Birol Simsek v. State of Indiana (mem. dec.) ( 2015 )

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.
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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.
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[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
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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
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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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