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

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.
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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.
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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.
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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
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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.
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Conclusion
[11] Rork has not established that his twenty-year sentence is inappropriate. We
affirm.
[12] Affirmed.
Robb, J., and Altice, J., concur.
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