Tylarr Tagliaferri v. State of Indiana (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any FILED
court except for the purpose of establishing
Dec 30 2019, 11:00 am
the defense of res judicata, collateral
estoppel, or the law of the case. CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Stacy R. Uliana Curtis T. Hill, Jr.
Bargersville, Indiana Attorney General of Indiana
Angela N. Sanchez
Assistant Section Chief
Criminal Appeals
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Tylarr Tagliaferri, December 30, 2019
Appellant-Defendant, Court of Appeals Case No.
19A-CR-1876
v. Appeal from the Steuben Superior
Court
State of Indiana, The Honorable William C. Fee,
Appellee-Plaintiff. Judge
Trial Court Cause No.
76D01-1607-F1-489
Bradford, Judge.
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Case Summary
[1] In July of 2019, the trial court sentenced Tylarr Tagliaferri to thirty years of
incarceration after he pled guilty to three counts of Level 3 felony child
molesting. Tagliaferri contends that his sentence is inappropriate and that the
trial court erred in failing to find Tagliaferri’s own victimization of molestation
as a child to be a mitigating factor. We affirm.
Facts and Procedural History
[2] On Thursday nights near the end of 2015, Tagliaferri would babysit his then-
fiancée’s nephews, J.F. (ten years old), B.F. (eight years old), and K.F. (six
years old), while his fiancée was at work. Following Christmas of 2015,
Tagliaferri began forcing the boys to perform oral sex on him. In the garage,
Tagliaferri would pull down his pants, make J.F. sit on a bucket and perform
oral sex on him until Tagliaferri ejaculated in J.F.’s mouth. J.F. stated that this
occurred “all the time” with the last incident occurring the Thursday night
before the Indiana Department of Child Services (“DCS”) became involved.
Appellant’s App. Vol. II p. 34. In the living room, Tagliaferri would pull down
his pants and make B.F. perform oral sex on him until Tagliaferri ejaculated in
B.F.’s mouth. B.F. stated that Tagliaferri told him to “swallow it,” and when
B.F. refused Tagliaferri would say “Bad (name redacted).” Appellant’s App.
Vol. II p. 36. B.F. noted that this occurred more than ten times, with the last
incident being the Thursday evening before DCS became involved. Both J.F.
and B.F. witnessed Tagliaferri force K.F. to perform oral sex on him as well.
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On July 14, 2016, law enforcement became involved after J.F. told his
grandmother about the molestation.
[3] On July 18, 2016, the State charged Tagliaferri with four counts of Level 1
felony child molesting. On June 5, 2019, the State also charged Tagliaferri with
three counts of Level 3 felony child molesting. On June 14, 2019, pursuant to
the written plea agreement, Tagliaferri pled guilty to three counts of Level 3
felony child molesting. In exchange, the State agreed to dismiss the four counts
of Level 1 felony child molesting and to a fixed sentencing range between three
and ten years for each of the Level 3 felonies. On July 12, 2019, the trial court
accepted the plea agreement and sentenced Tagliaferri to ten years on each
count, to be served consecutively, for an aggregate sentence of thirty years of
incarceration.
Discussion and Decision
[4] Tagliaferri contends that his thirty-year sentence is inappropriate. We may
revise a sentence if, “after due consideration of the trial court’s decision, the
Court finds that the sentence is inappropriate in light of the nature of the offense
and the character of the offender.” Ind. Appellate Rule 7(B). “Sentencing is
principally a discretionary function in which the trial court’s judgment should
receive considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind.
2008) (internal citations omitted). The defendant bears the burden of proving
that his sentence is inappropriate in the light of both the nature of his offense
and his character. Gil v. State, 988 N.E.2d 1231, 1237 (Ind. Ct. App. 2013).
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[5] The nature of Tagliaferri’s offenses does not support a reduction in his sentence.
Tagliaferri was convicted of three counts of Level 3 felony child molesting after
he made his fiancées three nephews perform oral sex on him until he ejaculated
in the boys’ mouths. Tagliaferri’s pattern of molestation occurred every
Thursday night after Christmas of 2015 until July of 2016, with multiple
molestations occurring on the same night. Moreover, Tagliaferri violated his
position of trust as the boys’ babysitter.
[6] Tagliaferri’s character also does not support a reduction in his sentence.
Tagliaferri has prior convictions for minor in possession of alcohol and battery.
Most notable, the victim in the battery case was J.F., who was also molested in
this case. Not only was Tagliaferri on probation when he molested the boys, but
he also violated a no-contact order put in place to protect J.F. from him. This
clearly demonstrates Tagliaferri’s distain for authority and his unwillingness to
conform his actions to societal norms. Tagliaferri has failed to establish that his
sentence is inappropriate.
[7] Tagliaferri also contends that the trial court erred by failing to identify as a
mitigating factor that Tagliaferri himself was a victim of child molesting. “An
allegation that the trial court failed to identify or find a mitigating factor
requires the defendant to establish that the mitigating evidence is both
significant and clearly supported by the record.” Carter v. State, 711 N.E.2d 835,
838 (Ind. 1999). While there was evidence of Tagliaferri being molested in the
presentence investigation and presented by his counsel at sentencing, the trial
court was not required to find it to be a significant mitigating factor and did not.
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This is evident by the fact that the trial court found multiple other mitigating
factors during sentencing. Moreover, the trial court concluded that the
aggravating factors overwhelmingly outweighed the mitigating factors. We
conclude that Tagliaferri’s own molestation was not a significant mitigating
factor nor if identified as one would it have overcome the overwhelming
aggravating factors.
[8] The judgement of the trial court is affirmed.
Robb, J., and Altice, J., concur.
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