Forrest Brown v. State of Indiana (mem. dec.)

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), this Feb 19 2015, 9:19 am

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

Cody Cogswell Gregory F. Zoeller

Anderson, Indiana Attorney General of Indiana

Kenneth E. Biggins

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Forrest Brown, February 19, 2015

Appellant-Defendant, Court of Appeals Cause No.

48A02-1405-CR-309

v. Appeal from the Madison Circuit

Court.

The Honorable David A. Happe,

State of Indiana, Judge.

Appellee-Plaintiff Cause No. 48C04-1112-FC-2414

Baker, Judge.

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[1] Forrest Brown appeals the sentence imposed by the trial court following his

conviction for Nonsupport of a Dependent Child,1 a Class C felony. Brown

asserts that the trial court abused its discretion when sentencing Brown.

Specifically, he argues that the trial court improperly relied on the amount that

Brown owed in child support as an aggravating factor. Further, Brown claims

that the six-year sentence was inappropriate in light of the nature of the offense

and his character. Finding no error, we affirm.

Facts

[2] Brown is the father of a minor child, F.B. On December 30, 2011, the State

charged Brown with a class C felony, nonsupport of a dependent child. Brown

claims that he paid child support between the years of 2005 and 2008. In 2008,

Brown was diagnosed with Crohn’s Disease. Brown admitted that he did not

pay child support after his diagnosis, but claimed that he would, on occasion,

give money to F.B.’s mother. However, Brown was unable to show that he

paid any money in child support between July 1, 2005, and November 30,

2011. On February 18, 2014, a jury found Brown guilty as charged. At the

time that the trial court sentenced Brown, he owed $33,500 in child support.

[3] At the sentencing hearing, the trial court found that Brown’s medical condition

was a mitigating factor. Tr. p. 197. The trial court also considered Brown’s

prior criminal history to be a “slight aggravator.” Id. at 198. The trial court

1

Ind. Code 35-46-1-5(a).

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stated that the “large amount of arrearage [was] a significant aggravating

factor” in the sentencing. Id. The trial court highlighted that the sum of child

support owed by Brown was more than twice the amount required to make this

a class C felony offense. Id. Moreover, the trial court found that Brown was

not remorseful. Id. The trial court found that the aggravating factors

outweighed the mitigating factors. Id. at 199. As such, the trial court sentenced

Brown to six years, with eighteen months executed and fifty-four months

suspended to probation. Id. at 200. Brown now appeals.

Discussion and Decision

I. Arrearage in Child Support as an

Aggravating Factor

[4] Brown first argues that the trial court abused its discretion by considering an

improper aggravator. In Indiana, it is well established that “[s]entencing

decisions rest within the trial court’s discretion, and are reviewed on appeal

only for an abuse of discretion.” Smallwood v. State, 773 N.E.2d 259, 263 (Ind.

2002). “An abuse of discretion occurs if the decision is clearly against the logic

and effect of the facts and circumstances.” Jones v. State, 812 N.E.2d 820, 826

(Ind. Ct. App. 2004). Brown contends that the trial court improperly relied on

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the arrearage that Brown owed in child support as an aggravating factor. At the

time of Brown’s offense, Indiana Code section 35-46-1-5(a)2 provided,

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).

This Court has held that “[t]he amount of arrearage is a proper aggravating

circumstance and may be used to enhance [a defendant’s] sentence.” Jones, 812

N.E.2d at 826.

[5] Here, the trial court found the sum of Brown’s arrearage to be an aggravating

factor. Tr. p. 198. The trial court reasoned that the arrearage amount showed

that Brown held a complete lack of regard to his duties under the law and his

duties as a father. Id. at 198-99. By considering Brown’s substantial child

support arrearage as an aggravator, the trial court acted squarely in line with

precedent laid down by this Court. Jones, 812 N.E.2d at 826. We find no error

on this basis.

II. Appropriateness of Sentence

[6] Further, Brown next claims that his sentence is inappropriate in light of the

nature of the offense and his character. Under Indiana Appellate Rule 7(B), the

2

This statute section was amended by the Indiana Legislature, with an effective date of July 1, 2014. The

language quoted above is the language of the statute in place at the time Brown committed the offense and is

applicable to this case.

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“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.” We must

“conduct [this] review with substantial deference and give ‘due consideration’

to the trial court’s decision—since the ‘principal role of [our] review is to

attempt to leaven the outliers,’ and not to achieve a perceived ‘correct’ sentence

. . . .” Knapp v. State, 9 N.E.3d 1274, 1292 (Ind. 2014) (quoting Chambers v.

State, 989 N.E.2d 1257, 1259 (Ind. 2013)).

[7] The statute in effect at the time the offense was committed stated that “[a]

person who commits a Class C felony shall be imprisoned for a fixed term of

between two (2) and eight (8) years, with the advisory sentence being four (4)

years.” Ind. Code § 35-50-2-6. Our Supreme Court has held that such advisory

sentences are the “starting point” for a trial court in determining the length of a

sentence. Brown v. State, 10 N.E.3d 1, 4 (Ind. 2014).

[8] With respect to the nature of Brown’s offense, we note that Brown’s arrearage is

more than double the amount required to qualify the offense as a class C felony,

and that Brown failed to pay any child support for six years. Tr. p. 198; See

Jones, 812 N.E.2d at 826 (holding that “[t]he length of time for nonpayment of

child support and the amount of arrearage go to the severity of the crime and

the proper length of sentence”).

[9] With respect to Brown’s character, the trial court found that he had no remorse

for his actions. Tr. p. 198. Furthermore, by not paying child support, Brown

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has disregarded his financial responsibility as a father and his duty under the

law. Id. at 199. This, in addition to his prior criminal history, shows a lack of

respect for the law. Id. at 198-99.

[10] Accordingly, we do not find the six-year sentence imposed by the trial court to

be inappropriate in light of the nature of the offense and Brown’s character.

[11] The judgment of the trial court is affirmed.

Vaidik, C.J., and Riley, J., concur.

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