Charles S. Tink v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: August 5, 2015
• Docket: 54A05-1410-CR-492
• Status: Published

Opinion

MEMORANDUM DECISION Aug 05 2015, 9:09 am 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 the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Cara Schaefer Wieneke Gregory F. Zoeller Special Assistant to the State Public Attorney General of Indiana Defender Wieneke Law Office, LLC Justin F. Roebel Plainfield, Indiana Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Charles S. Tink, August 5, 2015

Appellant-Defendant, Court of Appeals Case No. 54A05-1410-CR-492 v. Appeal from the Montgomery Circuit Court State of Indiana, The Honorable Peggy Q. Lohorn, Appellee-Plaintiff Special Judge

Case No. 54C01-0706-FA-79

Crone, Judge.

Case Summary [1] Charles S. Tink appeals the thirty-five year sentence imposed by the trial court

upon resentencing for his class A felony burglary conviction. Tink contends

Court of Appeals of Indiana | Memorandum Decision 54A05-1410-CR-492 | August 5, 2015 Page 1 of 6 that the trial court abused its discretion during resentencing and that the

sentence is inappropriate in light of the nature of the offense and his character.

Choosing to review only the appropriateness of his sentence, we conclude that

Tink has not met his burden to demonstrate that his sentence is inappropriate.

Therefore, we affirm his sentence.

Facts and Procedural History [2] On June 5, 2007, Tink and a woman named Jamie Ingram committed burglary

against Greg Myers. During the burglary, Tink struck Myers in the head

several times, put him in a chokehold, and threatened to kill him and his family

if he contacted police. Myers, who was bleeding from his nose and mouth,

briefly lost consciousness. After regaining consciousness, Tink and Ingram

continued hitting Myers in the head, and Tink put him in a second chokehold,

causing him to again lose consciousness, but this time for a longer period. After

regaining consciousness, Myers was hit again. The attack lasted ten to fifteen

minutes, and Myers suffered a broken nose with a deviated septum, facial

fractures, dislocated jaw, bloody nose and mouth, bruised face, neck, and chest,

and sore throat.

[3] The State charged Tink with class A felony burglary, class B felony burglary,

class C felony battery, class D felony intimidation, and class D felony

strangulation. The State also alleged that Tink was a habitual offender.

Following a jury trial, Tink was found guilty as charged. During sentencing,

the trial court merged Tink’s lesser convictions into the class A felony burglary

and imposed a forty-year sentence, enhanced by thirty years based upon the Court of Appeals of Indiana | Memorandum Decision 54A05-1410-CR-492 | August 5, 2015 Page 2 of 6 habitual offender finding, for an aggregate seventy-year sentence. We affirmed

Tink’s conviction and sentence on direct appeal. See Tink v. State, No. 54A01-

0712-CR-547 (Ind. Ct. App. Aug. 8, 2008), trans. denied.

[4] Thereafter, Tink filed a petition for postconviction relief. The parties

subsequently agreed to a joint motion to dismiss the postconviction petition

with prejudice. As part of the agreement, the State agreed to allow the trial

court to vacate Tink’s habitual offender finding as well as his merged

convictions, with prejudice. The State also agreed to allow the trial court to

resentence Tink for class A felony burglary, provided that the maximum

imposed sentence would not exceed thirty-five years. The trial court approved

the joint motion to dismiss.

[5] On September 29, 2014, the trial court held a sentencing hearing and

resentenced Tink to thirty-five years for class A felony burglary. This appeal

followed.

Discussion and Decision [6] Tink challenges the thirty-five-year sentence imposed by the trial court during

resentencing for his class A felony burglary conviction. He argues that the trial

court abused its discretion during resentencing in its findings of aggravators and

mitigators and also that his thirty-five-year sentence is inappropriate. However,

even assuming that a trial court abuses its discretion in its findings or non-

findings of aggravators and mitigators, we may choose to review the

appropriateness of a sentence under Indiana Appellate Rule 7(B) instead of

Court of Appeals of Indiana | Memorandum Decision 54A05-1410-CR-492 | August 5, 2015 Page 3 of 6 remanding to the trial court for resentencing. See Windhorst v. State, 868 N.E.2d

504, 507 (Ind. 2007). Because we may dispose of this case solely upon an

Appellate Rule 7(B) analysis, we will do so.

[7] Pursuant to Appellate Rule 7(B), we may revise a sentence authorized by

statute 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.” Whether we regard a sentence as inappropriate at the end of

the day turns on “our sense of the culpability of the defendant, the severity of

the crime, the damage done to others, and myriad other facts that come to light

in a given case.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008). The

defendant bears the burden to persuade this Court that his or her sentence is

inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).

[8] We note that another panel of this Court conducted a 7(B) review of Tink’s

original seventy-year aggregate sentence and concluded that neither the nature

of the burglary nor Tink’s character warranted a sentence reduction. Tink, slip

op. at 8. Regarding the nature of the offense, we noted the extreme violence

and senselessness of Tink’s crime as well as the severity of the injuries caused to

his victim. Id. Moreover, due to his violent criminal history and his failure to

address alcohol abuse problems, we concluded that Tink’s character was “not

impressive.” Id.

[9] Tink concedes that the nature of the offense has not changed since his original

sentencing, and he does not challenge the previously identified evidence of his

Court of Appeals of Indiana | Memorandum Decision 54A05-1410-CR-492 | August 5, 2015 Page 4 of 6 poor character. Instead, Tink points to positive behavior he has exhibited in

prison and argues that his “significant positive strides towards rehabilitation”

should persuade us that a lesser sentence than the thirty-five-year sentence

imposed by the trial court upon resentencing is warranted. Appellant’s Br. at 8.

We are not so persuaded.

[10] The sentencing range for a class A felony is between twenty and fifty years,

with an advisory sentence of thirty years. Ind. Code § 35-50-2-4. The parties’

dismissal agreement approved by the trial court capped Tink’s sentence at

thirty-five years, well below the maximum sentence allowable by statute but

slightly above the advisory. The trial court’s decision to impose a thirty-five-

year sentence acknowledges the approved agreement while continuing to

recognize the severity of Tink’s crime and the damage done to others. Further,

while Tink’s recent strides toward rehabilitation are commendable, they do not

eliminate his prior criminal history.

[11] The principal role of appellate review “should be an attempt to leaven the

outliers,” not to achieve a perceived “correct” result in each case. Cardwell, 895

N.E.2d at 1225. Indeed, “[t]he question under Appellate Rule 7(B) is not

whether another sentence is more appropriate: rather, the question is whether

the sentence imposed is inappropriate.” King v. State, 894 N.E.2d 265, 268 (Ind.

Ct. App. 2008). The thirty-five-year sentence imposed by the trial court upon

resentencing is not an outlier and, under the circumstances, Tink has not met

his burden to demonstrate that his sentence is inappropriate in light of the

nature of the offense or his character. Therefore, we affirm his sentence.

Court of Appeals of Indiana | Memorandum Decision 54A05-1410-CR-492 | August 5, 2015 Page 5 of 6 [12] Affirmed.

May, J., and Bradford, J., concur.

Court of Appeals of Indiana | Memorandum Decision 54A05-1410-CR-492 | August 5, 2015 Page 6 of 6