ILNews

Court orders new sentence for child support nonpayer

Michael W. Hoskins
January 1, 2007
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An Indiana Court of Appeals panel found itself today determining the legislature's intent in revising a statute on nonpayment of child support, an issue it describes as having little to no precedent.

Though its analysis ended with little answer, the appellate court applied the doctrine of amelioration to conclude a defendant should receive a lower class of felony on nonpayment of about $13,000 in child support from Class C to Class D.

The decision released today is Bobby Lee Turner, Jr. v. State of Indiana, No. 48A02-0610-CR-924, which reverses and remands a ruling by Madison Superior Judge Thomas Newman Jr.

Turner was ordered in 1992 to make weekly child support payments, but when he stopped paying in July 2000 he owed about $13,296. The state charged him with nonsupport of a dependent child, a Class C felony, but his trial was rescheduled and continued for six years until June 2006. He didn't appear at trial, was found guilty, and sentenced a month later to two years in-home detention and four years probation.

On appeal, Turner argued that his sentence should have been a Class D felony for three years because, by the time of his sentencing, the General Assembly had amended Indiana Code §35-46-1-5(a) in 2001 to require debts more than $15,000 be classified as a class C felony. Even though Turner didn't raise the issue previously and could be waived for review, the appellate judges decided to address the issue on its merits because of the little precedent on point.

The difference: a range of 6 months to 3 years for a Class D felony compared to the 2 to 8 years for a Class C felony.

"Here, there is no express language or saving clause in the statute to guide us as to whether or not the legislature intended defendants charged under the old law to be sentenced under the new law," the court wrote, citing that as one example to apply the revised statute.
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  1. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

  2. Any attorneys who practice in federal court should be able to say the same as I can ... efiling is great. I have been doing it in fed court since it started way back. Pacer has its drawbacks, but the ability to hit an e-docket and pull up anything and everything onscreen is a huge plus for a litigator, eps the sole practitioner, who lacks a filing clerk and the paralegal support of large firms. Were I an Indiana attorney I would welcome this great step forward.

  3. Can we get full disclosure on lobbyist's payments to legislatures such as Mr Buck? AS long as there are idiots that are disrespectful of neighbors and intent on shooting fireworks every night, some kind of regulations are needed.

  4. I am the mother of the child in this case. My silence on the matter was due to the fact that I filed, both in Illinois and Indiana, child support cases. I even filed supporting documentation with the Indiana family law court. Not sure whether this information was provided to the court of appeals or not. Wish the case was done before moving to Indiana, because no matter what, there is NO WAY the state of Illinois would have allowed an appeal on a child support case!

  5. "No one is safe when the Legislature is in session."

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