Barton v. State

192 N.E.3d 970

Joshua L. BARTON, Appellant-Defendant,

v.STATE of Indiana, Appellee-Plaintiff.

Court of Appeals Case No. 21A-CR-2165

Court of Appeals of Indiana.

FILED July 18, 2022

Attorney for Appellant: Stacy R. Uliana, Bargersville, Indiana

Attorneys for Appellee: Theodore E. Rokita, Attorney General of Indiana, Ian A. T. McLean, Deputy Attorney General, Indianapolis, Indiana

Riley, Judge.

STATEMENT OF THE CASE

[1] Appellant-Defendant, Joshua Barton (Barton), appeals his convictions for two counts of non-support of a dependent child, Level 6 felonies, Ind. Code § 35-46-1-5(a).

[2] We affirm.

ISSUES

[3] Barton presents this court with two issues, which we restate as:

(1) Whether the trial court abused its discretion in admitting his pretrial diversion agreement (Diversion Agreement) into evidence at trial; and

(2) Whether any abuse of the trial court's discretion in admitting the Diversion Agreement requires reversal.

FACTS AND PROCEDURAL HISTORY

[4] E.J. and Barton are the parents of L.B., born October 28, 2009, and C.B., born December 19, 2011, (collectively, Children). In 2010, E.J. and Barton moved the

family from Arizona to Brown County, Indiana, where Barton had family. Barton is a journeyman trim carpenter who is experienced in the construction industry. E.J. became addicted to opioids during her relationship with Barton. In March of 2012, E.J. entered in-patient treatment in Monticello, Indiana, for her opioid addiction. While E.J. was in treatment, Barton initiated a proceeding seeking sole custody of Children. After E.J. completed treatment in Monticello, she broke off her relationship with Barton, regained physical custody of Children, and relocated with Children to Wisconsin, where she had family. On September 11, 2013, by agreed entry of the parties, Barton was ordered to pay $130¹ per week for Children's support. This figure was derived using a child support worksheet and the income documentation submitted by Barton. The parties’ agreed entry further provided that Barton was to make all payments to the Indiana State Central Collection Unit (ISCCU) or to the Clerk of the Brown County Circuit Court and that Barton's income would be subject to an income withholding order. Barton was also informed by the Brown County Prosecutor's Office, Child Support Division (CSD), that if his child support obligation was not being withheld from his paycheck, he must pay his child support obligation directly to the Brown County Clerk or to the ISCCU.

[5] Between November 19, 2013, and May 18, 2015, Barton worked for at least four employers. From March 1, 2014, to April 20, 2014, Barton worked for Abell Nursery and Landscaping (Abell) in Monroe County doing general labor, including unloading semi-trucks of plants and moving plants around the worksite. During the week of March 12, 2014, an income withholding order was generated by the CSD, although it is unclear from the record whether it was applied to Barton's pay. Barton received five paychecks from Abell and then just stopped coming to work. Barton next worked in the summer of 2014 for a construction business owned by Phillip Hagemeyer (Hagemeyer). During the week of July 16, 2014, the CSD generated an income withholding order for Barton's Hagemeyer construction pay. Barton quit that job immediately after Hagemeyer told him the income withholding order would be applied. From January 30, 2015, to March 13, 2015, Barton worked for SteelTech Partners, LLC, (SteelTech), for a total of six weekly pay periods. The week of February 19, 2015, the CSD issued an income withholding order for Barton's SteelTech pay, but no child support was withheld from Barton's pay before he left SteelTech. Thereafter, Barton worked for Tradesman International, Inc. (TI), from March 23, 2015, to May 10, 2015, for a total of eight weekly pay periods. The week of April 20, 2015, the CSD issued an income withholding order for Barton's TI. No income withholding order was applied to Barton's TI income during the first six pay periods. Child support was withheld from Barton's seventh TI check. During the eighth TI pay period, Barton did not work a full week, and his employment with TI ceased.

[6] During the relevant timeframe, Barton only made one cash payment to the Brown County Clerk of $100 on November 22, 2013. Barton paid no support directly to E.J. From November 19, 2013, to May 18, 2015, Barton only paid $3,888 of the $10,270 he owed in child support, or 38% of his obligation. Barton never expressed remorse to E.J. about not paying his child support; rather, he simply promised that he would start making payments.

[7] On November 6, 2017, the State filed an Information, charging Barton with two counts of Level 6 felony non-support of a dependent in which it alleged that Barton had failed to support L.B. and C.B. between November 19, 2013, and May 18, 2015, and owed an arrears of $10,240. On February 5, 2019, the trial court held a hearing during which the State and Barton, who was represented by counsel, presented the trial court with a pretrial diversion agreement (Diversion Agreement) pursuant to which the State agreed to withhold prosecution of the non-support charges and to dismiss the charges if Barton successfully completed the terms and conditions of the Diversion Agreement within eighteen months, including that Barton would admit to two counts of felony non-support, he would not commit any new offenses, and he would pay $6,000 in arrears by February 5, 2019. The Diversion Agreement further provided in relevant part as follows:

By signing below, Defendant (1) agrees to the terms of this [Diversion Agreement] and (2) waives the right to a speedy trial under Criminal Rule 4 ;

Defendant acknowledges that failure to successfully complete the [Diversion Agreement] will result in (1) the [Diversion Agreement] being set aside and the prosecution resuming; (2) acknowledges this filed document may be used in Court against the Defendant ; (3) agrees and understands that any violation of this agreement does not entitle Defendant to any pretrial credit time; (4) all monies paid hitherto being forfeited; and (5) agreeing to appear in Court on August 31[,] 2020[,] at 3:00 p.m. with failure to do so resulting in a potential warrant for Defendant's arrest.

(Exh. 12) (emphasis added). Barton and Barton's counsel both signed the Diversion Agreement. At the February 5, 2019, hearing, after the trial court confirmed with Barton that he had read and signed the Diversion Agreement, the trial court stated the following on the record:

And I don't know that there's any real record I need to make, other than ensuring that you understand it, that you've had adequate opportunity to talk to your attorney about it, and indicating that you have agreed to appear in Court on August 31, 2020 at 3:00 p.m. for basically a compliance hearing.

(Supplemental Tr. p. 4). The trial court stated that it would note that the matter was being resolved by pretrial diversion unless there was anything else that needed to be addressed. Barton did not indicate that he had any questions about the Diversion Agreement or that he had not had an adequate opportunity to discuss the Agreement with his counsel. The Diversion Agreement was filed.

[8] On June 11, 2019, Barton was convicted of invasion of privacy. On August 27, 2020, the State filed its notice that it was withdrawing from the Diversion Agreement and was resuming prosecution of the non-support charges based on Barton's violation of the Diversion Agreement by committing the new offense of invasion of privacy. By April 27, 2021, the State and Barton had reached a plea agreement whereby Barton would plead guilty as charged and the State would recommend concurrent sentences, with a cap of one year on the executed portion of his sentences. However, at his change of plea hearing, Barton was unable to establish a factual basis for his plea, and the matter was scheduled for a jury trial.

[9] On August 3, 2021, Barton filed a motion in limine seeking to exclude any reference at trial to the Diversion Agreement, including his admission to the charges. On August 4, 2021, the trial court convened Barton's two-day jury trial. The trial court heard argument on Barton's motion in limine to exclude the Diversion Agreement and his admissions. Barton's counsel objected on the basis of Indiana Trial Rules 410 and 408 and argued that it would be unfair under the circumstances to admit the Diversion Agreement because the jury, as lay people, might not understand how Barton could have admitted to the charges in the Agreement but then, after prosecution had resumed, was unable to establish a factual basis for his guilty plea. Barton's counsel was concerned about how this would affect the jury's perception of Barton's credibility and that the jury might conclude that Barton had acted in bad faith in his dealings with the State. The State contended that the parties had bargained for the terms of the Diversion Agreement, Barton had signed the Agreement and acknowledged that it could be used in court against him, and that the Agreement did not preclude Barton from asserting his affirmative defense of inability to pay. The trial court observed that Barton's acknowledgement that the Agreement could be used against him in court was a stipulation of admissibility, it was significant that Barton had been represented by counsel at the time he entered into the Agreement, and that, absent any other indications to the contrary, his admissions in the Agreement were knowing and voluntary. The trial court denied Barton's motion in limine pertaining to the Diversion Agreement.

[10] The trial court provided the jury with a preliminary instruction that "[i]t is a defense to the charge of [non-support of a dependent child] that the defendant was unable to provide support" and that Barton had the burden of proving his defense by the greater weight of the evidence. (Transcript Vol. II, p. 172). During his opening argument, the Deputy P...