Holly Fuhrman v. State of Indiana

Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
FILED
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata,
Jul 03 2012, 9:26 am
collateral estoppel, or the law of the
case.
CLERK
of the supreme court,
court of appeals and
tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JEAN E. HADLEY GREGORY F. ZOELLER
Mt. Vernon, Indiana Attorney General of Indiana
RYAN D. JOHANNINGSMEIER
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
HOLLY FUHRMAN, )
)
Appellant-Defendant, )
)
vs. ) No. 65A01-1108-CR-357
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE POSEY CIRCUIT COURT
The Honorable James M. Redwine, Judge
Cause No. 65C01-1004-FC-48
July 3, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
DARDEN, Judge
STATEMENT OF THE CASE
Holly Fuhrman appeals her sentence for forgery as a class C felony.1
We affirm.
ISSUE
Whether the trial court erred in sentencing Fuhrman.
FACTS
When Fuhrman was in the third grade, Marjorie Bryant started tutoring Fuhrman
in reading. After Fuhrman graduated from high school, she told Bryant that Bryant had
“saved her” by teaching her how to read. (Tr. 19). Fuhrman then told Bryant that she
was going to go to college to become a nurse but could not afford it. Bryant, expecting
that Fuhrman was going to pay her back, began loaning $1,500 to $2,500 to Fuhrman
every six months for multiple years.
In March 2005, when eighty-seven-year-old Bryant was in the hospital for a heart
attack, she told her daughters that Fuhrman had $35,000 of her money and that they
needed to get it back from her. Bryant’s daughters, who lived out of town, had never
heard of Fuhrman and did not know that Bryant was loaning her money. When they
confronted Fuhrman, she admitted that she had taken the money from Bryant. Fuhrman
told them that she worked as a midwife at Deaconess Hospital and claimed that she
intended to pay it back. Upon the daughters’ request, Fuhrman signed a promissory note
for repayment of the $35,000.
1
Ind. Code § 35-43-5-2.
2
As soon as the daughters left town, Fuhrman went to Bryant’s house and told
Bryant that she needed the promissory note because her mother had died and claimed that
she needed the promissory note for the attorney to distribute her inheritance. Believing
Fuhrman, Bryant gave Fuhrman the promissory note and never saw it again.
In 2007, Bryant’s daughters took over Bryant’s financial matters and discovered
that she had missing assets. One of the daughters called Fuhrman to ask that she start
paying Bryant back and that she no longer contact Bryant. Between 2008 and 2010,
Fuhrman got an additional $53,000 from Bryant, some of which Fuhrman obtained after
telling Bryant that she needed money to buy a midwife’s license and to pay for midwife
training classes. Bryant also gave Fuhrman money after Fuhrman claimed that she had
uterine cancer, that she needed to have a hysterectomy or she would die, and that she
needed money for the surgery because the doctor for whom she worked as a midwife did
not provide health insurance. In addition to the money that Fuhrman took from Bryant,
she also used Bryant’s credit card without permission to charge over $21,000.
Bryant’s daughters began investigating into Fuhrman’s claims about graduating
from college and being a midwife and discovered that these claims were false. In March
2010, Bryant’s daughters confronted Fuhrman about repaying Bryant, told her that they
were getting a no contact order, and informed her that they would go to the police if she
did not begin paying back Bryant.
On March 12, 2010, Fuhrman created documents, including a purported court
order, signed by Vanderburgh Circuit Court Judge Carl Heldt, indicating that she was
going to receive $300,445.31 in inheritance money from her mother’s estate. The
3
following day, Fuhrman gave the documents to Bryant’s daughters, claiming that she
would be able to pay Bryant back all the money she had received. The daughters took the
documents and called the police.
Thereafter, the State charged Fuhrman with Count 1, forgery as a class C felony;
Count 2, fraud as a class D felony; and Count 3, fraud as a class D felony. On July 11,
2011, Fuhrman entered into an oral plea agreement with the State. Fuhrman agreed to
plead guilty to the forgery charge and to pay $21,000 in restitution for her unauthorized
use of the credit card stemming from the two fraud charges, and the State agreed to
dismiss the two fraud charges and to make no sentencing recommendation.
When discussing the oral plea agreement at the beginning of the plea hearing, the
attorneys informed the trial court that the total amount of restitution involved in the case
was approximately $130,000. Fuhrman’s attorney stated that Fuhrman was trying to get
a loan to pay the $21,000 in restitution for the plea agreement, stated that Fuhrman was
“pleading open,” admitted that Fuhrman did not know how she could pay restitution for
$130,000, and acknowledged that “it’s just the reality of the situation.” (Tr. 5).
Before proceeding any further with the plea hearing, the trial court informed
Fuhrman that in a situation such as hers, where “the victims [could not] be made whole,”
it was not likely that the trial court would give a suspended sentence. (Tr. 5). The trial
court stated that it wanted to be fair to Fuhrman and inform her of any sentencing
potential before she proceeded to plead guilty. Fuhrman acknowledged the trial court’s
notice, and Fuhrman’s attorney stated that Fuhrman was ready to proceed with her guilty
plea.
4
During the plea hearing, Fuhrman admitted that she had falsified the Vanderburgh
court documents by taking court documents she had received in her own small claims
case, leaving the judge’s signature intact, and typing in the information about the court
granting her the $300,445.31 as an estate distribution. The State also set forth the factual
basis, in part, by presenting testimony from a police detective and from one of Bryant’s
daughter. The trial court also considered this testimony for sentencing purposes.
Bryant’s daughter testified that Fuhrman told many lies to Bryant about reasons she
needed money and always offered excuses to Bryant about why she was not paying her
back. At the conclusion of the hearing, the trial court accepted Fuhrman’s guilty plea.
At the July 25, 2011 sentencing hearing, Fuhrman’s attorney informed the trial
court that Fuhrman had recently obtained employment, that she needed to be employed
for sixty days before she could get a loan, and that Fuhrman was trying to obtain a
$60,000 to $90,000 loan, with her father-in-law as the cosignor. Fuhrman admitted that
her credit was “not very good” and that she lived in a trailer paid for by her inlaws. (Tr.
38).
When sentencing Fuhrman to the advisory term of four years in the Department of
Correction, the trial court stated:
You certainly are entitled to consideration for pleading guilty, admitting
what you’ve done is wrong, and saving the State the burden of going
through a trial, and saving any victims the burden of going through a trial.
But you’ve received a substantial benefit already, in the plea bargain. As I
have told you when we started, the most likely sentence would be the
advisory sentence of four (4) years in prison. You’ve not only preyed upon
the trust of a friend, an elderly friend, and told her stories which weren’t
true to get her to give you her money, but you also forged a signature of a
Vanderburgh Circuit Court Judge. So, you’ve subverted the legal system in
5
an attempt to cover up your offense, and to commit your crimes. The Court
cannot ignore that you were willing to forge a judge’s signature in order to
accomplish an illegal act. If such matters like that were to become
common, we would have a hard time running our court system. So,
considering the fact that you plead [sic] guilty, for which I’m giving you
credit, and weighing that against the violation of the trust that you took
advantage of, over a substantial period of time, and for about $130,000.00
and that you subverted the legal system in an attempt to cover up your
offenses, and to get away with them, I think an advisory sentence as set by
the legislature is appropriate.
(Tr. 39).
DECISION
Fuhrman argues that the trial court erred in sentencing her. Specifically, Fuhrman
contends that: (a) the trial court abused its discretion in its finding of aggravators; and (b)
her sentence is inappropriate.
A. Abuse of Discretion
Sentencing decisions rest within the sound discretion of the trial court. Anglemyer
v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007).
So long as the sentence is within the statutory range, it is subject to review only for an
abuse of discretion. Id. An abuse of discretion will be found where the decision 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. Id. A trial court may
abuse its discretion in a number of ways, including: (1) failing to enter a sentencing
statement at all; (2) entering a sentencing statement that includes aggravating and
mitigating factors that are unsupported by the record; (3) entering a sentencing statement
6
that omits reasons that are clearly supported by the record; or (4) entering a sentencing
statement that includes reasons that are improper as a matter of law. Id. at 490–91.
Fuhrman argues that the trial court abused its discretion by using the violation of a
position of trust as an aggravating circumstance.
A defendant being in a position of trust with the victim has been considered a
valid aggravating circumstance in the past. See Hampton v. State, 719 N.E.2d 803, 808
(Ind. 1999) (stating that position of trust was a valid aggravator when sentencing a former
home health care provider for murder of a former elderly patient). This position of trust
aggravator “applies in cases where the defendant has a more than casual relationship with
the victim and has abused the trust resulting from that relationship.” Rodriguez v. State,
868 N.E.2d 551, 555 (Ind. Ct. App. 2007).
Here, the record reveals that Bryant and Fuhrman’s relationship began when
Bryant began tutoring Fuhrman in reading when Fuhrman was in the third grade. This
mentoring relationship apparently continued because, upon graduating from high school,
Fuhrman went to Bryant to thank her, telling Bryant that she had “saved” Fuhrman and
asking Bryant for money to go to college to become a nurse. (Tr. 19). Bryant, expecting
that Fuhrman was going to pay her back, began loaning $1,500 to $2,500 to Fuhrman
every six months for multiple years. Fuhrman, however, did not use the money to get a
nursing degree2 and did not pay Bryant back. Nevertheless, Fuhrman continued, for
years, to tell Bryant lies in order to obtain money from her. Fuhrman even drove Bryant
to the bank so Bryant could withdraw the money. Bryant, who was in her eighties,
2
The presentence investigation report (“PSI”) reveals that Fuhrman graduated from high school and then
attended a vocational school at a hair academy.
7
continued to believe that Fuhrman would repay her. The record also reveals that Bryant
once loaned Fuhrman her credit card so Fuhrman could get gas and that Fuhrman then
copied the credit card number and later used it to charge $21,000 in purchases. Because
the record reveals that Fuhrman had a more than casual relationship with the victim,
Bryant, and abused the trust resulting from that relationship, we cannot say that the trial
court abused its discretion when considering the violation of a position of trust to be an
aggravating circumstance.3
B. Inappropriate Sentence
Fuhrman argues that her four-year sentence was inappropriate. We may revise a
sentence if it is inappropriate in light of the nature of the offense and the character of the
offender. Ind. Appellate Rule 7(B). The defendant has the burden of persuading us that
her sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).
The principal role of a 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.”
3
Fuhrman also suggests that the trial court should have found a mitigating circumstance in the fact
that she has two children. Fuhrman, however, has waived this issue by failing to make a cogent argument
and failing to provide any citation to authority. See Ind. Appellate Rule 46(A)(8)(a).
Waiver notwithstanding, there is no requirement that a trial court find a defendant’s incarceration
would result in undue hardship to her dependents. Roney v. State, 872 N.E.2d 192, 204 (Ind. Ct. App.
2007), trans. denied. As our supreme court has observed, “[m]any persons convicted of serious crimes
have one or more children and, absent special circumstances, trial courts are not required to find that
imprisonment will result in an undue hardship.” Dowdell v. State, 720 N.E.2d 1146, 1154 (Ind. 1999).
To support use of this hardship on a dependent mitigator, there generally should be some evidence that
the hardship to be suffered by a dependent is more severe than that suffered by any child whose parent is
incarcerated. See Roney, 872 N.E.2d at 205.
At the sentencing hearing, Fuhrman’s counsel generally stated that Fuhrman had two children
“who are dependent on her.” (Tr. 37). Fuhrman did not present any evidence that she supported them in
any manner; indeed, the record reveals that she obtained employment just prior to sentencing. Because
Fuhrman has failed to show that this proffered mitigator was significant, the trial court did not abuse its
discretion by declining to find it as a mitigating circumstance.
8
Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). Whether a sentence is
inappropriate ultimately turns on the culpability of the defendant, the severity of the
crime, the damage done to others, and a myriad of other factors that come to light in a
given case. Id. at 1224.
In determining whether a sentence is inappropriate, the advisory sentence “is the
starting point the Legislature has selected as an appropriate sentence for the crime
committed.” Childress, 848 N.E.2d at 1081. The sentencing range for a class C felony
is between two and eight years, with the advisory sentence being four years. I.C. § 35-
50-2-6. The trial court sentenced Fuhrman to the advisory term of four years for her class
C felony forgery conviction. Because the “advisory sentence is the starting point our
General Assembly has selected as an appropriate sentence for the crime committed, the
defendant bears a particularly heavy burden in persuading us that his sentence is
inappropriate when the trial court imposes the advisory sentence.” Fernbach v. State,
954 N.E.2d 1080, 1089 (Ind. Ct. App. 2011) (citing Golden v. State, 862 N.E.2d 1212,
1216 (Ind. Ct. App. 2007), trans. denied), trans. denied.
Regarding Fuhrman’s offense, the record reveals that Fuhrman told lies to Bryant,
for several years, in an effort to get Bryant to give her money. Over the years, Fuhrman
obtained approximately $130,000 from Bryant. Once Fuhrman’s lies started to catch up
with her and Bryant’s daughters became aware of all the money that Fuhrman had taken
from Bryant, Fuhrman forged a trial court judge’s signature on a purported court
document in an effort to make Bryant’s daughters think that she was inheriting over
$300,000 and would be paying back Bryant.
9
In support of her character, Fuhrman states that she “has no criminal history” and
that she “always acknowledged her debt.” Fuhrman’s Br. at 4, 5. The record, however,
reveals otherwise. The PSI indicates that Fuhrman has two separate 1997 convictions for
conversion and that one of them was a felony charge reduced to a misdemeanor at
sentencing. The record also reveals that Fuhrman continually took money from Bryant
with no apparent intention to repay it. In 2005, when Bryant’s daughters confronted
Fuhrman about $35,000 that she had taken from Bryant, she admitted that she had taken
it and, upon the daughters’ request, signed a promissory note for repayment of the
$35,000. However, as soon as the daughters had left town, Fuhrman later told Bryant
another lie in order to take possession of the promissory note and never returned it.
Additionally, Bryant’s daughter testified that every Friday, from 2008 to 2010, Fuhrman
called Bryant to say that she was on the way to Bryant’s house with cash to repay Bryant;
however, Fuhrman never showed up during the entire weekend and, instead, would call
on Monday with lies about why she was unable to go to Bryant’s house to pay her, such
as claiming that her son was in critical care at Riley Hospital.
Indeed, the record is rife with various examples of Fuhrman’s lies to Bryant that
reveal Fuhrman’s poor character. For example, Fuhrman told Bryant that she had uterine
cancer, that she needed to have a hysterectomy or would die, and that she needed money
for the surgery because the doctor for whom she worked as a midwife did not provide
health insurance. The record, however, reveals that Fuhrman did not work as a midwife
and that she apparently did not have cancer or a hysterectomy because she later became
pregnant. When Bryant asked Fuhrman how she could become pregnant after having a
10
hysterectomy, Fuhrman told her that it was “just a miracle.” (Tr. 27). Fuhrman’s
dishonest character is further revealed by her willingness to forge the signature of a trial
court judge and to create purported court documents for a purely self-serving purpose.
Fuhrman has not persuaded us that, under the circumstances herein, her advisory
sentence of four years for the commission of class C felony forgery is inappropriate.
Therefore, we affirm the trial court’s sentence.4
Affirmed.
RILEY, J., and NAJAM, J., concur.
4
Fuhrman also suggests that the trial court abused its discretion when it informed Fuhrman at the
beginning of the plea hearing that she would not likely receive a suspended sentence and could face an
advisory sentence of four years. Fuhrman has also waived this issue by failing to make a cogent
argument and failing to provide any citation to authority. See Ind. Appellate Rule 46(A)(8)(a). Waiver
notwithstanding, we cannot say the trial court abused its discretion where a review of the record reveals
that the trial court took time, prior to letting Fuhrman enter a guilty plea under an oral plea agreement, to
fully inform Fuhrman of the reality of her potential sentence given her admitted inability to make
restitution for what she had taken from Bryant.
11