MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
FILED
the defense of res judicata, collateral Feb 28 2018, 11:57 am
estoppel, or the law of the case. CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Paul M. Blanton Curtis T. Hill, Jr.
Blanton & Pierce, LLC Attorney General of Indiana
Paoli, Indiana
Marjorie Lawyer-Smith
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Joseph Angelo Biondi, February 28, 2018
Appellant-Defendant, Court of Appeals Case No.
59A04-1710-CR-2485
v. Appeal from the Orange Superior
Court
State of Indiana, The Honorable R. Michael Cloud,
Appellee-Plaintiff. Judge
Trial Court Cause No.
59D01-1605-F6-566
Bradford, Judge.
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Case Summary
[1] After pleading guilty to Level 6 felony voyeurism, Appellant-Defendant Joseph
Angelo Biondi was sentenced to a two-year term of incarceration. Biondi
challenges his sentence on appeal, arguing that it is inappropriate because the
trial court failed to consider certain proffered mitigating factors. We affirm.
Facts and Procedural History
[2] On February 1, 2016, then-thirty-year-old Biondi was caught looking through a
window into the bedroom of a seventeen-year-old girl. On May 18, 2016,
Appellee-Plaintiff the State of Indiana (“the State”) charged Biondi with Level 6
felony voyeurism. The State also indicated that it intended to seek an enhanced
penalty due to the fact that Biondi had a prior voyeurism conviction.
[3] On August 28, 2017, two days before his trial was scheduled to begin, Biondi
entered into a plea agreement. Under the terms of this agreement, Biondi
agreed to plead guilty to Level 6 felony voyeurism with a prior conviction and
the State agreed that his sentence would be capped at two years. The trial court
conducted a hearing on Biondi’s plea, after which it took the matter under
advisement.
[4] The trial court conducted a second hearing on the matter on October 2, 2017.
During this hearing, the victim’s father testified that on the morning of
February 1, 2016, he had stepped out on his front porch when he noticed
Biondi looking through a window into his daughter’s bedroom. At the time, his
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daughter had “just got done taking a shower or bath” and was “preparing to go
to school.” Tr. Vol. II, p. 47. When he yelled, Biondi “took off.” Tr. Vol. II,
p. 48. The victim’s father indicated that the incident has had a significant
impact on the victim. For instance, following the incident, the victim would
not sleep in her bedroom for eight months. The victim felt embarrassed and
ashamed. She was also concerned that Biondi had taken pictures of her as she
was getting ready. Even as of the date of October 2, 2017 hearing, the victim
remained afraid both of Biondi and to go out in the dark.
[5] Paoli Police Officer Brandon Mesarosh testified that, on the date in question,
police were able to collect a DNA sample from seminal fluid recovered from
the window area outside the victim’s bedroom. It was subsequently determined
that the DNA sample matched a previous DNA sample provided by Biondi.
After obtaining an arrest and a search warrant, Officer Mesarosh arrested,
interviewed, and collected a new DNA sample from Biondi. Biondi indicated
that he “had no explanation of how” his seminal fluid would have gotten on the
window outside the victim’s bedroom. Tr. Vol. II, p. 44. Testing revealed that
the DNA sample taken from Biondi following his arrest matched the sample
obtained from the victim’s home.
[6] Following the presentation of evidence, the trial court accepted Biondi’s plea
and entered a judgment of conviction against Biondi for Level 6 felony
voyeurism. After considering the aggravating and mitigating factors presented
by the parties, the trial court sentenced Biondi to a two-year term of
incarceration.
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Discussion and Decision
[7] While Biondi couches his argument on appeal as a single issue, review of
Biondi’s appellate brief indicates that he is arguing both that the trial court
abused its discretion in sentencing him and that his two-year sentence is
inappropriate.
I. Abuse of Discretion
[8] Sentencing decisions rest within the sound discretion of the trial court and are
reviewed on appeal only for an abuse of discretion. Anglemyer v. State, 868
N.E.2d 482, 490 (Ind. 2007), modified on other grounds 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 deductions to be drawn therefrom.” Id.
(quotation omitted). One way in which a trial court may abuse its discretion is
omitting mitigating factors “that are clearly supported by the record and
advanced for consideration.” Id. at 491.
A. Mitigating Factors
[9] Although a sentencing court must consider all evidence of mitigating factors
offered by a defendant, the finding of mitigating factors rests within the court’s
discretion. Henderson v. State, 769 N.E.2d 172, 179 (Ind. 2002). A trial court is
neither required to find the presence of mitigating factors, Fugate v. State, 608
N.E.2d 1370, 1374 (Ind. 1993), nor obligated to explain why it did not find a
factor to be significantly mitigating. Sherwood v. State, 749 N.E.2d 36, 38 (Ind.
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2001). “A court does not err in failing to find mitigation when a mitigation
claim is highly disputable in nature, weight, or significance.” Henderson, 769
N.E.2d at 179 (internal quotations omitted). Furthermore, an allegation that
the trial court failed to 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).
[10] Biondi argues that the trial court abused its discretion by ignoring the following
mitigating factors: (1) the undue hardship incarceration will have on his family,
specifically his mother; (2) his status as one who is a low-risk to reoffend; (3) his
efforts to rehabilitate himself by seeking treatment; (4) that he had led a law-
abiding life in the years preceding this incident; and (5) that he has previously
responded well to probation. Review of the record, however, demonstrates that
the trial court did not ignore these factors, rather that it specifically did not find
them to be worthy of mitigating weight. This is evidenced by the trial court’s
sentencing order which stated the following:
Although the defendant has urged the Court to find several
additional mitigating circumstances herein, the Court declines to
do so because the evidence indicates that the defendant is not
unlikely to commit another crime, that the defendant did not lead
a law abiding life for a substantial period before commission of
this crime, that the defendant is not likely to respond
affirmatively to probation or short-term imprisonment, that the
crime herein was not the result of circumstances unlikely to
reoccur, that despite the defendant’s offer to make restitution to
the victim herein there is no restitution to be made, and that
imprisonment of the defendant will not result in undue hardship
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to the defendant or the defendant’s dependents (the dependent
has no children or spouse to support, and is unemployed).
Appellant’s App. Vol. II–Confidential, p. 6.
[11] We agree with the trial court’s determination that the proffered mitigating
factors were not clearly supported by the record. Biondi’s criminal history
includes multiple prior convictions for voyeurism, the crime at issue in this
case. Since 2009, Biondi has been convicted of three separate counts of
voyeurism, with each count having a different victim. Biondi’s claim that he
wishes to refrain from such behavior in the future does not convince us that it is
likely that he will do so. In addition, while Biondi has previously completed
terms of probation and short-term incarceration, these prior attempts at
rehabilitation were unsuccessful as they did not convince Biondi to refrain from
engaging in future criminal behavior. Biondi’s prior behavior does not support
his claim that he is unlikely to engage in criminal history in the future. Further,
while Biondi may assist his mother and step-father while residing in their home,
the record does not suggest that Biondi’s assistance, while convenient, is
required. Because the above-stated factors are not clearly supported by the
record, we conclude that the trial court did not abuse its discretion in failing to
find these factors to be mitigating when sentencing Biondi.
II. Appropriateness of Sentence
[12] Indiana Appellate Rule 7(B) provides that “The Court may revise a sentence
authorized by statute if, after due consideration of the trial court’s decision, the
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Court finds that the sentence is inappropriate in light of the nature of the offense
and the character of the offender.” In analyzing such claims, we “‘concentrate
less on comparing the facts of [the case at issue] to others, whether real or
hypothetical, and more on focusing on the nature, extent, and depravity of the
offense for which the defendant is being sentenced, and what it reveals about
the defendant’s character.’” Paul v. State, 888 N.E.2d 818, 825 (Ind. Ct. App.
2008) (quoting Brown v. State, 760 N.E.2d 243, 247 (Ind. Ct. App. 2002), trans.
denied). “The appropriate question is not whether another sentence is more
appropriate; rather, the question is whether the sentence imposed is
inappropriate.” Williams v. State, 997 N.E.2d 1154, 1165 (Ind. Ct. App. 2013)
(citing Fonner v. State, 876 N.E.2d 340, 344 (Ind. Ct. App. 2007)). The
defendant bears the burden of persuading us that his sentence is inappropriate.
Id.
[13] As for the nature of Biondi’s crime, the record reflects that Biondi looked
through a window into the bedroom of a seventeen-year-old girl as she was
getting ready for school. One may reasonably infer from the record that Biondi
masturbated while looking into the victim’s bedroom. Further, as the trial court
found, the victim has suffered significant mental anguish as a result of the
offense.
[14] The evidence relating to Biondi’s character as outlined earlier, is not favorable.
Since 2009, Biondi has been convicted of voyeurism on three separate occasions
and has victimized three different individuals. Biondi has failed to reform his
behavior despite previous attempts at leniency and rehabilitation by the trial
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courts handling his prior criminal cases. Further, the trial court sentenced
Biondi in accordance with the terms of his plea agreement, which capped his
sentence at a period of incarceration less than that permitted by statute. 1 For
the above-stated reasons, we conclude that Biondi’s sentence is not
inappropriate.
[15] The judgment of the trial court is affirmed.
Robb, J., and Crone, J., concur.
1
The maximum sentence for a Level 6 felony is two and one-half years. See Ind. Code § 35-50-2-7(b).
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