Jeremy M. Hines v. State of Indiana (mem. dec.)

Opinion

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Sep 13 2016, 7:18 am

regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court 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 Larry D. Allen Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Jeremy M. Hines, September 13, 2016 Appellant-Defendant, Court of Appeals Case No. 21A01-1603-CR-459 v. Appeal from the Fayette Circuit Court State of Indiana, The Honorable Matthew R. Cox, Appellee-Plaintiff Special Judge Trial Court Cause No. 21C01-1304-FC-325

Baker, Judge.

Court of Appeals of Indiana | Memorandum Decision 21A01-1603-CR-459 | September 13, 2016 Page 1 of 5 [1] Jeremy Hines appeals the sentence he received for Class C Felony Nonsupport

of a Dependent Child.1 He asks us to revise his sentence. Finding his sentence

not inappropriate, we affirm.

Facts [2] Hines has three children with his ex-wife, Amy Hines, plus an additional

biological child and two additional stepchildren. As part of their 2007 divorce,

Hines was ordered to pay $40 of child support per week for the three children.

From February 16, 2011, through April 19, 2013, Hines did not pay child

support—over this period of time, Hines incurred an arrearage of $18,268.

[3] On April 24, 2013, the State charged Hines with Class C felony nonsupport of a

dependent child. On January 16, 2016, Hines pleaded guilty as charged. That

same day, the trial court held a sentencing hearing. Hines presented evidence

that he had difficulty finding permanent employment and earning steady

income. He testified that he lived with his fiancée, who worked a full-time job

at a convenience store while he watched her children at home. He also

informed the trial court that his fiancée would be able to help him make child

support payments until he found a job. The trial court took Hines’s sentencing

under advisement.

1 Ind. Code § 35-46-1-5(a).

Court of Appeals of Indiana | Memorandum Decision 21A01-1603-CR-459 | September 13, 2016 Page 2 of 5 [4] Before the trial court issued its sentencing order, Hines was arrested for

allegedly battering his fiancée in the presence of a child and interfering with the

reporting of a crime. On February 12, 2016, the trial court held another

sentencing hearing during which it took judicial notice of the new charges.

Hines’s pre-sentence investigation report (PSI) also disclosed a lengthy criminal

history. The trial court sentenced Hines to seven years with three years

executed and four years suspended to probation. Hines now appeals.

Discussion and Decision [5] Hines has one argument on appeal, namely, that his sentence is inappropriate.

Indiana Appellate Rule 7(B) provides, “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.” The principal role of such review is to

attempt to leaven the outliers, but not to achieve a perceived “correct” sentence.

Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). Sentencing is principally a

discretionary function in which the trial court’s judgment should receive

considerable deference. Id. at 1222. The defendant bears the burden of

showing us that his sentence is inappropriate. Kennedy v. State, 934 N.E.2d 779,

788 (Ind. Ct. App. 2010).

[6] We initially note that Hines pleaded guilty to a Class C felony, which at the

time carried a sentence between two and eight years, with an advisory sentence

Court of Appeals of Indiana | Memorandum Decision 21A01-1603-CR-459 | September 13, 2016 Page 3 of 5 of four years. Ind. Code § 35-50-2-6. Thus, Hines’s sentence of seven years is

above the advisory sentence but below the maximum sentence.

[7] Turning to the nature of Hines’s offense, he failed to provide financial support

to three of his children as ordered by a court. Those three children were legally

entitled to over $18,000 of monetary support from Hines but, because of his

nonpayment, their needs will either go unmet or will be passed on to somebody

else. Although Hines testified that he has not been able to hold a job, he did

not provide any particular reason for his inconsistent employment. The longest

Hines has worked at one job was nine months, and that took place roughly

twenty years ago. We also note that Hines never requested a child support

modification due to any changed financial circumstances. Hines has not

carried his burden of showing us that the nature of his offense renders his seven-

year sentence inappropriate.

[8] Turning to Hines’s character, we find a man with a lengthy criminal history.

Hines has four felony convictions and six misdemeanor convictions. Among

his convictions are two prior convictions for nonsupport of his dependent

children, showing that nonsupport is a persistent character flaw. Even worse,

shortly after testifying that his fiancée—the biological mother of one of his

children and the sole income-earner in the household—could help him pay his

child support arrearage, he was arrested for battering her in the presence of

children. This is not the action of a man who intends to do whatever he can to

provide for his children. We are not persuaded to revise his sentence.

Court of Appeals of Indiana | Memorandum Decision 21A01-1603-CR-459 | September 13, 2016 Page 4 of 5 [9] Finally, our Supreme Court has instructed us to focus not only on the aggregate

length of a sentence, but also consider “whether a portion of the sentence is

ordered suspended or otherwise crafted using any of the variety of sentencing

tools available to the trial judge.” Davidson v. State, 926 N.E.2d 1023, 1025

(Ind. 2010). One of those tools is probation. Id. We note that, although Hines

received an aggregate sentence of seven years, the executed portion of three

years is actually below the advisory sentence of four years. In light of the

nature of Hines’s offense and his character, Hines’s mostly suspended sentence

is not inappropriate.

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

Vaidik, C.J., and Najam, J., concur.

Court of Appeals of Indiana | Memorandum Decision 21A01-1603-CR-459 | September 13, 2016 Page 5 of 5