      MEMORANDUM DECISION

      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                              FILED
      regarded as precedent or cited before any                      Jul 27 2017, 9:11 am
      court except for the purpose of establishing
                                                                         CLERK
      the defense of res judicata, collateral                        Indiana Supreme Court
                                                                        Court of Appeals
      estoppel, or the law of the case.                                   and Tax Court




      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      P. Jeffrey Schlesinger                                   Curtis T. Hill, Jr.
      Office of the Lake County Public                         Attorney General of Indiana
      Defender – Appellate Division
                                                               Lyubov Gore
      Crown Point, Indiana                                     Deputy Attorney General
                                                               Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Jeffery A. Hmurovic, Sr.,                                July 27, 2017
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               45A03-1612-CR-2886
              v.                                               Appeal from the Lake Superior
                                                               Court
      State of Indiana,                                        The Honorable Salvador Vasquez,
      Appellee-Plaintiff.                                      Judge
                                                               Trial Court Cause No.
                                                               45G01-1403-FC-25



      Mathias, Judge.


[1]   Jeffery A. Hmurovic, Sr. (“Hmurovic”), was convicted of Class B felony sexual

      misconduct with a minor and Class C felony incest. In Hmurovic v. State, 43


      Court of Appeals of Indiana | Memorandum Decision 45A03-1612-CR-2886 | July 27, 2017   Page 1 of 15
      N.E.3d 685 (Ind. Ct. App. 2015), we reversed the Class B felony conviction and

      remanded for resentencing on the Class C felony conviction. Hmurovic now

      appeals his new sentence.


[2]   We affirm.


                                 Facts and Procedural Posture
[3]   In Hmurovic’s first appeal, we stated the facts of his case as follows:


              E.H. was born in September 1987 to Jeffery and Donna
              Hmurovic. She is the youngest of three children born to the
              Hmurovics, having two older brothers. E.H. has a learning
              disability and has always lived with her parents. They lived on
              Maple Street in Gary until E.H. was almost eighteen years old.
              Thereafter, except for a brief period of homelessness, the family
              lived on Elkhart Street in [L]ake Station.

              Hmurovic began having sexual intercourse with E.H. while in
              the home on Maple Street. By the time the family was evicted in
              August 2005, the sexual activity between Hmurovic and his
              teenage daughter had been going on for quite some time. E.H.
              “[k]ind of” remembered sexual activity with her dad around the
              age of sixteen. [Tr. Vol. I, p. 92]. . . . The sexual relationship
              continued on a regular basis into E.H.’s adulthood.

              E.H.’s mother died in June 2013, and around this same time,
              E.H. became impregnated by her father. On March 9, 2014, E.H.
              gave birth to a baby girl, with her father alongside during the
              delivery. Hmurovic made a number of curious statements at the
              hospital, which caused the nursing staff concern. Similarly, E.H.
              told hospital staff that she was a virgin, there was no father, and
              the baby was a miracle from her mother.

              The Indiana Department of Child Services [(“DCS”)] began
              investigating the matter on March 10, 2014, and the City of Lake

      Court of Appeals of Indiana | Memorandum Decision 45A03-1612-CR-2886 | July 27, 2017   Page 2 of 15
              Station Police Department became involved shortly thereafter.
              The baby was taken into custody by [DCS], and Hmurovic was
              interviewed by police on March 12.

              During the interrogation, Hmurovic initially denied having any
              sexual contact with his daughter. E.H., however, had told
              investigators otherwise. When confronted with E.H.’s
              statements, Hmurovic eventually admitted the sexual
              relationship, placing much of the blame on his daughter. . . . He
              believed the first incident was sometime after junior high school.
              Hmurovic admitted that over the last nine years or so he had sex
              with his daughter one to two times per week. DNA testing
              confirmed that Hmurovic was the father of E.H.’s baby.

              The State charged Hmurovic with four counts: Count I, class A
              felony child molesting (victim under the age of fourteen); Count
              II, class B felony sexual misconduct with a minor (victim at least
              fourteen but less than sixteen); Count III, class B felony incest
              (victim under the age of sixteen); and Count IV, class C felony
              incest. The jury acquitted Hmurovic of Count I and found him
              guilty of the remaining counts. At the sentencing hearing on
              February 11, 2015, the trial court merged Counts II and III. The
              court entered judgment of conviction on Counts II and IV and
              sentenced Hmurovic to consecutive terms of fifteen and six years,
              respectively, for an aggregate sentence of twenty-one years.


      Hmurovic, 43 N.E.3d at 686-87 (record citation updated).


[4]   Before, during, and after trial, Hmurovic employed various strategies to escape

      conviction. During his March 12, 2014, interrogation, Hmurovic accused his

      daughter, while a developmentally disabled minor, of initiating their sexual

      relationship by “coming onto [him] and putting her mouth on [his] penis.” Tr.

      Vol. II, p. 247 (prosecutor’s characterization). During and after trial, Hmurovic

      instead accused his son of “rap[ing] [his] daughter several times,” Tr. Vol. II, p.

      Court of Appeals of Indiana | Memorandum Decision 45A03-1612-CR-2886 | July 27, 2017   Page 3 of 15
      322, and insisted that Hmurovic’s child by his daughter was in fact his son’s

      child by his daughter. Finally, he claimed that long-standing back pain had

      prevented him from having sex for more than two decades. Id. Neither the jury

      nor the court believed him.


[5]   At Hmurovic’s first sentencing on February 11, 2015, the court found as

      follows:


              You have no criminal history. It’s something that needs to be
              taken into account and that’s certainly to your credit. We have
              two factors, two broad factors that we consider when sentencing
              anybody on a felony charge[:] the nature and circumstances of
              the offense and the character of the offender. . . .

              The fact that a jury found you guilty of this ongoing what I
              would consider manipulation of your child is absolutely amazing
              . . . . I don’t think I’ve ever seen such a high degree of
              manipulation . . . . I really do see you, Mr. Hmurovic, as being a
              highly manipulative person. I think you are dishonest, you are
              manipulative and you manipulated this family and certainly your
              child for a long period of time. . . .

              I see absolutely nothing that works in your favor. . . . I have no
              information here that would suggest to me that you have
              anything redeeming about you here. You say [your back
              problems prevent you from having sex,] but a police officer
              working in your city indicates that you were lifting things and
              working as if anyone else was working without any restrictions
              whatsoever. . . . But yet you come into court saying I can’t do
              this, I can’t do that. That’s manipulation. That’s deception.
              That’s dishonesty. . . .

              I find the nature and circumstances of this offense to be
              absolutely compelling, given the high degree of manipulation and
              quite frankly your dishonesty as well. . . . I find nothing in

      Court of Appeals of Indiana | Memorandum Decision 45A03-1612-CR-2886 | July 27, 2017   Page 4 of 15
              mitigation, nothing that works in your favor. I think that you are
              deserving of a significant sentence given what you’ve done in this
              matter over the course of more than 10 years.


      Tr. Vol. II, pp. 325-29. After sentence was pronounced, Hmurovic had to be

      removed from the courtroom shouting, “My blood will be on all your hands.

      All of them. You are going to wish this didn’t happen. My blood will be on

      your hands.” Tr. Vol. II, p. 329.


[6]   The court’s first judgment order, entered on February 13, 2015, found as

      follows:


              SENTENCING CONSIDERATIONS:

              1. The Court considers the nature and circumstance of the crime(s)
                 committed and the character of the defendant.
              2. The reasons stated on the record, including:

              MITIGATING CIRCUMSTANCES: The Court considers the
              following factors as mitigating circumstances or as favoring
              suspending the sentence and imposing probation:

              The Court finds nothing as to mitigating circumstances.

              AGGRAVATING CIRCUMSTANCES: The Court considers
              the following factors as aggravating circumstances or as favoring
              imposing consecutive terms of imprisonment:

              1. The character of the defendant is dishonest and highly manipulative.
              2. The defendant violated a position of trust, specifically that the victim
                 is the defendant’s daughter who was living with him during the entire
                 period of abuse.
              3. The victim became pregnant. DNA tests show that the defendant is
                 the father to the child.


      Court of Appeals of Indiana | Memorandum Decision 45A03-1612-CR-2886 | July 27, 2017   Page 5 of 15
              4. Evidence presented indicates that the defendant’s abuse of his
                 daughter occurred over a significant period of time, over ten (10
                 years).

      Appellant’s App. Vol. III, pp. 130-31.


[7]   On appeal from that judgment, we reversed Hmurovic’s Class B felony

      conviction as unsupported by sufficient evidence and remanded for

      resentencing:


              On remand, the trial court has the authority to resentence
              Hmurovic on the class C felony conviction for incest. See Sanjari
              v. State, 981 N.E.2d 578, 583 (Ind. Ct. App. 2013) [(“[T]he trial
              court [has] flexibility upon remand . . . to increase sentences for
              individual convictions without giving rise to a presumption of
              vindictive sentencing, so long as the aggregate sentence is no
              longer than originally imposed.”)], trans. denied. This flexibility to
              resentence is in recognition of the fact that “a trial court is likely
              to view individual sentences in a multi-count proceeding as part
              of an overall plan, a plan that can be overthrown if one or more
              of the convictions is reversed or reduced in degree.” Id. Given the
              circumstances of this case, we remand [it] back to the trial court
              to vacate [the Class B felony conviction] and to resentence
              Hmurovic, if the court so chooses, on [the Class C felony
              conviction].


      Id. at 689.


[8]   On remand, the trial court resentenced Hmurovic to a term of seven and one-

      half years executed in the Department of Correction on the Class C felony

      conviction, Appellant’s App. Vol. III, p. 168, an increase of one and one-half

      years over the first sentence for that conviction, see Hmurovic, 43 N.E.3d at 687,


      Court of Appeals of Indiana | Memorandum Decision 45A03-1612-CR-2886 | July 27, 2017   Page 6 of 15
      and of three and one-half years over the four-year advisory sentence for Class C

      felonies, Ind. Code § 35-50-2-6(a), but well below the original twenty-one-year

      aggregate sentence. Hmurovic, 43 N.E.3d at 687. It is from this resentencing that

      Hmurovic now appeals.


[9]   At Hmurovic’s second sentencing on November 16, 2016, Hmurovic continued

      to maintain his innocence and “someone else[’s]” guilt. Tr. Vol. III, p. 9. The

      court was again unmoved:


              We’re here because . . . had you been found guilty of a single
              count of Incest, a Class C felony, there’s no chance at all, there’s
              zero chance at all given the nature and circumstances of the
              events or the character as you present yourself leading up to that
              point that I would have given you simply a six-year term. I think
              your character and the circumstances of this event certainly
              requires a longer term of incarceration. Your character, clearly
              dishonest and manipulative. And although the incest as your
              attorney would argue necessarily suggests a violation of trust, I
              think the repeated acts of violations against your daughter
              compound that and therefore the finding of violation of trust is
              certainly appropriate given the facts of this case and the nature
              and circumstances of the events as they led up to the time you
              were eventually charged and later found guilty. The fact that
              your daughter was impregnated and DNA tests show that you
              are in fact the father of that child is an aggravating factor. The
              significant years of abuse as highlighted by the facts of this case
              and nature and circumstances of the incest is an aggravating
              factor. All these factors lead to a significant aggravated sentence
              and therefore I do believe that having found no mitigating factors
              back then, finding no mitigating factors now, your sentence now
              imposed as an aggravated sentence is seven and a half years in
              Department of Correction.



      Court of Appeals of Indiana | Memorandum Decision 45A03-1612-CR-2886 | July 27, 2017   Page 7 of 15
       Tr. Vol. III, pp. 10-11.


[10]   The court’s second judgment order, entered on November 17, 2016, was nearly

       identical to its first:


               SENTENCING CONSIDERATIONS:

               1. The Court considers the nature and circumstance of the crime(s)
                  committed and the character of the defendant.
               2. The reasons stated on the record, including:

               MITIGATING CIRCUMSTANCES: The Court considers the
               following factors as mitigating circumstances or as favoring
               suspending the sentence and imposing probation:

               The Court finds nothing as to mitigating circumstances.

               AGGRAVATING CIRCUMSTANCES: The Court considers
               the following factors as aggravating circumstances or as favoring
               imposing consecutive terms of imprisonment:

               1. The character of the defendant is dishonest, deceitful and highly
                  manipulative.
               2. The defendant violated a position of trust, specifically that the victim
                  is the defendant’s daughter who was raised by the defendant and
                  living with him during the entire period of abuse.
               3. The victim became pregnant. DNA tests show that the defendant is
                  the father to the child.
               4. Evidence presented indicates that the defendant’s abuse of his
                  daughter occurred over a significant period of time, over ten (10)
                  years.

       Appellant’s App. Vol. III, pp. 168-69.


[11]   This appeal timely followed.



       Court of Appeals of Indiana | Memorandum Decision 45A03-1612-CR-2886 | July 27, 2017   Page 8 of 15
                                      Discussion and Decision
[12]   Hmurovic presents two issues for our review: whether the sentencing court

       abused its discretion by failing to find significant mitigating circumstances

       clearly supported by the record and advanced for consideration, and by

       improperly finding aggravating circumstances not supported by the record; and

       whether Hmurovic’s seven-and-one-half-year sentence is inappropriate.

                   I. The Sentencing Court Did Not Abuse Its Discretion

[13]   We may review a sentence for abuse of the sentencing court’s discretion.

       Anglemyer v. State, 868 N.E.2d 482, 490 (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

       deductions drawn therefrom.” Baumholser v. State, 62 N.E.3d 411, 416 (Ind. Ct.

       App. 2016), trans. denied.


[14]   Claims for “failure to ‘properly weigh’” aggravating and mitigating factors lie

       beyond such review, Anglemyer, 868 N.E.2d at 491, but the court abuses its

       discretion by failing to find “significant” mitigators, id. at 493, that are “clearly

       supported by the record and advanced for consideration[.]” Id. at 491. It was

       Hmurovic’s burden to establish that the mitigating evidence was both

       significant and clearly supported by the record. Id. at 493. The court also abuses

       its discretion by finding aggravating circumstances not supported by the record.

       Id. at 490.




       Court of Appeals of Indiana | Memorandum Decision 45A03-1612-CR-2886 | July 27, 2017   Page 9 of 15
[15]   Remand for resentencing is an appropriate remedy if “we cannot say with

       confidence that the trial court would have imposed the same sentence had it

       properly considered reasons that enjoy support in the record.” Id. at 491.

       However, “the relative weight or value assignable to [mitigators] properly

       found, or [to] those that should have been found, is not subject” to our review.

       Green v. State, 65 N.E.3d 620, 636 (Ind. Ct. App. 2016).


[16]   Here, Hmurovic complains first that the trial court overlooked his lack of prior

       criminal record. This is not so. At Hmurovic’s first sentencing hearing on

       February 11, 2015, the court addressed Hmurovic: “You have no criminal

       history. It’s something that needs to be taken into account and that’s certainly

       to your credit.” Tr. Vol. II, p. 325. In both its judgment orders, the court then

       noted that it had found no factor as would tend to weigh in favor of a less

       severe sentence.


[17]   This determination was not clearly against the logic and effect of the

       circumstances before the court: a decade-long campaign of exploiting a most

       vulnerable person, “criminal behavior . . . which [Hmurovic] engaged in

       regularly and remorselessly[,]”1 Appellee’s Br. at 15, together with record

       evidence of multiple instances of uncharged wrongdoing in connection with this

       exploitation. See id. It is apparent to us that, rather than overlooking




       1
         Beyond his refusal to accept his own guilt in the face of overwhelming evidence of it, Hmurovic went so far
       as to express his regret to investigators that he only had sex with his daughter once or twice a week rather
       than five times a week. Tr. Vol. II, pp. 256-57.

       Court of Appeals of Indiana | Memorandum Decision 45A03-1612-CR-2886 | July 27, 2017            Page 10 of 15
       Hmurovic’s lack of prior criminal record, the trial court determined it was not

       significant and thus would not be a factor influencing the trial court’s decision.

       See Anglemyer, 868 N.E.2d at 493 (same analysis with respect to trial court’s

       acknowledgment of defendant’s mental illness but failure to weigh it in

       mitigation). To the extent that Hmurovic claims his lack of prior record was

       given too little weight, that claim is not available to him on our review here. Id.

       at 493–94.


[18]   Hmurovic next complains that the trial court overlooked his “positive work

       evaluations” earned since his incarceration. Appellant’s Br. at 8. The GEO

       Group, Inc., reported that Hmurovic “has held a dorm detail job for the

       majority of his commitment and has maintained positive work evaluations.”

       Appellant’s App. Vol. IV, p. 166. While The GEO Group, Inc., is no doubt

       pleased by Hmurovic’s effectiveness in his position, it was Hmurovic’s burden

       to show both that the proffered mitigator was significant and that it was clearly

       supported by the record. Specifically, Hmurovic has never made a showing or

       an argument as to what a “positive work evaluation[]” means or implies, id.,

       and what impact such an evaluation should have on his sentence. The trial

       court did not abuse its discretion in concluding that Hmurovic’s proffered

       mitigator was not significant, or that its significance was not clearly supported

       by the record.


[19]   Hmurovic next complains of the trial court’s use of the word “abuse” twice in

       its sentencing statement. Appellant’s App. Vol. III, p. 168. Hmurovic’s

       argument on this point refers to the facts that “abuse” in the Indiana Code often

       Court of Appeals of Indiana | Memorandum Decision 45A03-1612-CR-2886 | July 27, 2017   Page 11 of 15
       refers to child abuse, that the Class C felony conviction was for conduct

       occurring after E.H. had turned eighteen, and that E.H. was able to understand

       the nature of the use immunity she had been granted by the State to the

       satisfaction of the trial judge. Appellant’s Br. at 9. To the extent that

       Hmurovic’s position appears to be that persons over eighteen capable of

       understanding use immunity cannot be abused, sexually or otherwise, we reject

       this position as unsupported by cogent argument. See Ind. Appellate Rule

       46(A)(8)(a). The abusive nature of Hmurovic’s conduct was amply supported

       by the record. In any event, we can say with confidence that the trial court

       would have imposed the same sentence had it chosen a different word to

       characterize Hmurovic’s conduct.


[20]   Hmurovic complains finally of the trial court’s finding that his conduct took

       place over ten years or more. He understands our disposition of his first appeal

       to require a contrary finding. However, Hmurovic has misunderstood our

       disposition of that case and its relevance for this appeal. We reversed his Class

       B felony conviction because the State had not proved beyond a reasonable

       doubt that he had sex with E.H. when she was fourteen or fifteen years old, as

       required by statute. Hmurovic, 43 N.E.3d at 688. However, this did not disturb

       the trial court’s finding that Hmurovic’s conduct lasted for ten years or more.

       E.H. gave birth, and Hmurovic was arrested, in first half of 2014. In August

       2005, “the sexual activity between Hmurovic and his teenage daughter had

       been going on for quite some time.” Id. at 686. Also, “E.H. ‘[k]ind of’

       remembered sexual activity with her dad around the age of sixteen[,]” in 2003


       Court of Appeals of Indiana | Memorandum Decision 45A03-1612-CR-2886 | July 27, 2017   Page 12 of 15
       or 2004. Id. Thus, there was ample basis in the record for the trial court’s

       finding, and no abuse of discretion.


                       II. Hmurovic’s Sentence Was Not Inappropriate

[21]   We have the authority, granted by our constitution and implemented by the

       Appellate Rules, to review and revise a lawfully imposed 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) (implementing Ind. Const. Art. 7, § 6). The

       primary purpose of such review is to “leaven the outliers,” that is, to promote

       consistency and uniformity in sentencing by restraining extraordinarily harsh or

       lenient sentences. Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). We

       examine the full range of penal consequences, id., in light of the offender’s

       culpability, the severity of the crime, the harm done to others, and any other

       relevant facts of the individual case. Id. at 1224.


[22]   Hmurovic bears the heavy burden of persuading us he has been inappropriately

       sentenced. King v. State, 894 N.E.2d 265, 267 (Ind. Ct. App. 2008). Due

       consideration of the trial court’s decision demands “considerable deference” on

       our part, Hines v. State, 30 N.E.3d 1216, 1225 (Ind. 2015), to the trial court’s

       “special expertise” in the fact-intensive sentencing process. Scott v. State, 840

       N.E.2d 376, 381 (Ind. Ct. App. 2006), trans. denied. Such deference prevails

       “unless overcome by compelling evidence portraying [the offense and the

       offender] in a positive light.” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015).


       Court of Appeals of Indiana | Memorandum Decision 45A03-1612-CR-2886 | July 27, 2017   Page 13 of 15
[23]   Hmurovic has not carried his burden here. As for the nature of his offense,

       Hmurovic again refers to the facts that the Class C felony conviction was for

       conduct occurring after E.H. had turned eighteen, and that E.H. was able to

       understand the concept of use immunity. These facts are not compelling, do not

       portray the offense in a positive light, and indeed are barely relevant to the

       question of Hmurovic’s culpability.


[24]   As for his character, Hmurovic again refers to the fact that he had no prior

       criminal record. In context, the trial court concluded this fact merited no weight

       in mitigation, and we will not disturb that conclusion. Hmurovic refers further

       to the facts that he was employed before his conviction and that he was rated a

       low re-offense risk by the presentence report investigator. The trial court

       expressly rejected the latter conclusion at Hmurovic’s first sentencing: “I truly

       believe that if you were to be out in any short period of time that you would go

       right back to your daughter and do it all over again.” Tr. Vol. II, p. 329. The

       trial court was in the best position to reach that conclusion, and again we will

       not disturb it. Finally, we cannot perceive how the mere fact of Hmurovic’s

       employment before his conviction portrays his character in a positive light.

[25]   Hmurovic has not carried his burden to show his sentence was inappropriate.


                                                 Conclusion
[26]   The trial court did not overlook significant mitigators clearly supported by the

       record, did not find aggravators not supported by the record, and did not



       Court of Appeals of Indiana | Memorandum Decision 45A03-1612-CR-2886 | July 27, 2017   Page 14 of 15
       impose a sentence that was inappropriate in light of Hmurovic’s offense and

       character. The trial court’s judgment is therefore affirmed.


[27]   Affirmed.


       Kirsch, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 45A03-1612-CR-2886 | July 27, 2017   Page 15 of 15
