Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Sep 03 2014, 10:48 am 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:
TIMOTHY S. LANANE GREGORY F. ZOELLER Anderson, Indiana Attorney General of Indiana
HENRY A. FLORES, JR. Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
BRIAN HOUSE, ) ) Appellant-Defendant, ) ) vs. ) No. 48A04-1402-CR-78 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE MADISON CIRCUIT COURT The Honorable Angela Warner Sims, Judge Cause No. 48C01-1306-FD-1203
September 3, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
BRADFORD, Judge CASE SUMMARY
On June 17, 2013, Appellant-Defendant Brian House operated a vehicle while
intoxicated. Two days later, House was charged with numerous offenses relating to his
operation of the vehicle in question. House subsequently pled guilty to Class D felony
operating a vehicle while intoxicated (“OWI”) and Class A misdemeanor OWI. The trial
court accepted House’s guilty plea, merged the Class A misdemeanor conviction with the
Class D felony conviction, and sentenced House to a thirty-six-month sentence. On appeal,
House contends that the trial court abused its discretion in sentencing him and that his
sentence is inappropriate. Finding no abuse of discretion by the trial court and concluding
that House’s sentence is not inappropriate, we affirm.
FACTS AND PROCEDURAL HISTORY
The factual basis entered during the December 3, 2013 guilty plea hearing provides
that on or about June 17, 2013, House operated a vehicle while intoxicated in a manner that
endangered a person and after having been previously convicted of OWI during the
preceding five years. House subsequently admitted that prior to his arrest, he struck
numerous poles while trying to maneuver his vehicle through a gas station parking lot.
House further admitted that a nearby civilian reached into his vehicle and removed his keys
from the vehicle so that he would not drive any further after he attempted to drive down the
wrong side of a street.
On June 19, 2013, Appellee-Plaintiff the State of Indiana (the “State”) charged House
with Class D felony OWI, Class A misdemeanor OWI endangering a person, and Class A
2 misdemeanor driving while suspended. House subsequently entered into a plea agreement by
which he agreed to plead guilty to Class D felony OWI and Class A misdemeanor OWI
endangering a person. In exchange for House’s guilty plea, the State agreed to dismiss the
Class A misdemeanor driving while suspended charge and to refrain from filing an allegation
that House was a habitual offender. On January 27, 2014, the trial court accepted the plea
agreement, merged the Class A misdemeanor conviction with the Class D felony conviction,
and sentenced House to a thirty-six-month sentence, with thirty months executed in the
Department of Correction (“DOC) and six months on in-home detention. This appeal
follows.
DISCUSSION AND DECISION
House challenges his sentence on appeal, claiming both that the trial court abused its
discretion in sentencing him and that his thirty-six-month sentence is inappropriate in light of
the nature of his offenses and his character.
I. Abuse of Discretion
Sentencing decisions rest within the sound discretion of the trial court and are
reviewed on appeal only for an abuse of discretion. Anglemyer v. State, 868 N.E.2d 482, 490
(Ind. 2007), modified on other grounds 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. (quotation omitted).
One way in which a trial court may abuse its discretion is failing to enter a sentencing statement at all. Other examples include entering a sentencing 3 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, or the sentencing statement omits reasons that are clearly supported by the record and advanced for consideration, or the reasons given are improper as a matter of law. Under those circumstances, remand for resentencing may be the appropriate remedy 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 490-91.
House claims that the trial court abused its discretion in sentencing him because the
trial court failed to find the fact that his incarceration would result in a financial hardship to
his family to be a mitigating factor at sentencing. The finding of mitigating factors is
discretionary with the trial court. Fugate v. State, 608 N.E.2d 1370, 1374 (Ind. 1993) (citing
Graham v. State, 535 N.E.2d 1152, 1155 (Ind. 1989)). The trial court is not required to find
the presence of mitigating factors. Id. (citing Graham, 535 N.E.2d at 1155). Further, 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. (citing Hammons v. State, 493 N.E.2d 1250, 1254-55 (Ind. 1986)).
In the instant matter, House’s wife stated during sentencing that she and her ten-year-
old son would suffer a financial hardship if House were incarcerated because it was critical
for the family to receive House’s disability payments, which are suspended during periods
when he is incarcerated. House’s wife further stated that while she was employed full-time
as a para-educator working with autistic children, it is “very hard as a single parent.” Tr. p.
22. While we sympathize with House’s wife and commend her for her dedication to caring
4 for children, both those belonging to others and her own, we cannot say that the trial court
abused its discretion in failing to find the alleged financial hardship placed upon her by
House’s incarceration would be significant. In the instant matter, the record contains
evidence that House’s wife was employed full-time and financially supported the family.
Further, while House’s incarceration relating to the instant matter may cause a continued
financial hardship on his family, this financial hardship is likely one that his family has had to
find a way to minimize and overcome during his incarceration relating to an unrelated
conviction.1
House argues that the trial court abused its discretion for failing to explain why it did
not find the alleged financial burden on his family to be a mitigating factor. However, as we
stated above, the trial court was not obligated to explain why it determined that the alleged
financial hardship upon House’s family was not significant. See Fugate, 608 N.E.2d at 1374.
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Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Sep 03 2014, 10:48 am 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:
TIMOTHY S. LANANE GREGORY F. ZOELLER Anderson, Indiana Attorney General of Indiana
HENRY A. FLORES, JR. Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
BRIAN HOUSE, ) ) Appellant-Defendant, ) ) vs. ) No. 48A04-1402-CR-78 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE MADISON CIRCUIT COURT The Honorable Angela Warner Sims, Judge Cause No. 48C01-1306-FD-1203
September 3, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
BRADFORD, Judge CASE SUMMARY
On June 17, 2013, Appellant-Defendant Brian House operated a vehicle while
intoxicated. Two days later, House was charged with numerous offenses relating to his
operation of the vehicle in question. House subsequently pled guilty to Class D felony
operating a vehicle while intoxicated (“OWI”) and Class A misdemeanor OWI. The trial
court accepted House’s guilty plea, merged the Class A misdemeanor conviction with the
Class D felony conviction, and sentenced House to a thirty-six-month sentence. On appeal,
House contends that the trial court abused its discretion in sentencing him and that his
sentence is inappropriate. Finding no abuse of discretion by the trial court and concluding
that House’s sentence is not inappropriate, we affirm.
FACTS AND PROCEDURAL HISTORY
The factual basis entered during the December 3, 2013 guilty plea hearing provides
that on or about June 17, 2013, House operated a vehicle while intoxicated in a manner that
endangered a person and after having been previously convicted of OWI during the
preceding five years. House subsequently admitted that prior to his arrest, he struck
numerous poles while trying to maneuver his vehicle through a gas station parking lot.
House further admitted that a nearby civilian reached into his vehicle and removed his keys
from the vehicle so that he would not drive any further after he attempted to drive down the
wrong side of a street.
On June 19, 2013, Appellee-Plaintiff the State of Indiana (the “State”) charged House
with Class D felony OWI, Class A misdemeanor OWI endangering a person, and Class A
2 misdemeanor driving while suspended. House subsequently entered into a plea agreement by
which he agreed to plead guilty to Class D felony OWI and Class A misdemeanor OWI
endangering a person. In exchange for House’s guilty plea, the State agreed to dismiss the
Class A misdemeanor driving while suspended charge and to refrain from filing an allegation
that House was a habitual offender. On January 27, 2014, the trial court accepted the plea
agreement, merged the Class A misdemeanor conviction with the Class D felony conviction,
and sentenced House to a thirty-six-month sentence, with thirty months executed in the
Department of Correction (“DOC) and six months on in-home detention. This appeal
follows.
DISCUSSION AND DECISION
House challenges his sentence on appeal, claiming both that the trial court abused its
discretion in sentencing him and that his thirty-six-month sentence is inappropriate in light of
the nature of his offenses and his character.
I. Abuse of Discretion
Sentencing decisions rest within the sound discretion of the trial court and are
reviewed on appeal only for an abuse of discretion. Anglemyer v. State, 868 N.E.2d 482, 490
(Ind. 2007), modified on other grounds 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. (quotation omitted).
One way in which a trial court may abuse its discretion is failing to enter a sentencing statement at all. Other examples include entering a sentencing 3 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, or the sentencing statement omits reasons that are clearly supported by the record and advanced for consideration, or the reasons given are improper as a matter of law. Under those circumstances, remand for resentencing may be the appropriate remedy 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 490-91.
House claims that the trial court abused its discretion in sentencing him because the
trial court failed to find the fact that his incarceration would result in a financial hardship to
his family to be a mitigating factor at sentencing. The finding of mitigating factors is
discretionary with the trial court. Fugate v. State, 608 N.E.2d 1370, 1374 (Ind. 1993) (citing
Graham v. State, 535 N.E.2d 1152, 1155 (Ind. 1989)). The trial court is not required to find
the presence of mitigating factors. Id. (citing Graham, 535 N.E.2d at 1155). Further, 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. (citing Hammons v. State, 493 N.E.2d 1250, 1254-55 (Ind. 1986)).
In the instant matter, House’s wife stated during sentencing that she and her ten-year-
old son would suffer a financial hardship if House were incarcerated because it was critical
for the family to receive House’s disability payments, which are suspended during periods
when he is incarcerated. House’s wife further stated that while she was employed full-time
as a para-educator working with autistic children, it is “very hard as a single parent.” Tr. p.
22. While we sympathize with House’s wife and commend her for her dedication to caring
4 for children, both those belonging to others and her own, we cannot say that the trial court
abused its discretion in failing to find the alleged financial hardship placed upon her by
House’s incarceration would be significant. In the instant matter, the record contains
evidence that House’s wife was employed full-time and financially supported the family.
Further, while House’s incarceration relating to the instant matter may cause a continued
financial hardship on his family, this financial hardship is likely one that his family has had to
find a way to minimize and overcome during his incarceration relating to an unrelated
conviction.1
House argues that the trial court abused its discretion for failing to explain why it did
not find the alleged financial burden on his family to be a mitigating factor. However, as we
stated above, the trial court was not obligated to explain why it determined that the alleged
financial hardship upon House’s family was not significant. See Fugate, 608 N.E.2d at 1374.
Given the fact that the record contained testimony that would raise doubt about the
significance of the alleged hardship on House’s family, we conclude that the trial court did
not abuse its discretion in this regard.
II. Appropriateness of Sentence
Indiana Appellate Rule 7(B) provides that “The Court may revise a sentence
authorized by statute if, after due consideration of the trial court’s decision, the Court finds
that the sentence is inappropriate in light of the nature of the offense and the character of the
1 The record demonstrates that, at the time of sentencing, House had been incarcerated in the DOC for approximately six months for an unrelated conviction and was not expected to be released until September of 2014. 5 offender.” In analyzing such claims, we “‘concentrate less on comparing the facts of [the
case at issue] to others, whether real or hypothetical, and more on focusing on the nature,
extent, and depravity of the offense for which the defendant is being sentenced, and what it
reveals about the defendant’s character.’” Paul v. State, 888 N.E.2d 818, 825 (Ind. Ct. App.
2008) (quoting Brown v. State, 760 N.E.2d 243, 247 (Ind. Ct. App. 2002), trans. denied).
“Placement in an in-home detention program is a matter of grace and a conditional
liberty that is a favor, not a right.” Rodriguez v. State, 714 N.E.2d 667, 670 (Ind. Ct. App.
1999) (citing Brooks v. State, 692 N.E.2d 951, 953 (Ind. Ct. App. 1998), trans. denied),
trans. denied. The location where a sentence is to be served is an appropriate focus for
application of our review-and-revise authority. King v. State, 894 N.E.2d 265, 267 (Ind. Ct.
App. 2008) (citing Biddinger v. State, 868 N.E.2d 407, 414 (Ind. 2007)).
Nonetheless, we note that it will be quite difficult for a defendant to prevail on a claim that the placement of his sentence is inappropriate. Fonner v. State, 876 N.E.2d 340, 343 (Ind. Ct. App. 2007). This is because the question under Appellate Rule 7(B) is not whether another sentence is more appropriate; rather, the question is whether the sentence imposed is inappropriate. Id. at 344. A defendant challenging the placement of a sentence must convince us that the given placement is itself inappropriate. Id. As a practical matter, trial courts know the feasibility of alternative placements in particular counties or communities. Id. at 343. For example, a court is aware of the availability, costs, and entrance requirements of community corrections placements in a specific locale. Id. at 343-44.
Id. at 267-68 (emphasis in original).
In challenging the appropriateness of his sentence, House appears to argue that home
detention was a more appropriate placement than the DOC. However, as is stated in King,
the question presented on appeal is not whether another placement would be more
6 appropriate but, rather, whether the sentence imposed is inappropriate. Id. at 268. Thus, our
review on appeal is limited to whether House’s thirty-six-month sentence, thirty months of
which was ordered to be executed in the DOC, is inappropriate in light of the nature of
House’s offenses and his character.
With respect to the nature of House’s offenses, the record reflects that the instant
matter marks the fifth time that House has been convicted of OWI. House acknowledges that
he was intoxicated when he operated his vehicle on June 17, 2013, but admitted that he does
not remember “the full extent” of the details because of “how intoxicated” he was. Tr. p. 35.
Notwithstanding House’s inability to remember all of the details, House subsequently
acknowledged and the record demonstrates that he struck numerous poles while trying to
maneuver his vehicle through a gas station parking lot and, after he attempted to drive down
the wrong side of a street, a nearby civilian reached into his vehicle and removed his keys
from the vehicle so that he would not drive any further.
With respect to House’s character, the record demonstrates that House has shown an
ongoing disregard for the laws of this State. House was under court supervision at the time
he committed the underlying offenses. His criminal history includes numerous prior felony
convictions, misdemeanor convictions, and probation violations. The majority of House’s
prior convictions stem from his long-standing and continued alcohol abuse. Again, the
instant matter marks the fifth time that House has been convicted of OWI. House’s criminal
record also includes numerous convictions for public intoxication. In addition to his
numerous alcohol-related convictions, House’s criminal history includes prior convictions for
7 possession of marijuana, resisting law enforcement, battery, intimidation, and domestic
battery. The record indicates also that House has failed to reform his criminal behavior
despite routine leniency from the trial court. Furthermore, House has, on at least two
separate occasions, sought treatment for his issues with alcohol. These prior attempts at
treatment have been unsuccessful, however, as House has continued to abuse alcohol and to
commit alcohol-related crimes after being released from said treatment. House has failed to
prove that the trial court’s order requiring that he serve thirty months of his thirty-six month
sentence in the DOC is inappropriate.
CONCLUSION
The trial court did not abuse its discretion in sentencing House. In addition, House
has failed to prove that his thirty-six-month sentence, thirty months of which were ordered to
be served in the DOC, is inappropriate in light of the nature of his actions and his character.
The judgment of the trial court is affirmed.
BARNES, J., and BROWN, J., concur.