MEMORANDUM DECISION
                                                               Jun 30 2015, 10:21 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
Leanna Weissmann                                          Gregory F. Zoeller
Lawrenceburg, Indiana                                     Attorney General of Indiana
                                                          Karl M. Scharnberg
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Donald Probst,                                            June 30, 2015

Appellant-Defendant,                                      Court of Appeals Case No.
                                                          15A04-1412-CR-586
        v.                                                Appeal from the Dearborn Superior
                                                          Court.
State of Indiana,                                         The Honorable Jon Cleary, Judge.
                                                          Cause No. 15D01-1411-FD-470
Appellee-Plaintiff.




Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision | 15A04-1412-CR-586 | June 30, 2015   Page 1 of 7
                                   STATEMENT OF THE CASE

[1]   Appellant-Defendant, Donald Probst (Probst), appeals his sentence following

      his conviction for nonsupport of a dependent child, a Class D felony, Ind. Code

      § 35-46-1-5(a) (2013).


[2]   We affirm.


                                                     ISSUE

[3]   Probst raises one issue on appeal, which we restate as follows: Whether

      Probst’s sentence is inappropriate in light of the nature of the offense and his

      character.


                           FACTS AND PROCEDURAL HISTORY

[4]   Probst is the biological father of a minor son. His paternity was established on

      January 5, 2009, at which time an order for child support was entered.

      Pursuant to the child support order, Probst was required to pay $38.00 per week

      for the care and support of his child, retroactive to October 14, 2008.


[5]   By October 30, 2009, Probst had accumulated a child support arrearage of

      $1,937.06 and was found to be in contempt of court on November 18, 2009.

      Despite the order of contempt, Probst was consistently derelict in his duty to

      pay for the next five years. Since the child support order was entered, Probst

      has paid a total of only $273.24, resulting in an arrearage of $11,581.82 as of

      October 31, 2014.




      Court of Appeals of Indiana | Memorandum Decision | 15A04-1412-CR-586 | June 30, 2015   Page 2 of 7
[6]   On November 18, 2014, the State filed an Information, charging Probst with

      one Count of nonsupport of a dependent child as a Class D felony.1 On

      December 1, 2014, Probst pled guilty to the charged offense. Immediately

      thereafter, the trial court conducted a sentencing hearing and ordered Probst to

      serve 545 days, fully executed in the Indiana Department of Correction.


[7]   Probst now appeals. Additional facts will be provided as necessary.


                                   DISCUSSION AND DECISION

[8]   Probst claims that his sentence is inappropriate. At the outset, we note that the

      trial court imposed the advisory sentence for a Class D felony of one and one-

      half years. I.C. § 35-50-2-7(a) (2013). Even where a trial court orders a

      statutorily permissible sentence, our court may nevertheless revise the sentence

      if “after due consideration of the trial court’s decision,” we find that it “is

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

      offender.” Ind. Appellate Rule 7(B). Probst now requests that we revise his

      sentence to the minimum term for a Class D felony of six months. See I.C. §

      35-50-2-7(a) (2013).




      1
        Effective July 1, 2014, Indiana Code section 35-46-1-5 was amended such that nonsupport of a dependent
      child is now a Level 6 felony. For a crime committed after June 30, 2014, a Level 6 felony is punishable by a
      term of six months to two and one-half years, with the advisory sentence being one year. I.C. § 35-50-2-7(b)
      (2014). “However, the offense is a Level 5 felony “if the person has a previous conviction under this
      section.” I.C. § 35-46-1-5(a) (2014). A Level 5 felony is punishable by a term of one to six years, with the
      advisory sentence being three years. I.C. § 35-50-2-6(b) (2014). In the present case, the charged offense
      represents Probst’s third conviction for nonsupport of a dependent child. Even though Probst committed a
      portion of his crime and was charged after the enactment of the revised criminal code, he was charged under
      the prior version of Indiana Code section 35-46-1-5 with a Class D—rather than Level 5—felony.

      Court of Appeals of Indiana | Memorandum Decision | 15A04-1412-CR-586 | June 30, 2015             Page 3 of 7
[9]    With respect to Indiana Appellate Rule 7(B), appellate courts are endowed with

       significant discretion to revise a sentence; however, “it does not detract from

       the long-recognized principle that ‘sentencing is principally a discretionary

       function in which the trial court’s judgment should receive considerable

       deference.’” Parks v. State, 22 N.E.3d 552, 555 (Ind. 2014) (quoting Cardwell v.

       State, 895 N.E.2d 1219, 1222 (Ind. 2008)). Although “‘reasonable minds may

       differ’ on the appropriateness of a sentence[,]” our determination of whether a

       sentence is appropriate will inexorably turn “on our sense of the culpability of

       the defendant, the severity of the crime, the damage done to others, and myriad

       other factors that come to light in a given case.” Id. (quoting Buchanan v. State,

       767 N.E.2d 967, 970 (Ind. 2002)); Cardwell, 895 N.E.2d at 1224. “Ultimately

       the length of the aggregate sentence and how it is to be served are the issues that

       matter.” Cardwell, 895 N.E.2d at 1224. As our supreme court has stated, “The

       principal role of appellate 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.” Id. at 1225. Probst bears the burden of persuading our

       court that his sentence is inappropriate. Sanquenetti v. State, 917 N.E.2d 1287,

       1289 (Ind. Ct. App. 2009).


[10]   Here, the nature of the offense is that Probst failed to pay $38.00 per week to

       support his dependent child for a period of six years. Between 2008 and 2014,

       Probst paid only $273.24 in 2010. No payments were made in any other year,

       resulting in a total arrearage of $11,581.82. No evidence was presented to


       Court of Appeals of Indiana | Memorandum Decision | 15A04-1412-CR-586 | June 30, 2015   Page 4 of 7
       specifically demonstrate that the child endured hardship or sacrifice as a result

       of Probst’s non-payment, or that the custodial parent was forced to seek

       governmental assistance to support the child. See id. at 1290. Nevertheless,

       $11,581.82 is a substantial arrearage, and this court has previously recognized

       that when one parent fails to provide necessary financial resources for his or her

       child, the burden “unfairly” shifts to the custodial parent. Id. “We cannot

       emphasize enough the importance of honoring one’s responsibility for and

       commitment to his or her children.” Id.


[11]   During the sentencing hearing, Probst explained that he “just got out nine

       months ago [from] prison. I’ve been locked up for four years prison time

       already. I get out. I try looking for a job, can’t find one because of my drug

       charge. Then I just had surgery done to my shoulder.” (Tr. p. 3). Because

       Probst pled guilty, he concedes that he cannot “now argue lack of ability to pay

       to avoid criminal liability.” (Appellant’s Br. p. 5). See I.C. § 35-46-1-5(d) (2013)

       (“It is a defense that the accused person was unable to provide support.”).

       Nonetheless, he contends that “his financial struggles should be considered in

       determining the nature of this crime” because “[t]his is not a situation where a

       father, uncaring for his responsibility, lavishly spent money on himself while

       leaving his child in squalor.” (Appellant’s Br. p. 5). Rather, according to

       Probst, he “was in a position which made it financially infeasible for him to

       support his child.” (Appellant’s Br. p. 5). We disagree. As the trial court

       noted, even during the years where Probst was not incarcerated, he failed to

       contribute a single cent toward his support obligation.


       Court of Appeals of Indiana | Memorandum Decision | 15A04-1412-CR-586 | June 30, 2015   Page 5 of 7
[12]   As to the character of the offender, Probst has a lengthy criminal history.

       Although no pre-sentence investigation report was filed, the trial court found it

       to be an aggravating circumstance that Probst has prior convictions for

       burglary; battery; possession of burglary tools and receiving stolen property (in

       Kentucky); forgery (in Ohio); theft; resisting law enforcement; criminal trespass;

       criminal mischief; false reporting; public intoxication; and dealing in a Schedule

       I, II, or III controlled substance. Probst also has two prior probation violations

       and stated that he was on probation at the time of the instant offense. Most

       notably, Probst has been convicted of nonsupport of his other dependent

       child(ren) on two occasions previous to the instant offense.


[13]   On the other hand, the trial court accorded “significant weight [to] the fact

       that” Probst pled guilty to the current conviction at the initial hearing without

       the benefit of a plea agreement. (Tr. p. 9). Although his acceptance of

       responsibility in the present case speaks favorably of Probst’s character, the

       remaining evidence overwhelmingly demonstrates Probst’s habitual disregard

       for the law and authority of the court. Furthermore, at the sentencing hearing,

       Probst indicated that he was surprised by the arrest warrant because he “[d]idn’t

       even know that anything was going on” and believed he was in compliance

       with the terms of his probation. (Tr. p. 3). The fact that it did not even occur to

       Probst that he was being held accountable for neglecting his parental obligation

       for six years—even though he previously has been held in contempt for the

       same issue—evidences his utter lack of respect for the trial court’s support order

       and his indifference to the needs of his child. Accordingly, we conclude that


       Court of Appeals of Indiana | Memorandum Decision | 15A04-1412-CR-586 | June 30, 2015   Page 6 of 7
       Probst has failed to satisfy his burden to demonstrate that the advisory sentence

       is inappropriate.


                                               CONCLUSION

[14]   Based on the foregoing, we conclude that Probst’s sentence is not inappropriate

       in light of the nature of the offense and his character.


[15]   Affirmed.


[16]   Bailey, J. and Barnes, J. concur




       Court of Appeals of Indiana | Memorandum Decision | 15A04-1412-CR-586 | June 30, 2015   Page 7 of 7
