FOR PUBLICATION

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

JENNIFER A. JOAS GREGORY F. ZOELLER

Madison, Indiana Attorney General of Indiana

RICHARD C. WEBSTER

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

CARL J. BRANDENBURG, )

)

Appellant-Defendant, )

)

vs. ) No. 40A04-1301-CR-23

)

STATE OF INDIANA, )

)

Appellee-Plaintiff. )

APPEAL FROM THE JENNINGS CIRCUIT COURT

The Honorable Jon W. Webster, Judge

Cause No. 40C01-0908-FC-284

August 20, 2013

OPINION - FOR PUBLICATION

NAJAM, Judge
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STATEMENT OF THE CASE

Carl Brandenburg appeals his sentence following the revocation of his probation. 

He presents two issues for our review:

1. Whether the trial court abused its discretion when it ordered him to 

serve the balance of his suspended sentence in the Department of 

Correction.

2. Whether the trial court miscalculated the amount of his child support 

arrearage.

We affirm, but we remand with instructions.

FACTS AND PROCEDURAL HISTORY

Following Brandenburg’s guilty plea for non-support of a dependent child, as a 

Class C felony, in August 2011 the trial court sentenced him to five years with credit for 

time served and fifty-two months on probation. Brandenburg acknowledged that his 

arrearage at that time was “at least” $10,000. Appellant’s App. at 76. The trial court 

ordered him to pay $78 per week in child support beginning within sixty days of the 

order.

On November 4, 2011, the State filed a petition to revoke or modify probation 

alleging that Brandenburg had violated two conditions of his probation, namely, payment 

of child support and payment of fees associated with his probation. Following a 

continuance, Brandenburg failed to appear for a hearing on the alleged probation 

violations scheduled for July 18, 2012, and a warrant was issued for his arrest. 

Brandenburg was arrested ten days later. The trial court finally held the hearing on 

November 9, 2012.

At the probation revocation hearing, Brandenburg admitted to both alleged 
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violations of his probation. In particular, Brandenburg acknowledged that he had made 

only four child support payments since August 2011. Brandenburg testified that he had 

been employed part-time at a Wendy’s located thirty miles from his house for 

approximately three months in early 2012, but he was otherwise unemployed. He 

testified that he had recently been offered a job as a truck driver, but he had not talked to 

that potential employer about the job for “a couple of months.” Transcript at 16. 

Brandenburg testified that he would be “driving with [his] father,” who assured him that 

he had the job. Id. at 17.

The trial court revoked Brandenburg’s probation and ordered him to serve the 

balance of his sentence of fifty-two months in the Indiana Department of Correction. In 

its order, the trial court stated that Brandenburg’s arrearage is $17,795.05. This appeal 

ensued.

DISCUSSION AND DECISION

Issue One: Sentence

Brandenburg admitted to violating his probation and therefore does not contest the 

revocation of his probation. Instead, he contends that the trial court abused its discretion 

in ordering him to serve the entire portion of his sentence that was suspended at the time 

of his initial sentencing. 

Once a trial court has exercised its grace by ordering probation rather than 

incarceration, “the judge should have considerable leeway in deciding how to proceed.” 

Prewitt v. State, 878 N.E.2d 184, 187 (Ind. 2007). If this discretion were not given to 

trial courts and sentences were scrutinized too severely on appeal, trial judges might be 
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less inclined to order probation. Id. Accordingly, a trial court’s sentencing decision for a 

probation violation is reviewable using the abuse of discretion standard. Id. An abuse of 

discretion occurs where the decision is clearly against the logic and effect of the facts and 

circumstances. Id. If a trial court finds that a person has violated his probation before 

termination of the period, the court may order execution of all or part of the sentence that 

was suspended at the time of initial sentencing. Ind. Code § 35-38-2-3(g).

Brandenburg contends that the State failed to prove that he recklessly or 

intentionally failed to pay his child support obligation, and in support of that contention 

he cites our supreme court’s opinion in Runyon v. State, 939 N.E.2d 613 (Ind. 2010). In 

Smith v. State, 963 N.E.2d 1110, 1113 (Ind. 2012), our supreme court explained its 

holding in Runyon as follows:

if the [probation] condition violated involves a financial obligation, then the 

probationer must be shown to have recklessly, knowingly, or intentionally 

failed to pay. [Runyon, 939 N.E.2d at 616]. This Court determined “[a]s to

the fact of violation, the statute expressly imposes the burden of proof upon

the State. But with respect to the ability to pay, the burden of proof is not

explicitly designated.” Id. Noting that revoking probation for violating a 

financial obligation requires proof of both the underlying violation and the 

defendant probationer’s state of mind, we held, “it is the State’s burden to

prove both the violation and the requisite state of mind in order to obtain a

probation revocation.” Id. With respect to the ability to pay, we held that it 

is the defendant probationer’s burden “to show facts related to an inability

to pay and indicating sufficient bona fide efforts to pay so as to persuade

the trial court that further imprisonment should not be ordered.” Id. at 617

(citing Woods v. State, 892 N.E.2d 637, 641 (Ind. 2008)).

(Emphasis added).

Again, Brandenburg does not contest the revocation of his probation. Instead, he

maintains that
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he demonstrated an inability to pay his child support arrearage and fees and 

that he made a bona fide effort to find the resources to pay these. He 

believes that these efforts should have required the trial court to consider 

placement alternatives and that the trial court abused its discretion by 

failing to consider placement alternatives that would enable him to make 

payments toward his child support arrearage and pay his fees.

Brief of Appellant at 7-8. But the trial court was not persuaded by Brandenburg’s 

testimony, and the court determined that, on the whole, the evidence compelled 

Brandenburg’s incarceration. In particular, the trial court found:

3) Since May 24, 1993, and prior to the filing of criminal charges 

herein on August 7, 2009, the State of Indiana filed at least nine (9) 

Petitions for Contempt, five (5) Writs of Body Attachment were issued and 

there were fifteen (15) Income Withholding Orders! Having spent 

seventeen (17) years trying to get Mr. Brandenburg to pay child support 

through the civil process, the State filed criminal charges herein.

4) When convicted on August 4, 2011, the arrearage was 

$10,000.00.

* * *

6) Since August 4, 2011, Defendant has paid $543.26 in child 

support.

* * *

8) Defendant is forty-two (42) years of age and able-bodied. He is 

married. He has a valid operator’s license and a C.D.L. “permit.” He has 

at least two (2) prior felony convictions.

9) After walking out of this courtroom on August 4, 2011[,] with 

only the obligation to pay child support to remain free, Defendant, while 

able to pay, failed miserably.

10) This Court has stated many times before that nonsupport 

criminal cases will not be more of the same “in and out of court” process to 

persuade parents to support their children and this case is no exception.
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Appellant’s App. at 97-98. In short, the trial court concluded that Brandenburg did not 

sustain his burden to prove his inability to pay or “sufficient bona fide efforts to pay so as 

to persuade the trial court that further imprisonment should not be ordered.” See Smith, 

963 N.E.2d at 1114; Runyon, 939 N.E.2d at 617. The trial court did not abuse its 

discretion when it ordered Brandenburg to serve the balance of his sentence in the 

Department of Correction.

Issue Two: Arrearage

Brandenburg contends that the trial court misstated the current amount of his 

arrearage in the December 4, 2012 order, and the State “acknowledge[s] that there does 

seem to be some uncertainty as to the amount of the arrearage.” Brief of Appellee at 9. 

In short, the amount of the arrearage was approximately $10,000 in August 2011, and 

Brandenburg’s daughter had turned twenty-one in August 2009. Brandenburg maintains 

that his child support obligation ceased “by operation of law” on his daughter’s twentyfirst birthday under former Indiana Code Section 36-16-6-6. Therefore, he contends, the 

arrearage could not have increased to $17,795.05, as found by the trial court, after the 

date of his sentencing in 2011. We remand to the trial court for a hearing to recalculate 

the amount of Brandenburg’s child support arrearage.

Affirmed, but remanded with instructions.

MATHIAS, J., and BROWN, J., concur.