Eric Farrell v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: April 20, 2016
• Docket: 79A04-1508-CR-1290
• Status: Published

Opinion

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Apr 20 2016, 9:20 am

regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Earl McCoy Gregory F. Zoeller Lafayette, Indiana Attorney General of Indiana

Paula J. Beller Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Eric Farrell, April 20, 2016 Appellant-Defendant, Court of Appeals Case No. 79A04-1508-CR-1290 v. Appeal from the Tippecanoe Superior Court State of Indiana, The Honorable Randy J. Williams, Appellee-Plaintiff. Judge Trial Court Cause No. 79D01-1410-FC-34

Altice, Judge.

Case Summary

Court of Appeals of Indiana | Memorandum Decision 79A04-1508-CR-1290 | April 20, 2016 Page 1 of 12 [1] Eric Farrell pled guilty to two counts of Home Improvement Fraud as Class C

felonies and four counts of Home Improvement Fraud as Class D felonies. The

trial court sentenced Farrell to an aggregate sentence of twenty-two years, with

fifteen years to be served in the Department of Correction, three years to be

served in community corrections, and four years suspended to supervised and

unsupervised probation. The trial court also ordered Farrell to pay restitution

in the amount of $53,211.32. On appeal, Farrell challenges his sentence.

Facts & Procedural History

[2] Farrell worked as a home improvement contractor from 2009 through 2014.

During this time period, Farrell entered into home improvement contracts with

several senior citizens who ranged in age from sixty-eight to ninety-two years

old. The specific facts giving rise to the charges follow. 1

[3] In October 2010, Robert White contacted Farrell to inquire about constructing

a porch for his eighty-nine-year-old mother, Josephine White, who suffers from

dementia. Farrell’s initial cost estimate for the project, which was not in

writing, was between $7,000 and $9,000. Despite Robert’s request that Farrell

deal only with him regarding the project, Farrell approached Josephine and

requested $2,000 for materials to start the job, which she paid. Half way

through the project, Farrell again approached Josephine and requested payment

1 We have compiled the facts underlying each offense from the probable cause affidavit, guilty plea hearing, and evidence submitted as part of the pre-sentence investigation report.

Court of Appeals of Indiana | Memorandum Decision 79A04-1508-CR-1290 | April 20, 2016 Page 2 of 12 of $5,000, and Josephine again complied. Before the project was completed,

Farrell presented to Josephine a bill for $11,317.15, which she paid. A final

inspection of the project by an inspector for the City of Lafayette found a code

violation with the steps leading to the porch. Robert spent $400 to correct the

violation.

[4] On September 25, 2013, Ralph Smith (Smith), an eighty-one-year-old retired

minister, was returning home from his wife’s funeral when he was approached

in his driveway by Farrell. Farrell indicated that when he was younger, he had

been a Sunday school student of Smith’s wife and that she had meant a lot to

him. Farrell suggested to Smith that he might want to consider painting the

exterior of his home in case he decided to sell it in the near future. Smith

requested an estimate, but Farrell insisted that Smith not worry about it because

he would charge a fair price. Smith also requested a firm bid proposal and

references from past customers; however, the following Monday, Farrell

showed up with another worker and started painting Smith’s house.

[5] Smith started having serious doubts about Farrell after he discovered that most

of Farrell’s claims were lies. Smith learned that Farrell had no actual business

location as he had claimed and that, given his age, Farrell could not have been

in his wife’s Sunday-school class. Smith told Farrell he wanted him to stop the

work he was doing and that he would pay him for what he had completed.

Farrell presented Smith with a bill for $6,273.82. Smith objected to the amount,

and Farrell told him it was his fault because he stopped the work before the

Court of Appeals of Indiana | Memorandum Decision 79A04-1508-CR-1290 | April 20, 2016 Page 3 of 12 project was finished. According to research he had done, Smith believed that

$2,000 was a generous amount for work similar to what Farrell had completed.

[6] In March 2014, Ralph Hansen (Hansen), who was then ninety-two years old,

met Farrell at a Walmart while Hansen was looking for fertilizer. Farrell struck

up a conversation and offered to do work for Hansen. Farrell then contracted

with Hansen to do landscaping work around Hansen’s home without disclosing

how much it would cost. Farrell told Hansen that he would pay when the work

was done. While Farrell was at Hansen’s home doing the landscaping work, he

also repaired a leak stain on the ceiling of Hansen’s home. Hansen’s

checkbook, which showed his checking account had a balance of $10,247, was

located in a desk drawer in that room. Once the work was completed, Farrell

presented Hansen with a bill for $10,247 for the work he had performed.

Hansen questioned the amount, and Farrell agreed to reduce the bill to $10,000.

[7] In November 2012, Farrell contracted with sixty-eight-year-old Ronald Getz to

remodel Getz’s garage into sleeping quarters. Farrell told Getz that the project

would cost around $10,000 and that he would need half of that amount as a

down payment. On November 30, 2012, Getz withdrew $6,000 from his bank

and met Farrell in a parking lot. Getz informed Farrell that he had spoken with

his wife and that they had decided not to go through with the remodeling

project. Getz offered to pay Farrell $200 for his time. Farrell, however, told

Getz that he had already purchased several thousand dollars in materials and

that he needed money to cover his costs. Farrell took $5,500 from Getz and

told Getz the money would be refunded to Getz by a check from Henry Poor

Court of Appeals of Indiana | Memorandum Decision 79A04-1508-CR-1290 | April 20, 2016 Page 4 of 12 Lumber. Getz, who remained confused about the transaction, tried to contact

Farrell at the number Farrell had provided and found that the number had been

disconnected. Getz never received any materials or labor or a refund.

[8] In late 2011, eighty-eight-year-old James Sattler became friends with Farrell.

Sattler tried to help Farrell by having him do a few jobs around the house.

Sattler also loaned Farrell $5,300 for surgery. In the spring of 2012, Sattler paid

Farrell $1,676 for a carpet job and additional money for painting his bathroom.

Farrell also talked Sattler into paying him another $6,379 for chimney work on

Sattler’s home that Sattler did not ask him to do or even think needed to be

done.

[9] In November 2009, James and Barbara Hess, who at the time were seventy-

three and sixty-eight years of age, respectively, invited Farrell to come to their

home in order to give them an estimate for reinforcing the front steps and

foundation of their home. Farrell informed them that he would need to do

additional work to the residence beyond their initial request. Between

November 20, 2009 and December 4, 2009, James gave Farrell three checks

totaling $33,346.72, for which he never received any receipts or other

documentation. After the last payment, Farrell told James not to speak to

Farrell’s employees about how much James paid for the project. On November

24, 2014, the Tippecanoe County Building Commissioner visited the Hess

residence to inspect the work done by Farrell. The Commissioner confirmed

that work had been done where the Hesses indicated Farrell had worked.

Based on his experience, the Commissioner estimated the cost of the work he

Court of Appeals of Indiana | Memorandum Decision 79A04-1508-CR-1290 | April 20, 2016 Page 5 of 12 observed to be approximately $5,000 to $7,000 and opined that $10,000 would

have been an “overly excessive amount.” Appellant’s Appendix at 22.

[10] Farrell was charged with numerous counts of home improvement fraud and

theft. The incident with Josephine White formed the basis of Count I, which

was enhanced to a Class C felony because the contract price was over $10,000

and Josephine was over the age of sixty.2 The incidents involving Ralph Smith,

Ralph Hansen, Ronald Getz, and James Sattler formed the basis of Counts II,

III, IV, and V, respectively, which were all enhanced to Class D felonies

because each victim was over sixty years of age. The incident with the Hesses

formed the basis of Count VII, which was enhanced to a Class C felony because

the contract price was more than $10,000 and the Hesses were over the age of

sixty. On May 18, 2015, Farrell pled guilty as charged to six counts of home

improvement fraud without the benefit of a plea agreement.3

[11] The trial court held a sentencing hearing on June 19, 2015. The trial court

reviewed the pre-sentence investigation report and letters submitted by the

victims. The trial court also considered Farrell’s statement during the

sentencing hearing and arguments of counsel. The trial court then sentenced

2 See Ind. Code § 35-43-6-12 (defining crime of home improvement fraud); I.C. § 35-43-6-13 (setting forth enhancements to crime of home improvement fraud given various factors). 3 There were also two theft charges, Counts VI (naming Getz as the victim) and VIII (naming the Hesses as the victims), that the trial court merged with the home improvement fraud counts involving the same victims.

Court of Appeals of Indiana | Memorandum Decision 79A04-1508-CR-1290 | April 20, 2016 Page 6 of 12 Farrell to six years on Counts I and VII (Class C felonies) 4 and two and one-half

years on each of Counts II through V (Class D felonies)5 and ordered all terms

be served consecutively for an aggregate sentence of twenty-two years. The

court further ordered that fifteen years be served in the Department of

Correction, three years be served in community corrections, and four years be

suspended to supervised and unsupervised probation. The trial court also

ordered Farrell to pay restitution in the amount of $53,211.32. This court

granted Farrell’s request to file a belated notice of appeal.

Discussion & Decision

[12] Farrell’s argument challenges the sentence imposed in two respects. Farrell

claims that the trial court did not adequately appreciate or weigh alleged

mitigating factors he advanced for consideration. He also argues that his

sentence is inappropriate.

[13] Sentencing decisions rest within the sound discretion of the trial court and are

reviewed on appeal for an abuse of discretion. Anglemyer v. State, 868 N.E.2d

482, 490 (Ind. 2007), clarified 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

4 Ind. Code § 35-50-2-6 (“[a] person who commits a Class C felony shall be imprisoned for a fixed term of between two (2) and eight (8) years, with the advisory sentence being four (4) years”). 5 I.C. § 35-50-2-7 (“[a] person who commits a Class D felony shall be imprisoned for a fixed term of between six (6) months and three (3) years, with the advisory sentence being one and one-half (1 ½ ) years”).

Court of Appeals of Indiana | Memorandum Decision 79A04-1508-CR-1290 | April 20, 2016 Page 7 of 12 deductions to be drawn therefrom. Id. at 490-91. A trial court may be found to

have abused its discretion by (1) failing to enter a sentencing statement; (2)

entering a sentencing statement that includes reasons not supported by the

record; (3) entering a sentencing statement that omits reasons clearly supported

by the record and advanced for consideration; or (4) entering a sentencing

statement that includes reasons that are improper as a matter of law. Id. at 490-

91. Because a court may impose any sentence authorized by statute “regardless

of the presence or absence of aggravating circumstances or mitigating

circumstances,” a trial court is no longer obligated to weigh aggravating and

mitigating factors against each other when imposing a sentence. See Richardson

v. State, 906 N.E.2d 241, 243 (Ind. Ct. App. 2009) (citing Anglemyer, 868 N.E.2d

at 490-91).

[14] Farrell argues that the trial court abused its discretion because it failed to

consider certain mitigating factors. Specifically, Farrell argues that the trial

court did not consider the results of a risk-assessment tool utilized by the

Tippecanoe County probation department that indicated he was a low risk to

re-offend. Although the parameters of the assessment characterize Farrell as

being a low risk to reoffend, the trial court was not required to afford such

significant mitigating weight, especially in light of the fact that Farrell had

conducted a five-year string of repeated felonies where he swindled senior

Court of Appeals of Indiana | Memorandum Decision 79A04-1508-CR-1290 | April 20, 2016 Page 8 of 12 citizens. We cannot say that the trial court abused its discretion by not finding

this to be a significant mitigating circumstance that warranted a lesser sentence. 6

[15] Farrell also argues that the trial court failed to consider the hardship to his

dependents. A trial court “is not required to find a defendant’s incarceration

would result in undue hardship on his dependents.” Davis v. State, 835 N.E.2d

1102, 1116 (Ind. Ct. App. 2005), trans. denied. Many people convicted of

serious crimes have one or more dependents. Here, the trial court

acknowledged that Farrell had an eighteen-year-old daughter. Farrell advanced

during sentencing that he had voluntarily taken on fatherly responsibility for

children who are not his. Farrell did not identify any undue hardship outside of

that which necessarily follows separation from family due to incarceration.

Farrell did not establish this factor to be a significant mitigating circumstance.

[16] Finally, Farrell argues that the trial court abused its discretion by conflating his

expression of remorse with his decision to plead guilty. Farrell advanced for

the court’s consideration that he was remorseful. The court discounted this

assertion, finding that his actions were not consistent with his claimed remorse.

The court noted that while out on bond, Farrell had made no attempt at

restitution. The trial court further noted, “it may be a stretch to suggest that

you truly accepted responsibility for your actions, beyond pleading guilty.”

Transcript at 62. Indeed, contrary to his expression of remorse, he maintained

6 Even given the result of the risk-assessment, the probation department recommended a sentence of twenty- six years, which is four years more than what the trial court imposed.

Court of Appeals of Indiana | Memorandum Decision 79A04-1508-CR-1290 | April 20, 2016 Page 9 of 12 he was sorry “that family members of the customers feel that I over charged

them.” Appellant’s Appendix at 135. We accept the trial court’s determination of

credibility with regard to Farrell’s remorse. We find no abuse of discretion.

[17] In addition to the above arguments, Farrell argues that his sentence is

inappropriate. Despite the fact that the trial court imposed a sentence that is

authorized by statute, we may revise Farrell’s sentence if, “after due

consideration of the trial court’s decision, [we] find that the sentence is

inappropriate in light of the nature of the offense and the character of the

offender.” Ind. Appellate Rule 7(B). Ultimately, “[t]he principal role of

appellate 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). Thus, “whether we regard

a sentence as appropriate . . . turns on our sense of 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. In making this

determination, the relevant considerations are the length of the aggregate

sentence and how it is to be served. Id. Farrell bears the burden of persuading

our court that his sentence is inappropriate. Conley v. State, 972 N.E.2d 864,

876 (Ind. 2012).

[18] With regard to the nature of the offenses, the facts giving rise thereto

demonstrate that Farrell deliberately preyed on senior citizens. This was not a

case of poor business judgment. Farrell’s business practice was to defraud

Court of Appeals of Indiana | Memorandum Decision 79A04-1508-CR-1290 | April 20, 2016 Page 10 of 12 customers. Depending on the victim, Farrell adjusted his methods and took

advantage of their vulnerabilities—their kindness and trustworthiness,

diminished mental state, physical burdens, or raw emotional state. Farrell

preyed upon Josephine White, who suffered from dementia, by intentionally

circumventing her son, his point of contact. Farrell was also willing to lie to

gain favor with a grieving widower by telling him that his recently deceased

wife had been his Sunday school teacher.

[19] Further, in addition to the financial impact, Farrell’s victims, each senior

citizens, were hurt in intangible ways such as causing them to be fearful, to be

self-doubting, to suffer both emotional and physical stress, and to experience

feelings of shame and embarrassment. The Hesses informed the court that they

are stressed about their financial future because of the money Farrell took from

them, which was nearly $20,000 more than the threshold for a Class C felony.

Ralph Hansen submitted a letter to the court in which he stated that he has

become fearful and that he doubts himself more than ever.

[20] As noted by the trial court, “the harm, injury, loss or damage suffered by the

victims, plural, was significant and greater than the elements necessary to prove

the commission of the offense.” Transcript at 64. The court’s statement is a

summary of the evidence that many of the victims were well over sixty years of

age and some of the amounts charged were outrageously excessive.

[21] With regard to the character of the offender, we note that Farrell has previously

been involved with the criminal justice system. After receiving a juvenile

Court of Appeals of Indiana | Memorandum Decision 79A04-1508-CR-1290 | April 20, 2016 Page 11 of 12 adjudication for theft in 1991, Farrell began his adult criminal history in 1996

when he was nineteen years old and was convicted of misdemeanor

contributing to the delinquency of a minor. Later that same year, Farrell was

convicted of operating a vehicle without a license, a misdemeanor. In 1997,

when Farrell was twenty-one years old, he was sentenced to ten years (with six

years executed and four years suspended to probation) for conspiracy to

commit burglary. Since that time, Farrell has accumulated a record of arrests,

but each time charges were ultimately dismissed. Farrell was thirty-three years

old when he began defrauding senior citizens under the guise of home

improvement.

[22] The trial court sentenced Farrell to an aggregate sentence of twenty-two years,

which was four years less than what was requested by the State and

recommended by the probation department. For each conviction, the trial

court sentenced Farrell to a term between the advisory and maximum sentence

permitted by statute, and then the court ordered each sentence served

consecutively to account for the individual victims. Farrell has not met his

burden that, given the nature of the offense and character of the offender, a

revision of his sentence is warranted. Accordingly, we conclude that Farrell’s

sentence is not inappropriate.

[23] Judgment affirmed.

[24] Bailey, J. and Bradford, J., concur.

Court of Appeals of Indiana | Memorandum Decision 79A04-1508-CR-1290 | April 20, 2016 Page 12 of 12