Arlandas A. Anderson v. State of Indiana

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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
FILED
Sep 06 2012, 9:33 am
the defense of res judicata, collateral
estoppel, or the law of the case.
CLERK
of the supreme court,
court of appeals and
tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
MARK OLIVERO GREGORY F. ZOELLER
Fort Wayne, Indiana Attorney General of Indiana
BRIAN REITZ
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
ARLANDAS A. ANDERSON, )
)
Appellant-Defendant, )
)
vs. ) No. 92A05-1202-CR-72
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE WHITLEY CIRCUIT COURT
The Honorable James R. Heuer, Judge
Cause No. 92C01-0906-FC-62
September 6, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
CRONE, Judge
Case Summary
Arlandas A. Anderson appeals his eight-year sentence for class C felony nonsupport
of a dependent child, claiming that the trial court erred in considering mitigating and
aggravating factors and that his sentence is inappropriate in light of the nature of the offense
and his character. We affirm.
Facts and Procedural History
Anderson is the biological father of F.S., who was born in 1994. A default paternity
judgment and a support order were entered against him. Tr. at 6-7, 32. On June 12, 2009,
the State charged Anderson with class C felony nonsupport of a dependent child, alleging
that from December 1998 through December 2008 he knowingly failed to pay support to
F.S., “the amount of unpaid support due and owing being in excess of $15,000.00.”
Appellant’s App. at 11. At a pretrial hearing on September 28, 2010, Anderson requested
genetic testing, which established that he was F.S.’s biological father. Anderson failed to
appear at a pretrial hearing set for July 12, 2011, and the State charged him with class D
felony failure to appear. On July 19, 2011, Anderson pled guilty to the nonsupport charge
without a written plea agreement, and the State agreed to dismiss the failure to appear charge.
The trial court ordered Anderson to schedule an interview with a probation officer for the
presentence investigation report (“PSI”) and set the sentencing hearing for August 16, 2011.
According to the PSI, Anderson failed to attend the scheduled interview.
At the August 16 hearing, Anderson expressed dissatisfaction with his appointed
counsel and asked to withdraw his guilty plea. The trial court denied Anderson’s request.
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The court determined that Anderson’s arrearage was over $27,000, that he had accumulated
twenty-six misdemeanor convictions at age forty, that he was employed as a maintenance
worker in Fort Wayne, and that he had been making support payments. The court reset the
sentencing hearing for September 27, 2011, “to see if [Anderson keeps] a job and keep[s]
paying support.” Tr. at 27. Once again, Anderson did not attend the hearing, and the State
charged him with another count of class D felony failure to appear. The sentencing hearing
was reset for January 17, 2012.
On that date, the State agreed to dismiss the second failure to appear count, and the
court sentenced Anderson as follows:
Mr. Anderson, I’m not gonna ignore your criminal history that takes up
at least nine pages of your presentence report is your criminal history, which is
something the court simply can’t ignore, and this $27,000.00 arrearage is
something the court can’t and will not ignore. But I’ll give you the opportunity
to show to the court through assignment to work release that you can work and
pay your support and if things go well, seek a release from that work release
facility in the future. I will find aggravating circumstances to be your criminal
history. Number two, your history of substance abuse. Number three, your
history of violating the terms of suspended sentence. Number four, that you
have been uncooperative in the investigation of this report. By that I mean the
presentence report. Find no mitigators. Find that the maximum sentence for a
class C felony is entirely appropriate here. I will sentence you to the full eight-
year sentence. I will order four years of that sentence to be served and four
years suspended. The four years to be served will be at the Whitley County
Jail. If you are approved for work release, I will assign you to work release.
Also, I’ll authorize that work release be transferred to the Allen County Work
Release Facility so that you can, hopefully, continue your employment in Fort
Wayne.… We’ll note that there is an arrearage of $27,096.33 as of January 14,
2012.
Id. at 33-34. Anderson now appeals.
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Discussion and Decision
“Indiana trial courts are required to enter sentencing statements whenever imposing a
sentence for a felony offense.” Richardson v. State, 906 N.E.2d 241, 243 (Ind. Ct. App.
2009).
The statement must include a reasonably detailed recitation of the trial court’s
reasons for imposing a particular sentence. If the recitation includes a finding
of aggravating or mitigating circumstances, then the statement must identify all
significant mitigating and aggravating circumstances and explain why each
circumstance has been determined to be mitigating or aggravating.
Id. (emphasis and citation omitted).
Anderson challenges the trial court’s consideration of aggravating and mitigating
circumstances and also contends that his sentence is inappropriate in light of the nature of the
offense and his character. Subject to our authority to review and revise sentences pursuant to
Indiana Appellate Rule 7(B), “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.
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. A trial court may
abuse its discretion in sentencing by failing to enter a sentencing statement,
entering a sentencing statement that explains reasons for imposing a sentence
which the record does not support, omitting reasons that are clearly supported
by the record and advanced for consideration, or giving reasons that are
improper as a matter of law.
Anderson v. State, 961 N.E.2d 19, 32 (Ind. Ct. App. 2012) (citations omitted), trans. denied.
The weight given to particular aggravators and mitigators is not subject to appellate review.
Patterson v. State, 909 N.E.2d 1058, 1062 (Ind. Ct. App. 2009).
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I. Mitigating and Aggravating Circumstances
Anderson first contends that the trial court abused its discretion by “ignoring” several
mitigating factors. Appellant’s Br. at 10. We have explained that
[t]he finding of mitigating factors is not mandatory and rests within the
discretion of the trial court. The trial court is not obligated to accept the
defendant’s arguments as to what constitutes a mitigating factor. Nor is the
court required to give the same weight to proffered mitigating factors as the
defendant does. Further, the trial court is not obligated to explain why it did
not find a factor to be significantly mitigating. However, the trial court may
not ignore facts in the record that would mitigate an offense, and a failure to
find mitigating circumstances that are clearly supported by the record may
imply that the trial court failed to properly consider them. An allegation that
the trial court failed to identify or find a mitigating factor requires the
defendant to establish that the mitigating evidence is both significant and
clearly supported by the record.
Page v. State, 878 N.E.2d 404, 408 (Ind. Ct. App. 2007) (citations and quotation marks
omitted), trans. denied (2008).
To the extent Anderson suggests that the trial court should have found his guilty plea
to be a mitigator, we note that “a guilty plea is not always a significant mitigating
circumstance.” Caraway v. State, 959 N.E.2d 847, 853 (Ind. Ct. App. 2011), trans. denied
(2012). A plea’s significance is reduced “if the circumstances indicate the defendant is not
taking responsibility for his actions, or if substantial admissible evidence exists against the
defendant. Also, the plea may not be significant when the defendant receives a substantial
benefit in return for the plea.” Id. (citation and quotation marks omitted). Here, Anderson
challenged his paternity, tried to withdraw his guilty plea, failed to attend the PSI interview,
and then failed to appear at the sentencing hearing. Moreover, the amount of his substantial
arrearage was undisputed, and the State agreed to dismiss two class D felony failure to
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appear charges, which was a substantial benefit to Anderson. Under these circumstances, we
cannot say that the trial court abused its discretion in not finding Anderson’s guilty plea to be
a significant mitigator.
Anderson also contends that the trial court should have found his numerous
misdemeanor convictions, most of them from Nevada, to be a mitigating circumstance
because they “were a result of [his] homelessness, drug addictions and having to sleep on
park benches.” Appellant’s Br. at 11. The State observes that “because Anderson refused to
cooperate in the PSI, his claims about his homelessness are just that – self-serving claims,”
and are “therefore not clearly supported by the record.” Appellee’s Br. at 7. The State also
observes that “[a] history of substance abuse may constitute a valid aggravating factor,”
Roney v. State, 872 N.E.2d 192, 199 (Ind. Ct. App. 2007) (emphasis added), trans. denied,
and that there is no evidence that Anderson ever sought treatment for his addiction. As such,
we find no abuse of discretion. See Caraway, 959 N.E.2d at 852 (concluding that trial court
did not abuse its discretion in finding defendant’s “alcohol abuse and failure to obtain
treatment to be an aggravator.”) (emphasis added).
Next, Anderson asserts that the trial court should have given mitigating consideration
to “the fact that he obtained employment … and was paying support continuously after
having been asked by the Court to do so since the beginning of August of 2011.” Appellant’s
Br. at 11. Anderson neglects to mention that he had failed to pay support for over ten years,
and we see no reason why the trial court should have granted him leniency for doing what he
should have done in the first place. See Newsome v. State, 797 N.E.2d 293, 301 (Ind. Ct.
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App. 2003) (“Many people are gainfully employed such that this would not require the trial
court to note it as a mitigating factor or afford it the same weight as [the defendant]
proposes.”), trans. denied (2004). We find no abuse of discretion here.1
Finally, Anderson appears to suggest that the trial court abused its discretion in
finding his criminal history to be an aggravating factor because many of the charges against
him were dismissed, did not result in convictions, or had unknown dispositions.2 He
observes that our supreme court has said that “[c]harges that do not result in convictions may
be considered by the sentencing court in context, but something more than mere recitation
unaccompanied by specific allegations should be shown.” McElroy v. State, 865 N.E.2d 584,
591 (Ind. 2007). Any error in the trial court’s consideration of such charges in this case is
substantially offset by Anderson’s twenty-six misdemeanor convictions, which range from
criminal mischief and battery in Indiana to trespassing and possession of drug paraphernalia
in Nevada. Even Anderson’s counsel properly conceded that his client has “a terrible
criminal history,” Tr. at 29, and the trial court properly found it to be an aggravating
1
Anderson also contends for the first time on appeal that the trial court abused its discretion in failing
to find other mitigating factors, such as that “the crime did not cause or threaten serious harm to any persons or
property.” Appellant’s Br. at 11. Anderson has waived consideration of any mitigating circumstances not
raised at the sentencing hearing. See Simms v. State, 791 N.E.2d 225, 233 (Ind. Ct. App. 2003) (“If the
defendant fails to advance a mitigating circumstance at sentencing, this court will presume that the
circumstance is not significant and the defendant is precluded from advancing it as a mitigating circumstance
for the first time on appeal.”). In any event, as the State points out, “[b]y definition, nonsupport of a child does
not include serious harm to any person or property as a material element of the crime, and, therefore, the trial
court was not obliged to give this factor any mitigating weight.” Appellee’s Br. at 9 (citing Ind. Code § 35-46-
1-5(a) and Banks v. State, 841 N.E.2d 654, 659 (Ind. Ct. App. 2006), trans. denied).
2
The PSI states that Anderson’s criminal history was “a list of all offenses reported to or found by the
Whitley County Probation Department. Some agencies were not willing to release records without monetary
compensation, in which, those records were not collected.” Appellant’s App. at 79.
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circumstance. In sum, we find no abuse of discretion in the trial court’s consideration of
mitigating and aggravating circumstances.
II. Appropriateness of Sentence
Anderson asks us to reduce his sentence pursuant to 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.” “[T]he question under Appellate
Rule 7(B) is not whether another sentence is more appropriate; rather, the question is whether
the sentence imposed is inappropriate.” King v. State, 894 N.E.2d 265, 268 (Ind. Ct. App.
2008). “[W]e look to whether the sentence is composed of executed imprisonment time, in
whole or in part, or includes any alternatives to incarceration when performing 7(B)
analysis.” Hollar v. State, 916 N.E.2d 741, 744 (Ind. Ct. App. 2009). The defendant bears
the burden of persuading us that his sentence is inappropriate. Anglemyer, 868 N.E.2d at
494.
“Regarding the nature of the offense, the advisory sentence is the starting point the
Legislature selected as appropriate for the crime committed.” Ludack v. State, 967 N.E.2d
41, 48 (Ind. Ct. App. 2012) (citation and quotation marks omitted), trans. denied. The
sentencing range for a class C felony is between two and eight years, with an advisory
sentence of four years. Ind. Code § 35-50-2-6. A person commits class C felony nonsupport
of a dependent child by knowingly or intentionally failing to provide support to the person’s
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dependent child and if the total amount of unpaid support that is due and owing for one or
more children is at least $15,000. Ind. Code § 35-46-1-5(a).
Here, Anderson knowingly failed to support his daughter for over ten years and
accrued an arrearage of over $27,000. Anderson claims that “[t]he reason he had accrued
such an arrearage was the fact that he had been homeless for a period [of] time and unable to
make payments as required.” Appellant’s Br. at 13. Anderson’s purported homelessness was
supposedly due to a drug addiction, for which he failed to seek treatment. In other words, as
the State puts it, Anderson “chose to purchase drugs instead of supporting his daughter,”
which he “was legally required to do.” Appellee’s Br. at 7. Clearly, the nature of his offense
supports a sentence above the advisory term.
As for Anderson’s character, he has an extensive criminal history that includes
twenty-six misdemeanor convictions, and he failed to comply with the conditions of a
suspended sentence on numerous occasions. He failed to appear at several hearings in this
case and also failed to attend his PSI interview. Although it is commendable that Anderson
recently found employment and began to reduce his sizable support arrearage, he has a long
history of failing to comply with the law and his child support obligation. The trial court’s
sentence of four years of work release and four years suspended will allow Anderson to
fulfill that obligation and demonstrate his ability to function as a productive member of
society, while under court supervision. Anderson has failed to persuade us that his sentence
is inappropriate, and therefore we affirm.
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Affirmed.
RILEY, J., and BAILEY, J., concur.
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