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.
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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
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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
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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
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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.
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Bailey, J., and Mathias, J., concur.
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