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
