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
