                                                                           Aug 20 2013, 5:42 am

FOR PUBLICATION



ATTORNEY FOR APPELLANT:                     ATTORNEYS FOR APPELLEE:

JENNIFER A. JOAS                            GREGORY F. ZOELLER
Madison, Indiana                            Attorney General of Indiana

                                            RICHARD C. WEBSTER
                                            Deputy Attorney General
                                            Indianapolis, Indiana




                            IN THE
                  COURT OF APPEALS OF INDIANA

CARL J. BRANDENBURG,                        )
                                            )
     Appellant-Defendant,                   )
                                            )
            vs.                             )       No. 40A04-1301-CR-23
                                            )
STATE OF INDIANA,                           )
                                            )
     Appellee-Plaintiff.                    )


                   APPEAL FROM THE JENNINGS CIRCUIT COURT
                        The Honorable Jon W. Webster, Judge
                           Cause No. 40C01-0908-FC-284



                                  August 20, 2013


                            OPINION - FOR PUBLICATION


NAJAM, Judge
                             STATEMENT OF THE CASE

         Carl Brandenburg appeals his sentence following the revocation of his probation.

He presents two issues for our review:

         1.    Whether the trial court abused its discretion when it ordered him to
               serve the balance of his suspended sentence in the Department of
               Correction.

         2.    Whether the trial court miscalculated the amount of his child support
               arrearage.

         We affirm, but we remand with instructions.

                        FACTS AND PROCEDURAL HISTORY

         Following Brandenburg’s guilty plea for non-support of a dependent child, as a

Class C felony, in August 2011 the trial court sentenced him to five years with credit for

time served and fifty-two months on probation. Brandenburg acknowledged that his

arrearage at that time was “at least” $10,000. Appellant’s App. at 76. The trial court

ordered him to pay $78 per week in child support beginning within sixty days of the

order.

         On November 4, 2011, the State filed a petition to revoke or modify probation

alleging that Brandenburg had violated two conditions of his probation, namely, payment

of child support and payment of fees associated with his probation.           Following a

continuance, Brandenburg failed to appear for a hearing on the alleged probation

violations scheduled for July 18, 2012, and a warrant was issued for his arrest.

Brandenburg was arrested ten days later. The trial court finally held the hearing on

November 9, 2012.

         At the probation revocation hearing, Brandenburg admitted to both alleged
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violations of his probation. In particular, Brandenburg acknowledged that he had made

only four child support payments since August 2011. Brandenburg testified that he had

been employed part-time at a Wendy’s located thirty miles from his house for

approximately three months in early 2012, but he was otherwise unemployed.                He

testified that he had recently been offered a job as a truck driver, but he had not talked to

that potential employer about the job for “a couple of months.”           Transcript at 16.

Brandenburg testified that he would be “driving with [his] father,” who assured him that

he had the job. Id. at 17.

       The trial court revoked Brandenburg’s probation and ordered him to serve the

balance of his sentence of fifty-two months in the Indiana Department of Correction. In

its order, the trial court stated that Brandenburg’s arrearage is $17,795.05. This appeal

ensued.

                             DISCUSSION AND DECISION

                                   Issue One: Sentence

       Brandenburg admitted to violating his probation and therefore does not contest the

revocation of his probation. Instead, he contends that the trial court abused its discretion

in ordering him to serve the entire portion of his sentence that was suspended at the time

of his initial sentencing.

       Once a trial court has exercised its grace by ordering probation rather than

incarceration, “the judge should have considerable leeway in deciding how to proceed.”

Prewitt v. State, 878 N.E.2d 184, 187 (Ind. 2007). If this discretion were not given to

trial courts and sentences were scrutinized too severely on appeal, trial judges might be


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less inclined to order probation. Id. Accordingly, a trial court’s sentencing decision for a

probation violation is reviewable using the abuse of discretion standard. Id. An abuse of

discretion occurs where the decision is clearly against the logic and effect of the facts and

circumstances. Id. If a trial court finds that a person has violated his probation before

termination of the period, the court may order execution of all or part of the sentence that

was suspended at the time of initial sentencing. Ind. Code § 35-38-2-3(g).

       Brandenburg contends that the State failed to prove that he recklessly or

intentionally failed to pay his child support obligation, and in support of that contention

he cites our supreme court’s opinion in Runyon v. State, 939 N.E.2d 613 (Ind. 2010). In

Smith v. State, 963 N.E.2d 1110, 1113 (Ind. 2012), our supreme court explained its

holding in Runyon as follows:

       if the [probation] condition violated involves a financial obligation, then the
       probationer must be shown to have recklessly, knowingly, or intentionally
       failed to pay. [Runyon, 939 N.E.2d at 616]. This Court determined “[a]s to
       the fact of violation, the statute expressly imposes the burden of proof upon
       the State. But with respect to the ability to pay, the burden of proof is not
       explicitly designated.” Id. Noting that revoking probation for violating a
       financial obligation requires proof of both the underlying violation and the
       defendant probationer’s state of mind, we held, “it is the State’s burden to
       prove both the violation and the requisite state of mind in order to obtain a
       probation revocation.” Id. With respect to the ability to pay, we held that it
       is the defendant probationer’s burden “to show facts related to an inability
       to pay and indicating sufficient bona fide efforts to pay so as to persuade
       the trial court that further imprisonment should not be ordered.” Id. at 617
       (citing Woods v. State, 892 N.E.2d 637, 641 (Ind. 2008)).

(Emphasis added).

       Again, Brandenburg does not contest the revocation of his probation. Instead, he

maintains that



                                             4
       he demonstrated an inability to pay his child support arrearage and fees and
       that he made a bona fide effort to find the resources to pay these. He
       believes that these efforts should have required the trial court to consider
       placement alternatives and that the trial court abused its discretion by
       failing to consider placement alternatives that would enable him to make
       payments toward his child support arrearage and pay his fees.

Brief of Appellant at 7-8. But the trial court was not persuaded by Brandenburg’s

testimony, and the court determined that, on the whole, the evidence compelled

Brandenburg’s incarceration. In particular, the trial court found:

              3) Since May 24, 1993, and prior to the filing of criminal charges
       herein on August 7, 2009, the State of Indiana filed at least nine (9)
       Petitions for Contempt, five (5) Writs of Body Attachment were issued and
       there were fifteen (15) Income Withholding Orders! Having spent
       seventeen (17) years trying to get Mr. Brandenburg to pay child support
       through the civil process, the State filed criminal charges herein.

             4) When convicted on August 4, 2011, the arrearage was
       $10,000.00.

                                           ***

             6) Since August 4, 2011, Defendant has paid $543.26 in child
       support.

                                           ***

               8) Defendant is forty-two (42) years of age and able-bodied. He is
       married. He has a valid operator’s license and a C.D.L. “permit.” He has
       at least two (2) prior felony convictions.

              9) After walking out of this courtroom on August 4, 2011[,] with
       only the obligation to pay child support to remain free, Defendant, while
       able to pay, failed miserably.

             10) This Court has stated many times before that nonsupport
       criminal cases will not be more of the same “in and out of court” process to
       persuade parents to support their children and this case is no exception.




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Appellant’s App. at 97-98. In short, the trial court concluded that Brandenburg did not

sustain his burden to prove his inability to pay or “sufficient bona fide efforts to pay so as

to persuade the trial court that further imprisonment should not be ordered.” See Smith,

963 N.E.2d at 1114; Runyon, 939 N.E.2d at 617. The trial court did not abuse its

discretion when it ordered Brandenburg to serve the balance of his sentence in the

Department of Correction.

                                  Issue Two: Arrearage

       Brandenburg contends that the trial court misstated the current amount of his

arrearage in the December 4, 2012 order, and the State “acknowledge[s] that there does

seem to be some uncertainty as to the amount of the arrearage.” Brief of Appellee at 9.

In short, the amount of the arrearage was approximately $10,000 in August 2011, and

Brandenburg’s daughter had turned twenty-one in August 2009. Brandenburg maintains

that his child support obligation ceased “by operation of law” on his daughter’s twenty-

first birthday under former Indiana Code Section 36-16-6-6. Therefore, he contends, the

arrearage could not have increased to $17,795.05, as found by the trial court, after the

date of his sentencing in 2011. We remand to the trial court for a hearing to recalculate

the amount of Brandenburg’s child support arrearage.

       Affirmed, but remanded with instructions.

MATHIAS, J., and BROWN, J., concur.




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