MEMORANDUM DECISION
                                                                             FILED
Pursuant to Ind. Appellate Rule 65(D), this                             Oct 10 2018, 10:29 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the                           CLERK
                                                                         Indiana Supreme Court
purpose of establishing the defense of res judicata,                        Court of Appeals
                                                                              and Tax Court
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                 ATTORNEYS FOR APPELLEE
Jeffery Haupt                                          Curtis T. Hill, Jr.
Law Office of Jeffery Haupt                            Attorney General of Indiana
South Bend, Indiana                                    Angela N. Sanchez
                                                       Assistant Section Chief, Criminal
                                                       Appeals
                                                       Indianapolis, Indiana


                                             IN THE
    COURT OF APPEALS OF INDIANA

John Clark, Sr.,                                          October 10, 2018
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          18A-CR-1043
        v.
                                                          Appeal from the St. Joseph
                                                          Circuit Court
State of Indiana,
                                                          The Hon. John E. Broden,
Appellee-Plaintiff.                                       Judge
                                                          The Hon. Andre B. Gammage,
                                                          Magistrate
                                                          Trial Court Cause No.
                                                          71C01-1610-FC-13



Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1043 | October 10, 2018                 Page 1 of 6
                                          Case Summary
[1]   John Clark, Sr., is the father of K.C. and K.M., children he had with Yvette

      Mance and for whom he has child support obligations. In 2016, the State

      charged Clark with Class C felony nonsupport of a dependent for being over

      $15,000.00 in arrears in his child-support obligations to K.C. and K.M. The

      trial court found Clark guilty of Class C felony nonsupport and sentenced him

      to six years of incarceration, with one year served in community corrections

      and the balance suspended to probation. Clark contends that his sentence is

      inappropriately harsh. Because we disagree, we affirm.



                            Facts and Procedural History
[2]   In 2005, Clark was ordered to provide support to K.C., a child he had with

      Mance. In 2006, the order was made permanent and fixed at an obligation of

      $51.00 per week. In 2007, Clark’s paternity was established for K.M., another

      child with Mance, and his support obligation for both children was initially set

      at $66.00 per week, modified to $62.00 per week in 2013, and modified again to

      $90.00 per week in 2014. Between 2005 and June 30, 2014, Clark paid

      $8727.40 against an obligation of $28,876.00.


[3]   On October 3, 2016, the State charged Clark with, inter alia, Class C felony

      nonsupport of a dependent for being more than $15,000.00 in arrears in his

      obligations to K.C. and K.M. Following a bench trial, the trial court entered

      judgment of conviction against Clark for Class C felony nonsupport. On April



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1043 | October 10, 2018   Page 2 of 6
      4, 2018, the trial court sentenced Clark to six years of incarceration, with one

      year to be served in community corrections and the balance suspended to

      probation.



                                 Discussion and Decision
[4]   Clark contends that his sentence is inappropriately harsh. This Court will revise

      a sentence only if, upon “due consideration of the trial court’s decision” it

      nonetheless appears that “the sentence is inappropriate in light of the nature of

      the offense and the character of the offender.” Ind. Appellate Rule 7(B);

      Anglemyer v. State, 868 N.E.2d 482, 490–91 (Ind. 2007), clarified on reh’g, 875

      N.E.2d 218 (2007). The “nature of the offense” refers to the defendant’s acts in

      comparison with the elements of his offense, Cardwell v. State, 895 N.E.2d 1219,

      1224 (Ind. 2008), while “character of the offender” refers to general sentencing

      considerations and the relevant aggravating and mitigating circumstances.

      Knapp v. State, 9 N.E.3d 1274, 1292 (Ind. 2014). Clark has the burden to show

      his sentence is inappropriate in light of both the nature of the offense and his

      character. Gil v. State, 988 N.E.2d 1231, 1237 (Ind. Ct. App. 2013). This can

      only be done with “compelling evidence portraying in a positive light the nature

      of the offense … and the defendant’s character[.]” Stephenson v. State, 29

      N.E.3d 111, 122 (Ind. 2015).


[5]   Clark was convicted of Class C felony nonsupport of a dependent, for which the

      sentencing range is between two and eight years, with an advisory sentence of

      four years. Ind. Code § 35-50-2-6(a). Clark received a six-year sentence, which


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1043 | October 10, 2018   Page 3 of 6
      is two years above the advisory but two years below the maximum. Clark,

      however, has been given the opportunity to entirely avoid imprisonment by

      serving one year on work release through community corrections with the

      balance suspended to probation. So, while Clark’s sentence is technically

      enhanced, we note that it does not consist of a fully-executed sentence and

      currently does not provide for any time in jail or prison.


[6]   That said, the nature of Clark’s offense does not support a reduction in his

      somewhat lenient sentence, in that his arrearage goes far beyond what was

      necessary to establish Class C felony nonsupport. As of Clark’s sentencing, his

      arrearage had risen to over $31,000.00, or more than twice the amount

      necessary to prove Class C felony nonsupport. Of the less than $9000.00 that

      Clark has paid, a large percentage was paid to secure his release from jail after

      being found in contempt of court. Clark has failed to establish that the nature

      of his offense supports a reduction in his sentence.


[7]   Clark’s character also does not support a reduction in his sentence. Clark’s

      failure to satisfy his financial support obligation is only one example of his

      almost total failure to otherwise support or play any active role in the lives of

      K.C. and K.M. Mance has always had full custody of them, and Clark never

      provided Mance with money directly for support or assisted with medical,

      educational, or other expenses. Clark has never provided the children with

      food, clothing, or shelter. Mance has received temporary assistance for needy

      families, food stamps, and Medicaid assistance; currently works two jobs; and

      currently receives support from her parents. Clark has occasionally given the


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1043 | October 10, 2018   Page 4 of 6
      children birthday gifts, but even that has not been consistent. It is worth noting

      that Clark apparently has two other children for whom he has support

      obligations and acknowledged in his presentence interview that he is over

      $10,000.00 in arrears as to them.1 Clark’s consistent shirking of his obligations

      to his children—legally imposed or otherwise—does him no credit.


[8]   Clark’s history of delinquent and criminal behavior also does not speak well of

      his character. The thirty-three-year-old Clark was first arrested at ten and first

      adjudicated a juvenile delinquent at thirteen. As a juvenile, Clark was

      adjudicated delinquent for what would be Class D felony theft if committed by

      an adult, what would be Class A misdemeanor battery if committed by an

      adult, what would be Class C misdemeanor possession of a look-alike substance

      if committed by an adult, and two instances of truancy. As an adult, Clark has

      convictions for battery, intimidation, and driving with a suspended license and

      failed to appear to face other driving-related charges. At the time of sentencing

      in this case, Clark also had pending charges for driving with a suspended license

      and marijuana possession. Despite his many contacts with the juvenile and

      criminal justice systems, Clark has not conformed his behavior to the norms of

      society. Clark has failed to establish that his sentence is inappropriately harsh.


[9]   The judgement of the trial court is affirmed.




      1
        Clark reported that he was over $43,000.00 in arrears altogether. When Clark’s unpaid obligations to K.C.
      and K.M. of approximately $31,000.00 is subtracted, that leaves approximately $12,000.00.



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1043 | October 10, 2018                Page 5 of 6
Bailey, J., and Mathias, J., concur.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1043 | October 10, 2018   Page 6 of 6
