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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.

FILED
Apr 29 2009, 9:07 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEY FOR APPELLANT: DAVID A. HAPPE Lockwood Williams & Happe Anderson, Indiana

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana ANGELA N. SANCHEZ Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
BRADY FROST, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 49A02-0810-CR-930

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Clark Rogers, Judge Cause No. 49G16-0806-FD-144820

April 29, 2009

MEMORANDUM DECISION - NOT FOR PUBLICATION

CRONE, Judge

Case Summary Brady Frost appeals his aggregate five-year sentence for class D felony confinement, class A misdemeanor battery, and habitual offender determination. We affirm. Issues
I.

Did the trial court abuse its discretion by failing to find certain mitigating circumstances? Is Frost's sentence inappropriate in light of the nature of his offenses and his character? Facts and Procedural History

II.

On June 10, 2008, Frost and his girlfriend, Beth Adams, began to argue while in a room at the Knights Inn in Indianapolis. Frost blocked the room's exit with a table, a chair, and his body. He threw Adams on the bed, choked her, and repeatedly threatened her life. Adams broke free and ran from the room, but Frost caught her, choked her, and told her that she was "going to die." Presentence Investigation Report ("PSI") at 14. Adams escaped and called police from the hotel office. On June 16, 2008, the State charged Frost with class D felony strangulation, class D felony confinement, and class A misdemeanor battery. On August 20, 2008, the State added a habitual offender allegation. On September 12, 2008, Frost filed a written plea agreement with the trial court. Pursuant to the agreement, Frost agreed to plead guilty to all but the strangulation charge, which the State agreed to drop. Also on that date, the trial court accepted Frost's plea and held a sentencing hearing. The trial court sentenced Frost to concurrent terms of one-and-one-half years for confinement and one year for battery. The

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court also ordered Frost to serve a consecutive term of three-and-one-half years for the habitual offender enhancement, with one year suspended to probation. The result was an aggregate sentence of five years, with one year suspended. Frost now appeals. Discussion and Decision I. Mitigating Circumstances Frost contends that the trial court erred by failing to find certain mitigating circumstances. So long as a sentence is within the applicable statutory range, it is subject to review only for an abuse of discretion.1 Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh'g, 875 N.E.2d 218. An abuse of discretion occurs if the decision is clearly against the logic and effect of the facts and circumstances before the court. Id. If the trial court does not find the existence of a mitigating factor after it has been argued, the trial court is not obligated to explain why it has found that the factor does not exist. Id. at 493. However, the trial court may abuse its discretion if its sentencing statement omits a mitigating circumstance that is clearly supported by the record and advanced for consideration. Id. at 490-91. First, Frost argues that the trial court failed to find the mitigating circumstance of undue hardship. Frost testified that he has two children and that he paid support and exercised frequent parenting time before he was incarcerated. "[M]any persons convicted of

The trial court sentenced Frost to terms within the applicable statutory ranges, which are, for a class D felony, six months to three years, with an advisory sentence of one-and-one-half years, and for a class A misdemeanor, not more than one year. See Ind. Code

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