17 January 2014 2015 Indiana Child Support Guidelines * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
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Senator Michael Young, Chair of the Committee on Corrections & Criminal Law, has introduced a bill that will bring greater continuity to and increase the level of equity in cases of non-support of a dependent as a criminal offense. The current statute has plagued courts, practitioners and defendants because of the perceived ambiguity of the statute through inclusion of a dollar amount in the sentencing enhancement portion of the statute.
The synopsis of the bill is;
Nonsupport of a child. Changes the penalty enhancement for nonsupport of a child from a Level 6 felony to a Level 5 felony if the person has a previous conviction for the offense. Changes the procedure for a court to lower the penalty for a person convicted of nonsupport of a child. (The introduced version of this bill was prepared by the criminal law and sentencing policy study committee.)
Here is the portion of the bill that would affect the charge of criminal non-support of a dependent - IC 35-46-1-5;
[strike]if the total amount of unpaid support that is due and owing for one (1) or more children is at least fifteen thousand dollars ($15,000).[close] [insert]the person has a previous conviction under this section.[close]
The inclusion of “fifteen thousand dollars” as well as the phrase “due and owing” has led to confusion about whether this section applies to civil child support payment orders. However, the statute is clear and unambiguous in that it does not include court ordered child support payments. IC 35-46-1-1 provides a clear definition of “support” as “food, clothing, shelter, or medical care ” Under the application of statutory construction the “fifteen thousand dollars” and “due and owing” cannot represent a child support payment amount. Expressio unius est exclusio alterius deems child support payments to be specifically excluded from the “support” contemplated by the legislature when this law was crafted. Expressio unius est exclusio alterius is a latin legal phrase [called a maxim] which means – that which is not included is excluded. The legislature was specific in proscribing only four categories of support that qualify as inclusive of the domain in which criminal accountability is contemplated. Thus, lack of “emotional support” or “learning aides” are not within the purview of IC 35-46-1-5. Educational neglect is specified under IC 35-46-1-4(a)(4) while emotional abuse may fall within the auspices of general abuse and neglect under IC 35-46-1-4(a)(1).
The only logical application of “fifteen thousand dollars” or the phrase “due and owing” would be to medical bills as it is highly unlikely that food, clothing or shelter would be provided on credit for any amount that could come close to $15,000. This can create a great disparity in application of the law. While one parent could regularly take a child for treatment at a hospital emergency room and not pay for five visits while not breaching the $15,000 threshold, another could breach that limit from one severe trauma such as an open cranial TBI. There was also no requirement that the person must have had the ability to pay the outstanding bills. I find that to be a substantive due process issue.
The remainder of the bill applies to the sentencing portion and post execution reduction of the offense level.
The bill adds the following section to IC 35-50-2-6 that replaces the existing language which was not as precise and was more discretionary in the process.
(c) Notwithstanding subsections (a) and (b), if a person commits nonsupport of a child as a Class C felony (for a crime committed before July 1, 2014) or a Level 5 felony (for a crime committed after June 30, 2014) under IC 35-46-1-5, the sentencing court may convert the Class C felony conviction to a Class D felony conviction or a Level 5 felony conviction to a Level 6 felony conviction if, after receiving a verified petition as described in subsection (d) and after conducting a hearing in which the prosecuting attorney has been notified, the court makes the following findings:
(1) The person has successfully completed probation as required by the person's sentence.
(2) The person has satisfied other obligations imposed on the person as required by the person's sentence.
(3) The person has paid in full all child support arrearages due that are named in the information.
(4) The person has not been convicted of another felony since the person was sentenced for the underlying nonsupport of a child felony.
(5) There are no criminal charges pending against the person.
(6) The prosecuting attorney agrees to the reduction of the penalty.
(d) A petition filed under subsection (c) must be verified and set forth the following:
(1) A statement that the person was convicted of nonsupport of a child under IC 35-46-1-5.
(2) The date of the conviction.
(3) The date the person completed the person's sentence.
(4) The amount of the child support arrearage due at the time of conviction.
(5) The date the child support arrearage was paid in full.
(6) A verified statement that no further child support arrearage is due.
(7) Any other obligations imposed on the person as part of the person's sentence.
(8) The date the obligations were satisfied.
(9) A verified statement that there are no criminal charges pending against the person.
(e) A person whose conviction has been converted to a lower penalty under this section is eligible to seek expungement under IC 35-38-9-4 with the date of conversion used as the date of conviction to calculate time frames under IC 35-38-9.
In the last session of the general assembly the criminal offenses were re-codified and offense levels were changed from alphabetical to numerical designations. The prior Class D felony has been split into two levels consisting of Level 5 and Level 6.
The term for a Level 5 felony is found in Indiana Code 35-50-2-6(c) ver. b
A person who commits a Level 5 felony (for a crime committed after June 30, 2014) shall be imprisoned for a fixed term of between one (1) and six (6) years, with the advisory sentence being two (2) years. In addition, the person may be fined not more than ten thousand dollars ($10,000).
The term for a Level 6 felony is found in Indiana Code 35-50-2-7(b) ver. c
A person who commits a Level 6 felony (for a crime committed after June 30, 2014) shall be imprisoned for a fixed term of between six (6) months and two and one-half (2 1/2) years, with the advisory sentence being one (1) year. In addition, the person may be fined not more than ten thousand dollars ($10,000).
This bill was referred to the Committee on Corrections & Criminal Law where it passed 6-0 and went on to the full Senate. It is set for second reading on Tuesday 21 January 2014 at 1:30 p.m.
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Saturday, January 18, 2014
Bill to Amend Non-Support of a Dependent Child Statute IC 35-46-1-5 - Child Support 2014 Indiana Senate Bill 63
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