ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
MATTHEW R. EFFNER JEFFREY A. MODISETT
Terre Haute, Indiana Attorney General of Indiana
PRISCILLA J. FOSSUM
Deputy Attorney General
COURT OF APPEALS OF INDIANA
CHARLES N. WIGGINS, )
vs. ) No. 84A01-9905-CR-169
STATE OF INDIANA, )
APPEAL FROM THE VIGO SUPERIOR COURT
The Honorable Michael H. Eldred, Judge
Cause No. 84D01-9802-CF-42
April 10, 2000
OPINION - FOR PUBLICATION
Charles N. Wiggins appeals his conviction of Nonsupport of a Dependent,
See footnote a class
C felony. Wiggins presents the following restated issues for review:
1. Is IC § 35-46-1-5(a) unconstitutionally vague and ambiguous in that it does not
adequately define the terms dependent child and support?
2. Did Wigginss conviction violate the constitutional
ex post facto prohibition?
3. Was the evidence sufficient to sustain Wigginss conviction?
4. Did the trial court err in admitting evidence of Wigginss earnings over a
period including the previous twenty-four years?
5. Did the trial court commit reversible error in denying Wigginss motion for mistrial,
which was based upon allegedly improper comments made by the prosecutor during closing
6. Did the trial court err in sentencing Wiggins?
We affirm in part and remand in part.1.
The facts favorable to the judgment are that on June 7, 1992, Wigginss
marriage to Peggy Wiggins ended by entry of a decree of dissolution.
There were two children born to the marriage, who were then eight and
seven years of age. Wiggins was ordered to pay child support in
the amount of $130.00 per week.
Wiggins was employed as a boilermaker. In the ten years prior to
the divorce, Wigginss average annual income was $25,920.25. Wiggins earned $27, 250.10
in 1996, and he earned $33,165.62 in 1997. Between 1991 and 1998,
Wiggins paid annual child support in the following amounts: 1992 - $300;
1993 (after April 7) - $0; 1994 - $775; 1995 - $0; 1996
- $405; 1997 - $1,907.18; 1998 (through January 16) - $0. All
of the payments reflected in the above amounts were received either through income
withholding or by intercepting and withholding a portion of Wigginss periodic unemployment payments.
As of January 16, 1998, Wigginss support arrearage totaled $33, 832.82.
On February 18, 1998, Wiggins was charged with nonsupport of a minor for
nonpayment of support from July 1, 1996 through January 16, 1998. The
charge was enhanced to a class C felony because he failed to pay
support at a time when the arrearage was at least $10,000. He
was convicted as set out above following a jury trial.
Wiggins claims that the statute under which he was convicted, IC § 35-46-1-5(a),
is unconstitutional in that it is fatally vague and ambiguous. He contends
that this statute, which provides that it is a criminal offense if a
person fails to provide support to the persons dependent child . . .,
is vague and ambiguous in the following ways: (1) It is not
clear that support, as used in the statute, includes monetary support (as opposed
to the provision of food, clothing, and shelter); (2) it is not clear
that dependent child, as used in the statute, includes children of a noncustodial
(as opposed to custodial) parent.
A challenge to the constitutionality of a criminal statute must be raised by
a motion to dismiss prior to trial. Ind. Code Ann. § 35-34-1-6
(West 1998); IC § 35-34-1-4 (West 1998); Rhinehardt v. State, 477 N.E.2d 89
(Ind. 1985). The failure to timely raise the issue by a motion
to dismiss waives the alleged error. Rhinehardt v. State, 477 N.E.2d 89.
Prior to trial, Wiggins submitted a motion challenging the constitutionality of IC §
35-46-1-5(a) on grounds that it violated the prohibition against ex post facto laws.
IC § 35-34-1-4(c) requires that all constitutional grounds must be presented in
a timely motion to dismiss. Those that are not raised in such
a motion are waived, regardless of whether the statutes constitutionality was challenged on
other grounds. Therefore, Wiggins waived the issue of whether IC § 35-34-1-5(a)
is unconstitutionally vague and ambiguous as he alleges. Rhinehardt v. State, 477
As indicated previously, Wiggins submitted a pretrial motion to dismiss based upon the
contention that a conviction under IC § 35-46-1-5, in his particular case, would
violate the constitutional prohibition against ex post facto laws. Wiggins claims upon
appeal that the trial court erred in denying the motion and that his
conviction runs afoul of this constitutional principle.
Article I, § 10 of the United States Constitution provides that "[n]o state
shall ... pass any ... ex post facto Law." A similar provision
in the Indiana Constitution provides that "[n]o ex post facto law ... shall
ever be passed." Ind. Const. art. I, § 24.
The ex post facto analysis is the same under both under Indiana law
and the federal Constitution. Spencer v. OConner, 707 N.E.2d 1039 (Ind. Ct.
App. 1999), trans. denied. The aforementioned Constitutional provisions prohibit states from enacting
any law that imposes a punishment for an act that was not punishable
at the time it was committed, or that imposes additional punishment to that
which was then prescribed. When considering a challenge on ex post facto
grounds, our inquiry is not whether a legislative change produced a disadvantage for
the defendant, but instead whether such change altered the definition of criminal conduct
or increased the penalty by which a crime is punishable. Id.
IC § 35-46-1-5 states:
(a) A person who knowingly or intentionally fails to provide support to the
person's dependent child commits nonsupport of a child, a Class D felony.
However, the offense is a Class C felony if the amount of unpaid
support that is due and owing is at least ten thousand dollars ($10,000).
(b) It is a defense that the child had abandoned the home of
his family without the consent of his parent or on the order of
a court, but it is not a defense that the child had abandoned
the home of his family if the cause of the child's leaving was
the fault of his parent.
(c) It is a defense that the accused person, in the legitimate practice
of his religious belief, provided treatment by spiritual means through prayer, in lieu
of medical care, to his dependent child.
(d) It is a defense that the accused person was unable to provide
Subsection (a), which provides that an arrearage of at least $10,000 is a
class C felony, was added as a result of an amendment to the
statute that became effective on July 1, 1996. Wiggins claims that, as
applied to him, subsection (a) is an ex post facto law because (1)
he accumulated at least $10,000 prior to the enactment of subsection (a), and
(2) the arrearage that accrued after the enactment of subsection (a) did not
In State v. Land, 688 N.E.2d 1307 (Ind. Ct. App. 1997), trans. denied,
this court confronted a constitutional challenge to IC § 35-46-1-5(a) on ex post
facto grounds. We concluded that the offense set out in the statute
is the failure to pay support, which is classified as a class D
felony. We further concluded that the 1996 amendment enhances the offense when
the amount of support due and owing is at least $10,000. Put
another way, the C felony classification for cases involving an arrearage of at
least $10,000 represents an enhancement and not the creation of a separate and
distinct offense. Based upon this reasoning, we concluded that a person could
properly be charged with the class C felony, so long as the underlying
act (failure to pay support) is alleged to have occurred after the enactment
of the statute. We specifically rejected the proposition underlying Wigginss first ex
post facto argument.
Implicit in the State v. Land analysis is the principle that a C
felony conviction under IC § 35-46-1-5(a) does not run afoul of the constitutional
ex post facto prohibition so long as the act of failing to pay
support that is being prosecuted occurred after the enactment of the 1996 amendment,
regardless of when the $10,000 arrearage accrued. In this regard, the court
noted, [o]ur statute criminalizes the present act of failing to provide child support
and enhances it if the amount due and owing at the time of
the underlying act is in excess of $10,000. Our statute does not
criminalize the failure to pay past due support. State v. Land, 688
N.E.2d at 1311.
Applying the foregoing principles, we hold that conviction of a class C felony
under IC § 35-46-1-5(a) does not violate the constitutional ex post facto prohibition
in cases where (1) at least $10,000 in arrearage accrued before the enactment
of the 1996 amendment, or (2) the amount accruing after the amendment is
less than $10,000, so long as the total arrearage is at least $10,000.
Wiggins contends that the evidence was insufficient to sustain the conviction. Specifically,
he contends that he did provide support for his children and that he
proved the defense of inability to pay support.
When considering challenges to the sufficiency of the evidence, we apply a well-settled
standard of review. We consider the evidence and reasonable inferences favorable to
the conviction. Kelly v. State, 719 N.E.2d 391 (Ind. 1999). In
so doing, we neither reweigh the evidence, nor judge witness credibility. We
will affirm the verdict if there is substantial evidence of probative value from
which the trier of fact might reasonably have found the defendant guilty beyond
a reasonable doubt. Id. at 394 (quoting Kingery v. State, 659 N.E.2d
490, 493 (Ind. 1995)).
Wiggins first contends that support, in the context of IC § 35-46-1-5(a), means
food, clothing, and shelter, and does not include monetary support. Therefore, he
argues, his failure to make child support payments is not punishable under IC
§ 35-46-1-5(a). The language employed in the statute belies Wigginss argument.
Because this is a penal statute, the meaning of the term in
question is to be strictly construed against the State. State v. D.M.Z.,
674 N.E.2d 585 (Ind. Ct. App. 1996), trans. denied. If an ambiguity
exists, it must be resolved against imposing the penalty. Id. Only
those cases that are clearly within its meaning and intention can be brought
within the statute. State v. McGill, 622 N.E.2d 239 (Ind. Ct. App.1993).
If there is an ambiguity, we turn to rules of statutory
construction to aid in our determination of the legislative intent.
Undefined words in a statute are given their plain, ordinary and usual meaning.
IND. CODE § 1-1-4-1(c). Courts may consult English language dictionaries to
ascertain the plain and ordinary meaning of a statutory term. State Bd.
of Accounts v. Indiana University Found., 647 N.E.2d 342, 347 (Ind.Ct.App.1995), trans. denied.
The meaning of doubtful words may also be determined by reference to
their relationship with other associated words and phrases. The canon of construction
known as noscitur a sociis provides that the meaning of a doubtful word
may be ascertained by reference to the meaning of other words associated with
it. Lincoln Nat'l Bank v. Review Bd. of Indiana Employment Sec. Div.,
446 N.E.2d 1337, 1338-39 (Ind.Ct.App.1983). This maxim means "it is known from
its associates" and in practical application means that a word may be defined
by an accompanying word, and ordinarily the coupling of words denotes an intention
that they should be understood in the same general sense.
State v. D.M.Z., 674 N.E.2d at 588.
IC § 35-46-1-5(a) states that a person commits the offense of nonsupport of
a dependent when he fails to provide support to his dependent child.
The very next sentence in subsection (a) provides that the offense is enhanced
if the amount of unpaid support is at least $10,000. It
is clear from context that the term support in the second sentence contemplates
monetary support in the form of child support payments. Applying the maxim
set out above, we conclude that the term support has the same meaning
in the first sentence as it does the second. Therefore, a person
may be prosecuted under IC § 35-46-1-5(a) for failing to provide monetary support
in the form of child support payments.4.
Wiggins claims that the evidence showed that, notwithstanding the arrearage, he did in
fact provide support for his children. The evidence favorable to the verdict
showed that Wiggins occasionally bought items of clothing for his children, and spent
money supporting their hobby of driving quarter-midget racecars. The evidence also showed
that he paid $3,387.18 in child support payments between 1992 and 1998.
A person may avoid criminal liability under IC § 35-46-1-5 for providing substantial
amounts of food, clothing, and shelter, but token amounts would not be sufficient
to avoid prosecution. Geans v. State, 623 N.E.2d 435 (Ind. Ct. App.
Other than a few items of clothing, there is no evidence of record
that Wiggins provided food, clothing, or shelter for his children during the time
period in question, let alone substantial amounts of those essentials. During that
same period of time, Wiggins paid $3,387.18 in child support payments, barely nine
percent of his total obligation of more than $37,000. This token amount
was not sufficient to avoid prosecution under IC § 35-46-1-5(a).
Wiggins next claims that he presented sufficient evidence to prove the affirmative defense
that he was unable to pay support. See IC § 35-46-1-5(d).
The evidence favorable to the verdict reveals that in the years upon which
the charges of nonpayment of support were based1996 and 1997Wiggins earned $27,250 and
$33,165, respectively. His total child support obligation during those years was $6,760,
of which he paid only $1,312.18. Wiggins presented no compelling reason
to explain why he paid such a small percentage of his total obligation
during those years (less than twenty percent). Accordingly, the jury was
not compelled to accept Wigginss claim that he was unable to pay support.
The evidence was sufficient to support the conviction.
Wiggins claims the trial court erred in admitting evidence of Wigginss earnings over
a twenty-four year period.
The trial court has wide discretion to rule on the relevancy of evidence,
and rulings in this regard are reviewed for an abuse of that discretion.
Shane v. State, 716 N.E.2d 391 (Ind. 1999). The standard for
relevance is a liberal one under Ind. Trial Rule 401. Jackson v.
State, 712 N.E.2d 986 (Ind. 1999). Evidence is relevant if it has
any tendency to make the existence of any determinative, consequential fact more probable
or less probable than it would be without the evidence. Shane v.
State, 716 N.E.2d 391. Put more simply, relevant evidence is probative evidence.
Wiggins is a boilermaker. He described the work that a boilermaker does
as heavy construction
. We weld, we cut, we build duct work,
we build the pollution control devices for Public Service Power Plants type deals.
Record at 373. He explained that he worked through a union
hall. Union member get jobs when a business agent at the union
hall learns of available jobs and calls members and sends them to the
job site. Wiggins further explained that jobs could last anywhere from one
day to six months.
Wigginss defense consisted in part of the claim that he was unable to
work in 1992 and 1993 and that, as a result, he fell behind
on his bills and was unable to pay support. In support of
this assertion he testified that in 1992 and 1993 he suffered from depression
as a result of the divorce, and was unable to work on a
regular basis. He stated that the only other employment he has had
since he became a boilermaker in 1974 was for a two- or three-month
period sometime between 1992 and 1995, when he worked at a salvage yard.
He also testified that he had been hospitalized briefly on two occasions
because of a low blood count.
The State attempted to show that Wigginss underemployment in 1992 and 1993 was
largely voluntary, and not the result of sickness or lack of job opportunities.
The State presented evidence that boilermakers in the area earn as much
as $100,000 per year. When apprised of this fact, Wiggins observed that
Up around the Hammond area, they like to work quite a bit.
Record at 406. The State then asked Wiggins, Could you work more
if you liked to work better? Id. Wiggins responded, I like
to work, its just that I value my free time. I never
have made $50,000 a year, any year. Id. In another brief
exchange, Wiggins acknowledged that, except for the brief, temporary employment at the salvage
yard, he had not applied for any other position since 1991 or 1992.
He further acknowledged that he was aware of openings in nearby plants,
but had not applied for those positions.
At that point, the State introduced Exhibit 4, which was a statement of
Wigginss annual earnings from 1973 through 1996, prepared by the Social Security Administration.
The State claimed that Exhibit 4 was relevant to the question of
Wigginss ability to work and to pay support. After a brief discussion,
the trial court admitted the exhibit on that basis. We are not
convinced that Exhibit 4 aided the jury in assessing the credibility of Wigginss
claim, offered in the form of an affirmative defense, that he was unable
to pay child support during certain time periods because he did not earn
sufficient income. For instance, we cannot discern how knowing Wigginss income for
1985, much less 1975, would aid the jury in evaluating his claim that
he could not work very much in 1992 and 1993 because of depression
associated with the divorce. We conclude that the trial court erred in
admitting Exhibit 4.
Erroneously admitted evidence may not require reversal if the error is harmless.
Shane v. State, 716 N.E.2d 391. A harmful error is one which
causes prejudice to the appellant's substantial rights. When conducting this inquiry, the
appellate court must review the record as a whole to determine the probable
impact of the evidence on the jury. Id. at 398.
After reviewing the properly admitted evidence supporting the verdict, we are satisfied that
the erroneous admission of Exhibit 4 did not contribute to the verdict.
As stated previously, Wigginss defense consisted of the claim that he was financially
unable to pay support. However, Wiggins admitted that he chose not to
pay support during the time that the arrearage was accumulating, notwithstanding that he
was at the same time spending a significant amount of money on nonessential
items for his children:
Q You [Wiggins] said that you agreed with what your kids said about what
you spent on them, and if I recall, your son said that you
spent $8,000 to $9,000 on a midget car and $1400 to $1500 for
A Wrong car, but it was we bought the first car was a
$2000 car, we spent about $1500 on a motor. We have spent
quite a bit of money on spare parts and spare wheels and spare
Q And you made that decision to do that rather than go to the
clerks office and pay support, did you not?
A Yes, sir.
Q And, you thought that was fine even though there was a court order
ordering you to pay $130.00 a week?
A Uh huh.
Q You were willing to suffer the consequences of that act, isnt that correct?
A Yes sir, that is correct.
Q And you are today?
A Yes, sir.
Record at 395-96. Wiggins further acknowledged that his nonpayment was by choice,
and not by necessity:
Q So, you had the money to pay [support], you just elected not to?
A I elected to spend it on my children.
Q Buying race cars and things of that nature?
A Stuff that they wanted, yes, take them different places.
Q Okay, and you heard Mr. Doan said [sic] that going racing was an
$80 to $100 a night deal, is that correct?
A Yes sir, thats about right. Weve had bad nights that were worse,
but thats probably on an average.
Q And, you just felt that in your sense of justice that it was
better to spend that money for them to go racing that it was
to give it to your former wife in compliance with the court order.
A Yes, sir.
Record at 401-02. Still later, Wiggins revealed that he placed the
support payments to his ex-wife at the bottom of his list of financial
Q What did you do with all of your money then?
A I didnt have very much money, but I paid some bills that I
had occurred [sic] during the divorce. I owed mom some money, I
owed my uncle some money, I owed everybody I knew some money.
Q And you owed your ex-wife some money too, didnt you?
A Yes, sir.
Q Did you pay any of that?
Q So, you elected to pay on a pecking order, she was well down
A Yes, sir.
Q And, actually beyond the list because you never ever paid anything to her
voluntarily, did you?
A Not since 1992, before that time I did.
Id. at 404-05. We appreciate Wigginss candor in admitting that he voluntarily
chose not to pay support at a time when he was willing to
spend thousands of dollars on racing cars and equipment. However, even in
Indiana, the law does not countenance funding a dependent childs hobby of racing
cars as a viable substitute for providing food, clothing, and shelter to that
child. In view of the other, properly admitted evidence supporting the verdict,
we conclude that the erroneous admission of Exhibit 4 did not impact the
jurys verdict and thus did not prejudice Wigginss substantial rights. Therefore, Wiggins
is not entitled to reversal on this basis.5.
Wiggins contends that the trial court committed reversible error in denying his motion
for mistrial based upon allegedly improper comments made by the prosecutor during closing
Before we will consider a claim of prosecutorial misconduct, the defendant must have
made timely objection to alleged misconduct at trial to secure an issue for
review, and failure to so object waives the issue. Stevens v. State,
691 N.E.2d 412 (Ind. 1997), cert. denied, 119 S.Ct. 550 (1998). This
rule applies to allegedly improper remarks made during closing argument. Charlton v.
State, 702 N.E.2d 1045 (Ind. 1998).
Wiggins did not object to any of the allegedly improper remarks made by
the prosecutor during closing argument. Instead, an oral motion for mistrial upon
that basis was made after the prosecution and defense had rested, but before
the jury returned its verdict. In failing to interpose an immediate objection,
request an admonishment and then move for mistrial, see Williams v. State, 681
N.E.2d 195 (Ind. 1997), Wiggins waived appellate review of the issue. Stevens
v. State, 691 N.E.2d 412. Wiggins seeks to escape waiver by
invoking the fundamental error doctrine.
A party may escape waiver of an issue, based upon a failure to
object, if the claimed error is fundamental in nature. Charlton v. State,
702 N.E.2d 1045. Fundamental error is a substantial blatant violation of basic
principles rendering the trial unfair to the defendant and, thereby, depriving the defendant
of fundamental due process. Id. at 1051. In order to constitute
fundamental error, the error must prejudice the rights of a defendant to such
an extent that it makes a fair trial impossible. With specific
reference to cases alleging prosecutorial misconduct, the conduct in question must have subjected
the defendant to grave peril and had a probable persuasive effect on the
jury's decision." Id. at 1051 (quoting Isaacs v. State, 673 N.E.2d
757, 763 (Ind. 1996)). The gravity of peril depends upon the
probable persuasive effect of the misconduct on the jury's decision, not on the
degree of impropriety of the conduct. Charlton v. State, 702 N.E.2d 1045.
Wiggins describes the comments in question as follows:
In the present case, the State, in its closing argument, indicated that Defendants
defense was a Disney World defense, and compared Defendant with a parent which
took his children to Disney World and stayed until he spent the amount
of his child support obligation for the year, said amount constituting the end
of said parents obligation for that year. Such a scenario mischaracterized the
The State also argued [I]f this is not criminal nonsupport,
then there is not a fact situation that I am aware of that
would ever create or constitute criminal nonsupport. And, [t]his is a time
to stand on the principle of the laws of the State of Indiana
and make a statement that if you father a child, you have to
support that child. That is why we are here. Moreover, the
prosecutor repeated and emphasized his prior statements by concluding, Now, if you folks
do not believe that this is criminal nonsupport, we will never having a
stronger factual situation than we have in this case. The evidence is
overwhelming, it screams out for a guilty verdict. Anything less than guilty
of a Class C Felony in my opinion you have not fulfilled your
obligations to well and truly try this case. And, I would ask
on behalf of not just Peggy Wilson, but every custodial mother and
father out there who is receiving support, that you do what is right
in this particular case and send a message to this community that if
you father a child, you are going to have to support that child.
Appellants Brief at 22-23. 6.
Even assuming for the sake of argument that the comments to which Wiggins
alludes were improper, we conclude that the probable persuasive effect of the comments
upon the jury was not such as to place Wiggins in a position
of grave peril from which he could not recover. Our conclusion in
this regard is based upon the strength of the evidence of guilt.
It is undisputed that Wiggins amassed an arrearage in excess of $32,000.
By his own admission, Wiggins deliberately chose to pay
See footnote only a small percentage
of the total amount of support that he was admittedly aware that he
owed to his ex-wife in 1996 and 1997, years during which his earnings
totaled $27,250.10 and $33,165.62, respectively.
In view of the strength of the evidence against him, the prosecutors comments,
even if erroneous, did not constitute fundamental error. Accordingly, in failing to
offer a timely objection to the comments in question, Wiggins waived any error
in that regard.
Wiggins contends that the trial court erred in sentencing him in that (1)
it failed to sufficiently explain its reasons for imposing the sentence it chose;
(2) it failed to identify proper mitigating factors supported by the record; and
(3) the sentence was manifestly unreasonable. We are unable to consider whether
the sentence is manifestly unreasonable because the sentencing statement is inadequate.
Sentencing decisions are committed to the trial courts discretion and will be reversed
only upon a showing of abuse of discretion.
Jones v. State, 698
N.E.2d 289 (Ind. 1998). Among the decisions left to the trial courts
discretion is whether to increase or decrease a presumptive sentence based upon aggravating
and mitigating circumstances. Id. [A] sentencing judge must articulate her reasoning
only when she deviates from the statutory presumptive sentence. Jones v. State,
698 N.E.2d at 290. However, when a trial court adjusts a presumptive
sentence by suspending a portion of that sentence, the record should disclose what
factors were considered to be mitigating or aggravating circumstances. Morgan v. State,
675 N.E.2d 1067 (Ind. 1996).
In the instant case, the trial court imposed the presumptive four-year sentence, and
then suspended two years. In its sentencing statement, the court made no mention
of aggravating and mitigating circumstances or the balancing process that resulted in the
imposition of less than the presumptive sentence. When imposing other than the
presumptive sentence, the law requires that the trial court (1) identify all significant
aggravating and mitigating circumstances; (2) specifically explain why it found each circumstance; and
(3) balance those factors to arrive at a sentencing decision. Carter v.
State, 711 N.E.2d 835 (Ind. 1999). The trial court failed to do
so in the instant case.
The record does not provide us with a basis from which we may
review the trial courts identification and balancing of aggravating and mitigating circumstances, and
the sentence imposed thereon. Therefore, we must remand to the trial court
for a more adequate explanation of its sentencing decision. Morgan v. State,
675 N.E.2d 1067.
Judgment affirmed in part and remanded in part.
DARDEN, J., concurs.
GARRARD, Sr.J., dissenting.
COURT OF APPEALS OF INDIANA
CHARLES N. WIGGINS, )
vs. ) No. 84A01-9905-CR-169
STATE OF INDIANA, )
GARRARD, Senior Judge, dissenting
I concur with the majority except for its determination that whenever a trial
court adjusts a presumptive sentence by suspending a portion thereof, the record should
disclose what factors were considered to be mitigating or aggravating circumstances. I
respectfully dissent to that determination for two reasons.
Our cases have traditionally held that the trial court need not state reasons
when it simply imposes the presumptive sentence prescribed by the legislature. Morgan
v. State, 675 N.E.2d 1067, 1073 (Ind. 1996); Winfrey v. State, 547 N.E.2d
272 (Ind. 1989). Moreover, our decisions have determined that the sentence imposed
equals the maximum number of years imposed, even though some portion of that
time is ordered suspended. See, eg. Johnson v. State, 518 N.E.2d 1087
(1988); Thakkar v. State, 644 N.E.2d 609 (Ind. Ct. App. 1994). Since
the trial court imposed the four year presumptive sentence on Wiggins, it was
not required to state aggravating or mitigating factors.
The decision in Morgan, supra, should not alter this result. Although
the court in Morgan stated that [w]hen a trial court decides to adjust
a defendants sentence by suspending a portion of the sentence, the record should
disclose what factors were considered by the judge to be mitigating or aggravating
circumstances, it did so in the context of determining whether the trial court
had adequately supported its decision to impose consecutive sentences. Since the imposition
of nonmandatory consecutive sentences has traditionally required the court to balance aggravators
and mitigators, Reaves v. State, 586 N.E.2d 847 (Ind. 1992), Morgan should not
be read as broadly as required by the majority .
Secondly, the cases are legion holding that there is no right to a
suspended sentence and the decision to suspend all or a portion of a
sentence (except where the legislature has precluded suspension) is a matter of discretion
with the trial court. Suspending a portion of a sentence is one
of the tools available to the court in attempting to craft a sentence
that will lead a convicted person to accept a more socially acceptable way
of life. While it may be intuitively correct to assert that the
court must have found something in mitigation to cause it to suspend a
portion of a sentence, it seems to me that much of the time
the courts focus is simply upon what is likely to cause the person
before it to begin leading a law-abiding life. I see no particular
benefit in requiring the court to expressly identify some kind of mitigating factors
to justify its result, although requiring it to do so may proliferate appellate
claims concerning the result.
Therefore, I would not require trial courts to articulate the reasons for suspending
all or a part of a defendants sentence.
Ind. Code Ann. § 35-46-1-5(a) (West 1998).
Footnote: Actually, as indicated earlier, Wiggins did not choose to pay
any support. All of the support paid to Wigginss ex-wife since the
divorce has resulted from income withholding orders and interceptions of benefits checks.
On the subject of Wigginss reluctance to pay support, the State presented evidence
that Wiggins admitted at trial that he has not filed tax returns since
1988 or 1989, in part because he knows that any refund would be
intercepted and sent to his ex-wife.