Stephen E. Abernathy v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: April 30, 2015
• Docket: 23A01-1411-CR-492
• Status: Published

Opinion

MEMORANDUM DECISION Apr 30 2015, 10:14 am Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any 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 Cara Schaefer Wieneke Gregory F. Zoeller Special Assistant to the State Public Attorney General of Indiana Defender Richard C. Webster Wieneke Law Office, LLC Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Stephen E. Abernathy, April 30, 2015

Appellant-Defendant, Court of Appeals Case No. 23A01-1411-CR-492 v. Appeal from the Fountain Circuit Court State of Indiana, The Honorable Susan Orr Henderson, Judge Appellee-Plaintiff. Case No. 23C01-1407-FD-278

Vaidik, Chief Judge.

Case Summary [1] Stephen E. Abernathy appeals his advisory sentence for Class D felony failure

to register as a sex offender. He contends that his sentence of one and one-half

Court of Appeals of Indiana | Memorandum Decision 23A01-1411-CR-492 | April 30, 2015 Page 1 of 5 years is inappropriate in light of the minor nature of the offense and the fact that

he pled guilty at his initial hearing. Because Abernathy has failed to persuade

us that the advisory sentence is inappropriate in this case, we affirm.

Facts and Procedural History [2] Abernathy was required to register as a sex offender in Indiana. One of the

registration requirements is that a sex offender must report in person to local

law enforcement no later than seventy-two hours after a change in principal

address. See Ind. Code § 11-8-8-11(a). In addition, a sex offender who does not

have a principal or temporary residence must report in person to local law

enforcement at least once every seven days. See Ind. Code § 11-8-8-12(c).

[3] In June 2014 Fountain County law enforcement learned that Abernathy had

moved out of his principal residence on West Coopers Chapel Road in

Veedersburg “some time ago” and was now homeless. Appellant’s App. p. 7.

Abernathy, however, did not report these changes in person to local law

enforcement.

[4] On July 8, 2014, the State charged Abernathy with Class D felony failure to

register as a sex offender for not residing at his registered address or location on

June 30, 2014. See Ind. Code Ann. § 11-8-8-17(a)(5) (West 2013 Supp.);

Appellant’s App. p. 6. At his initial hearing that same day, Abernathy waived

counsel and pled guilty as charged because he did not want “to waste [the trial

court’s] time on this.” Tr. p. 10. Abernathy knew that he had only a certain

Court of Appeals of Indiana | Memorandum Decision 23A01-1411-CR-492 | April 30, 2015 Page 2 of 5 amount of time to report a change of principal address and that he was required

to register once a week because he was homeless,1 yet he did not do these

things. Id. at 12. Abernathy, who said he was living in his car and suffering

from Stage 4 cirrhosis of the liver, claimed that he did not report in person as

required because he was “trying to get a mobile home set up,” which used all of

his energy. Id. at 12, 22. The trial court proceeded to sentencing and sentenced

Abernathy to the advisory term of one and one-half years.2

[5] Abernathy now appeals his sentence.

Discussion and Decision [6] Abernathy contends that his advisory sentence is inappropriate in light of the

“minor” nature of the offense and his “immediate[]” admission of guilt.

Appellant’s Br. p. 3, 4. He therefore asks us to reduce his sentence.

[7] Our appellate rules authorize revision of a sentence “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.” Ind.

Appellate Rule 7(B). “[A] defendant must persuade the appellate court that his

1 Abernathy admitted that he was homeless for a period of time in 2012 and had to report every seven days. Tr. p. 12. 2 Abernathy was on probation for Class D felony resisting law enforcement and Class A misdemeanor driving while suspended when he should have reported in person to local law enforcement. At the initial hearing, the probation department filed a notice of probation violation. Abernathy admitted to violating his probation, and the trial court sentenced him to one and one-half years, to be served consecutive to his sentence in this case.

Court of Appeals of Indiana | Memorandum Decision 23A01-1411-CR-492 | April 30, 2015 Page 3 of 5 or her sentence has met this inappropriateness standard of review.” Childress v.

State, 848 N.E.2d 1073, 1080 (Ind. 2006).

[8] The principal role of Rule 7(B) review “should be to attempt to leaven the

outliers, and identify some guiding principles for trial courts and those charged

with improvement of the sentencing statutes, but not to achieve a perceived

‘correct’ result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.

2008). Whether a sentence is inappropriate ultimately turns on the culpability

of the defendant, the severity of the crime, the damage done to others, and a

myriad of other factors that come to light in a given case. Id. at 1224.

[9] A person who commits a Class D felony (for a crime committed before July 1,

2014) shall be imprisoned for a fixed term of between six months and three

years, with the advisory sentence being one and one-half years. Ind. Code § 35-

50-2-7. Here, the trial court sentenced Abernathy to the advisory term.

[10] As for the nature of the offense, Abernathy, who knew the registration

requirements of the sex-offender registry, failed to report in person to local law

enforcement when he moved out of his principal residence and became

homeless. As a result, Abernathy’s address remained the same in the sex-

offender registry even though he no longer lived on West Coopers Chapel

Road. See Jensen v. State, 905 N.E.2d 384, 393 (Ind. 2009) (noting that the

purpose of the Sex Offender Registration Act is deterrence and promoting

community condemnation). His reason for not reporting was because he was

Court of Appeals of Indiana | Memorandum Decision 23A01-1411-CR-492 | April 30, 2015 Page 4 of 5 trying to set up a mobile home. The nature of the offense does not convince us

that the advisory term is inappropriate.

[11] As for Abernathy’s character, the trial court sentenced him before a Presentence

Investigation Report could be prepared; therefore, we do not know much about

his character. We acknowledge that he pled guilty at the initial hearing, which

quickly resolved this case and saved the court time. However, he was also on

probation for two offenses when he committed this offense. Abernathy’s

character also supports the advisory sentence. We therefore affirm his sentence.

[12] Affirmed.

Kirsch, J., and Bradford, J., concur.

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