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.




Court of Appeals of Indiana | Memorandum Decision 34A02-1506-CR-753| December 11, 2015   Page 1 of 6
                                            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.




      Court of Appeals of Indiana | Memorandum Decision 34A02-1506-CR-753| December 11, 2015   Page 2 of 6
                                                     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.

      Court of Appeals of Indiana | Memorandum Decision 34A02-1506-CR-753| December 11, 2015             Page 3 of 6
      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



      Court of Appeals of Indiana | Memorandum Decision 34A02-1506-CR-753| December 11, 2015   Page 4 of 6
       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.

       Court of Appeals of Indiana | Memorandum Decision 34A02-1506-CR-753| December 11, 2015   Page 5 of 6
                                                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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