MEMORANDUM DECISION Jul 08 2015, 10:35 am 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.
ATTORNEYS FOR APPELLANT Andrea L. Ciobanu Alex Beeman Ciobanu Law. P.C. Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Anthony Furlani, July 8, 2015
Appellant-Defendant, Court of Appeals Cause No. 49A02-1412-CR-830 v. Appeal from the Marion Superior Court Cause No. 49G02-1306-FA-38039 State of Indiana, Appellee-Plaintiff. The Honorable David Earl Cook, Judge Pro Tem
Barnes, Judge.
Case Summary Anthony Furlani appeals his sentence for four counts of child molestation as Class A felonies and three counts of child molestation as Class C felonies. We affirm.
Issues Furlani raises two issues on appeal, which we restate as: Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CR-830| July 8, 2015 Page 1 of 8 I. whether the trial court abused its discretion in sentencing; and
II. whether his sentence is inappropriate.
Facts [1] Furlani and Toni Turk began dating in December 2007. The victim, Turk’s
daughter B.M., became acquainted with Furlani through her mother. During
his relationship with Turk, Furlani acted as a father to B.M. Furlani also had
two biological children with B.M.’s mother. When B.M. was in the third grade,
the family moved into a mobile home in Indianapolis, Indiana. Before moving,
B.M. lived in her grandmother’s house along with her two siblings, her mother,
and Furlani. Often while B.M.’s mother was at work, Furlani babysat all three
children. Furlani was frequently left alone with B.M. for long periods of time
while her mother worked or ran errands.
[2] In December of 2012, Turk and Furlani ended their relationship. After the
relationship ended, Furlani’s two biological children went to visit him on
various occasions. However, B.M. resisted the idea of visiting Furlani. One
weekend before she was expected to visit him, B.M. met with an individual
from the Department of Child Services and disclosed that Furlani had molested
her on several occasions.
[3] On June 12, 2013, Furlani was charged with four counts of child molestation as
Class A felonies and three counts of child molestation as Class C felonies.
After a jury trial, Furlani was convicted and sentenced to an aggregate sentence
Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CR-830| July 8, 2015 Page 2 of 8 of thirty-five years. All sentences were ordered to run concurrently. Furlani
now appeals.
Analysis [4] We note that no appellee’s brief was filed by the State in this matter. It is not
necessary for us to undertake the burden of developing an argument on behalf
of the State when it not has filed an answer brief. See Fifth Third Bank v. PNC
Bank, 885 N.E.2d 52, 54 (Ind. Ct. App. 2008). If the appellant’s brief shows a
case of prima facie error, we may reverse the trial court’s judgment. Id. In this
context prima facie error means at first sight, on first appearance, or on the face
of it. Id. But when an appellant is unable to meet this burden, we will affirm.
Id.
[5] We engage in a four-step process when evaluating a sentence under the current
“advisory” sentencing scheme. Anglemyer v. State, 868 N.E.2d 482, 491 (Ind.
2007). First, the trial court must issue a sentencing statement that includes
“reasonably detailed reasons or circumstances for imposing a particular
sentence.” Id. Second, the reasons or omission of reasons given for choosing a
sentence are reviewable on appeal for an abuse of discretion. Id. Third, the
weight given to those reasons, i.e. to particular aggravators or mitigators, is not
subject to appellate review. Id. Fourth, the merits of a particular sentence are
reviewable on appeal for appropriateness under Indiana Appellate Rule 7(B).
Id. Even if a trial court abuses its discretion by not issuing a reasonably detailed
sentencing statement or in its findings or non-findings of aggravators and
Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CR-830| July 8, 2015 Page 3 of 8 mitigators, we may choose to review the appropriateness of a sentence under
Rule 7(B) instead of remanding to the trial court. See Windhorst v. State, 868
N.E.2d 504, 507 (Ind. 2007).
I. Abuse of Discretion
[6] Furlani asserts that the trial court abused its discretion in identifying
aggravating circumstances and failing to identify certain claimed mitigating
circumstances. An abuse of discretion in identifying or not identifying
aggravators and mitigators occurs if it 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.’” Anglemyer, 868 N.E.2d at 490
(quoting K.S. v. State, 849 N.E.2d 538, 544 (Ind. 2006)). Additionally, an abuse
of discretion occurs if the record does not support the reasons given for
imposing sentence, 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. Id. at 490-91.
[7] Here, Furlani contends that the trial court abused its discretion in not finding
his imprisonment to be a hardship on the employees of his company as a
mitigating circumstance. Dependents are typically regarded as individuals with
familial ties such as spouses, parents, and children. Our court has recognized
that incarceration may place undue hardships on a defendant’s dependents as a
mitigating circumstance. Padgett v. State, 875 N.E.2d 310, 317 (Ind. Ct. App.
2007), trans. denied. However, regardless of the significance given to this
mitigating circumstance, the court relies on “the hardship his incarceration Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CR-830| July 8, 2015 Page 4 of 8 creates for his family.” Id. The court specifically focuses on family members
that will be directly impacted by the defendant’s incarceration. Although it is
true that Furlani operates a small trucking business that employs approximately
fifteen employees and he contends that his employees financially rely on him,
Furlani cites no authority indicating that employees of a defendant’s business
may be treated as “dependents” for sentencing purposes.
[8] Furthermore, we have held that a trial court is not required to find a defendant’s
incarceration as an undue hardship on dependents. Allen v. State, 743 N.E.2d
1222, 1237 (Ind. Ct. App. 2001), trans. denied. We note that, even if Furlani
received the minimum possible sentence of twenty years, it would necessarily
cause his business to suffer. The difference here in the two sentences can
‘“hardly be argued to impose much, if any, additional hardship . . . .’” Abel v.
State, 773 N.E.2d 276, 280 (Ind. 2002) (quoting Battles v. State, 688 N.E.2d
1230, 1237 (Ind. 1997)). Regardless of the sentence imposed, the same
Free access — add to your briefcase to read the full text and ask questions with AI
MEMORANDUM DECISION Jul 08 2015, 10:35 am 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.
ATTORNEYS FOR APPELLANT Andrea L. Ciobanu Alex Beeman Ciobanu Law. P.C. Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Anthony Furlani, July 8, 2015
Appellant-Defendant, Court of Appeals Cause No. 49A02-1412-CR-830 v. Appeal from the Marion Superior Court Cause No. 49G02-1306-FA-38039 State of Indiana, Appellee-Plaintiff. The Honorable David Earl Cook, Judge Pro Tem
Barnes, Judge.
Case Summary Anthony Furlani appeals his sentence for four counts of child molestation as Class A felonies and three counts of child molestation as Class C felonies. We affirm.
Issues Furlani raises two issues on appeal, which we restate as: Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CR-830| July 8, 2015 Page 1 of 8 I. whether the trial court abused its discretion in sentencing; and
II. whether his sentence is inappropriate.
Facts [1] Furlani and Toni Turk began dating in December 2007. The victim, Turk’s
daughter B.M., became acquainted with Furlani through her mother. During
his relationship with Turk, Furlani acted as a father to B.M. Furlani also had
two biological children with B.M.’s mother. When B.M. was in the third grade,
the family moved into a mobile home in Indianapolis, Indiana. Before moving,
B.M. lived in her grandmother’s house along with her two siblings, her mother,
and Furlani. Often while B.M.’s mother was at work, Furlani babysat all three
children. Furlani was frequently left alone with B.M. for long periods of time
while her mother worked or ran errands.
[2] In December of 2012, Turk and Furlani ended their relationship. After the
relationship ended, Furlani’s two biological children went to visit him on
various occasions. However, B.M. resisted the idea of visiting Furlani. One
weekend before she was expected to visit him, B.M. met with an individual
from the Department of Child Services and disclosed that Furlani had molested
her on several occasions.
[3] On June 12, 2013, Furlani was charged with four counts of child molestation as
Class A felonies and three counts of child molestation as Class C felonies.
After a jury trial, Furlani was convicted and sentenced to an aggregate sentence
Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CR-830| July 8, 2015 Page 2 of 8 of thirty-five years. All sentences were ordered to run concurrently. Furlani
now appeals.
Analysis [4] We note that no appellee’s brief was filed by the State in this matter. It is not
necessary for us to undertake the burden of developing an argument on behalf
of the State when it not has filed an answer brief. See Fifth Third Bank v. PNC
Bank, 885 N.E.2d 52, 54 (Ind. Ct. App. 2008). If the appellant’s brief shows a
case of prima facie error, we may reverse the trial court’s judgment. Id. In this
context prima facie error means at first sight, on first appearance, or on the face
of it. Id. But when an appellant is unable to meet this burden, we will affirm.
Id.
[5] We engage in a four-step process when evaluating a sentence under the current
“advisory” sentencing scheme. Anglemyer v. State, 868 N.E.2d 482, 491 (Ind.
2007). First, the trial court must issue a sentencing statement that includes
“reasonably detailed reasons or circumstances for imposing a particular
sentence.” Id. Second, the reasons or omission of reasons given for choosing a
sentence are reviewable on appeal for an abuse of discretion. Id. Third, the
weight given to those reasons, i.e. to particular aggravators or mitigators, is not
subject to appellate review. Id. Fourth, the merits of a particular sentence are
reviewable on appeal for appropriateness under Indiana Appellate Rule 7(B).
Id. Even if a trial court abuses its discretion by not issuing a reasonably detailed
sentencing statement or in its findings or non-findings of aggravators and
Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CR-830| July 8, 2015 Page 3 of 8 mitigators, we may choose to review the appropriateness of a sentence under
Rule 7(B) instead of remanding to the trial court. See Windhorst v. State, 868
N.E.2d 504, 507 (Ind. 2007).
I. Abuse of Discretion
[6] Furlani asserts that the trial court abused its discretion in identifying
aggravating circumstances and failing to identify certain claimed mitigating
circumstances. An abuse of discretion in identifying or not identifying
aggravators and mitigators occurs if it 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.’” Anglemyer, 868 N.E.2d at 490
(quoting K.S. v. State, 849 N.E.2d 538, 544 (Ind. 2006)). Additionally, an abuse
of discretion occurs if the record does not support the reasons given for
imposing sentence, 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. Id. at 490-91.
[7] Here, Furlani contends that the trial court abused its discretion in not finding
his imprisonment to be a hardship on the employees of his company as a
mitigating circumstance. Dependents are typically regarded as individuals with
familial ties such as spouses, parents, and children. Our court has recognized
that incarceration may place undue hardships on a defendant’s dependents as a
mitigating circumstance. Padgett v. State, 875 N.E.2d 310, 317 (Ind. Ct. App.
2007), trans. denied. However, regardless of the significance given to this
mitigating circumstance, the court relies on “the hardship his incarceration Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CR-830| July 8, 2015 Page 4 of 8 creates for his family.” Id. The court specifically focuses on family members
that will be directly impacted by the defendant’s incarceration. Although it is
true that Furlani operates a small trucking business that employs approximately
fifteen employees and he contends that his employees financially rely on him,
Furlani cites no authority indicating that employees of a defendant’s business
may be treated as “dependents” for sentencing purposes.
[8] Furthermore, we have held that a trial court is not required to find a defendant’s
incarceration as an undue hardship on dependents. Allen v. State, 743 N.E.2d
1222, 1237 (Ind. Ct. App. 2001), trans. denied. We note that, even if Furlani
received the minimum possible sentence of twenty years, it would necessarily
cause his business to suffer. The difference here in the two sentences can
‘“hardly be argued to impose much, if any, additional hardship . . . .’” Abel v.
State, 773 N.E.2d 276, 280 (Ind. 2002) (quoting Battles v. State, 688 N.E.2d
1230, 1237 (Ind. 1997)). Regardless of the sentence imposed, the same
hardship is unavoidable.
[9] Furlani argues that the trial court should have found the mitigating
circumstance of being unlikely to offend. He also argues that the trial court
should not have relied on psychological harm to B.M. as an aggravating
circumstance. Even if we were to agree that there was an abuse of discretion as
to these factors, we still find the sentence to be appropriate, as we discuss
below.
Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CR-830| July 8, 2015 Page 5 of 8 II. Appropriateness
[10] We now assess whether Furlani’s sentence is inappropriate under Appellate
Rule 7(B) in light of his character and the nature of the offense. See Anglemyer,
868 N.E.2d at 491. Although Rule 7(B) does not require us to be “extremely”
deferential to a trial court’s sentencing decision, we still must give due
consideration to that decision. Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct.
App. 2007). We also understand and recognize the unique perspective a trial
court brings to its sentencing decisions. Id. “Additionally, a defendant bears
the burden of persuading the appellate court that his or her sentence is
inappropriate.” Id.
[11] The principal role of Rule 7(B) review “should be to attempt to leaven the
outliers, and identify some guiding principles for trial courts and those charged
with improvement of the sentencing statutes, but not to achieve a perceived
‘correct’ result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.
2008). We “should focus on the forest—the aggregate sentence—rather than
the trees—consecutive or concurrent, number of counts, or length of the
sentence on any individual count.” Id. Whether a sentence is inappropriate
ultimately turns on the culpability of the defendant, the severity of the crime,
the damage done to others, and myriad other factors that come to light in a
given case. Id. at 1224. When reviewing the appropriateness of a sentence
under Rule 7(B), we may consider all aspects of the penal consequences
imposed by the trial court in sentencing the defendant, including whether a
Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CR-830| July 8, 2015 Page 6 of 8 portion of the sentence was suspended. Davidson v. State, 926 N.E.2d 1023,
1025 (Ind. 2010).
[12] We acknowledge positive character traits such as that Furlani has no significant
criminal history, that he was running a small, yet successful trucking company,
and that he was statistically regarded as at low risk to reoffend. We also take
into account the four witnesses that testified along with the numerous letters
received on his behalf. Furlani argues that based on the success of his business,
the testimony of his family and friends about his character and the nonexistence
of an adult criminal record, his sentence is inappropriate. But given the nature
of the offenses committed, we disagree.
[13] In regard to the nature of the offenses, it is important to consider that these
repeated acts of sexual molestation were not one isolated mistake or incident.
This cycle of abuse occurred roughly over two years with at least seven different
instances of molestation. Furlani spent years victimizing and manipulating a
young child. It is evident based on the frequent accounts of molestation against
the victim that Furlani did not simply commit a one-time grievous error.
[14] Furthermore, along with the significance of the repeated sexual crimes
committed by Furlani, he was also in a particular position of trust with the
victim as a father figure. We have held that a “position of trust” alone
constitutes a valid basis for courts to increase a sentence. Edrington v. State, 909
N.E.2d 1093, 1097 (Ind. Ct. App. 2009), trans. denied. Not only was the victim
being raised in a household around Furlani as her mother’s live-in boyfriend,
Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CR-830| July 8, 2015 Page 7 of 8 but the victim’s siblings were Furlani’s biological children. The victim naturally
developed a parental relationship with Furlani whom she referred to as “dad”
until the termination of his romantic relationship with her mother. Tr. p. 128.
The victim and Furlani appeared to have a natural bond through which the two
“just clicked together.” Id. Because Furlani assumed the role of father in the
victim’s life, he was frequently left alone to care for her. These offenses took
place during these times of isolation with the victim. These circumstances
warrant Furlani serving a total thirty-five-year sentence.
[15] Furlani repeatedly molested a young girl who trusted him to protect her as a
parent would and should. His sentence was not inappropriate.
Conclusion
[16] Furlani has not established prima facie error that the trial court abused its
discretion in sentencing him or that his sentence is inappropriate. We affirm.
[17] Affirmed.
Riley, J., and Bailey, J., concur.
Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CR-830| July 8, 2015 Page 8 of 8