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Nonsupport case divides COA on right to be present

October 10, 2018

The Indiana Court of Appeals affirmed a father’s sentence for failing to pay child support when it found he failed to meet his burden of proof. However, the court split on whether the defendant had a right to be physically present at his sentencing.

For nearly four years, Tervarus Gary paid nothing toward his child support obligation for his daughter T.R. After being found in contempt in 2015 and 2016 for failure to pay, Gary was ordered into civil commitment to the Elkhart County Correctional Facility with a recommendation that he participate in Elkhart County Community Corrections.

A few months after entering a work release program, Gary was terminated from the program for causing disciplinary issues. By December 2017, his child support arrearage exceeded $8,000.

Gary was charged with Class D felony nonsupport of a dependent child for failing to pay child support between May 1 and August 31, 2014. Gary twice appeared via video conference at trial court hearings and received a two-year sentence minus earned credit time.

On appeal, Gary argued his sentence was inappropriate in light of the nature of the offense and his character. However, the appellate court disagreed in Tervarus L. Gary v. State of Indiana, 18A-CR-1101.

“The trial court has given him the past benefit of participating in work release through community corrections so that he could support his child, but rather than support T.R., he chose to start ‘raising hell’ and was terminated from the program,” Judge Terry Crone wrote for the court.

The appellate court additionally found Gary unable to support his second argument that the trial court erred in allowing him to appear for his sentencing hearing via video conference without first obtaining a written waiver of his right to be present in person.

Despite the trial court’s failure to obtain the written waiver for the sentencing hearing under Indiana Administrative Rule 14(A)(2)(c), the appellate court concluded that “such error did not run afoul of underlying basic due process itself.”

“Although we disapprove of the trial court’s failure to follow proper procedure, we cannot say that Gary’s sentencing via video conference absent a proper written waiver constituted a clearly blatant violation of basic and elementary principles of due process,” Crone continued. “The record establishes that Gary was represented by counsel and had more than an adequate opportunity to be both seen and heard at the sentencing hearing and to present his argument, albeit via video conference.”

In a separate opinion, Judge Rudolph Pyle dissented from the majority on the grounds that the violation of common law and statutory right provides the basis for fundamental error.

“Our supreme court has noted that the right of a defendant to be physically present at sentencing is well settled,” Pyle wrote. Citing Hawkins v. State, 982 N.E.2d 997 (Ind. 2013), Pyle added that a trial court’s “failure to follow such a well-established law is a blatant violation of basic and elementary principles of due process.”

“Unlike the dissent, we will not make the leap from our supreme court's careful cautioning in Hawkins to the conclusion that all irregularities are per se fundamental errors,” the majority concluded.

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