John Clark, Sr. v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: October 10, 2018
• Docket: 18A-CR-1043
• Status: Published

Opinion

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), this Oct 10 2018, 10:29 am Memorandum Decision shall not be regarded as precedent or cited before any court except for the CLERK Indiana Supreme Court purpose of establishing the defense of res judicata, Court of Appeals and Tax Court collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Jeffery Haupt Curtis T. Hill, Jr. Law Office of Jeffery Haupt Attorney General of Indiana South Bend, Indiana Angela N. Sanchez Assistant Section Chief, Criminal Appeals Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

John Clark, Sr., October 10, 2018 Appellant-Defendant, Court of Appeals Case No. 18A-CR-1043 v. Appeal from the St. Joseph Circuit Court State of Indiana, The Hon. John E. Broden, Appellee-Plaintiff. Judge The Hon. Andre B. Gammage, Magistrate Trial Court Cause No. 71C01-1610-FC-13

Bradford, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1043 | October 10, 2018 Page 1 of 6 Case Summary [1] John Clark, Sr., is the father of K.C. and K.M., children he had with Yvette

Mance and for whom he has child support obligations. In 2016, the State

charged Clark with Class C felony nonsupport of a dependent for being over

$15,000.00 in arrears in his child-support obligations to K.C. and K.M. The

trial court found Clark guilty of Class C felony nonsupport and sentenced him

to six years of incarceration, with one year served in community corrections

and the balance suspended to probation. Clark contends that his sentence is

inappropriately harsh. Because we disagree, we affirm.

Facts and Procedural History [2] In 2005, Clark was ordered to provide support to K.C., a child he had with

Mance. In 2006, the order was made permanent and fixed at an obligation of

$51.00 per week. In 2007, Clark’s paternity was established for K.M., another

child with Mance, and his support obligation for both children was initially set

at $66.00 per week, modified to $62.00 per week in 2013, and modified again to

$90.00 per week in 2014. Between 2005 and June 30, 2014, Clark paid

$8727.40 against an obligation of $28,876.00.

[3] On October 3, 2016, the State charged Clark with, inter alia, Class C felony

nonsupport of a dependent for being more than $15,000.00 in arrears in his

obligations to K.C. and K.M. Following a bench trial, the trial court entered

judgment of conviction against Clark for Class C felony nonsupport. On April

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1043 | October 10, 2018 Page 2 of 6 4, 2018, the trial court sentenced Clark to six years of incarceration, with one

year to be served in community corrections and the balance suspended to

probation.

Discussion and Decision [4] Clark contends that his sentence is inappropriately harsh. This Court will revise

a sentence only if, upon “due consideration of the trial court’s decision” it

nonetheless appears that “the sentence is inappropriate in light of the nature of

the offense and the character of the offender.” Ind. Appellate Rule 7(B);

Anglemyer v. State, 868 N.E.2d 482, 490–91 (Ind. 2007), clarified on reh’g, 875

N.E.2d 218 (2007). The “nature of the offense” refers to the defendant’s acts in

comparison with the elements of his offense, Cardwell v. State, 895 N.E.2d 1219,

1224 (Ind. 2008), while “character of the offender” refers to general sentencing

considerations and the relevant aggravating and mitigating circumstances.

Knapp v. State, 9 N.E.3d 1274, 1292 (Ind. 2014). Clark has the burden to show

his sentence is inappropriate in light of both the nature of the offense and his

character. Gil v. State, 988 N.E.2d 1231, 1237 (Ind. Ct. App. 2013). This can

only be done with “compelling evidence portraying in a positive light the nature

of the offense … and the defendant’s character[.]” Stephenson v. State, 29

N.E.3d 111, 122 (Ind. 2015).

[5] Clark was convicted of Class C felony nonsupport of a dependent, for which the

sentencing range is between two and eight years, with an advisory sentence of

four years. Ind. Code § 35-50-2-6(a). Clark received a six-year sentence, which

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1043 | October 10, 2018 Page 3 of 6 is two years above the advisory but two years below the maximum. Clark,

however, has been given the opportunity to entirely avoid imprisonment by

serving one year on work release through community corrections with the

balance suspended to probation. So, while Clark’s sentence is technically

enhanced, we note that it does not consist of a fully-executed sentence and

currently does not provide for any time in jail or prison.

[6] That said, the nature of Clark’s offense does not support a reduction in his

somewhat lenient sentence, in that his arrearage goes far beyond what was

necessary to establish Class C felony nonsupport. As of Clark’s sentencing, his

arrearage had risen to over $31,000.00, or more than twice the amount

necessary to prove Class C felony nonsupport. Of the less than $9000.00 that

Clark has paid, a large percentage was paid to secure his release from jail after

being found in contempt of court. Clark has failed to establish that the nature

of his offense supports a reduction in his sentence.

[7] Clark’s character also does not support a reduction in his sentence. Clark’s

failure to satisfy his financial support obligation is only one example of his

almost total failure to otherwise support or play any active role in the lives of

K.C. and K.M. Mance has always had full custody of them, and Clark never

provided Mance with money directly for support or assisted with medical,

educational, or other expenses. Clark has never provided the children with

food, clothing, or shelter. Mance has received temporary assistance for needy

families, food stamps, and Medicaid assistance; currently works two jobs; and

currently receives support from her parents. Clark has occasionally given the

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1043 | October 10, 2018 Page 4 of 6 children birthday gifts, but even that has not been consistent. It is worth noting

that Clark apparently has two other children for whom he has support

obligations and acknowledged in his presentence interview that he is over

$10,000.00 in arrears as to them.1 Clark’s consistent shirking of his obligations

to his children—legally imposed or otherwise—does him no credit.

[8] Clark’s history of delinquent and criminal behavior also does not speak well of

his character. The thirty-three-year-old Clark was first arrested at ten and first

adjudicated a juvenile delinquent at thirteen. As a juvenile, Clark was

adjudicated delinquent for what would be Class D felony theft if committed by

an adult, what would be Class A misdemeanor battery if committed by an

adult, what would be Class C misdemeanor possession of a look-alike substance

if committed by an adult, and two instances of truancy. As an adult, Clark has

convictions for battery, intimidation, and driving with a suspended license and

failed to appear to face other driving-related charges. At the time of sentencing

in this case, Clark also had pending charges for driving with a suspended license

and marijuana possession. Despite his many contacts with the juvenile and

criminal justice systems, Clark has not conformed his behavior to the norms of

society. Clark has failed to establish that his sentence is inappropriately harsh.

[9] The judgement of the trial court is affirmed.

1 Clark reported that he was over $43,000.00 in arrears altogether. When Clark’s unpaid obligations to K.C. and K.M. of approximately $31,000.00 is subtracted, that leaves approximately $12,000.00.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1043 | October 10, 2018 Page 5 of 6 Bailey, J., and Mathias, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1043 | October 10, 2018 Page 6 of 6