      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


      Court of Appeals of Indiana | Memorandum Decision 54A05-1410-CR-492 | August 5, 2015    Page 1 of 6
      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
      Court of Appeals of Indiana | Memorandum Decision 54A05-1410-CR-492 | August 5, 2015   Page 2 of 6
      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

      Court of Appeals of Indiana | Memorandum Decision 54A05-1410-CR-492 | August 5, 2015   Page 3 of 6
      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


      Court of Appeals of Indiana | Memorandum Decision 54A05-1410-CR-492 | August 5, 2015   Page 4 of 6
       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.

       Court of Appeals of Indiana | Memorandum Decision 54A05-1410-CR-492 | August 5, 2015   Page 5 of 6
[12]   Affirmed.


       May, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 54A05-1410-CR-492 | August 5, 2015   Page 6 of 6
