MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                          FILED
regarded as precedent or cited before any                            Jan 17 2020, 9:19 am

court except for the purpose of establishing                              CLERK
                                                                      Indiana Supreme Court
the defense of res judicata, collateral                                  Court of Appeals
                                                                           and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Glen E. Koch                                             Curtis T. Hill, Jr.
Boren, Oliver & Coffey, LLP                              Attorney General of Indiana
Martinsville, Indiana
                                                         Lauren A. Jacobsen
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Brandon J. Hunt,                                         January 17, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-1608
        v.                                               Appeal from the Morgan Superior
                                                         Court
State of Indiana,                                        The Honorable Peter R. Foley,
Appellee-Plaintiff,                                      Judge
                                                         Trial Court Cause No.
                                                         55D01-1808-F3-1276



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1608 | January 17, 2020              Page 1 of 7
                                Case Summary and Issue
[1]   Brandon Hunt pleaded guilty to one count of battery by means of deadly force,

      a Level 5 felony, and was sentenced to three years to be served in the Indiana

      Department of Correction (“DOC”). Hunt appeals his sentence, raising one

      issue for our review: whether the trial court abused its discretion in sentencing

      him. Concluding the trial court did not abuse its sentencing discretion, we

      affirm.



                            Facts and Procedural History
[2]   Hunt and his girlfriend, Audree Carrender, had been living together for six

      years with their four children: Hunt has a daughter, Hunt and Carrender share a

      son, and Carrender has two children. On August 1, 2018, Carrender asked

      Christopher Minardo, Carrender and Hunt’s mutual friend, for a ride home

      from work. When they arrived at the house, Carrender and Minardo sat and

      talked on the front porch. Approximately twenty minutes later, Hunt came

      from the back of the house, approached Minardo with a baseball bat, and hit

      him in the face, causing Minardo to lose five teeth and suffer a facial fracture.


[3]   The State charged Hunt with aggravated battery, a Level 3 felony; battery by

      means of a deadly weapon, a Level 5 felony; resisting law enforcement, a Class

      A misdemeanor; and criminal mischief and disorderly conduct, both Class B

      misdemeanors. On March 11, 2019, Hunt appeared in court for a change of

      plea hearing. Pursuant to a written plea agreement, Hunt agreed to plead guilty


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1608 | January 17, 2020   Page 2 of 7
      to battery by means of deadly force as charged and the State agreed to dismiss

      the remaining counts; sentencing was open to the trial court’s discretion. The

      trial court took the matter under advisement pending completion of a pre-

      sentence investigation report and set a date for sentencing.


[4]   On June 10, 2019, the trial court held a sentencing hearing. There, Hunt

      testified that he is the “main provider for [his] family.” Transcript at 48.

      Carrender testified that she is currently unemployed and Hunt “takes care of all

      of the bills.” Id. at 51. Together, their expenses total approximately $1,400 per

      month. She furthered testified that she would probably lose her house if Hunt is

      incarcerated. The State requested the trial court sentence Hunt to a fully

      executed sentence of six years. Hunt did not request a certain term of years but

      asked to serve his sentence on home detention. After hearing the evidence and

      arguments of counsel, the trial court accepted the terms and conditions of the

      plea agreement, entered judgment of conviction as to battery by means of a

      deadly weapon, and dismissed the remaining charges.


[5]   In determining Hunt’s sentence, the trial court considered Hunt’s criminal

      history, including his juvenile record and previous probation violations, and the

      fact that he was on probation at the time of the instant offense as aggravating

      circumstances. As mitigating circumstances, the trial court found Hunt’s guilty

      plea and his remorse. The trial court also outlined in its written sentencing

      statement “additional considerations” that were not specifically identified as

      aggravating or mitigating circumstances: (1) Hunt’s propensity for violence; (2)

      his substance abuse problem; (3) his high risk of re-offending; and (4) his history

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1608 | January 17, 2020   Page 3 of 7
      of probation violations and criminal history since 2007 suggesting he is a poor

      candidate for a suspended sentence. See Confidential Appellant’s Appendix,

      Volume 2 at 106-07. Considering the aggravating, mitigating, and other

      circumstances, the trial court sentenced Hunt to an advisory sentence of three

      years to be served in the DOC.1 Hunt now appeals. Additional facts will be

      supplied as necessary.



                                  Discussion and Decision
[6]   Hunt contends that the trial court abused its discretion in sentencing him.

      Sentencing decisions rest within the sound discretion of the trial court.

      Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d

      218 (Ind. 2007). When a sentence is within the statutory range, it is subject to

      review only for abuse of discretion. Id. 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.


[7]   A trial court may abuse its sentencing discretion in a number of ways:


              (1) failing to enter a sentencing statement, (2) entering a
              sentencing statement that explains reasons for imposing the
              sentence but the record does not support the reasons, (3) the
              sentencing statement omits reasons that are clearly supported by



      1
        A Level 5 felony carries a fixed term of imprisonment between one and six years, with the advisory
      sentence being three years. See Ind. Code § 35-50-2-6(b).

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1608 | January 17, 2020                 Page 4 of 7
              the record and advanced for consideration, or (4) the reasons
              given in the sentencing statement are improper as a matter of
              law.


      Phelps v. State, 24 N.E.3d 525, 527 (Ind. Ct. App. 2015). Hunt contends that he

      offered evidence of substantial hardship to his family due to his incarceration

      and the trial court abused its discretion in omitting this hardship as a mitigating

      circumstance.


[8]   The finding of a mitigating circumstance is discretionary and therefore, the trial

      court is neither obligated to accept the defendant’s argument as to what

      constitutes a mitigating circumstance nor required to give the same weight to a

      proffered mitigating circumstance as the defendant would. Hunter v. State, 72

      N.E.3d 928, 935 (Ind. Ct. App. 2017), trans. denied. “An allegation that the trial

      court failed to identify or find a mitigating factor requires the defendant to

      establish that the mitigating evidence is both significant and clearly supported

      by the record.” Anglemyer, 868 N.E.2d at 493. “If 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. (citation omitted).


[9]   In particular, a trial court is not required to find that a defendant’s incarceration

      would result in undue hardship on his dependents. Benefield v. State, 904 N.E.2d

      239, 247 (Ind. Ct. App. 2009), trans. denied. “Many persons convicted of crimes

      have dependents and, absent special circumstances showing that the hardship to



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1608 | January 17, 2020   Page 5 of 7
       them is ‘undue,’ a trial court does not abuse its discretion by not finding this to

       be a mitigating factor.” Id.


[10]   Hunt and Carrender are the physical custodians of four children. The record

       indicates that Hunt has been the primary person carrying the financial burden

       for the family, but it does not indicate that his dependents will be entirely

       without assistance in his absence. At the sentencing hearing, Carrender testified

       that she is unemployed, but Hunt’s pre-sentence investigation report shows she

       was employed a little over a month before the sentencing hearing, earning $400

       per week. See Confidential Appellant’s App., Vol. 2 at 80. Moreover, the

       evidence does not suggest that she is incapable of securing future employment.

       Over the short period of time of Hunt’s incarceration, Carrender can obtain a

       job to ensure that the children are cared for and their needs are being met.

       Based on the evidence, Hunt has not shown that the proffered mitigating

       circumstance is significant and clearly supported by the record. See, e.g., Phillips

       v. State, 869 N.E.2d 512, 516 (Ind. Ct. App. 2007) (holding that the trial court

       did not abuse its discretion in not considering “undue hardship” as a mitigating

       circumstance because defendant’s claim that he had been the “sole provider”

       for his daughter since the death of her mother conflicted with information in his

       pre-sentence investigation report that he does not financially support her).


[11]   We do not discount the negative impact of Hunt’s incarceration on his children,

       his girlfriend, and other unrelated dependents, and we acknowledge his desire

       to support the family financially. However, a period of incarceration almost

       always poses a degree of hardship on dependents. See Vazquez v. State, 839

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1608 | January 17, 2020   Page 6 of 7
       N.E.2d 1229, 1234 (Ind. Ct. App. 2005) (noting “jail is always a hardship on

       dependents”), trans. denied. Hunt has failed to advance any special

       circumstances that would show any hardship will be “undue” and therefore, the

       trial court’s omission of this mitigating circumstance is not against the logic and

       effect of the facts and circumstances before it. The trial court did not abuse its

       discretion in sentencing Hunt.


[12]   Even if the trial court erred by not considering hardship as a mitigating

       circumstance, the sentence may stand if we can “say with confidence that the

       trial court would have imposed the same sentence[.]” Anglemyer, 868 N.E.2d at

       491. Here, the trial court found Hunt’s criminal history, his previous violations

       of probation, and the fact that he was on probation at the time of the current

       offense warranted an advisory sentence of three years. Hunt has not shown that

       the trial court would have imposed a different sentence had it considered

       hardship as a mitigating circumstance. Therefore, our confidence in the

       sentence is not diminished.



                                               Conclusion
[13]   We conclude that the trial court did not abuse its discretion in sentencing Hunt.

       Accordingly, his sentence is affirmed.


[14]   Affirmed.


       Bradford, C.J., and Altice, J., concur.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1608 | January 17, 2020   Page 7 of 7
