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 : TIMOTHY S. LANANE GREGORY F. ZOELLER Anderson, Indiana Attorney General o f 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

MEMORAN DUM DECISION
- NOT FOR PUBLICATION
BRADFORD, Judge2 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 vehicl e in question. H ous e 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 con viction, 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
t hat House ’s sentence is not inappropriate , we affirm.

FACTS AND PROCEDURAL HISTORY The factual basis entered during the December 3 , 201 3 guilty plea hearing provides
t hat o n or about June 17, 2013, H ouse operate d a vehicle while intoxicated in a manner tha t 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 hi s 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 A3

misdemeanor driving while suspended. House subsequently entered into a plea agreement by which he agreed to plead guilty to Cla ss 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 of fender. On January 27, 2014, t he 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
D epartment of C o rrection (“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 , 86 8 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, proba ble, 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 sentencing4

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 r easons 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 requ ired 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 w ere 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 a utistic 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 caring5

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 hi s family, this financial hardship is likely one that hi s family ha s ha d to find a way to minimize and overcome d uring his incarceration relat ing 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 no t 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 a lleged hardship on House’s family, w e 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 2014.6

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, 8 25 (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 appli cation 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 inappr opriate. 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. I

d . 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 se ntence, 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 more7

appropriate but , rather , whether the sentence imposed i s 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 ch aracter. 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, bu t admitted that he does

n o t 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 str uck 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 hi s vehicle and removed hi s keys from the vehicle so that h e would no t 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. Hi s criminal hi story includes numerous prior felony convictions, misdemeanor convictions, and probation violations. The majority of House’s prior convictions stem from hi s long

- standing and continued alcohol abuse. Again, t he instant matter marks the fifth time that H ouse has been convicted of OWI

. H ouse’ 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 for8

possession of marijuana, resisting law enforcement, battery, intimidation, and domestic battery. The record indicates also that House has f ailed to reform his criminal behavior despite routine leniency from the trial court. Furthermore, House has, on at least two separate occasi ons, sought treatment for his issues with alcohol. These prior attempts at treatment have been unsuccessful, h owever, as House has continued to abuse alcohol and to commit alcohol

- related crimes after being release d 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 pr ove 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.