Stephen E. Abernathy v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Apr 30 2015, 10:14 am
Pursuant to Ind. Appellate Rule 65(D), this
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
Cara Schaefer Wieneke Gregory F. Zoeller
Special Assistant to the State Public Attorney General of Indiana
Defender
Richard C. Webster
Wieneke Law Office, LLC
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Stephen E. Abernathy, April 30, 2015
Appellant-Defendant, Court of Appeals Case No.
23A01-1411-CR-492
v. Appeal from the Fountain Circuit
Court
State of Indiana, The Honorable Susan Orr
Henderson, Judge
Appellee-Plaintiff.
Case No. 23C01-1407-FD-278
Vaidik, Chief Judge.
Case Summary
[1] Stephen E. Abernathy appeals his advisory sentence for Class D felony failure
to register as a sex offender. He contends that his sentence of one and one-half
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years is inappropriate in light of the minor nature of the offense and the fact that
he pled guilty at his initial hearing. Because Abernathy has failed to persuade
us that the advisory sentence is inappropriate in this case, we affirm.
Facts and Procedural History
[2] Abernathy was required to register as a sex offender in Indiana. One of the
registration requirements is that a sex offender must report in person to local
law enforcement no later than seventy-two hours after a change in principal
address. See Ind. Code § 11-8-8-11(a). In addition, a sex offender who does not
have a principal or temporary residence must report in person to local law
enforcement at least once every seven days. See Ind. Code § 11-8-8-12(c).
[3] In June 2014 Fountain County law enforcement learned that Abernathy had
moved out of his principal residence on West Coopers Chapel Road in
Veedersburg “some time ago” and was now homeless. Appellant’s App. p. 7.
Abernathy, however, did not report these changes in person to local law
enforcement.
[4] On July 8, 2014, the State charged Abernathy with Class D felony failure to
register as a sex offender for not residing at his registered address or location on
June 30, 2014. See Ind. Code Ann. § 11-8-8-17(a)(5) (West 2013 Supp.);
Appellant’s App. p. 6. At his initial hearing that same day, Abernathy waived
counsel and pled guilty as charged because he did not want “to waste [the trial
court’s] time on this.” Tr. p. 10. Abernathy knew that he had only a certain
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amount of time to report a change of principal address and that he was required
to register once a week because he was homeless,1 yet he did not do these
things. Id. at 12. Abernathy, who said he was living in his car and suffering
from Stage 4 cirrhosis of the liver, claimed that he did not report in person as
required because he was “trying to get a mobile home set up,” which used all of
his energy. Id. at 12, 22. The trial court proceeded to sentencing and sentenced
Abernathy to the advisory term of one and one-half years.2
[5] Abernathy now appeals his sentence.
Discussion and Decision
[6] Abernathy contends that his advisory sentence is inappropriate in light of the
“minor” nature of the offense and his “immediate[]” admission of guilt.
Appellant’s Br. p. 3, 4. He therefore asks us to reduce his sentence.
[7] Our appellate rules authorize revision of a sentence “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.” Ind.
Appellate Rule 7(B). “[A] defendant must persuade the appellate court that his
1
Abernathy admitted that he was homeless for a period of time in 2012 and had to report every seven days.
Tr. p. 12.
2
Abernathy was on probation for Class D felony resisting law enforcement and Class A misdemeanor
driving while suspended when he should have reported in person to local law enforcement. At the initial
hearing, the probation department filed a notice of probation violation. Abernathy admitted to violating his
probation, and the trial court sentenced him to one and one-half years, to be served consecutive to his
sentence in this case.
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or her sentence has met this inappropriateness standard of review.” Childress v.
State, 848 N.E.2d 1073, 1080 (Ind. 2006).
[8] The principal role of Rule 7(B) review “should be to attempt to leaven the
outliers, and identify some guiding principles for trial courts and those charged
with improvement of the sentencing statutes, but not to achieve a perceived
‘correct’ result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.
2008). Whether a sentence is inappropriate ultimately turns on the culpability
of the defendant, the severity of the crime, the damage done to others, and a
myriad of other factors that come to light in a given case. Id. at 1224.
[9] A person who commits a Class D felony (for a crime committed before July 1,
2014) shall be imprisoned for a fixed term of between six months and three
years, with the advisory sentence being one and one-half years. Ind. Code § 35-
50-2-7. Here, the trial court sentenced Abernathy to the advisory term.
[10] As for the nature of the offense, Abernathy, who knew the registration
requirements of the sex-offender registry, failed to report in person to local law
enforcement when he moved out of his principal residence and became
homeless. As a result, Abernathy’s address remained the same in the sex-
offender registry even though he no longer lived on West Coopers Chapel
Road. See Jensen v. State, 905 N.E.2d 384, 393 (Ind. 2009) (noting that the
purpose of the Sex Offender Registration Act is deterrence and promoting
community condemnation). His reason for not reporting was because he was
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trying to set up a mobile home. The nature of the offense does not convince us
that the advisory term is inappropriate.
[11] As for Abernathy’s character, the trial court sentenced him before a Presentence
Investigation Report could be prepared; therefore, we do not know much about
his character. We acknowledge that he pled guilty at the initial hearing, which
quickly resolved this case and saved the court time. However, he was also on
probation for two offenses when he committed this offense. Abernathy’s
character also supports the advisory sentence. We therefore affirm his sentence.
[12] Affirmed.
Kirsch, J., and Bradford, J., concur.
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