Jeffery A. Hmurovic, Sr. v. State of Indiana (mem. dec.)

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

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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

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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.

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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

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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.

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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,

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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.

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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.

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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.

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[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.

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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

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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

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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).

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[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

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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.

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