Willie Bontempo v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: December 3, 2015
• Docket: 02A03-1505-CR-446
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), Dec 03 2015, 5:29 am 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 John C. Bohdan Gregory F. Zoeller Deputy Public Defender Attorney General of Indiana Fort Wayne, Indiana Karl M. Scharnberg Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Willie Bontempo, December 3, 2015 Appellant-Defendant, Court of Appeals Case No. 02A03-1505-CR-446 v. Appeal from the Allen Superior Court State of Indiana, The Honorable Frances C. Gull, Appellee-Plaintiff Judge Trial Court Cause No. 02D06-1412-F5-125

Baker, Judge.

Court of Appeals of Indiana | Memorandum Decision 02A03-1505-CR-446 | December 3, 2015 Page 1 of 4 [1] Willie Bontempo appeals the sentence he received for Level 5 Felony Failure to

Register.1 He asks us to revise his sentence. Finding his sentence not

inappropriate, we affirm.

Facts [2] On August 15, 2005, Willie Bontempo was convicted of child molesting and

sentenced to ten years. He was released on parole, and on November 14, 2014,

he registered his address as a room at a local Holiday Inn. Police went there to

check that that was his place of residence, but the owner informed them that

Bontempo had stayed there for only one night. On November 24, Bontempo

was arrested on an unrelated warrant and was asked about his residence.

Initially, he said he had moved out of the room less than three days prior—

which would have put him within the 72-hour safe harbor period for a change

in principal residence, Ind. Code § 11-8-8-8(c)—but when confronted with the

knowledge that he had only stayed there for one night, he conceded that he was

in violation of his sex offender registration requirements. App. at 15.

[3] On March 23, 2015, Bontempo pleaded guilty, without the benefit of a plea

agreement, to failure to register as a sex offender, a Level 5 felony. At the April

23, 2015, sentencing hearing, the trial court heard testimony that this was not

Bontempo’s first failure to register—“The first time it was intentional, he went

on the run,” sent. tr. 9—and that the first failure to register and underlying child

1 Ind. Code § 11-8-8-11.

Court of Appeals of Indiana | Memorandum Decision 02A03-1505-CR-446 | December 3, 2015 Page 2 of 4 molestation convictions were not his only criminal history: he has three juvenile

adjudications that would have been felony convictions if committed by an

adult. In addition to the adult convictions of child molesting and the first

failure to register, Bontempo had also been convicted of possession of

marijuana, and he was on probation at the time of the instant offense. Against

these aggravators, the trial court weighed the mitigators of the “plea of guilty,

[the] acceptance of responsibility, and the family support” Bontempo presented

at the hearing. Id. at 15. The trial court sentenced him to the advisory sentence

of three years executed. Bontempo now appeals.

Discussion and Decision [4] Bontempo has one argument on appeal: 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.

[5] Turning to the nature of Bontempo’s offense, we concede that his offense of not

registering was not particularly grave. This was not a case of being

unregistered, or fraudulently registered, for years; this was a matter of days. Up

Court of Appeals of Indiana | Memorandum Decision 02A03-1505-CR-446 | December 3, 2015 Page 3 of 4 until November 2014, Bontempo had properly registered his previous places of

residence. On the other hand, his previous compliance with the registration

duties shows that he knew what was required of him. Moreover, it is not as if

Bontempo turned himself in; he only came into the custody of the police after

being arrested on an unrelated warrant.

[6] Turning to Bontempo’s character, we find substantial reasons not to reduce his

sentence. He has an extensive juvenile record, including three adjudications

that would have been felonies if committed by an adult. In addition, he has

previously been convicted of failure to register. Moreover, he was on probation

at the time he committed the instant offense.

[7] As the conjunction in Rule 7(B) makes clear, we can only find a sentence

inappropriate in light of both the nature of the offense and the character of the

offender. Even if the nature of Bontempo’s offense is not particularly grave, his

character and criminal history sufficiently justify the trial court’s decision to

sentence him to the advisory sentence of three years. While we might have

sentenced him differently, sentencing is primarily the job of the trial court, and

the trial court did not abuse its discretion.

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

Bradford, J., and Pyle, J., concur.

Court of Appeals of Indiana | Memorandum Decision 02A03-1505-CR-446 | December 3, 2015 Page 4 of 4