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

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
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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
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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
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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
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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.
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[12] Affirmed.
May, J., and Bradford, J., concur.
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