MEMORANDUM DECISION Jun 30 2015, 10:21 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 Leanna Weissmann Gregory F. Zoeller Lawrenceburg, Indiana Attorney General of Indiana Karl M. Scharnberg Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Donald Probst, June 30, 2015
Appellant-Defendant, Court of Appeals Case No. 15A04-1412-CR-586 v. Appeal from the Dearborn Superior Court. State of Indiana, The Honorable Jon Cleary, Judge. Cause No. 15D01-1411-FD-470 Appellee-Plaintiff.
Riley, Judge.
Court of Appeals of Indiana | Memorandum Decision | 15A04-1412-CR-586 | June 30, 2015 Page 1 of 7 STATEMENT OF THE CASE
[1] Appellant-Defendant, Donald Probst (Probst), appeals his sentence following
his conviction for nonsupport of a dependent child, a Class D felony, Ind. Code
§ 35-46-1-5(a) (2013).
[2] We affirm.
ISSUE
[3] Probst raises one issue on appeal, which we restate as follows: Whether
Probst’s sentence is inappropriate in light of the nature of the offense and his
character.
FACTS AND PROCEDURAL HISTORY
[4] Probst is the biological father of a minor son. His paternity was established on
January 5, 2009, at which time an order for child support was entered.
Pursuant to the child support order, Probst was required to pay $38.00 per week
for the care and support of his child, retroactive to October 14, 2008.
[5] By October 30, 2009, Probst had accumulated a child support arrearage of
$1,937.06 and was found to be in contempt of court on November 18, 2009.
Despite the order of contempt, Probst was consistently derelict in his duty to
pay for the next five years. Since the child support order was entered, Probst
has paid a total of only $273.24, resulting in an arrearage of $11,581.82 as of
October 31, 2014.
Court of Appeals of Indiana | Memorandum Decision | 15A04-1412-CR-586 | June 30, 2015 Page 2 of 7 [6] On November 18, 2014, the State filed an Information, charging Probst with
one Count of nonsupport of a dependent child as a Class D felony.1 On
December 1, 2014, Probst pled guilty to the charged offense. Immediately
thereafter, the trial court conducted a sentencing hearing and ordered Probst to
serve 545 days, fully executed in the Indiana Department of Correction.
[7] Probst now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
[8] Probst claims that his sentence is inappropriate. At the outset, we note that the
trial court imposed the advisory sentence for a Class D felony of one and one-
half years. I.C. § 35-50-2-7(a) (2013). Even where a trial court orders a
statutorily permissible sentence, our court may nevertheless revise the sentence
if “after due consideration of the trial court’s decision,” we find that it “is
inappropriate in light of the nature of the offense and the character of the
offender.” Ind. Appellate Rule 7(B). Probst now requests that we revise his
sentence to the minimum term for a Class D felony of six months. See I.C. §
35-50-2-7(a) (2013).
1 Effective July 1, 2014, Indiana Code section 35-46-1-5 was amended such that nonsupport of a dependent child is now a Level 6 felony. For a crime committed after June 30, 2014, a Level 6 felony is punishable by a term of six months to two and one-half years, with the advisory sentence being one year. I.C. § 35-50-2-7(b) (2014). “However, the offense is a Level 5 felony “if the person has a previous conviction under this section.” I.C. § 35-46-1-5(a) (2014). A Level 5 felony is punishable by a term of one to six years, with the advisory sentence being three years. I.C. § 35-50-2-6(b) (2014). In the present case, the charged offense represents Probst’s third conviction for nonsupport of a dependent child. Even though Probst committed a portion of his crime and was charged after the enactment of the revised criminal code, he was charged under the prior version of Indiana Code section 35-46-1-5 with a Class D—rather than Level 5—felony.
Court of Appeals of Indiana | Memorandum Decision | 15A04-1412-CR-586 | June 30, 2015 Page 3 of 7 [9] With respect to Indiana Appellate Rule 7(B), appellate courts are endowed with
significant discretion to revise a sentence; however, “it does not detract from
the long-recognized principle that ‘sentencing is principally a discretionary
function in which the trial court’s judgment should receive considerable
deference.’” Parks v. State, 22 N.E.3d 552, 555 (Ind. 2014) (quoting Cardwell v.
State, 895 N.E.2d 1219, 1222 (Ind. 2008)). Although “‘reasonable minds may
differ’ on the appropriateness of a sentence[,]” our determination of whether a
sentence is appropriate will inexorably turn “on our sense of the culpability of
the defendant, the severity of the crime, the damage done to others, and myriad
other factors that come to light in a given case.” Id. (quoting Buchanan v. State,
767 N.E.2d 967, 970 (Ind. 2002)); Cardwell, 895 N.E.2d at 1224. “Ultimately
the length of the aggregate sentence and how it is to be served are the issues that
matter.” Cardwell, 895 N.E.2d at 1224. As our supreme court has stated, “The
principal role of appellate 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.” Id. at 1225. Probst bears the burden of persuading our
court that his sentence is inappropriate. Sanquenetti v. State, 917 N.E.2d 1287,
1289 (Ind. Ct. App. 2009).
[10] Here, the nature of the offense is that Probst failed to pay $38.00 per week to
support his dependent child for a period of six years. Between 2008 and 2014,
Probst paid only $273.24 in 2010. No payments were made in any other year,
resulting in a total arrearage of $11,581.82. No evidence was presented to
Court of Appeals of Indiana | Memorandum Decision | 15A04-1412-CR-586 | June 30, 2015 Page 4 of 7 specifically demonstrate that the child endured hardship or sacrifice as a result
of Probst’s non-payment, or that the custodial parent was forced to seek
governmental assistance to support the child. See id. at 1290. Nevertheless,
$11,581.82 is a substantial arrearage, and this court has previously recognized
that when one parent fails to provide necessary financial resources for his or her
child, the burden “unfairly” shifts to the custodial parent. Id. “We cannot
emphasize enough the importance of honoring one’s responsibility for and
commitment to his or her children.” Id.
[11] During the sentencing hearing, Probst explained that he “just got out nine
months ago [from] prison. I’ve been locked up for four years prison time
already. I get out. I try looking for a job, can’t find one because of my drug
charge. Then I just had surgery done to my shoulder.” (Tr. p. 3). Because
Probst pled guilty, he concedes that he cannot “now argue lack of ability to pay
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MEMORANDUM DECISION Jun 30 2015, 10:21 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 Leanna Weissmann Gregory F. Zoeller Lawrenceburg, Indiana Attorney General of Indiana Karl M. Scharnberg Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Donald Probst, June 30, 2015
Appellant-Defendant, Court of Appeals Case No. 15A04-1412-CR-586 v. Appeal from the Dearborn Superior Court. State of Indiana, The Honorable Jon Cleary, Judge. Cause No. 15D01-1411-FD-470 Appellee-Plaintiff.
Riley, Judge.
Court of Appeals of Indiana | Memorandum Decision | 15A04-1412-CR-586 | June 30, 2015 Page 1 of 7 STATEMENT OF THE CASE
[1] Appellant-Defendant, Donald Probst (Probst), appeals his sentence following
his conviction for nonsupport of a dependent child, a Class D felony, Ind. Code
§ 35-46-1-5(a) (2013).
[2] We affirm.
ISSUE
[3] Probst raises one issue on appeal, which we restate as follows: Whether
Probst’s sentence is inappropriate in light of the nature of the offense and his
character.
FACTS AND PROCEDURAL HISTORY
[4] Probst is the biological father of a minor son. His paternity was established on
January 5, 2009, at which time an order for child support was entered.
Pursuant to the child support order, Probst was required to pay $38.00 per week
for the care and support of his child, retroactive to October 14, 2008.
[5] By October 30, 2009, Probst had accumulated a child support arrearage of
$1,937.06 and was found to be in contempt of court on November 18, 2009.
Despite the order of contempt, Probst was consistently derelict in his duty to
pay for the next five years. Since the child support order was entered, Probst
has paid a total of only $273.24, resulting in an arrearage of $11,581.82 as of
October 31, 2014.
Court of Appeals of Indiana | Memorandum Decision | 15A04-1412-CR-586 | June 30, 2015 Page 2 of 7 [6] On November 18, 2014, the State filed an Information, charging Probst with
one Count of nonsupport of a dependent child as a Class D felony.1 On
December 1, 2014, Probst pled guilty to the charged offense. Immediately
thereafter, the trial court conducted a sentencing hearing and ordered Probst to
serve 545 days, fully executed in the Indiana Department of Correction.
[7] Probst now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
[8] Probst claims that his sentence is inappropriate. At the outset, we note that the
trial court imposed the advisory sentence for a Class D felony of one and one-
half years. I.C. § 35-50-2-7(a) (2013). Even where a trial court orders a
statutorily permissible sentence, our court may nevertheless revise the sentence
if “after due consideration of the trial court’s decision,” we find that it “is
inappropriate in light of the nature of the offense and the character of the
offender.” Ind. Appellate Rule 7(B). Probst now requests that we revise his
sentence to the minimum term for a Class D felony of six months. See I.C. §
35-50-2-7(a) (2013).
1 Effective July 1, 2014, Indiana Code section 35-46-1-5 was amended such that nonsupport of a dependent child is now a Level 6 felony. For a crime committed after June 30, 2014, a Level 6 felony is punishable by a term of six months to two and one-half years, with the advisory sentence being one year. I.C. § 35-50-2-7(b) (2014). “However, the offense is a Level 5 felony “if the person has a previous conviction under this section.” I.C. § 35-46-1-5(a) (2014). A Level 5 felony is punishable by a term of one to six years, with the advisory sentence being three years. I.C. § 35-50-2-6(b) (2014). In the present case, the charged offense represents Probst’s third conviction for nonsupport of a dependent child. Even though Probst committed a portion of his crime and was charged after the enactment of the revised criminal code, he was charged under the prior version of Indiana Code section 35-46-1-5 with a Class D—rather than Level 5—felony.
Court of Appeals of Indiana | Memorandum Decision | 15A04-1412-CR-586 | June 30, 2015 Page 3 of 7 [9] With respect to Indiana Appellate Rule 7(B), appellate courts are endowed with
significant discretion to revise a sentence; however, “it does not detract from
the long-recognized principle that ‘sentencing is principally a discretionary
function in which the trial court’s judgment should receive considerable
deference.’” Parks v. State, 22 N.E.3d 552, 555 (Ind. 2014) (quoting Cardwell v.
State, 895 N.E.2d 1219, 1222 (Ind. 2008)). Although “‘reasonable minds may
differ’ on the appropriateness of a sentence[,]” our determination of whether a
sentence is appropriate will inexorably turn “on our sense of the culpability of
the defendant, the severity of the crime, the damage done to others, and myriad
other factors that come to light in a given case.” Id. (quoting Buchanan v. State,
767 N.E.2d 967, 970 (Ind. 2002)); Cardwell, 895 N.E.2d at 1224. “Ultimately
the length of the aggregate sentence and how it is to be served are the issues that
matter.” Cardwell, 895 N.E.2d at 1224. As our supreme court has stated, “The
principal role of appellate 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.” Id. at 1225. Probst bears the burden of persuading our
court that his sentence is inappropriate. Sanquenetti v. State, 917 N.E.2d 1287,
1289 (Ind. Ct. App. 2009).
[10] Here, the nature of the offense is that Probst failed to pay $38.00 per week to
support his dependent child for a period of six years. Between 2008 and 2014,
Probst paid only $273.24 in 2010. No payments were made in any other year,
resulting in a total arrearage of $11,581.82. No evidence was presented to
Court of Appeals of Indiana | Memorandum Decision | 15A04-1412-CR-586 | June 30, 2015 Page 4 of 7 specifically demonstrate that the child endured hardship or sacrifice as a result
of Probst’s non-payment, or that the custodial parent was forced to seek
governmental assistance to support the child. See id. at 1290. Nevertheless,
$11,581.82 is a substantial arrearage, and this court has previously recognized
that when one parent fails to provide necessary financial resources for his or her
child, the burden “unfairly” shifts to the custodial parent. Id. “We cannot
emphasize enough the importance of honoring one’s responsibility for and
commitment to his or her children.” Id.
[11] During the sentencing hearing, Probst explained that he “just got out nine
months ago [from] prison. I’ve been locked up for four years prison time
already. I get out. I try looking for a job, can’t find one because of my drug
charge. Then I just had surgery done to my shoulder.” (Tr. p. 3). Because
Probst pled guilty, he concedes that he cannot “now argue lack of ability to pay
to avoid criminal liability.” (Appellant’s Br. p. 5). See I.C. § 35-46-1-5(d) (2013)
(“It is a defense that the accused person was unable to provide support.”).
Nonetheless, he contends that “his financial struggles should be considered in
determining the nature of this crime” because “[t]his is not a situation where a
father, uncaring for his responsibility, lavishly spent money on himself while
leaving his child in squalor.” (Appellant’s Br. p. 5). Rather, according to
Probst, he “was in a position which made it financially infeasible for him to
support his child.” (Appellant’s Br. p. 5). We disagree. As the trial court
noted, even during the years where Probst was not incarcerated, he failed to
contribute a single cent toward his support obligation.
Court of Appeals of Indiana | Memorandum Decision | 15A04-1412-CR-586 | June 30, 2015 Page 5 of 7 [12] As to the character of the offender, Probst has a lengthy criminal history.
Although no pre-sentence investigation report was filed, the trial court found it
to be an aggravating circumstance that Probst has prior convictions for
burglary; battery; possession of burglary tools and receiving stolen property (in
Kentucky); forgery (in Ohio); theft; resisting law enforcement; criminal trespass;
criminal mischief; false reporting; public intoxication; and dealing in a Schedule
I, II, or III controlled substance. Probst also has two prior probation violations
and stated that he was on probation at the time of the instant offense. Most
notably, Probst has been convicted of nonsupport of his other dependent
child(ren) on two occasions previous to the instant offense.
[13] On the other hand, the trial court accorded “significant weight [to] the fact
that” Probst pled guilty to the current conviction at the initial hearing without
the benefit of a plea agreement. (Tr. p. 9). Although his acceptance of
responsibility in the present case speaks favorably of Probst’s character, the
remaining evidence overwhelmingly demonstrates Probst’s habitual disregard
for the law and authority of the court. Furthermore, at the sentencing hearing,
Probst indicated that he was surprised by the arrest warrant because he “[d]idn’t
even know that anything was going on” and believed he was in compliance
with the terms of his probation. (Tr. p. 3). The fact that it did not even occur to
Probst that he was being held accountable for neglecting his parental obligation
for six years—even though he previously has been held in contempt for the
same issue—evidences his utter lack of respect for the trial court’s support order
and his indifference to the needs of his child. Accordingly, we conclude that
Court of Appeals of Indiana | Memorandum Decision | 15A04-1412-CR-586 | June 30, 2015 Page 6 of 7 Probst has failed to satisfy his burden to demonstrate that the advisory sentence
is inappropriate.
CONCLUSION
[14] Based on the foregoing, we conclude that Probst’s sentence is not inappropriate
in light of the nature of the offense and his character.
[15] Affirmed.
[16] Bailey, J. and Barnes, J. concur
Court of Appeals of Indiana | Memorandum Decision | 15A04-1412-CR-586 | June 30, 2015 Page 7 of 7