickels is brought into Indiana and placed into custody by
the Elkhart County Sheriff.
 August 4, 2010: The Elkhart Superior Court holds an initial hearing.
 October 5, 2010: Sickels files his motion to discharge pursuant to Criminal
Rule 4(C).
 January 10, 2011: The trial court holds Sickels’ bench trial and finds him
guilty of each of the State’s three allegations.
On appeal, Sickels asserts that his first arrest in Michigan in 2002 is the beginning
of the Rule 4(C) timeframe. In response, the State contends that his extradition to
Indiana in 2010 is the proper starting point. We agree with the State.
“[A] defendant’s speedy trial rights in Indiana do not commence until he is within
the jurisdiction and exclusive control of Indiana authorities.” Sweeney v. State, 704
N.E.2d 86, 100 n.27 (Ind. 1998).9 In Sweeney, our supreme court considered whether the
8
All references in this opinion to the State’s three governor’s warrants are based only on the
information disclosed by the parties to the trial court. The State did not present the governor’s warrants
themselves to the trial court, and we, therefore, do not consider those documents. “[N]ew evidence may
not be submitted to the court for the first time upon appeal.” Saler v. Irick, 800 N.E.2d 960, 970 n.7 (Ind.
Ct. App. 2003). This distinction is largely immaterial, however, since the existence and general contents
of the three governor’s warrants were made clear to the trial court by both parties.
9
We note that this authority is not cited by the State in its Appellee’s Brief.
16
State had complied with Rule 4(C) and had brought the defendant to trial within one year.
The State had first charged the defendant in August of 1992, while he was a federal
inmate in Kentucky. The defendant was brought to Indiana pursuant to those charges on
November 9, 1992, but the trial court ordered him returned to Kentucky and, as a result,
the State dismissed its charges. Later, the State refiled its charges, the defendant was
brought back into Indiana, and the trial court concluded that it had jurisdiction over him.
On appeal, the defendant sought to have his convictions vacated for the State’s
alleged failure to prosecute a speedy trial. Our supreme court disagreed with the
defendant and held that he was not denied a speedy trial under Rule 4(C). The court held
that the Rule 4(C) clock began when the defendant had been brought within Indiana’s
jurisdiction and control: “Defendant being brought to Indiana is equivalent to an ‘arrest’
and thus the one[-]year period for determining a violation of Crim. R. 4(C) commence[d]
on November 9, 1992.” Id. at 100.
Following that authority, we must conclude that Sickels’ right to a speedy trial
under Rule 4(C) commenced on July 30, 2010, the date he was finally within the
jurisdiction and exclusive control of Indiana authorities. See id. Pursuant to Rule 4(C),
the one-year clock begins to tick “from the date the criminal charge against such
defendant is filed, or from the date of his arrest on such charge, whichever is later.” And
according to our supreme court, the defendant “being brought to Indiana is equivalent to
an ‘arrest’ ” under Rule 4(C). Therefore, the latter date of July 30, 2010, the date when
Sickels was brought to Indiana, is the beginning of the Rule 4(C) timeframe. And
17
because Sickels was brought to trial on January 10, 2011, less than one year after that
“arrest,” there is no Rule 4(C) violation.
Still, Sickels contends that other supreme court case law mandates his release.
Specifically, he references Greengrass v. State, 542 N.E.2d 995 (Ind. 1989). In that case,
the defendant was arrested in New York in 1980 based on the State’s charges. However,
upon learning of the defendant’s arrest, “the State of Indiana refused to complete
extradition proceedings at that time.” Id. at 995. The defendant was later arrested in
1986 in New Jersey and then extradited to Indiana. Our supreme court discharged the
defendant under Rule 4(C), stating: “appellant . . . first was arrested on that charge on
November 6, 1980. The fact that the State chose not to extradite appellant at that time
effected a delay in his trial with which he cannot be charged.” Id. at 996. Thus,
Greengrass imposes upon the State “a duty ancillary to the State’s affirmative duty to try
a defendant within one year.” Alley v. State, 556 N.E.2d 15, 17 (Ind. Ct. App. 1990),
trans. denied. That is, where the State has actual knowledge of a defendant’s arrest in
another state based on Indiana charges, the State must act on that knowledge.
Greengrass is not controlling. Unlike in Greengrass, here the State never “refused
to complete extradition proceedings” once it learned of Sickels’ presence in Michigan.
Greengrass, 542 N.E.2d at 99; see Blasko v. State, 920 N.E.2d 790, 792 (Ind. Ct. App.
2010), trans. denied. Indeed, the State thrice issued governor’s warrants in an attempt to
have Sickels brought into Indiana. While it is not clear from the record why the first two
of those three attempts failed, the answer to that question is immaterial. The State
18
actively sought to have Sickels extradited by Michigan, and only once it was successful
did the Rule 4(C) timeline begin.
We acknowledge that the delay between the filing of the State’s charges and
Sickels’ “arrest” by Indiana authorities was nearly a decade. Without referring to
Sweeney, the State’s principal argument on appeal is that the delay in bringing Sickels to
trial is not chargeable to the State. Specifically, the State contends that
the delay should not be charged to the State. Defendant knew of the
charges six months after they were filed, but he deliberately lied to the
Michigan court [in 2002 and 2005] and made no effort to address them for
years. When Indiana discovered Defendant’s whereabouts [in 2006],
Defendant refused to waive extradition, and Indiana was forced to go
through the extradition process three times in order to bring him to trial.
This is not a situation where Indiana refused to extradite a defendant,
or there was any inaction on the part of the State. . . .
Appellee’s Br. at 23-24 (citations to the record omitted).
The State’s argument is misplaced.10 “It has not been uncommon for lawyers and
courts to address Rule 4 claims in part by considering whether delay should be
‘chargeable to the State,’ but the role of the State is an irrelevant consideration in the
analysis.” Carr, 934 N.E.2d at 1100 (cited in Curtis, 948 N.E.2d at 1151). “The Rule
does not call for any attribution of delay to the State but only for delay attributable to the
defendant or insufficient time due to court congestion or emergency.” Id. Thus, the
10
Neither are we persuaded by the State’s suggestion that Sickels could have or should have
turned himself over to Indiana officials. It is well established that:
[t]he duty to bring a defendant to trial within one year is an affirmative one which rests
with the State. State v. Smith, 495 N.E.2d 539, 541 (Ind. Ct. App. 1986). The defendant
has no obligation to remind the court of the State’s duty, nor is he required to take any
affirmative action to see that he is brought to trial within the period. Id.Leek v. State, 878 N.E.2d 276, 277 (Ind. Ct. App. 2007).
19
State’s claim that the delay in Sickels’ trial is not chargeable to it or is not its fault under
Rule 4(C) is a nonstarter.
But neither does Sickels’ claim that the near-decade delay is dispositive under
Rule 4(C) carry weight. The delay is an unfortunate circumstance. But under Rule 4(C)
and Sweeney, the one-year clock did not begin to run until Sickels was within Indiana’s
jurisdiction and under the exclusive control of Indiana authorities. Sweeney, 704 N.E.2d
at 100 n.27. And any exceptions to that timeline provided by Greengrass do not apply
here. Accordingly, we conclude that the trial court did not abuse its discretion when it
denied Sickels’ motion for discharge under Indiana Criminal Rule 4(C).
Issue Three: Sixth Amendment Right to Speedy Trial
Sickels also challenges the delay of his trial under the Sixth Amendment. 11 The
Sixth Amendment, applicable to the states via the Fourteenth Amendment, provides, in
relevant part: “In all criminal prosecutions, the accused shall enjoy the right to a speedy
and public trial . . . .” U.S. Const. amend. VI. As this court has discussed:
[T]he question of whether a defendant’s constitutional right to a speedy
trial has been violated presents a much more complex question than
whether the Rule 4(C) speedy trial provision has been violated; the
constitutional test requires the balancing of multiple factors and there is no
point at which discharge due to delay is automatically mandated, while
Rule 4(C) provides definitive, relatively simply calculated deadlines, based
upon whether any delays are attributable to a defendant . . . .
Danks v. State, 733 N.E.2d 474, 490 (Ind. Ct. App. 2000), trans. denied.
Under the Sixth Amendment:
11
Sickels raises the same argument under Article I, Section 12 of the Indiana Constitution. The
Indiana constitutional analysis is identical to the federal constitutional analysis, and we, therefore, do not
delineate the two in our discussion. Crawford v. State, 669 N.E.2d 141, 145 (Ind. 1996).
20
When a defendant’s speedy trial rights have been implicated, we
undertake a balancing test mandated by Barker v. Wingo, 407 U.S. 514, 92
(1972), in which the conduct of both the State and the defendant are
weighed. We consider such factors as the length of the delay, reasons for
the delay, the defendant’s assertion of his right, and prejudice to the
defendant. Id., 407 U.S. at 530; Fortson v. State, 269 Ind. [161,] 168, 379
N.E.2d [147,] 152 [(1978)].
Crawford v. State, 669 N.E.2d 141, 146 (Ind. 1996).
The parties agree that the date the State filed its information against Sickels,
September 26, 2001, is the trigger date for the constitutional analysis. See United States
v. Marion, 404 U.S. 307, 325 (1971). The ensuing delay of more than nine years until
Sickels’ trial implicates his Sixth Amendment rights, and we proceed to consider the
factors of the Barker balancing test. See, e.g., Fisher v. State, 933 N.E.2d 526, 530 (Ind.
Ct. App. 2010).
Again, the length of the delay here is more than nine years, which generally
weighs in favor of Sickels. But the reasons for the delay are not wholly attributable to the
State. According to the Supreme Court of the United States,
different weights should be assigned to different reasons. A deliberate
attempt to delay the trial in order to hamper the defense should be weighted
heavily against the government. A more neutral reason such as negligence
or overcrowded courts should be weighted less heavily but nevertheless
should be considered since the ultimate responsibility for such
circumstances must rest with the government rather than with the
defendant. Finally, a valid reason, such as a missing witness, should serve
to justify appropriate delay.
Barker, 407 U.S. at 530.
Here, from the date of his indictment until his first arrest in Michigan in 2002, the
delay in bringing Sickels to trial cannot be weighed against the State since Sickels was
outside of the jurisdiction and the State was unaware of his location. As the trial court
21
found, the Elkhart County Prosecutor was not notified of either Sickels’ 2002 or 2005
arrest. Rather, the prosecutor was first advised of Sickels’ presence in Michigan
following Sickels’ 2006 arrest.
Moreover, the delay in bringing Sickels to trial between his 2002 and 2006 arrests
in Michigan is attributable to Sickels, who twice told a Michigan court that he was
working with Elkhart officials on the State’s charges and expected them to be resolved
soon. Those statements were false and likely caused the Michigan court to not follow up
with Indiana officials regarding the Indiana charges. In other words, since at least 2002
Sickels knew of his very substantial support arrearage, and that the State of Indiana
wanted him for prosecution. While he had no duty to turn himself in, he took affirmative
steps to frustrate the State’s attempt to call him to account.
Following Sickels’ arrest in 2006, Michigan officials informed Indiana officials of
his presence in Michigan. Indiana officials then sought governor’s warrants to have
Sickels extradited to Indiana. Again, it is not known why the first two governor’s
warrants were not served on Sickels. Given that void in the record, we conclude that the
reason for the delay between Sickels’ 2006 arrest12 and his eventual extradition in 2010 is
neutral. Nonetheless, we assign slight weight for that delay against the State, “since the
ultimate responsibility for such circumstances must rest with the government” and there
is no evidence that definitively shows that Michigan authorities, rather than Indiana
12
In his brief, Sickels states that his former wife wrote a letter to the trial court in October 2010
in which she recalled the Elkhart prosecutor telling her that he would not pursue extradition because “jails
were for real criminals.” Appellant’s Br. at 32. In light of the three governor’s warrants obtained by the
Elkhart County prosecutor, the trial court plainly did not credit that letter and neither do we.
22
authorities, were the parties ultimately responsible for the failure to serve the first two
governor’s warrants. See id.Finally, the delay from Sickels’ extradition in July of 2010 until his trial in
January of 2011 was due to nothing more than the “ordinary procedures for criminal
prosecutions.” See Crawford, 669 N.E.2d at 146 (citing United States v. Ewell, 383 U.S.
116, 120 (1966)). That is a valid reason for delay and is not assignable to either the State
or Sickels. On balance, we conclude that the delays between the filing of the charging
information in 2001 and Sickels’ conviction in 2011 weighs more heavily against Sickels
than for him.
We next note that Sickels did assert his right to a speedy trial in October of 2010
when he filed his motion for discharge under the Sixth Amendment and Criminal Rule
4(C). He again asserted his right to be tried in a speedy fashion after the trial court
denied his motion for discharge. Accordingly, this factor weighs in Sickels’ favor.
Finally, we examine any prejudice to Sickels that was caused by the alleged delay
in trying him. “Prejudice is presumed if the delay exceeds the limitations period for the
offenses with which the defendant is charged.” Bowman v. State, 884 N.E.2d 917, 921
(Ind. Ct. App. 2008), trans. denied. Sickels was charged with three Class C felonies, each
with a limitations period of five years. Ind. Code § 35-41-4-2(a)(1). Therefore, the
burden is on the State to show that Sickels was not prejudiced by the delay. 13 Bowman,
884 N.E.2d at 921.
13
The State contends that the proper standard in this appeal is to require Sickels to prove that he
was actually prejudiced by the delay. See, e.g., Fisher v. State, 933 N.E.2d 526, 532 (Ind. Ct. App. 2010)
(“Indiana courts have placed the burden of demonstrating actual prejudice on the defendant to prove a
speedy trial deprivation.”). We acknowledge the State’s argument that Bowman and similar cases should
23
As our supreme court has stated:
We make this examination mindful of the interests the speedy trial right
was designed to protect: prevention of oppressive pretrial incarceration;
minimization of anxiety and concern of the accused; and limiting the
possibility that the defense will be impaired. Barker v. Wingo, 407 U.S. at
532. “Of these, the most serious is the last, because the inability of a
defendant adequately to prepare his case skews the fairness of the entire
system. If witnesses die or disappear during a delay, the prejudice is
obvious.” Id.Id.
The State has met its burden of showing that Sickels was not prejudiced by the
delay in prosecution. First, the delay in Sickels’ prosecution did not result in oppressive
pretrial incarceration, a point that Sickels does not dispute on appeal, at least not
cogently. And given Sickels’ admitted regular entry into Elkhart County and contact
with family there during the time period in question, despite the State’s charges, we are
confident that Sickels did not suffer under “a cloud of suspicion and anxiety.” See
Appellant’s App. at 68; Appellant’s Br. at 35.
Further, and most significantly, we are persuaded that Sickels’ defense at his trial
was not seriously prejudiced by the delay. At trial, “Sickels and his witness . . . testified
that they had provided his children with clothing, meals, and had babysat the boys. They
were unable to recall the exact dates or amounts of the money spent on the boys.”
Appellant’s Br. at 34-35. But Sickels has never suggested that he provided anything
more than a token amount of in-kind support for his children. See Geans, 623 N.E.2d at
437 (“[A] parent may escape criminal liability by . . . providing a dependent child with
not apply to defendants whose delay involved out-of-state extradition proceedings. Nonetheless, given
the circumstances in this case we need not expressly resolve this issue. As discussed below, assuming for
the sake of argument that the burden is on the State to rebut a presumption of prejudice, the State has met
its burden.
24
food, clothing, shelter or medical care. However, to escape criminal liability the parent
must provide more than a mere token amount of support.”). Indeed, Sickels himself
testified that he did not make any child support payments during the time in question and
that he had “no defense” to the State’s allegations. Transcript at 60. Thus, the State has
met its burden of rebutting the presumption of prejudice against Sickels.
In sum, two of the four Barker factors—the length of the delay and Sickels’
assertion of his right to a speedy trial—weigh in favor of Sickels. However, the other
two factors—the reasons for the delay and prejudice—weigh against him. We have
traditionally placed the greatest weight on whether the defendant has been prejudiced by
the delay. See Bowman, 884 N.E.2d at 921. We also place more weight on the fact that
Sickels’ false statements to the Michigan trial court early in the timeframe in question
likely caused the delay to be greatly extended. Therefore, balancing the four Barker
factors, we conclude that Sickels’ right to a speedy trial has not been violated.
Issue Four: Personal Jurisdiction
Sickels next contends that the trial court lacked personal jurisdiction over him for
various reasons. Sickels appeared before the trial court but did not present this issue to
that court. As such, we hold that he waived the question of the court’s jurisdiction over
his person.
In support of his attempt to raise this issue for the first time on appeal, Sickels
claims “[a] judgment that is void for lack of personal jurisdiction may be collaterally
attacked at any time.” Appellant’s Br. at 15 (citing Harris v. Harris, 922 N.E.2d 626, 633
(Ind. Ct. App. 2010)). That statement is indeed found in this court’s opinion in Harris.
25
But Sickels takes the statement out of context, as it is not intended to be read with the
breadth with which he now attempts to apply it.
As this court explained in Harris, personal jurisdiction is waivable but, under a
limited (and risky) set of circumstances, may be collaterally attacked:
A judgment rendered without personal jurisdiction is void. Hill v.
Ramey, 744 N.E.2d 509, 512 (Ind. Ct. App. 2001) (citing Stidham v.
Whelchel, 698 N.E.2d 1152, 1156 (Ind. 1998)). A defendant can waive the
lack of personal jurisdiction and submit himself to the jurisdiction of the
court if he responds or appears and does not contest the lack of jurisdiction.
Id. at 512 n. 7 (citing Stidham, 698 N.E.2d at 1155). The Indiana Supreme
Court has observed that a claim of lack of personal jurisdiction may be
waived, but that waiver “must be by the person holding the rights.”
Stidham, 698 N.E.2d at 1155-1156. The waiver doctrine does not mean
that any party that has the power to waive a defense will be found to have
done so. Id. at 1156. The fact that a defendant is served with a summons in
another state does not demonstrate waiver. See id. at 1153-1156
(concluding that the defendant did not waive his defense of lack of personal
jurisdiction where the defendant had received service of process in another
state by certified mail). Indeed, the Court has recognized that “[i]t is a bold
move, but an option available to a nonresident is to ignore a pending
proceeding and take the risk that a subsequent challenge to personal
jurisdiction will prevail.” Id. at 1156 (citing Ins. Corp. of Ireland, Ltd. v.
Compagnie des Bauxites de Guinee, 456 U.S. 694, 706 (1982) (“A
defendant is always free to ignore the judicial proceedings, risk a default
judgment, and then challenge that judgment on jurisdictional grounds in a
collateral proceeding.”)).
A judgment that is void for lack of personal jurisdiction may be
collaterally attacked at any time. Id. . . .
922 N.E.2d at 632-33 (emphasis added).
As that discussion makes clear, only when a nonresident ignores the judicial
proceedings before the trial court may he later collaterally attack that judgment on the
grounds of personal jurisdiction. That did not happen here. Rather, Sickels appeared
26
before the trial court and never contested its jurisdiction over his person. He may not do
so now for the first time on appeal. This issue is waived.
Issue Five: Sentencing
Finally, Sickels challenges his sentence on several different grounds. Sentencing
decisions “rest within the sound discretion of the trial court and are reviewed on appeal
only for an abuse of discretion.” Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007),
clarified on reh’g, 875 N.E.2d 218 (Ind. 2007).14 “An abuse of discretion occurs if the
decision is clearly against the logic and effect of the facts and circumstances before the
court, or the reasonable, probable, and actual deductions to be drawn therefrom.” Id.(quotation and citation omitted). A trial court may abuse its discretion by failing to enter
a sentencing statement, entering findings of aggravating and mitigating factors
unsupported by the record, omitting factors clearly supported by the record and advanced
for consideration, or giving reasons that are improper as a matter of law. Id. at 490-91.
“Under those circumstances, remand for resentencing may be the appropriate remedy if
we cannot say with confidence that the trial court would have imposed the same sentence
had it properly considered reasons that enjoy support in the record.” Id. at 491. The
appellate court may review both written and oral statements in order to identify the
findings of the trial court. See McElroy v. State, 865 N.E.2d 584, 589 (Ind. 2007).
Sickels’ first argument is not properly before this court. In his first argument,
Sickels contends that the trial court’s calculation of his arrearage amount is erroneous.
But Sickels did not object to the State’s evidence of his arrearage, and we will not
14
We note that Sickels does not suggest that he is entitled to the protections of Blakely v.
Washington, 542 U.S. 296 (2004). Accordingly, he has waived any possible claim he may have had
under that decision. See Smylie v. State, 823 N.E.2d 679, 689-90 (Ind. 2005).
27
consider the legitimacy of that evidence for the first time on appeal. This argument is
waived.
Sickels next argues that the trial court improperly ordered him to pay restitution.
At the sentencing hearing, the trial court stated that “restitution” in the amount of
“$86,420” is to be made to “Ms. Sickels, the victim in the case.” Transcript at 87. But in
its written sentencing order, the court states: “Arrearage in the amount of $84,420.00 as
of 2/8/11 reduced to judgment in favor of Kathy L. Sickles [sic], civil cause number
20D03-9107-DR205.” Appellant’s App. at 118 (emphasis original). These two
statements are unclear in three respects and require a remand for clarification.
First, the trial court’s sentencing order states that Sickels must pay “$84,420,” but
at the sentencing hearing the trial court recognized that Sickels’ arrearage was
“$86,420.” Compare Appellant’s App. at 118 with Transcript at 87. While the $2,000
discrepancy appears to be a typographical error, especially in light of the State’s
undisputed evidence of Sickels’ arrearage, nonetheless the prudent course is for this court
to remand this limited issue for the trial court to clarify Sickels’ arrearage. On remand,
the trial court shall consider only whether $84,420, $86,420, or an amount in-between is
the correct arrearage.
Second, pursuant to Indiana law, “in addition to any sentence imposed” for a
criminal offense the trial court is authorized to order “restitution to the victim of the
crime.” I.C. § 35-50-5-3. The amount of restitution ordered must reflect the actual loss
suffered by the victim. Myers v. State, 848 N.E.2d 1108, 1109 (Ind. Ct. App. 2006). But
Kathy is not the victim of Sickels’ crimes. His children are. It is generally established
28
that child support payments are for the benefit of the child, not for the benefit of the
parent. See Haley v. Haley, 771 N.E.2d 743, 752 (Ind. Ct. App. 2001). As such, the
court’s order for Sickels to pay restitution to Kathy as “the victim” is erroneous. See
Transcript at 87.
Finally, the court’s two statements alternatively refer to Sickels’ payment as either
“restitution” or as a civil judgment. See Transcript at 87; Appellant’s App. at 118. While
restitution is a proper criminal penalty, civil court is the proper venue to adjudicate civil
judgments. See Haltom v. State, 832 N.E.2d 969, 972 (Ind. 2005). Thus, on remand the
court shall correct its sentencing order and other documents to reflect only restitution.
Sickels next contends that the trial court abused its discretion when it ordered his
sentences to run consecutively. This argument appears two-fold: on the one hand,
Sickels states that the trial court’s sentencing statement is not sufficiently articulated for
purposes of appellate review. On the other, Sickels contends that “[t]he court’s statement
supports the fact that [a ten-year] sentence is being imposed but does not support the
imposition of consecutive sentences.” Appellant’s Br. at 56. Failure to enter a
sentencing statement is an abuse of discretion, and a single aggravating factor is
sufficient to justify the imposition of consecutive sentences. Anglemyer, 868 at 490;
Forgey v. State, 886 N.E.2d 16, 23 (Ind. Ct. App. 2008). Having reviewed the record, we
conclude that the court’s sentencing statement is clearly sufficient. We further conclude
that the court’s consideration of the fact that Sickels “blatantly failed to pay [his] child
support” supports the imposition of consecutive sentences, as does the presence of
multiple victims. See Transcript at 88.
29
Lastly, Sickels contends that his multiple sentences violate double jeopardy. For
the reasons discussed in Issue One, supra, we disagree and conclude that there has been
no double jeopardy violation in this case.
Conclusion
We affirm Sickels’ convictions, and we affirm his sentence in part. However, we
must remand the restitution order to the trial court with instructions that the court clarify
its order in a manner not inconsistent with this opinion.
Affirmed in part and reversed and remanded in part.
RILEY, J., and MAY, J., concur.
30