Kirby v. State

746 N.E.2d 440, 2001 Ind. App. LEXIS 711, 2001 WL 438447
CourtIndiana Court of Appeals
DecidedApril 30, 2001
DocketNo. 18A02-0007-CR-467
StatusPublished
Cited by1 cases

This text of 746 N.E.2d 440 (Kirby 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
Kirby v. State, 746 N.E.2d 440, 2001 Ind. App. LEXIS 711, 2001 WL 438447 (Ind. Ct. App. 2001).

Opinion

OPINION

BAKER, JUDGE

Appellant-defendant Michael E. Kirby appeals the sentence imposed by the trial court for his conviction for Possession of a Controlled Substance,1 a class C felony. Specifically, Kirby contends that the three aggravating factors relied upon by the trial court in determining his sentence, were either improper or erroneously applied.

FACTS

The facts most favorable to the judgment reveal that on November 8, 1999, Kirby was found in a motel, located within one thousand feet of a public park, with two small boxes of cocaine in his pocket. Shortly thereafter, Kirby was charged with Count I, Possession of Cocaine,2 a class B felony, and Count II, Possession of a Controlled Substance, a class C felony. On June 2, 2000, Kirby pled guilty to Count II in exchange for the State's dismissal of Count I.

Both parties were permitted to present argument at the sentencing hearing on July 6, 2000. After hearing argument, the trial court found three aggravating factors and two mitigating factors. Specifically, the trial court found as aggravating factors that: 1) Kirby had neglected a court order to pay child support; 2) treatment could best be achieved while in a penal facility; and 3) a fully suspended sentence would lessen the seriousness of the crime. The trial court also found as mitigating factors that: 1) Kirby had no prior felony convictions; and 2) long term imprisonment may create undue hardship for Kirby's family. Subsequently, the trial court found that the aggravating factors outweighed the mitigating factors and sentenced Kirby to the presumptive four-year term of imprisonment. Kirby now appeals.

DISCUSSION AND DECISION

I. Standard of Review

In addressing Kirby's contention that the trial court should have imposed less than the presumptive sentence, we note that sentencing decisions rest within the sound discretion of the trial court, and on appeal the trial court's decision will be reversed only upon a showing of a manifest abuse of that discretion. Price v. State, 725 N.E.2d 82, 85 (Ind.2000). This court will revise a sentence authorized by statute only where the sentence is manifestly unreasonable in light of the nature of the offense and the character of the offender. Ind. Appellate Rule 17(B);3 [442]*442Hurt v. State, 657 N.E.2d 112, 114 (Ind.1995). Furthermore, when a trial court imposes the presumptive sentence, it has no obligation to explain its reasons for doing so. Bush v. State, 732 N.E.2d 250, 251 (Ind.Ct.App.2000).

IL Kirby's Claim

Kirby contends that the trial court erred in its reliance upon the three aggravating factors in determining his sentence. First, Kirby claims that the trial court's use of his failure to pay child support as an aggravator is unprecedented in Indiana and violates the Equal Protection and Due Process Clauses of the U.S. Constitution, and the Equal Privileges and Immunities Clause of the Indiana Constitution. Specifically, Kirby asserts that, "before nonpayment of child support may be considered as an aggravating factor in a sentencing decision, it must be proven beyond a reasonable doubt that the defendant had the financial ability to comply with a child support order and willfully failed to do so." Appellant's brief at 11-12.

As an initial matter, we note that Kirby failed to object to the trial court's finding that his failure to pay child support was an aggravating factor. His failure to object waives any claim of error on appeal. Angleton v. State, 714 N.E.2d 156, 158 (Ind.1999).

Waiver notwithstanding, Invp.Copg § 35-88-1-7.1 expressly states that the ag-gravators listed in subsection (b) of that statute "do not limit the matters that the court may consider in determining the sentence." Moreover, our supreme court "has repeatedly held that sentencing courts are free to consider other relevant factors relating to the specific facts of the crime and the defendant's character." Wethington v. State, 560 N.E.2d 496, 509 (Ind.1990).

In support of his contention that the trial court improperly considered his failure to pay child support as an aggravator, Kirby relies upon the U.S. Supreme Court's decision in Bearden v. Georgia, 461 U.S. 660, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983). The issue in Bearden was whether the Fourteenth Amendment prohibits a State from revoking an indigent defendant's probation for failure to pay a fine and restitution. Id. at 661, 103 S.Ct. 2064. In that case, the defendant had pled guilty to burglary and theft, and the Georgia trial court had sentenced him to probation on the condition that he pay a $500 fine and $250 in restitution. Id. at 662, 103 S.Ct. 2064. The defendant was subsequently unable to pay the balance of these amounts because he was laid off from his job and was unable to find other work. Id. As a result, the trial court revoked the defendant's probation and sentenced him to a period of incarceration. Id. at 663, 103 S.Ct. 2064. The U.S. Supreme Court reversed the trial court's decision and held:

[In revocation proceedings for failure to pay a fine or restitution, a sentencing court must inquire into the reasons for the failure to pay. If the probationer willfully refused to pay or failed to make sufficient bona fide efforts legally to acquire the resources to pay, the court may revoke probation and sentence the defendant to imprisonment within the authorized range of its sentencing authority.

Id. at 672, 103 S.Ct. 2064.

We reject Kirby's assertion that the Supreme Court's opinion in Bearden controls here. Specifically, in Bearden the Supreme Court was addressing whether a

[443]*443defendant's failure to pay a fine and restitution imposed for commission of a crime is grounds for revoking his probation. Here, Kirby's failure to pay child support was not considered in the context of probation revocation, and he was not incarcerated as a direct result of his failure to make support payments. Rather, the trial court simply considered Kirby's failure to fulfill his child support obligations as one of three aggravators in determining the appropriate sentence for his conviction for possession of a controlled substance. Further, the facts in Bearden indicate that the defendant had no resources with which to pay the outstanding monies. Id. at 2067. In contrast, it is apparent from Kirby's conviction for possession of a controlled substance, that he elected to direct whatever financial resources he had towards procuring drugs rather than towards supporting his children.4 In our view, such behavior speaks to the quality of Kirby's character and may properly be considered by the trial court in sentencing. See Wethington, 560 N.E.2d at 509. Thus, we conclude that the trial court did not err in relying upon Kirby's failure to pay child support as an aggravator and Kirby's argument must fail.

Kirby next claims that the trial court improperly applied the aggravator that treatment could best be achieved in a penal facility.

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746 N.E.2d 440, 2001 Ind. App. LEXIS 711, 2001 WL 438447, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kirby-v-state-indctapp-2001.