Gilliam v. State

901 N.E.2d 72, 2009 Ind. App. LEXIS 284, 2009 WL 455259
CourtIndiana Court of Appeals
DecidedFebruary 24, 2009
Docket71A03-0808-CR-420
StatusPublished
Cited by23 cases

This text of 901 N.E.2d 72 (Gilliam 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
Gilliam v. State, 901 N.E.2d 72, 2009 Ind. App. LEXIS 284, 2009 WL 455259 (Ind. Ct. App. 2009).

Opinions

OPINION

DARDEN, Judge.

STATEMENT OF THE CASE

Charles D. Gilliam appeals his sentencing, following a guilty plea, for three counts of class C felony non-support of a dependent.1

We affirm.

ISSUES

1. Whether the trial court erred in imposing consecutive sentences.
Whether Gilliam's sentence is inappropriate pursuant to Indiana Appellate Rule 7(B).

FACTS

During significant "portions" of the period between January 1, 2001, and December 31, 2004, Gilliam, who had fathered eight children with three different women, failed to pay child support for his dependent children, D.G., Ch.G., RG., Ci.G., [74]*74N.G., T.N., D.N., and C.N. (Gilliam's App. 1). Gilliam's child support obligation for all of the children amounted to $190.00 per week.

On January 20, 2006, the State charged Gilliam with three counts of class C felony non-support of a dependent. D.G., Ch.G., and R.G., born to one woman, were represented under count I; CiG., and N.G., born to a different woman, were represented under count II; and TN., D.N., and C.N., born to the third woman, were represented under count III. During the above period, the child support arrearage "due and owing" under each count exceeded $15,000.00. (Gilliam's App. 1).

On November 27, 2006, Gilliam pled guilty to the three counts of class C felony non-support of a dependent, with sentencing left to the discretion of the trial court. On March 5, 2008, the trial court imposed sentence as follows: as to each count, an eight-year sentence, with five years suspended to probation; with the sentences ordered served consecutively to each other. Thus, the trial court imposed a twenty-four year sentence with nine years ordered executed in the Department of Correction, and fifteen years suspended to probation. Gilliam now appeals.

DECISION

Gilliam argues that the trial court erred in imposing consecutive sentences. He also contends that his sentence is inappropriate pursuant to Indiana Appellate Rule 7(B).

1. Consecutive Sentences

Gilliam challenges the trial court's imposition of consecutive sentences. Specifically, he argues that "his nonpayment of support is one bad act and should be treated as such." Gilliam's Br. at 8. Inasmuch as Gilliam argues that his crimes arose from a single episode of criminal conduct and therefore, cannot support consecutive sentences, we cannot agree.

The decision to impose consecutive sentences lies within the discretion of the trial court. Williams v. State, 891 N.E.2d 621, 630 (Ind.Ct.App.2008). A trial court is required to state its reasons for imposing consecutive sentences or enhanced terms. Id. However, a trial court may rely on the same reasons to impose a maximum sentence and also impose consecutive sentences. Id.

In its sentencing order, the trial court stated that, in imposing its sentence, it had considered Gilliam's extensive criminal history; the significant arrearage in the amount of $121,267.27; and the number of children involved. It also took into consideration that "a portion of the arrearage accrued while [Gilliam] was in custody at a penal institution." (Gilliam's App. 12).

We begin by noting that a single aggravating cireumstance may justify the imposition of consecutive sentences. Creekmore v. State, 853 N.E.2d 523, 529 (Ind.Ct.App.2006), clarified on other grounds on demial of reh'g, 858 N.E.2d 230 (Ind.Ct.App.2006). The presence of multiple victims is one such aggravating cireum-stance. See Major v. State, 873 N.E.2d 1120, 1131 (Ind.Ct.App.2007); McCann v. State, 749 N.E.2d 1116, 1120 (Ind.2001).

Gilliam relies heavily upon Boss v. State, 702 N.E.2d 782 (Ind.Ct.App.1998), in support of his contention that the trial court erred in imposing consecutive sentences. In Boss, the defendant was convicted in 1993 and subsequently sentenced for two counts of non-support of his minor children during two separate time periods in 1991 and 1992. In 1996, Boss was again charged with non-support of his minor children; however, the time periods described in the three counts in the 1996 charging information were three succes[75]*75sive time periods, each separated by a single day.2 Boss failed to appear at trial and was tried, convicted on all counts, and sentenced in absentia. The trial court imposed consecutive sentences.

On appeal, Boss first argued that his sentences had placed him in double jeopardy because he had previously been convict, ed under the same statute for failing to meet his child support obligations in 1991 and 1992. A panel of this court rejected this claim, noting that "[iJf a parent could not be prosecuted more than onee under [the non-support of a dependent] statute, a parent who was prosecuted while his child was still young could fail or refuse to support a child without risk of further criminal penalties." Id. at 784-85. Such an outcome, the panel observed, would contravene the legislative intent of the statute, which was to "impos[e] criminal sentences for the avoidance of the duty to support a child." Id.

More relevant to our purposes here, Boss also challenged the trial court's imposition of consecutive sentences as "multiple penalties for the same offense." Id. at 785. We took note of the fact that the three counts in the 1996 charging information alleged that Boss' non-support of his dependent children had occurred over three "contiguous" or successive periods over a very short period of time, and concluded that the prosecutor had "arbitrarily divide[d] the offenses into separate time periods in order to multiply the penalties." Id. Accordingly, we held that Boss could, therefore, only be convicted and sentenced for one crime.

Although Gilliam phrases his argument differently from Boss, his argument is essentially the same, namely, that his nonsupport of his eight dependent children constituted a single episode of criminal conduct. We cannot agree.

Simply stated, under the unique circumstances of this case, Gilliam's offenses do not constitute a single episode of criminal conduct. In Williams v. State, 891 N.E.2d 621, 624 (Ind.Ct.App.2008), we stated, in pertinent part, the following:

In determining whether multiple offenses constitute an episode of eriminal conduct, the focus is on the timing of the offenses and the simultaneous and contemporaneous nature, if any, of the crimes. '[Aldditional guidance on the question' can be obtained by considering 'whether the alleged conduct was so closely related in time, place, and circumstance that a complete account of one charge cannot be related without referring to the details of the other charge.'

891 N.E.2d at 631 (internal citations omitted).

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Cite This Page — Counsel Stack

Bluebook (online)
901 N.E.2d 72, 2009 Ind. App. LEXIS 284, 2009 WL 455259, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gilliam-v-state-indctapp-2009.