Flickner v. State

908 N.E.2d 270, 2009 Ind. App. LEXIS 898, 2009 WL 1674979
CourtIndiana Court of Appeals
DecidedJune 16, 2009
Docket31A01-0809-CR-409
StatusPublished
Cited by31 cases

This text of 908 N.E.2d 270 (Flickner v. State) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Flickner v. State, 908 N.E.2d 270, 2009 Ind. App. LEXIS 898, 2009 WL 1674979 (Ind. Ct. App. 2009).

Opinion

OPINION

BROWN, Judge.

Robbie Flickner appeals his sentence for nonsupport of a dependent child as a class C felony. 1 Flickner raises two issues, which we revise and restate as:

I. Whether the trial court abused its discretion in sentencing Flickner; and

*272 II. Whether the sentence is inappropriate in light of the nature of the offense and the character of the offender.

We affirm.

The relevant facts follow. On October 25, 2002, the State charged Robbie Flick-ner with nonsupport of a dependent child totaling over $15,000 as a class C felony. On November 12, 2002, Flickner's mother paid $15,000 on behalf of Flickner for child support, and Flickner was released on bond. The case was continued until September 25, 2008, when Flickner and his counsel failed to appear. The case was continued until October 15, 2003, but Flick-ner again failed to appear. Another warrant was issued, and Flickner appeared on February 17, 2004. Flickner spent the next 251 days in jail, but beginning on March 24, 2004 he was granted furlough to work.

On October 25, 2004, after entering an appearance and requesting a jury trial, which was set for March 15, 2005, Flickner was released on his own recognizance. Flickner's bond included the specific condition that he pay $200.00 per week in child support to the court clerk.

On March 1, 2006, the State filed a petition for revocation of bond which alleged that Flickner violated the condition of his bond by failing to pay child support between February 3 and February 24, 2006. Flickner failed to appear at the petition hearing on April, 24, 2006, and a warrant was issued for his arrest. Flick-ner again failed to appear on May 16, 2006 for his scheduled jury trial. The warrant issued on April 24, 2006 was served on January 25, 2008.

On July 2, 2008, Flickner entered a blind plea of guilty to nonsupport of a dependent child as a class C felony.

At the sentencing hearing, the trial court identified two aggravating cireum-stances and one mitigating circumstance. Regarding the aggravators, the court first noted that Flickner had a prior conviction for operating while intoxicated, a misdemeanor to which he pled guilty in 1997. However, the trial court found that Flick ner's prior conviction was "not significant criminal history." Transeript at 47. The court believed the "more significant" ag-gravator was that "the defendant [] recently violated conditions of pretrial release granted to him, specifically, he was to pay child support and it appears by his own admission ... he did ... nothing to support his three children for two years when it was a condition of his pretrial release to do so." Id. The court then recognized as a mitigating circumstance that the offense did not cause or threaten violence or serious physical harm to any persons or property. The trial court explained that although Flickner did not deserve the maximum sentence:.

[Clertainly the minimum sentence is not appropriate for you either. Just the aggravating cireumstance, uh, the most serious aggravating cireumstance is just your behavior while this case is going on while you're on pretrial release doing absolutely nothing for two years. No good faith effort to do anything for your children in terms of financially trying to take care of them. Nothing. That's a pretty serious aggravating cireumstance. So taking that into account I believe it is appropriate to enhance your sentence to some degree and I think the right amount is six years.

Id. at 49-50.

The trial court sentenced Flickner to six years in the Indiana Department of Correction, suspending two and one-half years to probation.

*273 I.

The first issue is whether the trial court abused its discretion in sentencing Flickner. The offense in this case was committed in 2002, well before the April 25, 2005 revisions to Indiana's sentencing statutes were passed by the legislature. The Indiana Supreme Court has held that we apply the sentencing scheme in effect at the time of the defendant's offense. See Robertson v. State, 871 N.E.2d 280, 286 (Ind.2007) ("Although Robertson was sentenced after the amendments to Indiana's sentencing scheme, his offense occurred before the amendments were effective so the pre-Blakely sentencing scheme applies to Robertson's sentence."); Gutermuth v. State, 868 N.E.2d 427, 432 n. 4 (Ind.2007). Consequently, the pre-April 25, 2005 presumptive sentencing scheme applies to Flickner's nonsupport of a dependent child conviction.

Under the pre-April 25, 2005 sentencing statutes, sentencing decisions rest within the discretion of the trial court 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 cireumstances" before the court. Pierce v. State, 705 N.E.2d 173, 175 (Ind.1998). In order for a trial court to impose an enhanced sentence, it must: (1) identify the, significant aggravating factors and mitigating factors; (2) relate the specific facts and reasons that the court found to those aggravators and mitigators; and (8) demonstrate that the court has balanced the aggravators with the mitigators. Veal v. State, 784 N.E.2d 490, 494 (Ind.2003).

Flickner argues that the trial court abused its discretion when it failed to consider certain proposed mitigators. Specifically, Flickner contends that the trial court overlooked his willingness to plead guilty, and that his eriminal history should have been identified as a mitigator rather than an aggravator. "The finding of mitigating factors is not mandatory and rests within the discretion of the trial court." Ellis v. State, 736 N.E.2d 731, 736 (Ind.2000). The trial court is not obligated to accept the defendant's arguments as to what constitutes a mitigating factor. Gross v. State, 769 N.E..2d 1136, 1140 (Ind.2002). "Nor is the court required to give the same weight to proffered mitigating factors as the defendant does." Id. Further, the trial court is not obligated to explain why it did not find a factor to be significantly mitigating. Sherwood v. State, 749 N.E.2d 36, 38 (Ind.2001). 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." Id. 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. Carter v. State, 711 N.E.2d 835, 838 (Ind.1999).

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Cite This Page — Counsel Stack

Bluebook (online)
908 N.E.2d 270, 2009 Ind. App. LEXIS 898, 2009 WL 1674979, Counsel Stack Legal Research, https://law.counselstack.com/opinion/flickner-v-state-indctapp-2009.