 Pursuant to Ind. Appellate Rule 65(D),
 this Memorandum Decision shall not
 be regarded as precedent or cited
 before any court except for the
                                                                  FILED
                                                                May 21 2012, 9:23 am
 purpose of establishing the defense of
 res judicata, collateral estoppel, or the
 law of the case.                                                      CLERK
                                                                     of the supreme court,
                                                                     court of appeals and
                                                                            tax court




ATTORNEY FOR APPELLANT:                               ATTORNEYS FOR APPELLEE:

DANIEL J. MOORE                                       GREGORY F. ZOELLER
Laszynski & Moore                                     Attorney General of Indiana
Lafayette, Indiana
                                                      RYAN D. JOHANNINGSMEIER
                                                      Deputy Attorney General
                                                      Indianapolis, Indiana



                               IN THE
                     COURT OF APPEALS OF INDIANA

BRETT LYLE RORK,                                      )
                                                      )
       Appellant,                                     )
                                                      )
               vs.                                    )      No. 79A02-1110-CR-973
                                                      )
STATE OF INDIANA,                                     )
                                                      )
       Appellee.                                      )


                     APPEAL FROM THE TIPPECANOE CIRCUIT COURT
                           The Honorable Donald L. Daniel, Judge
                               Cause No. 79C01-0704-FA-7



                                             May 21, 2012

                 MEMORANDUM DECISION – NOT FOR PUBLICATION

MATHIAS, Judge
       Brett Lyle Rork (“Rork”) pleaded guilty to Class B felony dealing in cocaine and

was sentenced to fourteen years, with twelve years served in the Department of

Correction and two years served in community corrections. Rork appeals and argues that

his sentence is inappropriate in light of the nature of the offense and the character of the

offender.

       We affirm.

                             Facts and Procedural History

       On February 27, 2006, Rork delivered 2.9 grams of cocaine to a confidential

informant and an investigator with the Tippecanoe County Prosecutor’s Office. As a

result, the State charged Rork with Class A felony dealing in cocaine within 1,000 feet of

a school and Class B felony possession of cocaine within 1,000 feet of a school. The

State also alleged that Rork was a habitual substance offender.

       On August 24, 2007, as part of a plea agreement, the State amended the Class A

felony dealing in cocaine charge to a Class B felony and dismissed the remaining

possession charge and habitual offender allegation. In exchange, Rork pleaded guilty to

Class B felony dealing in cocaine. The plea agreement left sentencing to the discretion of

the trial court. On October 12, 2007, the trial court sentenced Rork to fourteen years,

with the first twelve years executed in the Department of Correction and the remaining

two years served in the Tippecanoe County Community Corrections program.

       Although pauper appellate counsel was appointed for Rork on October 29, 2007,

counsel failed to timely perfect an appeal of Rork’s sentence. On January 10, 2008,


                                             2
counsel filed a petition for permission to file a belated notice of appeal, which the trial

court granted. Rork’s appellate counsel then submitted an appellant’s brief, but it was not

filed due to defects. When Rork’s appellate counsel failed to correct the defects, Rork’s

appeal was dismissed for failure to prosecute. Thereafter, in response to a letter from

Rork, the trial court appointed new appellate counsel for Rork, and Rork’s new counsel

sought permission to file another belated notice of appeal. The State did not object, and

the trial court granted the petition. Rork’s new notice of appeal was filed on October 17,

2011, and this appeal ensued.

                                Discussion and Decision

       Rork argues that his sentence is inappropriate in light of the nature of the offense

and the character of the offender. Although a trial court may have acted within its lawful

discretion in imposing a sentence, Article 7, Sections 4 and 6 of the Indiana Constitution

authorize independent appellate review and revision of a sentence imposed by the trial

court. Alvies v. State, 905 N.E.2d 57, 64 (Ind. Ct. App. 2009) (citing Anglemyer v.

State, 868 N.E.2d 482, 491 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218). This

appellate authority is implemented through Indiana Appellate Rule 7(B), which provides

that a court “may revise a sentence authorized by statute if, after due consideration of the

trial court’s decision, the Court finds that the sentence is inappropriate in light of the

nature of the offense and the character of the offender.” Anglemyer, 868 N.E.2d at 491.

However, “we must and should exercise deference to a trial court’s sentencing decision,

both because Rule 7(B) requires us to give ‘due consideration’ to that decision and


                                             3
because we understand and recognize the unique perspective a trial court brings to its

sentencing decisions.” Stewart v. State, 866 N.E.2d 858, 866 (Ind. Ct. App. 2007). The

burden is on the defendant to persuade us that his sentence is inappropriate. Reid v.

State, 876 N.E.2d 1114, 1116 (Ind. 2007).

       Rork committed Class B felony dealing in cocaine, for which the sentence range is

six to twenty years, with an advisory sentence of ten years. Ind. Code § 35-50-2-5. Rork

was sentenced to fourteen years, with twelve years executed in the Department of

Correction and two years served in community corrections. Accordingly, Rork received

a sentence above the advisory, but still well below the maximum sentence for his offense.

       Rork’s offense appears to be unremarkable in nature for its type: Rork delivered

2.9 grams of cocaine to a confidential informant and an investigator with the Tippecanoe

County Prosecutor’s Office. Rork correctly notes that his offense was nonviolent and

that there is no indication that he was dealing in a large amount of drugs. Nevertheless,

we note that the General Assembly has classified Rork’s offense as a Class B felony,

together with the resultant sentencing range.

       However, Rork’s character alone, as reflected in his lengthy criminal history,

easily supports the trial court’s imposition of a fourteen-year sentence. At the time of his

sentencing, Rork, who was less than thirty years old, had already accumulated two felony

and eight misdemeanor convictions. His felony convictions were for Class D felony theft

and Class D felony intimidation, and his misdemeanor convictions include three

convictions for minor consumption, two convictions for public intoxication, and one


                                                4
conviction each of operating while intoxicated, criminal conversion, and possession of

marijuana. As a juvenile, Rork was adjudicated a delinquent child for receiving stolen

property. His probation in that matter was modified on two separate occasions because

he tested positive for marijuana, and he was ultimately unsuccessfully terminated from

probation. As an adult, Rork continued his pattern of violating the terms of his probation.

Indeed, the State has filed nineteen petitions to revoke Rork’s probation, six of which

were found to be true. Additionally, Rork was on probation at the time of the instant

offense, and four petitions to revoke his probation were pending at the time of his

sentencing in this matter. We also note that Rork has failed to appear nearly twenty

times, demonstrating a flagrant disregard for the authority of the court. Rork’s pattern of

law breaking and refusal to obey court orders demonstrates that he is unwilling or unable

to conform his behavior to the law.

       On appeal, Rork argues that his sentence is inappropriate because he suffers from

drug and alcohol addiction. However, we note that Rork has been offered substance

abuse treatment services on multiple occasions. As a juvenile, Rork received residential

and outpatient substance abuse treatment but continued to test positive for marijuana. As

an adult, Rork was ordered to complete substance abuse counseling, but he repeatedly

failed to complete treatment as ordered and continued to consume drugs and alcohol.

Accordingly, although it appears that Rork has issues with substance abuse, his failure to

complete treatment as ordered and his continued abuse of drugs and alcohol even after

the intervention of the criminal justice system reflect poorly on his character.


                                              5
      Rork also argues that his sentence is inappropriate because he took responsibility

for his crime by pleading guilty and because he has made attempts to better himself by

earning several educational certificates during his incarceration for this offense.

However, Rork received a substantial benefit from pleading guilty. Specifically, the

State amended the Class A felony dealing in cocaine charge to a Class B felony and

dismissed the Class B felony possession of cocaine charge and the habitual substance

offender allegation. Additionally, a petition to revoke Rork’s probation in another matter

was dismissed. Thus, it appears that Rork’s decision to plead guilty was motivated by

pragmatic concerns. And although we applaud Rork’s efforts to further his education

during his incarceration, his belated efforts do not outweigh his significant criminal

history, his failure to respond to less restrictive alternatives to incarceration, and his

pattern of disrespect for court orders. Under these facts and circumstances, and affording

appropriate deference to the trial court’s sentencing decision, we cannot conclude that

Rork’s fourteen-year sentence, with twelve years served in the Department of Correction

and two years served in community corrections, is inappropriate.

      Affirmed.

ROBB, C.J., and BAILEY, J., concur.




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