Ira Steven Link v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Mar 09 2017, 8:04 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Jennifer D. Wilson Reagan Curtis T. Hill, Jr.
Wilson & Wilson Attorney General of Indiana
Greenwood, Indiana Justin F. Roebel
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Ira Steven Link, March 9, 2017
Appellant-Defendant, Court of Appeals Case No.
41A01-1605-CR-1003
v. Appeal from the Johnson Superior
Court
State of Indiana, The Honorable Lance D. Hamner,
Appellee-Plaintiff. Judge
Trial Court Cause No.
41D03-1505-F3-20
Brown, Judge.
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[1] Ira Link appeals his sentences for two counts of rape as level 3 felonies,
burglary as a level 3 felony, criminal confinement as a level 5 felony, and being
a repeat sexual offender. Link raises one issue which we revise and restate as
whether his sentence is inappropriate in light of the nature of the offenses and
the character of the offender. We affirm.
Facts and Procedural History
[2] On May 1, 2015, Link noticed a lawnmower and open garage door of a home
in Greenwood, approached the residence and knocked on the door, and then
went toward the garage. N.W., who was seventy-six years old and lived alone,
entered the garage, asked Link why he was there, and Link panicked and
grabbed N.W. as she attempted to run. Link placed his hand over N.W.’s
mouth as she tried to yell for help, and a struggle ensued where N.W. was
knocked to the ground multiple times, knocked over a bicycle, and was
significantly injured. Link pushed her into her house, demanded money and
jewelry, and she gave him approximately twenty dollars and stated that she did
not have valuable jewelry. Link then directed her to take him to her bedroom
so that he could inspect her jewelry, and there she gave him an additional
twenty dollars. He then ordered N.W. to perform oral sex on him. After about
five minutes, he ordered her to disrobe, climbed on top of her, and had sexual
intercourse. He then washed N.W.’s vagina with liquid soap and ordered her
to stay in the bedroom for five to ten minutes while left the residence.
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[3] The next day, Link’s mother called 911 and stated that Link told her he “had
raped a woman in Greenwood” and was now threatening to hang himself.
Appellant’s Appendix Vol. V at 18. Officers responded and arrested Link.
[4] On May 7, 2015, the State charged him with two counts of rape as level 3
felonies, burglary as a level 3 felony, criminal confinement as a level 5 felony,
and being a repeat sexual offender based upon convictions for child molesting
as class A and class B felonies in 1993. On August 25, 2015, the court granted
the State’s motion to amend the burglary charge to elevate it to a level 1 felony.
After twice continuing the commencement of a jury trial, at the final pretrial
conference the State and Link announced they had entered into a plea
agreement whereby Link would enter an open guilty plea to the original
charges, including burglary as a level 3 felony. Link pled guilty pursuant to the
plea agreement.
[5] On April 18, 2016, the court held a sentencing hearing at which Link admitted
that his crimes were “horrific” and that he was “truly sorry” for N.W.
Transcript at 17-18. He claimed that he was “high on pills” when he
committed the crimes. Id. at 26. He submitted a sentencing memorandum
detailing his difficult childhood and his own history of being sexually abused.
The State presented a victim’s impact statement from N.W.’s family telling how
Link’s crimes violated the sanctity of N.W.’s house, which she had purchased
forty years earlier with her now-deceased husband. It noted that N.W. suffered
pain to the point that she could barely walk following the attack and could not
be left alone for months. The statement also noted that “[o]ne of the hardest
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parts of this whole ordeal” for N.W. was the lengthy court proceedings before
Link decided to plead guilty, in which “we lived on the dread of a trial hanging
over us and the horror of [N.W.] having to relive all that happened to her”
before he pled guilty “[a]t the last minute.” Id. at 37.
[6] The court identified as mitigators Link’s decision to plead guilty, that he
expressed remorse, and his troubled upbringing. It found as an aggravator that
Link was on probation at the time of the present crime, which the court deemed
“one of the strongest aggravators that [it] can imagine,” and it noted regarding
the horrific nature of the new crime that it could not “think of a worse way to
violate probation than that.” Id. at 60-61. It also identified as aggravators the
age of N.W., the severe injuries to her, and the “incalculable” impact on her.
Id. at 62. Although the court did not identify Link’s criminal history as an
aggravator, it observed that his history was limited but “horrific” in nature. Id.
at 59. The court found that the aggravators “overwhelmingly” outweighed the
mitigators. Id. at 62. It sentenced Link to sixteen years for each of the two
counts of rape, sixteen years for burglary, and six years for criminal
confinement, enhanced Link’s sentence by nine years for being a repeat sexual
offender, and ordered that the sentences be served consecutively in the
Department of Correction. Thus, Link received an aggregate sentence of sixty-
three years.
Discussion
[7] The issue is whether Link’s sentence is inappropriate in light of the nature of the
offenses and his character. Ind. Appellate Rule 7(B) provides that we “may
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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.” Under this rule, the
burden is on the defendant to persuade the appellate court that his or her
sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).
Relief is available if, after due consideration of the trial court’s sentencing
decision, this court finds that in our independent judgment, the sentence is
inappropriate in light of the nature of the offense and the character of the
offender. See Hines v. State, 30 N.E.3d 1216, 1225 (Ind. 2015). “[S]entencing is
principally a discretionary function in which the trial court’s judgment should
receive considerable deference.” Id. (quoting Cardwell v. State, 895 N.E.2d 1219,
1222 (Ind. 2008)). “[A]ppellate review should focus on the forest—the
aggregate sentence—rather than the trees—consecutive or concurrent, number
of counts, or length of the sentence on any individual count.” Cardwell, 895
N.E.2d at 1225. “[W]hether we regard a sentence as appropriate 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 factors that come to light
in a given case.” Hines, 30 N.E.3d at 1225 (quoting Cardwell, 895 N.E.2d at
1224).
[8] Link argues that this court should focus primarily on the length of his aggregate
sentence and how it was ordered to be served. He asserts that he received the
maximum sentence for each of the convictions except for the repeat sexual
offender enhancement, for which he received a sentence one year shy of the
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maximum, noting further that the court ordered each of the convictions to be
served consecutively. He argues that an enhanced, consecutive sentence is not
necessary “to vindicate the fact that there were separate harms and separate acts
against more than one person” and cites to Serino v. State, 798 N.E.2d 852 (Ind.
2003), noting that the charging information in this case was “particularly
muscular.” Appellant’s Brief at 18. He maintains that “[i]t is contrary to public
policy to discourage a defendant from sparing his victim the horror of testifying,
among other victim stressors, by imposing the maximum sentence allowable
under the law against him when he enters into an open plea.” Id. at 19. The
State argues that Link’s sentence is appropriate due to the egregious
circumstances of the offenses and his poor character. 1
[9] Our review of the nature of the offenses reveals that Link approached N.W.’s
home and grabbed her after she confronted him in her garage. He covered her
mouth and knocked her to the ground multiple times, causing her significant
injuries. He pushed N.W. into her home, demanded money and jewelry, and
ordered her to take him to her bedroom for him to examine her jewelry. Once
in the bedroom, he first made N.W. perform oral sex on him before forcing her
to disrobe and engage in sexual intercourse with him. After sexually assaulting
N.W. both by forcing her to perform oral sex and engaging in sexual
1
The State also asserts that Link waived his right to appeal his sentence as part of the plea agreement. We
observe that, at the guilty plea hearing, the provision in the plea agreement discussing waiver of Link’s right
to appeal his sentence was not discussed and, indeed, when the court asked Link if he was “reserving the
right to appeal [his] sentence,” Link responded: “Yes sir.” Transcript at 4. In any event we decide this case
on the merits.
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intercourse, he washed her vagina and ordered her to remain in her bedroom
for five or ten minutes while he left the scene. Following the incident, N.W.
was barely able to walk and could not be left alone for months. The family
detailed how the incident violated the sanctity of N.W.’s house, which she has
owned for over forty years and purchased with her husband who is now
deceased. We do not disagree with Link’s characterization of the offenses as
horrific.
[10] Our review of the character of the offender reveals that Link pled guilty and
expressed remorse at his sentencing hearing. However, we note that Link
waited until the eve of trial to change his plea to guilty and that he received a
benefit for pleading guilty when the State agreed to allow him to plead guilty to
burglary as a level 3 felony rather than as a level 1 felony. We further note that
his decision to plead guilty was a pragmatic decision where there was ample
evidence of his guilt, including multiple confessions both to his mother and the
police.
[11] Link was on probation at the time of the offenses stemming from convictions in
1993 for child molesting as class A and class B felonies, in which the facts
involved Link molesting his then-wife’s nine-year-old half-sister through threats
including with a knife. He had been released to probation in July of 2014, less
than a year before he committed the crimes against N.W. He testified that he
was “high on pills” during the offenses and reported that he is addicted to
Benadryl. Transcript at 26. The presentence investigation report states that the
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Indiana Risk Assessment System places Link in the high risk category to
reoffend.
[12] To the extent that Link asserts that his sentence in inappropriate in light of
Serino, we note that the defendant in that case was convicted of twenty-six
counts of child molesting and sexual misconduct involving a single victim over
the course of three years, and the trial court sentenced him to 385 years in jail.
798 N.E.2d at 853. The Indiana Supreme Court revised Serino’s sentence to
ninety years based in part on “substantial uncontested testimony from
numerous witnesses speaking to Serino’s positive character traits.” Id. at 858.
The Court also observed that “[e]ven the complaining witness and his mother
had positive things to say about Serino.” Id. It further noted that the “385-year
sentence is outside the typical range of sentences imposed for child molesting in
any reported Indiana decision” and that Serino did not have any criminal
history. Id. at 857. We find the Court’s analysis in Serino distinguishable.
[13] Also, we find Link’s assertion that his sentence will dissuade others from
entering into open guilty pleas unavailing. As noted he received a benefit for
pleading guilty when the State agreed to allow him to plead guilty to burglary as
a level 3 felony for which the sentencing range is between three and sixteen
years, rather than as a level 1 felony which carries with it the sentencing range
of between twenty and forty years.
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[14] After due consideration, we conclude that Link has not met his burden of
establishing that his aggregate sentence of sixty-three years is inappropriate in
light of the nature of the offense and his character.
Conclusion
[15] For the foregoing reasons, we affirm Link’s sentence for two counts of rape as
level 3 felonies, burglary as a level 3 felony, criminal confinement as a level 5
felony, and being a repeat sexual offender.
[16] Affirmed.
Vaidik, C.J., and Bradford, J., concur.
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