Brandon J. Hunt v. State of Indiana (mem. dec.) ( 2020 )

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.
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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
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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
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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).
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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
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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
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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.
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