Terry L. Rork, Jr. v. State of Indiana (mem. dec.) ( 2015 )


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  • MEMORANDUM DECISION                                               Dec 11 2015, 8:26 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
    Luisa M. White                                           Gregory F. Zoeller
    Kokomo, Indiana                                          Attorney General of Indiana
    Karl Scharnberg
    Deputy Attorney General
    Indianapolis, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    Terry L. Rork, Jr.,                                      December 11, 2015
    Appellant-Defendant,                                     Court of Appeals Cause No.
    34A02-1506-CR-753
    v.                                               Appeal from the Howard Circuit
    Court
    State of Indiana,                                        The Honorable Lynn Murray, Judge
    Appellee-Plaintiff.
    Trial Court Cause No.
    34C01-1407-FA-161
    Barnes, Judge.
    Court of Appeals of Indiana | Memorandum Decision 34A02-1506-CR-753| December 11, 2015   Page 1 of 6
    Case Summary
    [1]   Terry Rork, Jr., appeals his twenty-year sentence for Class B felony child
    molesting. We affirm.
    Issue
    [2]   Rork raises one issue, which we restate as whether his sentence is inappropriate.
    Facts
    [3]   N.M. was born in 2002. Rork, who was born in 1975, dated N.M.’s mother
    from 2005 until 2009. At times, Rork lived with N.M. and N.M.’s mother in
    Kokomo and would babysit N.M. while his mother worked. In 2014, Kokomo
    police investigated allegations that, in 2008, Rork had molested N.M. several
    times. Specifically, N.M. described Rork performing oral sex on him and
    requiring him to perform oral sex on Rork. N.M. also described Rork requiring
    him to take his clothes off and lay face down on the bathroom floor while Rork
    “hump[ed]” him. App. p. 34. According to N.M., Rork threatened to kill
    N.M.’s mother if N.M. reported the conduct.
    [4]   The State charged Rork with child molesting, which was elevated to a Class A
    felony because Rork was over twenty-one years old when he was alleged to
    have committed the offenses. Rork pled guilty to the lesser included offense of
    Class B felony child molesting and was sentenced to twenty years. He now
    appeals.
    Court of Appeals of Indiana | Memorandum Decision 34A02-1506-CR-753| December 11, 2015   Page 2 of 6
    Analysis
    [5]   Rork argues that his twenty-year sentence is inappropriate.1 Indiana Appellate
    Rule 7(B) permits us to 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. Although Appellate Rule 7(B) does not require us to be “extremely”
    deferential to a trial court’s sentencing decision, we still must give due
    consideration to that decision. Rutherford v. State, 
    866 N.E.2d 867
    , 873 (Ind. Ct.
    App. 2007). We also understand and recognize the unique perspective a trial
    court brings to its sentencing decisions. 
    Id.
     “Additionally, a defendant bears
    the burden of persuading the appellate court that his or her sentence is
    inappropriate.” 
    Id.
    [6]   The principal role of Appellate 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.” Cardwell v. State, 
    895 N.E.2d 1219
    , 1225
    (Ind. 2008). We “should focus on the forest—the aggregate sentence—rather
    than the trees—consecutive or concurrent, number of counts, or length of the
    1
    “As our Supreme Court has made clear, inappropriate sentence and abuse of discretion claims are to be
    analyzed separately.” King v. State, 
    894 N.E.2d 265
    , 267 (Ind. Ct. App. 2008). “[A]n inappropriate sentence
    analysis does not involve an argument that the trial court abused its discretion in sentencing the defendant.”
    
    Id.
     Although Rork references reviewing his sentence for an abuse of discretion and the weight given to the
    aggravators and mitigators, his argument focuses on the inappropriateness of his sentence.
    Court of Appeals of Indiana | Memorandum Decision 34A02-1506-CR-753| December 11, 2015             Page 3 of 6
    sentence on any individual count.” 
    Id.
     Whether a sentence is inappropriate
    ultimately turns on the culpability of the defendant, the severity of the crime,
    the damage done to others, and myriad other factors that come to light in a
    given case. Id. at 1224. When reviewing the appropriateness of a sentence
    under Appellate Rule 7(B), we may consider all aspects of the penal
    consequences imposed by the trial court in sentencing the defendant, including
    whether a portion of the sentence was suspended. Davidson v. State, 
    926 N.E.2d 1023
    , 1025 (Ind. 2010).
    [7]   Regarding the nature of the offense, Rork contends his sentence is inappropriate
    because he did not cause physical harm to N.M. and he was only N.M.’s
    mother’s boyfriend, not N.M.’s stepfather. He also contends that N.M.’s age at
    the time of the offense, five, should not be considered because it was an element
    of the offense, and that his threats to N.M.’s mother should not be considered
    because the trial court did not rely on that factor.
    [8]   In analyzing a claim under Appellate Rule 7(B), however, our review is not
    limited to the mitigators and aggravators found by the trial court. Fuller v. State,
    
    9 N.E.3d 653
    , 657 (Ind. 2014). Here, Rork lived with N.M. and his mother and
    babysat N.M. while his mother worked. He took advantage of the close
    relationship to commit the offense. Further, N.M. was only five years old when
    Rork molested him, making him much younger than the statutory requirement
    that the victim be under fourteen years old. See 
    Ind. Code § 35-42-4-3
    (a).
    Finally, to prevent N.M. from reporting the abuse, Rork threatened to kill his
    Court of Appeals of Indiana | Memorandum Decision 34A02-1506-CR-753| December 11, 2015   Page 4 of 6
    mother. Under these facts, the lack of physical injury to N.M. does not
    persuade us that Rork’s sentence is inappropriate.
    [9]    Regarding Rork’s character, he points to his guilty plea to show his positive
    character. We are not convinced. Although Rork spared N.M. and the State
    the burden of a trial, he did so in exchange for a reduction of the charge from a
    Class A felony to a Class B felony when it was undisputed Rork was over
    twenty-one years old when he committed the offense. In doing so, Rork
    reduced the maximum sentence he faced from fifty years to twenty years.
    Further, after pleading guilty, during the presentence interview, Rork
    “adamantly denied” molesting N.M. and stated that he only pled guilty to
    make N.M.’s mother happy and to get the case resolved. App. p. 119. These
    statements are inconsistent with the cursory apology Rork made at the
    sentencing hearing. Under these circumstances, Rork’s guilty plea does not
    reflect favorably on his character.
    [10]   Rork also has what he describes as “a lengthy criminal history extending from
    1992 to present[.]” Appellant’s Br. p. 6. His criminal history includes four
    misdemeanor convictions, four felony convictions, numerous petitions to
    revoke probation, and frequent failures to appear. Although he has not
    previously been convicted of a sex crime, Rork’s criminal history shows an
    ongoing pattern of failing to conform his conduct to the law. This is consistent
    with the probation officer’s assessment of Rork as “self-pitying, dishonest,
    narcissistic, manipulative, and controlling.” App. p. 122. Rork’s character
    does not render his twenty-year sentence inappropriate.
    Court of Appeals of Indiana | Memorandum Decision 34A02-1506-CR-753| December 11, 2015   Page 5 of 6
    Conclusion
    [11]   Rork has not established that his twenty-year sentence is inappropriate. We
    affirm.
    [12]   Affirmed.
    Robb, J., and Altice, J., concur.
    Court of Appeals of Indiana | Memorandum Decision 34A02-1506-CR-753| December 11, 2015   Page 6 of 6
    

Document Info

Docket Number: 34A02-1506-CR-753

Filed Date: 12/11/2015

Precedential Status: Precedential

Modified Date: 12/11/2015