Court of Appeals of Indiana | Memorandum Decision 19A

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### 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

.

A PPELLANT PRO SE David L. Tavernier Branchvill e , Indiana A TTORNEY S FOR A PPELLEE Curtis T. Hill, Jr. Attorney G eneral of I ndiana
Matthew B. Mac Kenzie Deputy Attorney G eneral Indianapolis, Indiana



### IN THE 

# COURT OF APPEALS OF INDIANA

David L. Tavernier , Appellant

- Defendant,

v.


### State of Indiana , Appellee

- Plaintiff

. December 2, 2019 Court of Appeals Ca se No. 19A

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- 499 Appeal from the Morgan Superior Court The Honorable Brian Williams, Judge Trial Court Cause No. 55D02

- 1410

- FC

- 1594

A ltice , Judge
.Court of Appeals of Indiana | Memorandum Decision 19A

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- 499 | December 2, 2019 Page 2 of 8 

### Cas e Summary

[1] Following his guilty plea to Class C felony nonsupport of a dependent child, David Tavernier appeals, asserting that his eight

- year sentence with four years suspended is inappropriate.

[2] We affirm. 

### Facts & Procedural History

[3] Tavernier and Darla Coo k (Mother) are th e biological parents of K.C. (Child) born in 2003

. Paternity was established in 2005 , and Tavernier was ordered to pay child support in the amount of $57 per week , plus $3 per week for a then

existing arrearage of $1697

. Between October 2009 and June 2014, Tavernier failed to pay $15,000 in support. As of August 2014, Tavernier’s arreara ge amount was $20,911.92. On October 21, 2014, the State charged Tavernier with two counts of nonsupport of a dependent child, one as a Class C felony

a nd one as a Level 5 felony. 1 By August 31, 2018, Tavernier’s arrearage total

was $29,284.92

.

[4] While t he case was pending for over four years, the matter con vened for pretrial and status hearings and was repeatedly continued while Tavernier sought counsel , which he obtained on a couple of occasions. Tavernier failed to

1 The Class C felony concerned the time period of October 11, 2009 through June 30, 2014, and the Level 5 felony concerned the time period after July 1, 2014 with an enhancement based upon a prior conviction for nonsuppor t of a dependent

.Court of Appeals of Indiana | Memorandum Decision 19A

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- 499 | December 2, 2019 Page 3 of 8 appear at an August 2016 hearing , an d an arrest warrant was issued and eventually served in May 2017 . He was released on bond and then failed to appear at a September 2018 change

- of

- plea h earing . A warrant was again issued , and he was held without bond until he appeared at a January 7, 2019 hearing, at which he entered into a plea agreement. The agreement provided that Tavernier would plead guilty to the Class C felony charge , the State w ould dismiss the Level 5 felony charge , and the term of the sentence and probation would be open to the trial court’s discretio n but the aggregate sentence was capped at eight years with a maximum executed sentence of four years

.

[5] At the January 22, 2019 sentencing hearing, Tavernier explained that he was self

- employed with a general contract ing business and had been “working hard with [his] business to produce enough money” but it was not enough. Transcript at 82. He requested home detention and stated that he “would get a
W

- 2 type job” so that support could be withheld from his check. Id

. at 8 1

. Tavernier acknowledged that he ha d a 2006 conviction for nonsupport of a dependent child but stated that it was for other children. He conceded that the
2006 conviction did not impress upon him the importance of supporting his children. He ackno wledged that in August 2014 he owed over $29,000 and that his current arrearage was over $30,000. In responding to the State’s inquiry as to why the court “should for one second entertain the concept that you’re going to start paying now miraculously when you basically haven’t paid anything for the last eight years,” Tavernier responded, “I will maintain a W

- 2 job,” adding “I never had a chan c e to at any time . . . be on a pro gram to help pay for thisCourt of Appeals of Indiana | Memorandum Decision 19A

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- 499 | December 2, 2019 Page 4 of 8 child support that I owe [.] ” Id . at 84. The pres en ten ce investigation report reflected Tavernier’s criminal history, which began in 1990 and spanned to 2014 and included twelve misdemeanors and at least six felonies.

[6] At a subsequent pronouncement

- of

- sentence hearing, t he State argued that Tavernier “basically hasn’t been paying at all” and has “done everything he can to avoid having to pay,” and Mother and Child had to give up “all kinds of things” due to his nonpayment. Id . at 94. Tavernier’s counsel argued that there
had been no evidence presented that Child “went without anything during the course of child’s life while [] Tavernier was not paying child support,” Tavernier took responsibility for his failure to pay by pleading guilty , and he had a plan for meeting his obli gation. Id . at 95. Tavernier gave a statement in allocution apologizing for not paying child support, assured that he would have
a W

- 2 job in thirty days, and asked for release to be able to work. H e noted, “I’m not pointing any fingers, but I think the programs need to be more in effect for people as me to get guidance from situations in this to help get the best thing done for the child to pay child support payments[.]” Id . at 97.

[7] Mother gave a v ictim’s statement, stating that she had worked two jobs for Child’s entire life and that Child “went without a lot[,]” including “a dad” as Child, who was fifteen at the time of the hearing, had only met Tavernier twice. Id . at 98.

[8] T he trial court sent enced Tavernier to eight years with four years suspende d to probation. The cour t stated , “I cannot fathom coming in here and trying in anyCourt of Appeals of Indiana | Memorandum Decision 19A

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- 499 | December 2, 2019 Page 5 of 8 way whatsoever trying to sell the idea that we haven’t got . . . proof that this child has not done without [,] ” and it rejected Tavernier’ s comments that he needed to be o n some sort of “program” in order to support Child

. Id . at 99. The court reminded Tavernier, “you hold the keys by finally doing what you should have been doing all along[,]” and it ordered Tavernier to pay $600 per month toward arrears. Id . at 102. Ta vernier now appeals.


### Discussion and Decision

[9] Tavernier contends that his sentence is inappropriate. 2 Pursuant to Ind. Appellate Rule 7(B), this Court “may revise a sentence authorized by statute if,

a fter due consideration of the trial court’s decision, t he Court finds that the sentence is inappropriate in light of the nature of the offense and the character of the offender.” Our Supreme Court has explained that the principal role of appellate review should be to attempt to leaven the outliers, “not to ac hieve a perceived ‘correct’ result in each case.” Cardwell v. State , 895 N.E.2d 1219, 1225 (Ind. 2008). “‘[W]e must and should exercise deference to a trial court’s sentencing decision, both because Rule 7(B) requires us to give ‘due consideration’ to that decision and because we understand and recognize the unique persp ective a trial court brings to its sentencing decisions.’” Rogers v.

2 Tavernier’s appellate challenge to his sentence intertwines abuse of discretion language and inappropriate sentence language. See e.g. Appellant’s Brief at 7 (“The trial court abused its discretion in sentencing Defendant to the advi sory sentence given the character of the offender and the nature of the offense.” ) I t is well

- settled that the two types of claims are distinct and are to be analyzed separately. King v. State , 894 N.E.2d 265, 266 (Ind. Ct. App. 2008). Because the subst ance of Tavernier’s arguments focuses on the nature of his offense and his charac ter, we find that his claim is that his sentence is inappropriate. To the extent that he claims that the trial court abused its discretion, his claim is waived.Court of Appeals of Indiana | Memorandum Decision 19A

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- 499 | December 2, 2019 Page 6 of 8 State , 878 N.E.2d 269, 275 (Ind. Ct. App. 2007) (quoting Stewar t v. State , 866 N.E.2d 858, 866 (Ind. Ct. App. 2007)), trans. denied . “Such deference should prevail unless overcome by co mpelling evidence portraying in a positive light the nature of the offense (such as accompanied by restraint, regard, and lack of bru tality) and the defendant’s character (such as substantial virtuous traits or persistent examples of good character).” Ste phenson v. State , 29 N.E.3d 111, 122 (Ind. 2015). The question under App. R. 7(B) is “not whether another sentence is more appropria te” but rather “whether the sentence imposed is inappropriate.” Miller v. State , 105 N.E.3d 194, 196 (Ind. Ct. App. 2018). In conducting our review, we may consider “all aspects of the penal consequences imposed by the trial court in sentencing, i.e., wh ether it consists of executed time, probation, suspension, home detention, or placement in community corrections, and wheth er the sentences run concurrently or consecutively.” Davidson v. State , 926 N.E.2d 1023, 1025 (Ind. 2010). Tavernier bears the burd en of persuading us that his sentence is inappropriate. Barker v. State, 994 N.E.2d 306, 315 (Ind. Ct. App. 2013), trans. denied

.

[10] When determining whether a sentence is inappropriate, the advisory sentence is the starting point the Legislature has selec ted as an appropriate sentence for the crime committed. Childress v. State , 848 N.E.2d 1073, 1081 (Ind. 2006). Here,
Tave rnier was convicted of one Class C felony, for which the sentencing range is between two and eight years, with the advisory being fou r years. See Ind. Code § 35

- 50

- 2

- 6. The trial court sentenced Tavernier to eight years, suspending four of those to proba tion.Court of Appeals of Indiana | Memorandum Decision 19A

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- 499 | December 2, 2019 Page 7 of 8 [11] We ha ve recognized that “[t]he nature of the offense is found in the details and circumstances of the commission of the offens e and the defendant’s participation.” Croy v. State , 953 N.E.2d 660, 664 (Ind. Ct. App. 2011). As to the nature of the offense, Tavernier points to the fact that his arrearage did not increase dramatically between May 2003 to August 2014 and he had made some payments during that time. Appellant’s Brief at 10. We are unpersuaded, however, by his ar guments

. This is Tavernier’s second conviction for nonsupport of a dependent child. He conceded that a 2006 conviction for the same offense did not motivate him to pay support. It is undisputed that between August 2014 and December 2018, his arrearage i ncreased by almost $10,000 such that the total was over $30,000 by December 2018. The nature of the offense does not warrant reduction of his sentence.

[12] “The c haracter of the offender is found in what we learn of the offender’s life and conduct.” Croy , 95 3 N.E.2d at 664. Tavernier highlights that (1) he took responsibility by pleading guilty, (2) he had “no conscious knowledge” that Child was “going without” due to his nonpayment of support, and (3) there is no evidence that he acted in “callous disregar d” of Child’s needs, and therefore, he argues, his character does not warrant the four

- year executed sentence. Appellant’s Brief at 11. We disagree. Taverni er’s arguments regarding his
character overlook the well

- settled principle that “[w]hen consideri ng the character of the offender, one relevant factor is the defendant’s criminal history.” Johnson v. State , 986 N.E.2d 852, 857 (Ind. Ct. App. 201 3 ). The
p resentence investigation report reflected that Tavernier has been convicted ofCourt of Appeals of Indiana | Memorandum Decision 19A

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- 499 | December 2, 2019 Page 8 of 8 twelve misdemeanor s and at least six felonies, including Class D felony nonsupport of a dependent, and he has violated probation. Tavernier’s counsel conceded to the trial cour t that Tavernier’s criminal history was “significant.” Transcript at 96.

[13] Tavernier attempted to lessen his responsibility for his nonpayment of support for almost eight years by suggesting to the trial court that he never had a chance to be in a program t o help him with child support. The trial court rejected this attempt to shift blame , as do w e

. Furthermore, the record reflects that, after the State filed charges in 2014, the case proceeded for years, with two arrest warrants being issued for failing t o appear. We find nothing in the record to suggest that his sentence is inappropria te in light of his character.

[14] Accordingly, Tavernier has failed to carry his burden of establishing that his eight

- year sentence with four years suspended is inappropriate. 3

[15] Judgment affirmed.

Brown, J. and Tavitas, J., concur.

3 While thi s appeal was pending, Tavernier filed with this court two, seemingly identical, pro - se Motion s on Constitutional Guarantees for Relief on Final Judgment. Tavernier ’s motion s are difficult to follow, making claims that he has “ suffered through living in an xiety, insecurity, and a continuous fear of the burde n between right and wrong in unjustified judgments made and introduced by the lo wer court in there unbalanced justice scales, with conflicting views and agreements” and that he has been “brutally attacke d with commands from the lower court by a moral force , of unjustified rulings, of complete discretion and disrespectful decisions, of an obvious disposal of Appellant’s credibility to understand the evidence[.]” Oct. 8 , 2019 Motion on C onstitutional Guara ntees for Relief from Final Judgment at 3

- 4. It is n ot clear what relief he seeks, but it appears that Tavernier is asking this court to vacate his conviction or revise his sentence. W e hereby deny his motion s

.