Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.




  ATTORNEY FOR APPELLANT:                            ATTORNEYS FOR APPELLEE:

  JESSE R. POAG                                      GREGORY F. ZOELLER
  Newburgh, Indiana                                  Attorney General of Indiana

                                                     ANDREW R. FALK
                                                     Deputy Attorney General

                                                                                   FILED
                                                     Indianapolis, Indiana

                                                                               Nov 30 2012, 9:24 am

                                 IN THE                                                CLERK
                       COURT OF APPEALS OF INDIANA                                   of the supreme court,
                                                                                     court of appeals and
                                                                                            tax court




  DANNY G. YOUNG,                                    )
                                                     )
          Appellant,                                 )
                                                     )
              vs.                                    )        No. 82A05-1205-CR-229
                                                     )
  STATE OF INDIANA,                                  )
                                                     )
          Appellee.                                  )


                    APPEAL FROM THE VANDERBURGH SUPERIOR COURT
                            The Honorable Kelli E. Fink, Magistrate
                               Cause No. 82C01-1112-FC-1549


                                          November 30, 2012

                              OPINION – NOT FOR PUBLICATION

  MATHIAS, Judge

  	  
	     Pursuant to a plea agreement, Danny Young (“Young”), pleaded guilty to Class C

felony forgery, Class D felony receiving stolen property, and Class D felony fraud. He

was sentenced to concurrent sentences of six years for forgery, two years for receiving

stolen property, and two years for fraud. Young argues that the trial court abused its

discretion by failing to consider his proposed mitigating circumstance in its sentencing

statement.

       We affirm.

                             Facts and Procedural History

       On March 22, 2012, Young pleaded guilty pursuant to a plea agreement to Class C

forgery for writing checks that belonged to JD Byrider without authorization and then

attempting to cash them at Old National Bank. He also pleaded guilty to Class D felony

receiving stolen property for having checks that he knew were stolen from JD Byrider.

Lastly, he pleaded guilty to Class D felony fraud for using an ATM card belonging to JD

Byrider without authorization and knowing that the card had been unlawfully obtained.

       The plea agreement provided that his sentence would not exceed six years and that

the State would dismiss the habitual offender enhancement count. The trial court

accepted the agreement.

       At the sentencing hearing on April 16, 2012, Young requested that the trial court

place him in a drug program and told the trial court that he had been diagnosed with

paranoid schizophrenia but was off of his medication at the time of the offenses. Young

also told the court, “[I]f I had been on my medication and not on the methamphetamines I

wouldn’t of [sic] done this[.]” Tr. p. 16.

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       Young was sentenced to concurrent sentences of six years for forgery, two years

for receiving stolen property, and two years for fraud. He now appeals.

                                 Discussion and Decision

       Young argues that the trial court abused its discretion in its sentencing decision by

failing to address a mitigating circumstance. We review sentencing decisions “only for

an abuse of discretion.” Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified

on reh’g, 875 N.E.2d 218. “An abuse of discretion occurs if the decision is ‘clearly

against the logic and effect of the facts and circumstances before the court, or the

reasonable, probable, and actual deductions to be drawn therefrom.’” Id. (quoting K.S.

v. State, 849 N.E.2d 538, 544 (Ind. 2006)). A trial court may abuse its discretion “by (1)

issuing an inadequate sentencing statement, (2) finding aggravating or mitigating factors

that are not supported by the record, (3) omitting factors that are clearly supported by the

record and advanced for consideration, or (4) by finding factors that are improper as a

matter of law.” Phelps v. State, 969 N.E.2d 1009, 1019 (Ind. Ct. App. 2012), trans.

denied.

       Young argues that the trial court abused its discretion by failing to consider, as a

mitigating factor, that he was off of his prescribed anti-psychotic medication at the time

he committed the offenses.     Tr. p. 17. If a trial court does not find a mitigating factor

after it is argued by counsel, “‘the trial court is not obligated to explain why it has found

that the factor does not exist.’” See Anglemyer, 868 N.E.2d at 493 (quoting Fugate v.

State, 608 N.E.2d 1370, 1374 (Ind. 1993)). The trial court did consider Young’s mental

health history a mitigator. By finding his mental health history as a mitigator but not

                                             3
	  
delineating his failure to take his medication as a separate, significant mitigating

circumstance, we conclude the trial court did not find it a separate mitigating factor. See

id. (holding that the trial court did not overlook Anglemeyer’s mental illness, but rather

had “determined it was not significant and thus would not be a factor influencing the trial

court’s sentencing decision”).

       If a defendant alleges that trial court failed to find a mitigating factor, the

defendant must establish that the mitigating evidence is both significant and clearly

supported by the record. Id. In the record, the only evidence that Young had not taken

his medication was Young’s assertion that if he had been taking his psychotropic

medication as prescribed, rather than illegal methamphetamine, he would not have

committed the offenses. Therefore, he claims, it was an abuse of discretion for the trial

court to omit this from consideration as a separate mitigator. His mental illnesses, bipolar

disorder and paranoid schizophrenia, were considered by the trial court as a mitigating

factor, and while those mental illnesses are a significant mitigating factor, we conclude

that Young has not established that his voluntary decompensation, by itself, is not a

separate, mitigating factor.

       Here, the trial court found Young’s criminal history “very significant.” Tr. p. 18.

The trial court noted his mental health history and drug problem but said Young had “too

many felonies” to be put on any of the court’s programs. Id. For all these reasons, we

conclude that even if the trial court had considered Young’s failure to take his medication

as a separate mitigator, it would not have imposed a lesser sentence. Thus, we hold that

the trial court did not abuse its discretion in its sentencing decision.

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       Affirmed.

VAIDIK, J., and BARNES, J., concur.




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