Pursuant to Ind.Appellate Rule 65(D),

                                                              FILED
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of                         Sep 20 2012, 9:25 am
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:

L. ROSS ROWLAND                                   GREGORY F. ZOELLER
Public Defender’s Office                          Attorney General of Indiana
Muncie, Indiana
                                                  KATHERINE MODESITT COOPER
                                                  Deputy Attorney General
                                                  Indianapolis, Indiana




                              IN THE
                    COURT OF APPEALS OF INDIANA

D. FRANK WINCONEK,                                )
                                                  )
       Appellant-Defendant,                       )
                                                  )
              vs.                                 )        No. 18A05-1204-CR-184
                                                  )
STATE OF INDIANA,                                 )
                                                  )
       Appellee-Plaintiff.                        )


                    APPEAL FROM THE DELAWARE CIRCUIT COURT
                        The Honorable Thomas A. Cannon, Jr., Judge
                              Cause No. 18C05-1002-FD-40



                                      September 20, 2012


                MEMORANDUM DECISION – NOT FOR PUBLICATION


NAJAM, Judge
                              STATEMENT OF THE CASE

       D. Frank Winconek appeals his sentence for his convictions on five counts of

theft, each as a Class D felony, following his guilty plea. Winconek raises a single issue

for our review, namely, whether his sentence is inappropriate in light of the nature of the

offenses and his character.

       We affirm.

                        FACTS AND PROCEDURAL HISTORY

       Between December of 2006 and August of 2008, Winconek served as the CEO of

the Muncie Eye Center and earned a salary of $140,000. Throughout his employment

with the Muncie Eye Center, Winconek repeatedly paid himself bonuses to which he was

not entitled and misappropriated the business’s funds for his own use. For example,

between June of 2007 and December of 2008, he used the company credit card to

purchase several thousand dollars worth of lessons in ballroom dancing.           In total,

Winconek took $77,829.83 from the Muncie Eye Center.

       On February 3, 2010, the State charged Winconek with five counts of theft, each

as a Class D felony. On January 17, 2012, Winconek pleaded guilty to each of the five

counts. Pursuant to his plea agreement, his sentences on two of those five counts were to

be concurrent with his sentences on the other counts. Sentencing was otherwise left open

for the trial court’s determination.

       On February 14, following a sentencing hearing, the trial court ordered Winconek

to serve an aggregate term of four years, with two years suspended, and the court ordered




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him to pay $77,829.83 in restitution to the Muncie Eye Center. In particular, the court

entered the following detailed conclusions:

      The Court considers all the mitigating circumstances mentioned in the
      Amended Pre-Sentence Investigation Report and mentioned by the
      defendant. Of the mitigators mentioned the following are of greater
      significance.

      MITIGATING CIRCUMSTANCES:

      1.     The defendant is fifty-six (56) years old and has no prior criminal
      record.

      2.     The defendant has served his country in the military.

      3.    The defendant has pled guilty in this cause of action, saving the
      county the expense of taking this case to trial.

      4.   The defendant has family support and while he has been
      unemployed reports to be volunteering his time working for his church.

      5.      The defendant has expressed remorse for his actions and offered
      through the terms of the accepted plea agreement to make restitution of
      $77,829.83[,] which amount apparently reimburses his former employer for
      sums that the defendant directly misappropriated for his own use. The
      Court assigns little weight to this mitigating circumstance considering that
      with the defendant’s convictions he will have limited ability to obtain
      adequately compensated employment in order to make restitution and he
      has taken no action voluntarily to use the assets that were available to him
      to pay his former employer back, instead using those assets to pay ongoing
      bills to maintain his family’s lifestyle as long as possible.

      6.     Long term imprisonment will be a hardship on the defendant’s
      family members.

            The Court also believes that there are significant aggravating
      circumstances . . . . They include:

      AGGRAVATING CIRCUMSTANCES:

      1.    The harm, loss or damage suffered by the victims of defendant’s
      crimes were significant and greater than the elements necessary to prove the
      commission of the theft charges. The extent of the fraudulent conduct on
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      the part of the defendant, and the lengthy period of time over which it
      occurred, at least since 2006, contributed significantly to the failure of the
      Eye Center Group, LLC and the Surgical Group, LLC, and many
      employees losing their jobs. Not only did the defendant commit theft by
      paying for personal expenses using the business credit cards, and
      authorizing the payment to himself of unauthorized bonuses, he was
      instrumental in obtaining unauthorized loans that the companies were
      unable to pay which contributed to their ultimate failure.

      2.     The defendant’s crimes and actions resulted from an elaborate and
      extensive degree of thoughtful care and planning. The defendant was the
      princip[al] and mastermind of the thefts that he committed and the deceit
      that he perpetrated. A review of the witnesses[’] statements and the police
      reports reveal that over several years he manipulated record books, journal
      entries, inventory amounts and balance sheets, dodged questions, placed
      blame, made excuses and misrepresented monies spent, all in an effort to
      conceal the truth.

      3.     The defendant’s offenses were motivated by greed and not out of
      necessity. Examining the fruits of his ill[-]gotten gains, one notes that the
      defendant paid for with his employer’s funds repairs to his personal
      automobile; gasoline for his personal use of his vehicle; non[-]business
      dinners; skin care products; a door for his residence; dance lessons for him
      and his wife; golf and tennis equipment and clothing and outings; supplies
      for a graduation party; a wedding rehearsal dinner; bedroom furniture; and
      flowers and dinners with a female acquaintance.

      4.      The defendant lied on his personal resume for employment as to his
      academic credentials, and he continued to fabricate his higher education
      credentials not only at the first change of plea hearing in this case but in the
      original background information provided to the court[’]s probation
      officer[] for the preparation of her Pre-Sentence Investigation Report. This
      is not representative of a repentant attitude on the part of the defendant.

Appellant’s App. at 336-38. The court concluded that the aggravators outweighed the

mitigators. This appeal ensued.

                           DISCUSSION AND DECISION

      Winconek argues that his four-year sentence, with two years suspended, is

inappropriate. Although a trial court may have acted within its lawful discretion in


                                             4
determining a sentence, Article VII, Sections 4 and 6 of the Indiana Constitution

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

court.” Roush v. State, 875 N.E.2d 801, 812 (Ind. Ct. App. 2007) (alteration original).

This appellate authority is implemented through Indiana Appellate Rule 7(B).           Id.

Revision of a sentence under Rule 7(B) requires the appellant to demonstrate that his

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

offender.” Ind. Appellate Rule 7(B). We assess the trial court’s recognition or non-

recognition of aggravators and mitigators as an initial guide to determining whether the

sentence imposed was inappropriate. Gibson v. State, 856 N.E.2d 142, 147 (Ind. Ct.

App. 2006). However, “a defendant must persuade the appellate court that his or her

sentence has met th[e] inappropriateness standard of review.” Roush, 875 N.E.2d at 812

(alteration original).

       Moreover, “sentencing is principally a discretionary function in which the trial

court’s judgment should receive considerable deference.” Cardwell v. State, 895 N.E.2d

1219, 1222 (Ind. 2008). Indiana’s flexible sentencing scheme allows trial courts to tailor

an appropriate sentence to the circumstances presented. See id. at 1224. The principal

role of appellate review is to attempt to “leaven the outliers.” Id. at 1225. 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.” Id. at 1224.

       Before we address Winconek’s argument, we consider the State’s assertion that

Winconek has waived Rule 7(B) review of his sentence because he “fails to argue that the


                                             5
nature of the offenses justifies a reduced sentence.” Appellee’s Br. at 5. We agree. As

we have repeatedly held, “revision of a sentence under Indiana Appellate Rule 7(B)

requires the appellant to demonstrate that his sentence is inappropriate in light of both the

nature of his offenses and his character.” Williams v. State, 891 N.E.2d 621, 633 (Ind.

Ct. App. 2008) (emphasis original). And our conclusion in Williams was based on the

plain language of Indiana Appellate Rule 7(B), which is written in the conjunctive. Id.

Thus, we conclude that Winconek has waived his argument on appeal.

       Waiver notwithstanding, Winconek’s entire argument is that that his sentence is

inappropriate in light of his character. Specifically, Winconek suggests that, while he

might be a liar, “that quality . . . is not illegal.” Appellant’s Br. at 11. Winconek further

asserts that his extensive manipulation of records in the course of his crimes was “all a

part of [the] theft[s]” and not indicative of his elaborate and careful planning. Id. at 12.

       Winconek’s four-year sentence, with two years suspended, is not an inappropriate

outlier. As for his character, Winconek’s inability to tell the truth from the beginning of

these offenses through the State’s inquiries for the presentence investigation report is, in

the words of the trial court, “not representative of a repentant attitude.” Appellant’s App.

at 338. And Winconek’s extensive manipulation of the records goes well beyond the

elements of the offenses to reveal the depths of Winconek’s selfish and manipulative

character.

       Neither is Winconek’s sentence inappropriate in light of the nature of the offenses,

as so thoroughly explained by the trial court that Winconek does not try to challenge his

sentence on that ground.      As the trial court concluded, Winconek’s repeated theft


                                              6
contributed significantly to the failure of the business, which, in turn, resulted in “many

employees losing their jobs.” Id. at 337. Accordingly, Winconek cannot demonstrate

that his sentence is inappropriate, and we affirm his sentence.

       Affirmed.

KIRSCH, J., and MAY, J., concur.




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