MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                     FILED
regarded as precedent or cited before any                            Jun 21 2019, 8:09 am
court except for the purpose of establishing
                                                                          CLERK
the defense of res judicata, collateral                               Indiana Supreme Court
                                                                         Court of Appeals
estoppel, or the law of the case.                                          and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Mark S. Lenyo                                            Curtis T. Hill, Jr.
South Bend, Indiana                                      Attorney General of Indiana

                                                         Lauren A. Jacobsen
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Jackie Pratt,                                            June 21, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-3099
        v.                                               Appeal from the St. Joseph Circuit
                                                         Court
State of Indiana,                                        The Honorable John E. Broden,
Appellee-Plaintiff.                                      Judge
                                                         The Honorable Andre B.
                                                         Gammage, Magistrate
                                                         Trial Court Cause No.
                                                         71C01-1302-FC-9



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-3099 | June 21, 2019                 Page 1 of 9
                                       Statement of the Case
[1]   Jackie Pratt appeals the trial court’s restitution order and his sentence following

      his conviction for nonsupport of a dependent child, as a Class C felony. Pratt

      presents two issues for our review:


              1.       Whether the trial court abused its discretion when it
                       ordered him to pay $66,059.46 in restitution for his child
                       support arrearage.

              2.       Whether his sentence is inappropriate in light of the nature
                       of the offense and his character.


[2]   We affirm in part, reverse in part, and remand for further proceedings.


                                 Facts and Procedural History
[3]   In February 2013, the State charged Pratt with nonsupport of a dependent

      child, as a Class C felony. The charging information alleged that, between

      August 29, 2000, and January 31, 2013, Pratt had failed to provide child

      support for two of his dependent children in an amount that was at least

      $15,000. The probable cause affidavit stated that Pratt’s arrearage for those

      dates was $39,188.66. In January 2018, the State amended the information and

      alleged that the dates of Pratt’s nonpayment of child support were August 29,

      2000, through August 3, 2010, in an amount that was at least $15,000.


[4]   On July 18, Pratt pleaded guilty as charged without an agreement. The trial

      court accepted Pratt’s plea. At sentencing, Pratt disputed the amount of his

      child support arrearage, stating that he thought he owed approximately

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-3099 | June 21, 2019   Page 2 of 9
      $20,000. The State argued, but did not submit evidence, that Pratt owed

      $66,059.46 in child support. In its order dated December 12, the trial court

      ordered Pratt to pay restitution in the amount of $66,059.46, and the court

      sentenced Pratt to six years, with three years suspended to probation. On

      December 14, Pratt filed with the trial court an objection to the restitution

      amount, and he stated that the correct amount should be approximately

      $26,500. The trial court denied that objection. This appeal ensued.


                                     Discussion and Decision
                                      Issue One: Restitution Order

[5]   Pratt contends that the State presented no evidence to support the amount of

      restitution ordered by the trial court. “The purpose of a restitution order is to

      impress upon the criminal defendant the magnitude of the loss he has caused

      and to defray costs to the victims caused by the offense.” Bennett v. State, 862

      N.E.2d 1281, 1286 (Ind. Ct. App. 2007). It is within the trial court’s discretion

      to order restitution, and we will reverse only for an abuse of that discretion. Id.

      An abuse of discretion occurs if the trial court’s decision is clearly against the

      logic and effect of the facts and circumstances before it, or if the trial court

      misinterprets or misapplies the law. Id.


[6]   Indiana Code Section 35-50-5-3(a) provides that, in addition to any sentence

      imposed for a felony or misdemeanor, a court may order the payment of

      restitution to the victim of the crime. A trial court’s restitution order must be

      supported by sufficient evidence of actual loss sustained by the victim of a


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-3099 | June 21, 2019   Page 3 of 9
      crime. Rich v. State, 890 N.E.2d 44, 49 (Ind. Ct. App. 2008), trans. denied.

      “‘The amount of actual loss is a factual matter that can be determined only

      upon the presentation of evidence.’” Id. (quoting Bennett, 862 N.E.2d at 1286).


[7]   The State concedes that it did not present any evidence of Pratt’s child support

      arrearage at the sentencing hearing. But the State maintains that the trial court

      had authority to take judicial notice of the amount Pratt owes. In particular,

      the State asserts that it “did present and discussion [sic] a substantial amount of

      information from the civil case, and provided the court with [Pratt’s] ISETS[ 1]

      number. This was enough for the court to take judicial notice of the support

      orders and arrearage amount.” Appellee’s Br. at 9.


[8]   We cannot agree that “this was enough.” While the trial court’s order refers to

      the ISETS database, the court did not state that it took judicial notice of any

      court records or identify those records. Evidence is required for appellate

      review of a restitution order. We do not have access to the civil case or to

      ISETS. Without any evidence in the record on appeal to support the restitution

      order, our review is significantly hindered.


[9]   Our Supreme Court recently addressed whether a trial court that takes judicial

      notice of facts not in evidence should enter supporting documentation in the

      record to aid appellate review. The Court stated as follows:




      1
          ISETS stands for the Indiana Support Enforcement Tracking System.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-3099 | June 21, 2019   Page 4 of 9
        Indiana Rule of Evidence 201 permits courts to take judicial
        notice of certain material, including facts “not subject to
        reasonable dispute” and facts “readily determined from sources
        whose accuracy cannot reasonably be questioned.” For years,
        Rule 201 did not permit a trial court to take judicial notice of
        court records, even if they were “its own records in another case
        previously before the court on a related subject with related
        parties.” Gray v. State, 871 N.E.2d 408, 413 (Ind. Ct. App. 2007)
        (emphasis omitted), trans. denied. Effective January 1, 2010,
        amended Rule 201(b)(5) now permits courts to take judicial
        notice of “records of a court of this state,” precisely as the trial
        court did here. But that Rule is silent on whether a court must
        enter that document into the record.

        On one hand, it is vital for the parties to know the exact
        evidentiary basis on which the judgment turned—and for
        appellate courts to know likewise to facilitate review. On the
        other hand, the ultimate purpose of judicial notice is efficient
        consideration of uncontroversial facts, see Baran v. State, 639
        N.E.2d 642, 647 (Ind. 1994)—efficiency that would be
        undermined to the point of uselessness for judicial records if
        simply “tak[ing] judicial notice of the court’s own records . . . [in]
        the 0201-CM-195 case” obligated the court to physically
        incorporate that entire file into the record in the present case.
        Judicial notice “encompasses facts ascertainable from sources
        that cannot reasonably be questioned, and presumably court
        records are such sources,” in the absence of evidence tending to
        rebut that presumption. Brown v. Jones, 804 N.E.2d 1197, 1202
        (Ind. Ct. App. 2004) (addressing judicial notice of the court’s file
        in the same proceeding, before enactment of Evidence Rule
        201(b)(5), for similar notice of other court records), trans. denied.
        But as the Court of Appeals has emphasized, failing to
        incorporate noticed court records into the record on appeal
        hinders appellate review. In Graham v. State, 947 N.E.2d 962
        (Ind. Ct. App. 2011), a post-conviction court took judicial notice
        of the record in the underlying criminal trial but did not make it


Court of Appeals of Indiana | Memorandum Decision 18A-CR-3099 | June 21, 2019   Page 5 of 9
               part of the post-conviction record on appeal. The Court of
               Appeals noted,

                        [I]f a PCR court purports to take judicial notice of
                        other court records and relies upon those records in
                        ruling upon a PCR petition, but those records are not
                        made part of the PCR record, it places a substantial
                        burden upon this court on appeal to either track
                        down those records and have them transmitted to this
                        court, or to attempt to decide the case without benefit
                        of those records.

               Graham, 947 N.E.2d at 965. . . .


       Horton v. State, 51 N.E.2d 1154, 1160-61 (Ind. 2016).


[10]   Here, again, we do not have access to either the child support orders in the civil

       case, which are not available on Odyssey, or to Pratt’s case information through

       the ISETS database. Further, the State did not ask the trial court to take

       judicial notice of the amount of Pratt’s arrearage, and nothing in the record or

       in the court’s order indicates that the trial court in fact took judicial notice of

       this verifiable information.


[11]   Given the record on appeal, we are obliged to say that the evidence is

       insufficient to support the restitution order. Accordingly, we reverse and

       remand to the trial court for further proceedings on this issue. The parties may

       submit evidence to the trial court to support their arguments regarding the

       amount of Pratt’s arrearage, or the trial court may take judicial notice of the

       amount of the arrearage, providing documentation to aid our appellate review

       should Pratt seek review after remand.
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-3099 | June 21, 2019   Page 6 of 9
                                             Issue Two: Sentence

[12]   Pratt also contends that his six-year sentence, with three years suspended, is

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

       Appellate Rule 7(B) provides that “[t]he 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.” This Court has recently held that “[t]he

       advisory sentence is the starting point the legislature has selected as an

       appropriate sentence for the crime committed.” Sanders v. State, 71 N.E.3d 839,

       844 (Ind. Ct. App. 2017). And the Indiana Supreme Court has explained that:


               The principal role of appellate review should be to attempt to
               leaven the outliers . . . but not achieve a perceived “correct”
               result in each case. Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.
               2008). Defendant has the burden to persuade us that the
               sentence imposed by the trial court is inappropriate. [Anglemyer,
               868 N.E.2d at 494].


       Shoun v. State, 67 N.E.3d 635, 642 (Ind. 2017) (omission in original).


[13]   Indiana’s flexible sentencing scheme allows trial courts to tailor an appropriate

       sentence to the circumstances presented, and the trial court’s judgment “should

       receive considerable deference.” Cardwell, 895 N.E.2d at 1222. Whether we

       regard a sentence as inappropriate at the end of the day turns on “our sense of

       the culpability of the defendant, the severity of the crime, the damage done to

       others, and myriad other facts that come to light in a given case.” Id. at 1224.

       The question is not whether another sentence is more appropriate, but rather

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-3099 | June 21, 2019   Page 7 of 9
       whether the sentence imposed is inappropriate. King v. State, 894 N.E.2d 265,

       268 (Ind. Ct. App. 2008). Deference to the trial court “prevail[s] unless

       overcome by compelling evidence portraying in a positive light the nature of the

       offense (such as accompanied by restraint, regard, and lack of brutality) and the

       defendant’s character (such as substantial virtuous traits or persistent examples

       of good character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015).


[14]   Where, as here, the offense was committed before July 1, 2014, the sentencing

       range for a Class C felony is two years to eight years, with an advisory sentence

       of four years. I.C. § 35-50-2-6. Pratt asserts that his sentence is inappropriate in

       light of the nature of the offense because the reason “his child support arrearage

       got out of control” was because he “had not worked for about ten (10) years

       due to health problems.” Appellant’s Br. at 15. But at the time of sentencing,

       despite his persistent health issues, Pratt was employed. That he could now

       work despite his health issues undermines his contention that he should be

       excused for having not paid child support for ten years because of his health

       issues. And, even if Pratt’s assertions are correct, his proper remedy was to

       timely request a modification of his child support obligation, not to simply

       disregard that obligation. We cannot say that Pratt’s three-year executed

       sentence is inappropriate in light of the nature of the offense.


[15]   Pratt contends that his sentence is inappropriate in light of his character because

       his criminal history is minor and remote in time and because he pleaded guilty.

       However, we agree with the State that Pratt’s criminal history, while relatively

       insignificant, still reflects his poor character. And, in any event, Pratt has not

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-3099 | June 21, 2019   Page 8 of 9
       presented evidence of “substantial virtuous traits or persistent examples of good

       character” to justify a revised sentence. See Stephenson, 29 N.E.3d at 122.

       Moreover, Pratt’s guilty plea came more than five years after the initial

       charging information, and we cannot say as a matter of law that such a plea

       requires mitigating weight. Thus, we cannot say that Pratt’s sentence is

       inappropriate in light of his character.


[16]   Affirmed in part, reversed in part, and remanded for further proceedings.


       Baker, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-3099 | June 21, 2019   Page 9 of 9
