Court of Appeals of Indiana | Memorandum Decision 23A01-1411-CR-492 | April 30, 2015 Page 1 of 5

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 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

Cara Schaefer Wieneke

Special Assistant to the State Public 

Defender

Wieneke Law Office, LLC

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Richard C. Webster

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Stephen E. Abernathy,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

April 30, 2015

Court of Appeals Case No.

23A01-1411-CR-492

Appeal from the Fountain Circuit 

Court

The Honorable Susan Orr 

Henderson, Judge

Case No. 23C01-1407-FD-278

Vaidik, Chief Judge.

Case Summary

[1] Stephen E. Abernathy appeals his advisory sentence for Class D felony failure 

to register as a sex offender. He contends that his sentence of one and one-half 
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years is inappropriate in light of the minor nature of the offense and the fact that 

he pled guilty at his initial hearing. Because Abernathy has failed to persuade 

us that the advisory sentence is inappropriate in this case, we affirm. 

Facts and Procedural History 

[2] Abernathy was required to register as a sex offender in Indiana. One of the 

registration requirements is that a sex offender must report in person to local 

law enforcement no later than seventy-two hours after a change in principal 

address. See Ind. Code § 11-8-8-11(a). In addition, a sex offender who does not 

have a principal or temporary residence must report in person to local law 

enforcement at least once every seven days. See Ind. Code § 11-8-8-12(c). 

[3] In June 2014 Fountain County law enforcement learned that Abernathy had 

moved out of his principal residence on West Coopers Chapel Road in 

Veedersburg “some time ago” and was now homeless. Appellant’s App. p. 7. 

Abernathy, however, did not report these changes in person to local law 

enforcement. 

[4] On July 8, 2014, the State charged Abernathy with Class D felony failure to 

register as a sex offender for not residing at his registered address or location on 

June 30, 2014. See Ind. Code Ann. § 11-8-8-17(a)(5) (West 2013 Supp.); 

Appellant’s App. p. 6. At his initial hearing that same day, Abernathy waived 

counsel and pled guilty as charged because he did not want “to waste [the trial 

court’s] time on this.” Tr. p. 10. Abernathy knew that he had only a certain 
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amount of time to report a change of principal address and that he was required 

to register once a week because he was homeless,

1 yet he did not do these 

things. Id. at 12. Abernathy, who said he was living in his car and suffering 

from Stage 4 cirrhosis of the liver, claimed that he did not report in person as 

required because he was “trying to get a mobile home set up,” which used all of 

his energy. Id. at 12, 22. The trial court proceeded to sentencing and sentenced 

Abernathy to the advisory term of one and one-half years.2 

[5] Abernathy now appeals his sentence.

Discussion and Decision

[6] Abernathy contends that his advisory sentence is inappropriate in light of the 

“minor” nature of the offense and his “immediate[]” admission of guilt. 

Appellant’s Br. p. 3, 4. He therefore asks us to reduce his sentence. 

[7] Our appellate rules authorize revision of a sentence “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.” Ind. 

Appellate Rule 7(B). “[A] defendant must persuade the appellate court that his 

 

1 Abernathy admitted that he was homeless for a period of time in 2012 and had to report every seven days. 

Tr. p. 12. 

2 Abernathy was on probation for Class D felony resisting law enforcement and Class A misdemeanor 

driving while suspended when he should have reported in person to local law enforcement. At the initial 

hearing, the probation department filed a notice of probation violation. Abernathy admitted to violating his 

probation, and the trial court sentenced him to one and one-half years, to be served consecutive to his 

sentence in this case. 
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or her sentence has met this inappropriateness standard of review.” Childress v. 

State, 848 N.E.2d 1073, 1080 (Ind. 2006).

[8] The principal role of Rule 7(B) review “should be to attempt to leaven the 

outliers, and identify some guiding principles for trial courts and those charged 

with improvement of the sentencing statutes, but not to achieve a perceived 

‘correct’ result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.

2008). Whether a sentence is inappropriate ultimately turns on the culpability 

of the defendant, the severity of the crime, the damage done to others, and a 

myriad of other factors that come to light in a given case. Id. at 1224.

[9] A person who commits a Class D felony (for a crime committed before July 1, 

2014) shall be imprisoned for a fixed term of between six months and three 

years, with the advisory sentence being one and one-half years. Ind. Code § 35-

50-2-7. Here, the trial court sentenced Abernathy to the advisory term. 

[10] As for the nature of the offense, Abernathy, who knew the registration 

requirements of the sex-offender registry, failed to report in person to local law 

enforcement when he moved out of his principal residence and became

homeless. As a result, Abernathy’s address remained the same in the sexoffender registry even though he no longer lived on West Coopers Chapel 

Road. See Jensen v. State, 905 N.E.2d 384, 393 (Ind. 2009) (noting that the 

purpose of the Sex Offender Registration Act is deterrence and promoting 

community condemnation). His reason for not reporting was because he was 
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trying to set up a mobile home. The nature of the offense does not convince us 

that the advisory term is inappropriate. 

[11] As for Abernathy’s character, the trial court sentenced him before a Presentence 

Investigation Report could be prepared; therefore, we do not know much about 

his character. We acknowledge that he pled guilty at the initial hearing, which 

quickly resolved this case and saved the court time. However, he was also on 

probation for two offenses when he committed this offense. Abernathy’s 

character also supports the advisory sentence. We therefore affirm his sentence.

[12] Affirmed. 

Kirsch, J., and Bradford, J., concur.