FAHERTY v. STATE (2024)

MEMORANDUM DECISION

[1] Edward William Faherty (“Faherty”) pleaded guilty to three counts of Level 6 felony nonsupport of a dependent child ¹ and was sentenced to 547 days on each count with Counts I and II to be served consecutively and Count III to be served concurrently with Count II for an aggregate sentence of 1,094 days in the Indiana Department of Correction (“the DOC”). Faherty raises the following issue on appeal: whether the trial court abused its discretion when it sentenced him because he claims that the trial court failed to find his guilty plea to be a mitigating factor, and it found an aggravating factor that was not supported by the record. We affirm.

Facts and Procedural History

[2] Faherty is the father of three children born in 2011, 2012, and 2015. In January 2017, he was ordered to pay child support in the amount of $100.00 per week for the children. As of August 1, 2022, Faherty had an arrearage of approximately $22,432.04 in child support payments. Faherty had not made a child support payment since June 28, 2021. On August 16, 2022, the State charged Faherty with three counts of nonsupport of a dependent child, each as a Level 6 felony. On December 18, 2023, the morning that the bench trial was to begin, Faherty pleaded guilty to all three counts without a plea agreement.

[3] A sentencing hearing was held on February 21, 2024. As of February 12, 2024, Faherty's arrearage had increased to $30,432.04. At the time of sentencing, Faherty lived in Mississippi with his mother, fiancée, niece, and nephew. For most of the five years preceding his sentencing hearing, he was unemployed. He had been diagnosed with several mental health disorders that made it difficult for him to work, although he never completed his application for disability benefits. About three weeks before his sentencing hearing, Faherty obtained part-time employment doing HVAC work. At the time of the hearing, he had not yet received his first paycheck from this new job. Faherty testified that child support would be automatically withheld from his paycheck by the State of Mississippi, as it had been when he was receiving unemployment benefits. Tr. Vol. 2 p. 52. Faherty had not informed the child-support office or the trial court that he was employed.

[4] In pronouncing Faherty's sentence, the trial court found several aggravating factors, including Faherty's lengthy criminal history that included both felonies and misdemeanors, his history of probation and community corrections violations, his failure to make child support payments during the pendency of the case, and his failure to notify anyone of his current employment or take any steps to activate an income withholding order for three weeks. The trial court found a single mitigating factor, which was Faherty's mental health status. The trial court sentenced Faherty to 547 days on each count, with Counts I and II to be served consecutively and Count III to be served concurrently with Count II, for an aggregate sentence of 1,094 days in the DOC. Faherty now appeals.

Discussion and Decision

[5] Faherty argues that the trial court abused its discretion in sentencing him because of its allegedly improper handling of aggravating and mitigating factors. The trial court has discretion in determining aggravating and mitigating circumstances. See generally Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh'g, 875 N.E.2d 218 (Ind. 2007). We review sentencing decisions for an abuse of that discretion. Id. The trial court abuses its discretion by failing to enter a sentencing statement that includes a “reasonably detailed recitation of the ․ reasons for imposing a particular sentence.” Id. If the sentencing statement “includes a finding of aggravating or mitigating circumstances, then the statement must identify all significant mitigating and aggravating circumstances and explain why each circumstance has been determined to be mitigating or aggravating.” Id. “[T]he reasons given, and the omission of reasons arguably supported by the record, are reviewable on appeal for abuse of discretion.” Id. at 491.

[6] Faherty first contends that the trial court abused its discretion when it failed to find his guilty plea to be a mitigating factor. When the defendant claims “the trial court failed to identify or find a mitigating factor,” the defendant must “establish that the mitigating evidence is both significant and clearly supported by the record.” Anglemyer, 868 N.E.2d at 493. However, “[i]f the trial court does not find the existence of a mitigating factor after it has been argued by counsel, the trial court is not obligated to explain why it has found that the factor does not exist.” Id. (quoting Fugate v. State, 608 N.E.2d 1370, 1374 (Ind. 1993)). The trial court is not required to give the same credit or weight to the proffered mitigating circumstance that the defendant does. McBride v. State, 992 N.E.2d 912, 920 (Ind. Ct. App. 2013), trans. denied. “The significance of a guilty plea as a mitigating factor varies from case to case.” Anglemyer v. State, 875 N.E.2d 218, 221 (Ind. 2007) (citing Francis v. State, 817 N.E.2d 235, 238 n.3 (Ind. 2004)). For example, “a trial court does not abuse its discretion in finding that a defendant's decision to plead guilty is ‘more likely the result of pragmatism than acceptance of responsibility and remorse.’ ” Flickner v. State, 908 N.E.2d 270, 274 (Ind. Ct. App. 2009) (quoting Davies v. State, 758 N.E.2d 981, 987 (Ind. Ct. App. 2001), trans. denied).

[7] Faherty asserts that he was entitled to have the trial court recognize his guilty plea as a mitigating factor because he accepted responsibility for his criminal conduct and pleaded guilty without a plea agreement. However, the record reveals that, although Faherty pleaded guilty to all three counts without a plea agreement, he did not do so until the morning that the bench trial was to begin. At that time, the charges had been pending for sixteen months, and he had not paid anything toward his child support during the time that the case was pending. As we have explained, the significance of a guilty plea is lessened if it is made on the eve of trial and after the State has already expended significant resources to investigate and prosecute the defendant. See Gillem v. State, 829 N.E.2d 598, 605 (Ind. Ct. App. 2005) (holding that because defendant did not enter into a plea agreement until two years after his offense, the trial court did not abuse its discretion when the plea was not accorded any mitigating weight), trans. denied. Here, Faherty may have saved the State some expenses associated with conducting the actual trial, but at that point, the State had already expended time investigating his crimes and preparing for trial. Under the circumstances, the trial court was well within its discretion to conclude that Faherty's guilty plea did not have a significant mitigating effect, as he waited almost a year and a half to plead guilty and did not conserve significant State resources by doing so. See Flickner, 908 N.E.2d at 274 (holding the trial court did not abuse its discretion in refusing to afford any mitigating weight to the defendant's guilty plea for nonsupport of a dependent child because the lengthy time it took the defendant to plead guilty did not show the defendant willingly entered the plea or conserved court resources). Further, the evidence against Faherty was substantial, and the record is indicative that rather than an acceptance of responsibility, Faherty's guilty plea was a pragmatic decision, which the trial court seemingly recognized when it noted and rejected Faherty's excuses for not paying his child support. See id. The trial court did not abuse its discretion by finding Faherty's guilty plea as a mitigating factor.

[8] Faherty next argues that the trial court abused its discretion when it found that he failed to take steps to activate income withholding with his new employer as an aggravating factor. He contends that the record did not support this finding because the evidence established that he had not yet been paid for his new employment and that the money would be automatically withheld by the State of Mississippi with no evidence demonstrating that he was required to do anything for this to occur. The trial court may abuse its discretion by finding aggravating circumstances that are not supported by the record or are “improper as a matter of law.” Anglemyer, 868 N.E.2d at 490–91.

[9] Here, the trial court found as aggravating that, although Faherty reported that he had started employment three weeks prior to the sentencing hearing, he had not taken any step to activate an income withholding order against his wages. The evidence revealed that, although Faherty claimed he had recently started new employment, he had not informed either the State or the trial court of the new employment or that he would soon have income. Additionally, although Faherty stated that he believed that Mississippi would withhold money for child support from his paycheck once he began to get paid, he did not present any evidence, beyond his own self-serving testimony, of his new employment or the guaranteed withholding by Mississippi. As the entire basis of Faherty's criminal convictions was his failure to pay child support for multiple years and the fact that he had been unemployed for the prior five years, the trial court was within its discretion to be skeptical of Faherty's self-serving statements concerning very recent new employment without proof of actual employment or future income withholding. We, therefore, conclude that the trial court did not abuse its discretion in finding this aggravator.

[10] Because we find that the trial court properly found both aggravating and mitigating factors, we conclude that it did not abuse its discretion in sentencing Faherty.

[11] Affirmed.

FOOTNOTES

1.   Ind. Code § 35-46-1-5(a).

Foley, Judge.

Vaidik, J. and Weissmann, J., concur.