Leonard Paul Carder v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: March 17, 2016
• Docket: 63A04-1509-CR-1605
• Status: Published

Opinion

MEMORANDUM DECISION FILED Mar 17 2016, 7:20 am Pursuant to Ind. Appellate Rule 65(D), CLERK this Memorandum Decision shall not be Indiana Supreme Court Court of Appeals regarded as precedent or cited before any and Tax Court

court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Steven E. Ripstra Gregory F. Zoeller Ripstra Law Office Attorney General of Indiana Jasper, Indiana Tyler G. Banks Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Leonard Paul Carder, March 17, 2016 Appellant-Defendant, Court of Appeals Case No. 63A04-1509-CR-1605 v. Appeal from the Pike Circuit Court The Honorable Jeffrey L. State of Indiana, Biesterveld, Judge Appellee-Plaintiff Trial Court Cause No. 63C01-1405-FC-187

Crone, Judge.

[1] Leonard Paul Carder appeals his six-year sentence for class C felony child

solicitation, asking that we reduce his sentence pursuant to Indiana Appellate

Rule 7(B). However, instead of presenting an Appellate Rule 7(B) argument,

Court of Appeals of Indiana | Memorandum Decision 63A04-1509-CR-1605 | March 17, 2016 Page 1 of 4 Carder argues that the trial court abused its discretion in weighing a mitigating

factor. We conclude that Carder has waived his Appellate Rule 7(B) claim by

failing to present a cogent argument. Furthermore, appellate courts may not

review the trial court’s weighing of mitigating factors. Therefore, we affirm.

[2] In April 2014, Carder contacted “Stacy,” who he believed was a fourteen-year-

old girl, on a social media website called Mocospace, and engaged in online

conversations of a sexual nature with her. Stacy was actually a decoy who

worked with law enforcement to identify people who commit sexual solicitation

online. After Carder and Stacy’s conversations shifted to text messaging,

Sergeant Chad McClellan of the Petersburg Police Department took over as

Stacy. Carder sent Stacy pictures of his genitals and asked her to insert her

fingers into her genitals and anus. Carder arranged to meet Stacy to engage in

sexual activity. Carder traveled for an hour and a half from his home in

Marengo to Petersburg to meet Stacy. Stacy texted Carder to meet her at

Hornady Park near the pond, where police found and arrested him. Upon his

arrest, Carder admitted to the sexual conversations and sending a picture of his

genitals, but claimed that his intention was to take Stacy to a police station.

[3] The State charged Carder with two counts of class C felony child solicitation.

Pursuant to a plea agreement, Carder pled guilty to one count of child

solicitation, and the State dismissed the second count. The plea agreement

capped Carder’s sentence at six years.

Court of Appeals of Indiana | Memorandum Decision 63A04-1509-CR-1605 | March 17, 2016 Page 2 of 4 [4] At sentencing, Carder argued that his incarceration would cause undue

hardship on his family because he lives with and provides care to his ex-wife

and stepson, who both suffer from many serious physical and mental

conditions. The trial court found two mitigating factors: Carder pled guilty,

saving the court’s time and resources; and Carder’s incarceration would create a

hardship to his family. The trial court found the following aggravating factors:

Carder’s criminal history includes prior convictions in Kentucky for first-degree

attempted sodomy and first-degree sexual abuse of his eight-year-old daughter;

he committed the current offense while being a registered sex offender; he

violated his previous parole; the Indiana risk assessment tool placed Carder in a

high-risk category to reoffend, making him a great risk to the community; he is

unlikely to benefit from a period of probation; and he is not a viable candidate

for community corrections programs. The trial court found that Carder’s

explanation to the probation department concerning his intentions in meeting

Stacy was improbable and that his lack of candor showed an absence of

remorse. The trial court found that the aggravating factors outweighed the

mitigating factors and sentenced Carder to six years in the Department of

Correction. This appeal ensued.

[5] Carder asks us to reduce his sentence pursuant to Indiana Appellate Rule 7(B),

which states, “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.” Carder has the burden to show that his sentence is inappropriate.

Court of Appeals of Indiana | Memorandum Decision 63A04-1509-CR-1605 | March 17, 2016 Page 3 of 4 Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007), clarified on reh’g, 875 N.E.2d

218.

[6] Although Carder cites Appellate Rule 7(B), he does not present any argument

that his sentence is inappropriate based on the nature of the crime or his

character. “Failure to put forth a cogent argument acts as a waiver of the issue

on appeal.” Whaley v. State, 843 N.E.2d 1, 18 n.15 (Ind. Ct. App. 2006), trans.

denied; see also Ind. Appellate Rule 46(A)(8)(a) (“The argument must contain the

contentions of the appellant on the issues presented, supported by cogent

reasoning.”). Consequently, Carder has waived his inappropriateness claim

under Appellate Rule 7(B). See McBride v. State, 992 N.E.2d 912, 920 (Ind. Ct.

App. 2013) (concluding that McBride failed to make cogent argument regarding

nature of crime or his character and therefore waived issue), trans. denied.

[7] Furthermore, Carder’s argument is unavailable for appellate review.

Essentially, he argues that the trial court abused its discretion by undervaluing

the hardship his dependents will experience because of his absence as a

mitigating factor. “However, the relative weight or value assignable to

[mitigating factors] properly found … is not subject to review for abuse of

discretion.” Sandleben v. State, 22 N.E.3d 782, 796 (Ind. Ct. App. 2014), trans.

denied (2015). Therefore, we affirm Carder’s sentence.

[8] Affirmed.

Vaidik, C.J., and Bailey, J., concur.

Court of Appeals of Indiana | Memorandum Decision 63A04-1509-CR-1605 | March 17, 2016 Page 4 of 4