Jody White v. State of Indiana (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any
Aug 27 2019, 10:22 am
court except for the purpose of establishing
the defense of res judicata, collateral CLERK
Indiana Supreme Court
estoppel, or the law of the case. Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Marielena Duerring Curtis T. Hill, Jr.
South Bend, Indiana Attorney General of Indiana
Caroline G. Templeton
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jody White, August 27, 2019
Appellant-Defendant, Court of Appeals Case No.
19A-CR-46
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.
71C01-1711-FC-41
Mathias, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-46 | August 27, 2019 Page 1 of 4
[1] Jody White (“White”) pleaded guilty in St. Joseph Circuit Court to Class C
felony non-support of a dependent. The trial court sentenced White to seven
years at the Indiana Department of Corrections (“DOC”), with three years
suspended, three years of probation, and seventy-five days of jail time credit.
White appeals and argues his sentence is inappropriate in light of the nature of
the offense and the character of the offender. We affirm.
Facts and Procedural History
[2] White is the father of P.W., born in 1996, and E.W., born in 1999. White failed
to provide child support between June 3, 1997 and October 31, 2016. The State
charged White with; (I) Class C felony non-support of dependent children in an
amount greater than $15,000, (II) Level 5 felony non-support of a dependent
child, and (III) Level 6 felony non-support of a dependent child. White has a
prior felony conviction for non-support of a dependent and five contempt
citations for failure to pay child support. Appellant’s Confidential App. p. 57;
Tr. pp. 20–21.
[3] White failed to appear at a hearing on June 20, 2018, and the Court issued a
bench warrant for his arrest on July 18, 2018. Appellant’s Confidential App. p.
15–16. White was served with the bench warrant on October 1, 2018, three
months after his failure to appear. White pleaded guilty to the Class C felony on
October 24, 2018 without the benefit of a plea agreement, and the State
dismissed the Level 5 and Level 6 felonies. At sentencing, White did not
dispute that he owed $35,670.48 in child support. Tr. p. 24.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-46 | August 27, 2019 Page 2 of 4
[4] The trial court sentenced White to seven years in the DOC, with seventy-five
days jail credit time, three years suspended, and three years of probation. One
of the conditions of his probation is the payment of child support. White now
appeals his sentence.
Discussion and Decision
[5] Appellate courts may revise a sentence if the court finds the sentence is
inappropriate in light of the nature of the offense and the character of the
offender. Ind. Appellate Rule 7(B). The question is whether the defendant’s
sentence is inappropriate, not whether another sentence is more appropriate.
King v. State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008). The principle role of
Rule 7(B) is to “leaven the outliers” rather than to “achieve a perceived ‘correct’
result,” and thus appellate courts conduct Rule 7(B) sentencing review with
substantial deference to the trial court’s sentencing decision. Cardwell v. State, 895
N.E.2d 1219, 1225 (Ind. 2008); Knapp v. State, 9 N.E.3d 1274, 1292 (Ind. 2014).
[6] White argues his sentence is inappropriate because his offense was non-violent,
his children are now independent, he has accepted responsibility, and he was
suffering from factors that affect his ability to pay his support obligation,
including unemployment, homelessness and medical emergencies. Appellant’s
Br. at 7–8. He argues he should be placed on Community Corrections for two
years, as recommended by the probation department, so that he can participate
in work release in order to repay child support and maintain a relationship with
his children. Id. We cannot conclude that White’s sentence is inappropriate in
light of the nature of his offense and the character of the offender.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-46 | August 27, 2019 Page 3 of 4
[7] In regard to the nature of the offense, the length of time and the amount of the
arrearage are appropriate considerations in assessing the severity of the crime.
Boss v. State, 702 N.E.2d 782, 785 (Ind. Ct. App. 1998). A person commits a
Class C felony of non-support of a child if the total amount of unpaid child
support for one or more children is at least $15,000. Indiana Code 35-46-1-5(a)
(2001). White owes over $35,000, more than twice the minimum owed to
qualify as a Class C felony. He failed to consistently pay child support from
June 3, 1997 to October 31, 2016, a period of nineteen years.
[8] In regard to the character of the offender, White has been cited for contempt of
court on five separate occasions for failing to pay child support and has a prior
felony criminal conviction for non-support of a dependent. Tr. pp. 20–21.
White was placed on probation twice for the felony non-support and twice
violated that probation. Id. The trial court considered and rejected White’s
request to be placed on Community Corrections, in part because of this long
history of not paying child support and prior convictions.
[9] A sentence of seven years in the DOC with three years suspended and three
years of probation is not inappropriate in light of the significant amount of
money owed over two decades and White’s prior convictions for failure to pay
child support.
[10] Affirmed.
May, J., and Brown, J., concur.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-46 | August 27, 2019 Page 4 of 4