Birol Simsek v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: December 23, 2015
• Docket: 02A04-1505-CR-455
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any Dec 23 2015, 8:19 am

court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Anthony S. Churchward Gregory F. Zoeller Deputy Public Defender Attorney General of Indiana Fort Wayne, Indiana Eric P. Babbs Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Birol Simsek, December 23, 2015 Appellant-Defendant, Court of Appeals Case No. 02A04-1505-CR-455 v. Appeal from the Allen Superior Court State of Indiana, The Honorable John F. Surbeck, Appellee-Plaintiff Jr., Judge Trial Court Cause No. 02D06-1412-F5-143

Crone, Judge.

Court of Appeals of Indiana | Memorandum Decision 02A04-1505-CR-455| December 23, 2015 Page 1 of 5 Case Summary [1] Birol Simsek appeals his four-year sentence for level 5 felony battery resulting in

bodily injury, arguing that it is inappropriate based on the nature of the offense

and his character. We conclude that he has failed to carry his burden to

persuade us that his sentence is inappropriate, and therefore we affirm.

Facts and Procedural History [2] In the summer of 2014, Simsek became the primary custodian of his two

daughters after their mother died. A.S. was six years old. In October 2014,

A.S. told a school official that Simsek was spanking her hard and she was afraid

of him. The school official saw that A.S. had severe bruising to her buttocks

and contacted the Department of Child Services (“DCS”).

[3] That same day a DCS caseworker made an unannounced visit to Simsek’s

residence, photographed A.S.’s bruises, and removed A.S. and her sister from

the home. Simsek admitted that he spanked A.S. with an open hand and was

aware of A.S.’s bruised buttocks and felt bad about it.

[4] During a forensic interview, A.S. described an incident that occurred at the

YMCA after her swimming class when she was in the shower without her

bathing suit or clothes on. She said that Simsek spanked her buttocks with his

hand, and she slipped and fell to the floor. She also disclosed that Simsek had

slapped her face while she was doing homework.

Court of Appeals of Indiana | Memorandum Decision 02A04-1505-CR-455| December 23, 2015 Page 2 of 5 [5] In December 2014, the State charged Simsek with level 5 felony battery

resulting in bodily injury. Simsek pled guilty as charged without a plea

agreement. At the sentencing hearing, A.S.’s therapist testified. She said that

she believed that Simsek’s treatment of A.S. showed “a pattern of behavior”

and that A.S. was afraid of Simsek. Tr. at 52. Also, a counselor who had

supervised a visit between Simsek and A.S. testified that during the visit,

Simsek told A.S. that he was upset because she had lied again and he had to go

to jail because she told people that he beat her and threw her down. Id. at 57.

The presentence investigation report showed that Simsek previously had been

convicted of battery resulting in bodily injury against A.S. For that offense, he

was sentenced in August 2011 to one year and 183 days, all suspended to

probation. He was discharged from probation in April 2013.

[6] After hearing all the evidence, the trial court stated that Simsek had committed

a prior battery on the same victim and participated in services, but had “made

[the professionals] happy, and reverted to precisely the same conduct.” Id. at

87. The trial court sentenced him to four years with two years suspended to

probation and also issued a no-contact order. This appeal ensued.

Discussion and Decision [7] Simsek asks us to reduce his sentence pursuant to Indiana Appellate Rule 7(B),

which states, “The Court may revise a sentence authorized by statute 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.” When reviewing a sentence, our principal role is to leaven the Court of Appeals of Indiana | Memorandum Decision 02A04-1505-CR-455| December 23, 2015 Page 3 of 5 outliers rather than necessarily achieve what is perceived as the correct result.

Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). “We do not look to

determine if the sentence was appropriate; instead we look to make sure the

sentence was not inappropriate.” Conley v. State, 972 N.E.2d 864, 876 (Ind.

2012). Simsek has the burden to show that his sentence is inappropriate.

Anglemyer v. State, 868 N.E.2d 482, 494 (Ind. 2007), clarified on reh’g, 875 N.E.2d

218.

[8] Turning first to the nature of the offense, we observe that “the advisory sentence

is the starting point the Legislature selected as appropriate for the crime

committed.” Pierce v. State, 949 N.E.2d 349, 352 (Ind. 2011). The sentencing

range for a level 5 felony is between one and six years, with an advisory

sentence of three years. The trial court gave Simsek one year above the

advisory but moderated the sentence by suspending two years. See Davidson v.

State, 926 N.E.2d 1023, 1025 (Ind. 2010) (“Upon the review of sentence

appropriateness under Appellate Rule 7, appellate courts may consider all

aspects of the penal consequences imposed by the trial judge in sentencing the

defendant.”). Here, Simsek caused both physical and psychological harm to

A.S. As A.S.’s father, he violated a position of trust. A.S. can no longer turn to

him for love and support because she is afraid of him as a result of repeated

abuse. See Kincaid v. State, 839 N.E.2d 1201, 1205 (Ind. Ct. App. 2005)

(observing that a parent’s position of trust is relevant to sentencing).

[9] As for Simsek’s character, he stresses that he has shown remorse. Yet, this is

his second conviction for battering A.S. As the trial court noted, although he

Court of Appeals of Indiana | Memorandum Decision 02A04-1505-CR-455| December 23, 2015 Page 4 of 5 had counseling and parenting services, he did not correct his behavior. He also

accused A.S. of lying and blamed her for his incarceration. See Boling v. State,

982 N.E.2d 1055, 1060-61 (Ind. Ct. App. 2013) (stating that blaming the victim,

his daughter, reflected poorly on Boling’s character). We conclude that Simsek

has failed to persuade us that his sentence is inappropriate. Therefore, we

affirm.

[10] Affirmed.

Vaidik, C.J., and Bailey, J., concur.

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