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Gary v. State

Court of Appeals of Indiana

October 10, 2018

Tervarus L. Gary, Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff

          Appeal 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, Indiana

          CRONE, JUDGE.

          Case Summary

         [¶1] 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.

         Facts and Procedural History

         [¶2] 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.

         [¶3] 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 ensued.

         Discussion and Decision

         Section 1 - Gary has not met his burden to demonstrate that his sentence is inappropriate.

         [¶4] 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).

         [¶5] 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.

         [¶6] 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. ...


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