      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




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       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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