Tervarus L. Gary, Appellant-Defendant,
State of Indiana, Appellee-Plaintiff
from the Elkhart Superior Court Trial Court Cause No.
20D06-1712-FD-7 The Honorable David C. Bonfiglio, Judge
Attorney for Appellant Nancy A. McCaslin McCaslin &
McCaslin Elkhart, Indiana
Attorneys for Appellee Curtis T. Hill, Jr. Attorney General
Evan Matthew Comer Deputy Attorney General Indianapolis,
Tervarus L. Gary appeals the two-year sentence imposed by the
trial court following his guilty plea to class D felony
nonsupport of a dependent child. He asserts that his sentence
is inappropriate in light of the nature of the offense and
his character. He further asserts that the trial court
fundamentally erred in allowing him to appear for his
sentencing hearing via video conference without first
obtaining a written waiver of his right to be present.
Concluding that Gary has not met his burden to show that his
sentence is inappropriate or that the trial court committed
fundamental error, we affirm.
and Procedural History
Gary has a daughter, T.R., who was born on September 28,
2009. After paternity was established in 2010, a child
support order was entered. In short, between May 1, 2014, and
April 4, 2018, Gary paid nothing toward his child support
obligation. Specifically, in April 2014, the trial court
issued a writ of attachment against Gary after he failed to
appear at a hearing and show proof of reimbursement to
T.R.'s mother for mediation fees. At this time, he was
ordered to pay weekly child support of $31 as well as $9 per
week toward arrearages. In July 2015, Gary was found in
contempt for failure to pay. In July 2016, Gary was again
found in contempt for failure to pay and was ordered
committed to the Elkhart County Correctional Facility
("ECCF"). However, the trial court suspended the
commitment on the condition that Gary missed no payments
between the contempt hearing and the next hearing set for
August 30, 2016. Gary failed to appear for the hearing, and a
body attachment was entered. In October 2016, the trial court
ordered Gary into civil commitment to ECCF with a
recommendation that he participate in Elkhart County
Community Corrections ("ECCC"). Gary's child
support arrearage at that time totaled $6808. Gary began work
release through ECCC in November 2016. By December 2016, ECCC
requested a warrant against Gary due to unacceptable conduct.
As of December 2017, Gary's child support arrearage
exceeded $8000. Gary was eventually terminated from work
release in February 2018 after causing numerous disciplinary
issues, and he was transferred to the Elkhart County Jail.
The State charged Gary with class D felony nonsupport of a
dependent child alleging that between May 1 and August 31,
2014, he failed to pay any support for T.R. The trial court
held a change of plea hearing on March 7, 2018, and Gary
appeared via video conference and pled guilty to his crime.
On April 4, 2018, the trial court held a sentencing hearing.
Gary again appeared via video conference. The court imposed a
two-year sentence minus earned credit time. This appeal
1 - Gary has not met his burden to demonstrate that his
sentence is inappropriate.
Gary claims that his two-year sentence is inappropriate and
invites this Court to reduce it pursuant to Indiana Appellate
Rule 7(B), which provides that we may revise a sentence
authorized by statute if, after due consideration of the
trial court's decision, we find that the sentence
"is inappropriate in light of the nature of the offense
and the character of the offender." The defendant bears
the burden to persuade this Court that his or her sentence is
inappropriate. Childress v. State, 848 N.E.2d 1073,
1080 (Ind. 2006). Indiana's flexible sentencing scheme
allows trial courts to tailor an appropriate sentence to the
circumstances presented, and the trial court's judgment
"should receive considerable deference."
Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind.
2008). The principal role of appellate review is to attempt
to "leaven the outliers." Id. at 1225.
Whether we regard a sentence as inappropriate at the end of
the day turns on "our sense of the culpability of the
defendant, the severity of the crime, the damage done to
others, and myriad other facts that come to light in a given
case." Id. at 1224. The question under
Appellate Rule 7(B) is not whether another sentence is
more appropriate; rather, the question is whether
the sentence imposed is inappropriate." Fonner v.
State, 876 N.E.2d 340, 344 (Ind.Ct.App. 2007).
Regarding the nature of the offense, the advisory sentence is
the starting point that the legislature has selected as an
appropriate sentence for the crime committed. Fuller v.
State, 9 N.E.3d 653, 657 (Ind. 2014). The sentencing
range for a class D felony is between six months and three
years, with an advisory sentence of one and one-half years.
Ind. Code § 35-50-2-7(a). Here, the two-year sentence
imposed by the trial court is slightly above the advisory but
well below the maximum allowable by statute.
As for the nature of the offense, although Gary pled guilty
to failing to support T.R. between May 1 and August 31, 2014,
his nonsupport of his daughter is not simply an isolated
occurrence confined to the current charge. His failure to pay
has spanned over four years and has resulted in a child
support arrearage in excess of $8000. ...