Thomas W. Farr v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Sep 30 2020, 8:16 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 Scott H. Duerring Curtis T. Hill, Jr. South Bend, Indiana Attorney General of Indiana Catherine E. Brizzi Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Thomas W. Farr, September 30, 2020 Appellant-Defendant, Court of Appeals Case No. 20A-CR-645 v. Appeal from the St. Joseph Superior Court State of Indiana, The Honorable John E. Broden, Appellee-Plaintiff. Judge The Honorable André B. Gammage, Magistrate Trial Court Cause No. 71C01-1610-FC-11

Bailey, Judge. Court of Appeals of Indiana | Memorandum Decision 20A-CR-645 | September 30, 2020 Page 1 of 6

Case Summary [1] Thomas Farr (“Farr”) appeals the sentence imposed upon his plea of guilty to

Non-Support of a Dependent Child, as a Class C felony.1 He presents the sole

issue of whether his six-year sentence, with three years suspended to probation,

is inappropriate. We affirm.

Facts and Procedural History [2] In 2002, Farr was court-ordered to pay $149.00 weekly as support for his then

four-year-old child. He was also ordered to contribute to his child’s medical

and educational expenses. In 2008, when Farr owed more than $30,000.00, he

was found in contempt of court and given a suspended sentence of 120 days

incarceration. In 2014, Farr was again found to be in contempt of court and

received another suspended sentence. By March 27, 2016, when Farr’s child

became eighteen, Farr had paid $50,761.00 and owed $56,011.00. [3] On October 3, 2016, the State of Indiana filed two charges against Farr. In

Count 1, the State alleged that Farr had knowingly failed to pay more than

$15,000.00 in child support due between July 29, 2002 and June 30, 2004. In

1 Ind. Code § 35-46-1-5.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-645 | September 30, 2020 Page 2 of 6

Count 2, the State alleged that Farr had knowingly failed to pay child support

due between July 2, 2014 and March 27, 2016.2 [4] Farr, who had relocated to Tennessee, was arrested in Georgia in 2019. On

January 8, 2020, Farr appeared at a hearing, provided a factual basis for the

charges, and pled guilty as charged without the benefit of a plea agreement. At

the conclusion of a sentencing hearing conducted on March 4, 2020, the trial

court entered a judgment of conviction only upon the Class C felony count.

Finding the amount owed and Farr’s criminal history to be aggravating factors,

the trial court sentenced Farr to six years imprisonment, with three years

suspended to probation. He now appeals.

Discussion and Decision [5] Article 7, Sections 4 and 6 of the Indiana Constitution authorize independent

appellate review and revision of a sentence imposed by a trial court. Sanders v.

State, 71 N.E.3d 839, 843 (Ind. Ct. App. 2017), trans. denied. This appellate

authority is embodied in Indiana Appellate Rule 7(B). Id. Under 7(B), the

appellant must demonstrate that his sentence is inappropriate in light of the

nature of his offense and his character. Id. (citing Ind. Appellate Rule 7(B)). In

2 The bifurcation of charges tracked a statutory change in the classification of the offense. Prior to July 1, 2014, the offense of failure to provide child support in an amount of $15,000.00 or more was classified as a Class C felony; thereafter, it was classified as a Level 6 felony. Indiana Code Section 35-46-1-5 now provides in relevant part: “A person who knowingly or intentionally fails to provide support to the person’s dependent child commits nonsupport of a child, a Level 6 felony.”

Court of Appeals of Indiana | Memorandum Decision 20A-CR-645 | September 30, 2020 Page 3 of 6

these instances, deference to the trial courts “should prevail 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). [6] The Indiana Supreme Court has explained that the principal role of appellate

review is an attempt to leaven the outliers, “not to achieve a perceived ‘correct’

result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). The

question is not whether another sentence is more appropriate, but whether the

sentence imposed is inappropriate. King v. State, 894 N.E.2d 265, 268 (Ind. Ct.

App. 2008). [7] A defendant convicted of a Class C felony is subject to a sentencing range of

two to eight years, with an advisory sentence of four years. I.C. § 35-50-2-6.

Farr received a sentence of two years above the advisory, but with three years

suspended to probation. He contends that the nature of the offense and his

character do not support his sentence. In particular, he emphasizes that he did

not commit a crime of violence, he had paid some child support, he had pled

guilty, and he has regularly been gainfully employed. [8] Looking to the nature of the offense, Farr did not commit a crime of violence

by failing to pay child support. That said, he was not sentenced for a violent

crime. Farr, a construction worker by trade, was afforded leniency on multiple

occasions, but he did not satisfy his obligation. Ultimately, he owed a child

Court of Appeals of Indiana | Memorandum Decision 20A-CR-645 | September 30, 2020 Page 4 of 6

support arrearage of $56,011.00, significantly more than that necessary to

commit the offense of non-support, as a Class C felony. [9] Next, we consider the defendant’s character. Farr pled guilty and, in general, a

decision to plead guilty reflects favorably upon a defendant’s character. See

Lopez v. State, 869 N.E.2d 1254, 1259 (Ind. Ct. App. 2007) (observing that a

defendant’s guilty plea reflects positively on character although it may not be a

significant mitigating factor), trans. denied. Here, given the mathematical

accounting of Farr’s child support history, his decision to plead guilty may well

be considered a pragmatic one. [10] Farr has a history of employment, but he also has a history of substance abuse

and related criminal history. In 1998, Farr was convicted of a misdemeanor

offense of Driving While Intoxicated. In 2003, he was convicted of Driving

with a Blood Alcohol Content of 0.15 or greater, as a misdemeanor offense.

Also in 2003, he was convicted of Driving with a Blood Alcohol Content of

0.15 or greater, as a Class D felony. Farr points out that the offenses are remote

in time and argues “the weight should be insignificant.” Appellant’s Brief at 10.

However, we conduct an independent review and the weight or value accorded

by the trial court to reasons properly found is not subject to appellate review.

Kimbrough v. State, 979 N.E.2d 625, 628 (Ind. 2012) (citing Anglemyer v. State,

868 N.E.2d 482, 490-91 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218.

Moreover, when he was charged in this case, Farr was subject to a previously

suspended sentence for his failure to pay child support.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-645 | September 30, 2020 Page 5 of 6 [11] Farr has not presented compelling evidence that portrays in a positive light the

nature of the offense or his character. Absent such evidence, we are

unpersuaded that his sentence is inappropriate.3

Conclusion [12] Farr’s sentence of six years, with three years suspended to probation, is not

inappropriate. [13] Affirmed.

Vaidik, J., and Weissmann, J., concur.

3 Farr also asserts, without developing a corresponding argument, that he should have been placed in a community corrections program. “[P]lacement in a community corrections program is an alternative to commitment to the Department of Correction and made at the sole discretion of the trial court … a defendant is not entitled to serve his sentence in a community corrections program but, as with probation, placement in the program is a ‘matter of grace’ and a ‘conditional liberty that is a favor, not a right.’” Million v. State, 646 N.E.2d 998, 1001-02 (Ind. Ct. App. 1995).

Court of Appeals of Indiana | Memorandum Decision 20A-CR-645 | September 30, 2020 Page 6 of 6