MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                     FILED
regarded as precedent or cited before any                             Nov 19 2019, 7:15 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
Mark K. Leeman                                          Curtis T. Hill
Leeman Law Office and Cass County                       Attorney General of Indiana
Public Defender                                         Caryn N. Szyper
Logansport, Indiana                                     Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Reynaldo Amaro-Perez,                                   November 19, 2019
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        19A-CR-1336
        v.                                              Appeal from the Cass Superior
                                                        Court
State of Indiana,                                       The Honorable James K.
Appellee-Plaintiff.                                     Muehlhausen, Judge
                                                        Trial Court Cause No.
                                                        09D01-1805-F5-29



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1336 | November 19, 2019             Page 1 of 5
[1]   Reynaldo Amaro-Perez appeals his sentence for battery by means of a deadly

      weapon as a level 5 felony. We affirm.


                                        Facts and Procedural History

[2]   On May 10, 2018, Amaro-Perez argued with Jose Clemente and intentionally

      threw a knife that cut Clemente’s arm. On May 11, 2018, the State charged

      him with battery by means of a deadly weapon as a level 5 felony and criminal

      recklessness as a level 6 felony. On April 10, 2019, he pled guilty to battery by

      means of a deadly weapon, and the State dismissed the criminal recklessness

      charge.


[3]   At the May 16, 2019 sentencing hearing, Amaro-Perez indicated he was

      married and that he had three children under the age of five who lived with his

      wife at a separate address. He indicated that his work permit expired in March

      and that he had to renew it, and answered “[u]m no” when asked “[a]nd so you

      have not been working.” 1 Transcript at 46. In asking for a fully-suspended

      sentence of three years, his counsel stated Clemente had forgiven Amaro-Perez

      and that he had two houses, which “he says that they are making mortgages

      on,” and “has children.” Id. at 65. The prosecutor argued for a sentence of

      three years, with the first year served in incarceration, the second year in

      community corrections, and the third year on probation.




      1
        His counsel later stated that Amaro-Perez was not working “because he’s not working illegally, he’s trying
      to obey the law, his work permit expired.” Transcript at 65.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1336 | November 19, 2019                 Page 2 of 5
[4]   The court found Amaro-Perez’s plea of guilty and lack of criminal history as

      mitigating circumstances and the fact that he tested positive for cannabinoids

      while awaiting sentence as an aggravating circumstance. After finding that the

      mitigating circumstances neutralized the aggravating circumstance, it sentenced

      him to three years, with the first two years to be executed in the Cass County Jail

      and the third year suspended to probation, with the possibility for the second

      executed year to be served on community corrections if he qualified and was

      accepted.


                                                  Discussion

[5]   Amaro-Perez claims that the trial court abused its discretion in failing to

      identify as a mitigator that incarceration would result in undue hardship to his

      dependents. We review the sentence 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 (Ind.

      2007). 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. A trial court

      abuses its discretion if it: (1) fails “to enter a sentencing statement at all;” (2)

      enters “a sentencing statement that explains reasons for imposing a sentence –

      including a finding of aggravating and mitigating factors if any – but the record

      does not support the reasons;” (3) enters a sentencing statement that “omits

      reasons that are clearly supported by the record and advanced for

      consideration;” or (4) considers reasons that “are improper as a matter of law.”

      Id. at 490-491. If the trial court has abused its discretion, we will remand for

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1336 | November 19, 2019   Page 3 of 5
      resentencing “if we cannot say with confidence that the trial court would have

      imposed the same sentence had it properly considered reasons that enjoy

      support in the record.” Id. at 491. The relative weight or value assignable to

      reasons properly found, or those which should have been found, is not subject

      to review for abuse of discretion. Id.


[6]   The determination of mitigating circumstances is within the discretion of the

      trial court. Rogers v. State, 878 N.E.2d 269, 272 (Ind. Ct. App. 2007), trans.

      denied. The trial court is not obligated to accept the defendant’s argument as to

      what constitutes a mitigating factor, and a trial court is not required to give the

      same weight to proffered mitigating factors as does a defendant. Id. 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, it is not obligated to explain why it has found that the

      factor does not exist. Id.


[7]   Absent special circumstances, trial courts are not required to find that

      imprisonment will result in an undue hardship. Dowdell v. State, 720 N.E.2d

      1146, 1154 (Ind. 1999). See also Benefield v. State, 904 N.E.2d 239, 247-248 (Ind.

      Ct. App. 2009) (recognizing that incarceration “almost always” works a

      hardship on others and concluding that the defendant failed to show “special

      circumstances” because there were other people who could take care of the

      defendant’s mother while she was incarcerated), trans. denied.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1336 | November 19, 2019   Page 4 of 5
[8]    At sentencing, Amaro-Perez testified that he had three children who lived with

       their mother at a separate address and answered affirmatively when asked if he

       supported his children. 2 His counsel merely mentioned in argument that he had

       children and that “they are making mortgages on” two houses. Transcript at

       65. The presentence investigation report (“PSI”) has a marital status of

       “Single” for Amaro-Perez and identifies a contact person, K.B., with a

       relationship to him of “Girlfriend.” Appellant’s Appendix at 68-69. The PSI

       states in the “Dependents” section that he and K.B. have three children, he

       advised that all three children live with him and his girlfriend, and he reported

       that he did not owe any child support. The “Financial Situation” section

       indicates that he reported that his girlfriend is employed and she provides the

       only income for the family. Id. at 71-72. We cannot say that Amaro-Perez has

       demonstrated that hardship on his dependents is both significant and clearly

       supported by the record or that the trial court abused its discretion.


[9]    For the foregoing reasons, we affirm Amaro-Perez’s sentence.


[10]   Affirmed.


       Altice, J., and Tavitas, J., concur.




       2
         Through a translator, Amaro-Perez answered affirmatively when asked if he was still married and if the
       three children live with “their mother and your wife” at an address on Plum Street. Transcript at 46. In
       explaining why his wife’s Plum Street address differed from the address at which he lived, he indicated “[u]h
       because we are working on” the house at his wife’s address and “[t]hat she is there and I am here.” Id. at 45.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1336 | November 19, 2019                  Page 5 of 5
