MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                   Dec 03 2015, 5:29 am
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
John C. Bohdan                                          Gregory F. Zoeller
Deputy Public Defender                                  Attorney General of Indiana
Fort Wayne, Indiana
                                                        Karl M. Scharnberg
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Willie Bontempo,                                        December 3, 2015
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        02A03-1505-CR-446
        v.                                              Appeal from the Allen Superior
                                                        Court
State of Indiana,                                       The Honorable Frances C. Gull,
Appellee-Plaintiff                                      Judge
                                                        Trial Court Cause No.
                                                        02D06-1412-F5-125



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 02A03-1505-CR-446 | December 3, 2015          Page 1 of 4
[1]   Willie Bontempo appeals the sentence he received for Level 5 Felony Failure to

      Register.1 He asks us to revise his sentence. Finding his sentence not

      inappropriate, we affirm.


                                                    Facts
[2]   On August 15, 2005, Willie Bontempo was convicted of child molesting and

      sentenced to ten years. He was released on parole, and on November 14, 2014,

      he registered his address as a room at a local Holiday Inn. Police went there to

      check that that was his place of residence, but the owner informed them that

      Bontempo had stayed there for only one night. On November 24, Bontempo

      was arrested on an unrelated warrant and was asked about his residence.

      Initially, he said he had moved out of the room less than three days prior—

      which would have put him within the 72-hour safe harbor period for a change

      in principal residence, Ind. Code § 11-8-8-8(c)—but when confronted with the

      knowledge that he had only stayed there for one night, he conceded that he was

      in violation of his sex offender registration requirements. App. at 15.


[3]   On March 23, 2015, Bontempo pleaded guilty, without the benefit of a plea

      agreement, to failure to register as a sex offender, a Level 5 felony. At the April

      23, 2015, sentencing hearing, the trial court heard testimony that this was not

      Bontempo’s first failure to register—“The first time it was intentional, he went

      on the run,” sent. tr. 9—and that the first failure to register and underlying child




      1
          Ind. Code § 11-8-8-11.


      Court of Appeals of Indiana | Memorandum Decision 02A03-1505-CR-446 | December 3, 2015   Page 2 of 4
      molestation convictions were not his only criminal history: he has three juvenile

      adjudications that would have been felony convictions if committed by an

      adult. In addition to the adult convictions of child molesting and the first

      failure to register, Bontempo had also been convicted of possession of

      marijuana, and he was on probation at the time of the instant offense. Against

      these aggravators, the trial court weighed the mitigators of the “plea of guilty,

      [the] acceptance of responsibility, and the family support” Bontempo presented

      at the hearing. Id. at 15. The trial court sentenced him to the advisory sentence

      of three years executed. Bontempo now appeals.


                                   Discussion and Decision
[4]   Bontempo has one argument on appeal: that his sentence is inappropriate.

      Indiana Appellate Rule 7(B) provides, “The Court may revise a sentence

      authorized by statute 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.” The principal role of such review is to

      attempt to leaven the outliers, but not to achieve a perceived “correct” sentence.

      Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). Sentencing is principally a

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

      considerable deference. Id. at 1222.


[5]   Turning to the nature of Bontempo’s offense, we concede that his offense of not

      registering was not particularly grave. This was not a case of being

      unregistered, or fraudulently registered, for years; this was a matter of days. Up


      Court of Appeals of Indiana | Memorandum Decision 02A03-1505-CR-446 | December 3, 2015   Page 3 of 4
      until November 2014, Bontempo had properly registered his previous places of

      residence. On the other hand, his previous compliance with the registration

      duties shows that he knew what was required of him. Moreover, it is not as if

      Bontempo turned himself in; he only came into the custody of the police after

      being arrested on an unrelated warrant.


[6]   Turning to Bontempo’s character, we find substantial reasons not to reduce his

      sentence. He has an extensive juvenile record, including three adjudications

      that would have been felonies if committed by an adult. In addition, he has

      previously been convicted of failure to register. Moreover, he was on probation

      at the time he committed the instant offense.


[7]   As the conjunction in Rule 7(B) makes clear, we can only find a sentence

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

      offender. Even if the nature of Bontempo’s offense is not particularly grave, his

      character and criminal history sufficiently justify the trial court’s decision to

      sentence him to the advisory sentence of three years. While we might have

      sentenced him differently, sentencing is primarily the job of the trial court, and

      the trial court did not abuse its discretion.


[8]   The judgment of the trial court is affirmed.


      Bradford, J., and Pyle, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 02A03-1505-CR-446 | December 3, 2015   Page 4 of 4
