Sickels v. State , 20A03–1102–CR–66.
| Decision Date | 13 March 2012 |
| Docket Number | No. 20A03–1102–CR–66.,20A03–1102–CR–66. |
| Citation | 960 N.E.2d 205 |
| Parties | Felix C. SICKELS, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Nancy A. McCaslin, McCaslin & McCaslin, Elkhart, IN, Attorney for Appellant.
Gregory F. Zoeller, Attorney General of Indiana, Nicole M. Schuster, Deputy Attorney General Indianapolis, IN, Attorneys for Appellee.
Felix C. Sickels appeals his three convictions for nonsupport of a dependent child, two as Class C felonies and one as a Class D felony, and his resulting ten-year aggregate sentence, following a bench trial. Sickels raises four issues for our review, which we reorganize and restate as the following five issues:
1. Whether Sickels' three convictions are contrary to federal or state principles against double jeopardy because he violated only a single order for child support.
2. Whether the trial court erred when it denied his motion for discharge pursuant to Indiana Criminal Rule 4(C).
3. Whether the State denied Sickels' right to a speedy trial under the Sixth Amendment to the United States Constitution.
4. Whether the trial court lacked personal jurisdiction over Sickels.
5. Whether the trial court abused its discretion when it sentenced him.
We affirm in part and reverse and remand in part.
On August 17, 1992, the Elkhart Superior Court dissolved the marriage of Sickels and Kathy Sickels. The court awarded custody of their three minor children, G.S., M.S., and B.S., to Kathy. The court ordered Sickels to pay $118 in child support per week (“the civil support order”), and concluded that he had a then-existing arrearage of $3,905. At the time of the court's order, Sickels lived in Three Rivers, Michigan, and Kathy and the three children lived in Goshen, Indiana.
Between June 1, 1997, and August 31, 1999, Sickels did not pay any of his court-ordered child support payments. Sometime later in 1999, Kathy moved to New York with M.S. and B.S. G.S. had reached the age of majority and chose to remain in Indiana.
On September 26, 2001, the State charged Sickels with three counts of nonsupport of a dependent, each as a Class C felony. Count I of the State's information (as later amended) alleged that, between June 1, 1997, and August 31, 1999, Sickels had failed to pay support for G.S. Count II alleged that, between the same dates, Sickels had failed to pay support for M.S. And Count III alleged that Sickels had failed to pay support for B.S. over the same timeframe. Each count alleged that Sickels had accumulated an arrearage in excess of $15,000 per child.1 See Appellant's App. at 10. That same day, the trial court issued a bench warrant for Sickels' arrest.
Nearly a decade later, on July 30, 2010, the State of Michigan extradited Sickels to Indiana. On October 5, 2010, Sickels filed a motion to discharge the State's charges against him for failure to prosecute a speedy trial, pursuant to Indiana Rule of Criminal Procedure 4(C) and the Sixth Amendment to the United States Constitution. The State filed an objection to Sickels' motion and, after an evidentiary hearing, the court denied the motion in a written order. Specifically, the trial court found:
1. That the Defendant was charged with Non[-]Support of a Dependent Child, Class C Felony, three counts, by filing of an Information and Affidavit of Probable Cause with the Court on September 26, 2001. The Court found probable cause and issued a warrant for the Defendant's arrest.
2. That the Defendant was arrested in the State of Michigan on a Fugitive charge on March 20, 2002[,] and bonded out the next day.
3. That he attended hearings set in Michigan by the Michigan Court on April 19, 2002, May 20, 2002[,] and June 16, 2002[.] Those charges were dismissed on June 17, 2002. The Defendant was never extradited to Indiana.
4. That in 2002, the Elkhart County Prosecuting Attorney was not notified of his arrest.
5. That the Defendant was arrested in Michigan on July 20, 2005[,] on a Fugitive charge and bonded out the next day.
6. That he attended hearings set in Michigan set by the Michigan Court on August 19, 2005, September 20, 2005[,] and October 20, 2005. The Elkhart County Prosecuting Attorney was never contacted concerning this arrest. The Defendant was never extradited and the Fugitive charges were dismissed on October 20, 2005.
7. That the Elkhart County Prosecuting Attorney was first advised of the Defendant's arrest in a letter dated February 27, 2006. This was the first word the Elkhart County Prosecutor had that the Defendant had been located. In that letter the [Michigan] Court advised the Prosecutor that the Defendant had come in contact with St. Joseph County, Michigan[,] Sheriff's Department. The Michigan Court advised that it had directed the Sheriff to not arrest the Defendant. The Court requested that the Prosecutor advise the Court of the Prosecutor's intentions in regard to the Defendant in that the computer systems LEIN [Law Enforcement Information Network, maintained by Michigan] and NCIC [National Crime Information Center, maintained by the FBI] still showed an outstanding warrant.... The Elkhart County Prosecutor responded on March 8, 2006[,] that the Court's letter was its first indication the Defendant had been arrested. The Deputy Elkhart County Prosecutor that responded indicated that [, under] the usual process[,] when a defendant refuses to waive the formal process of jurisdiction when arrested in another state, the Elkhart Sheriff's Department contacts the Elkhart Prosecutor and the Elkhart Prosecutor prepares the application for the Governor's Warrant, which is then submitted to the Indiana Attorney General's Office. He further indicated when Defendant is next arrested that the Elkhart Prosecutor would prepare the application of the Governor's Warrant.
8. That the Elkhart County Prosecutor's Office was contacted by Michigan authorities on October 2, 2006[,] indicating that Defendant was charged with a Fugitive charge. The Defendant was arrested [on] September 26, 2006[,] and bonded [on] October 2, 2006. That Elkhart County Prosecutor's Office obtained an Indiana Governor's Warrant on November 15, 2006[,] directed to the State of Michigan. The Governor's Warrant was never served. The Defendant was not extradited to Indiana. The Fugitive charges were dismissed on December 28, 2006[,] in Michigan.
9. An additional Governor's Warrant was obtained by the Elkhart County Prosecutor on October 27, 2008. Again the Governor's Warrant was not served and the Defendant was not extradited to Indiana. A third Governor's Warrant was issued on May 17, 2010. The Defendant was arrested on July 27, 2010[,] and that Governor's Warrant was served on him and he was extradited to Indiana. An Initial Hearing was held on August 4, 2010[,] in this Court by this Court's Magistrate.
10. [Sickels] lived in Elkhart, Indiana[,] from 1958 until 1991, ... he has one sister that lives in Elkhart and ... another sister lives in Bristol, Indiana[,] which is located in Elkhart County. He reported “regular contact” with his siblings. He also has a daughter, 35 years of age, from a prior relationship [who] resides in Elkhart, Indiana[,] and he reports “regular contact” with this adult child. He attended Elkhart Memorial High School in Elkhart, Indiana[,] and ... he has been employed in Michigan the past thirteen years at Mr. B's Dairy Bar. The Court notes that the distance between Three Rivers and Elkhart County is less than thirty miles.
11. That the Defendant represented to the Michigan Court in 2002 that he was working on turning himself in and making payments with Elkhart. That Defendant represented to the Michigan Court in 2005: Attorney expects to have handled by next week. Payments have been made. The Michigan Court's next notation to that entry is “CLOSE–NO GOVS WARR[.]” The Defendant did not have an attorney in the Indiana case and he did not make the reported payments. The Michigan Court records attached to Defendant's pleadings reveal in May 2010: That Dave Gizzi [an investigative agent] from Indiana met with the Court, Defendant still wanted, that Gizzi showed the Court and the Court copied the 2008 Governor's [W]arrant that the Michigan Court had never received. Further notation was that a new Governor's Warrant was in process and then the final entry, the Defendant in custody July 27, 2010[,] and that the Court had the Indiana Governor's Warrant.
12. That at no time did the Defendant make the 20 mile trip to the Elkhart Courthouse to appear on this matter, although he had regular contact with two siblings and one child who live in Elkhart County. Nor did he appear in the underlying civil cause of action; 20D03–9107–DR–00205, ... or make any child support payments with an arrearage of over $80,000 of which he admitted at hearing on this Motion.
13. That prior to his arrest on July 27, 2010, he spent a total of nine days in [a] Michigan jail on the various fugitive warrants as hereinabove stated.
Id. at 66–69 (). The trial court then concluded that the “triggering mechanism” for Indiana Criminal Rule 4(C) and the Sixth Amendment was the “execution of the Indiana Governor's Warrant on July 27, 2010” and, therefore, there had been no delay under our speedy trial rules. Id. at 69, 73.
On January 7, 2011, the court held a bench trial on the State's allegations, after which the court found Sickels guilty of three counts of nonsupport, two as Class C felonies and one as a Class D felony. Thereafter, the court entered the following sentencing statement:
[My earlier] finding that there was $86,420 in unpaid support ... is now reduced to restitution order [sic] to Ms. Sickels in this case and [I] also assess you the maximum fine of $10,000 and suspend that on the condition you do make your very best efforts over the period of your supervision to pay off...
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Sickels v. State, 20S03–1206–CR–308.
...the Court of Appeals rejected a majority of Sickels' arguments and affirmed his convictions and length of sentence. Sickels v. State, 960 N.E.2d 205, 223 (Ind.Ct.App.2012). But the Court of Appeals recognized three problems with the trial court's order for Sickels to pay his child-support a......
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