Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before                                   Mar 03 2014, 9:25 am
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:

P. JEFFREY SCHLESINGER                             GREGORY F. ZOELLER
Appellate Public Defender                          Attorney General of Indiana
Crown Point, Indiana
                                                   JAMES B. MARTIN
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

TIMOTHY J. TKACHIK,                                )
                                                   )
       Appellant-Defendant,                        )
                                                   )
               vs.                                 )      No. 45A05-1308-CR-417
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )


                       APPEAL FROM THE LAKE SUPERIOR COURT
                        The Honorable Thomas P. Stefaniak, Jr., Judge
                               Cause No. 45G04-0906-MR-6



                                         March 3, 2014


                MEMORANDUM DECISION - NOT FOR PUBLICATION


BRADFORD, Judge
                                    CASE SUMMARY

       On June 26, 2009, Appellant-Defendant Timothy J. Tkachik and Engelica Castillo

were charged with one count of murder, two counts of Class A felony neglect of a dependent,

Class A felony battery, and Class A misdemeanor false informing. Tkachik pled guilty to

two counts of Class A felony neglect of a dependent. In exchange for Tkachik’s guilty plea,

Appellee-Plaintiff the State of Indiana agreed to dismiss the charges alleging that Tkachik

committed murder, Class A felony battery, and Class A misdemeanor false informing.

Pursuant to the terms of Tkachik’s plea agreement, sentencing was left to the discretion of

the trial court. The trial court subsequently sentenced Tkachik to concurrent terms of forty

years. On appeal, Tkachik contends that the trial court abused its discretion in sentencing

him. We affirm.

                       FACTS AND PROCEDURAL HISTORY

       The facts and circumstances of this case, which were set out by the Indiana Supreme

Court in Castillo’s direct appeal, are as follows:

       The dead body of two-year-old [J.J.] was recovered from a swampy body of
       water near LaPorte, Indiana, on June 24, 2009. At the time of her death, [J.J.]
       was staying with her mother’s first cousin, Engelica Castillo, and Castillo’s
       then-boyfriend, Timothy J. Tkachik.
                                               ****
       [J.J.] was scheduled to stay there from June 8 through June 21 of 2009. The
       first few days of [J.J.]’s visit were relatively unremarkable. On the morning of
       June 12, [Castillo and Tkachik] discovered that [J.J.] had taken a packet of
       powdered Hawaiian Punch mix and strawberries out of their refrigerator
       without asking their permission. [Castillo] responded by yelling at and
       spanking the victim and then wrapping twine around the refrigerator later in
       the day. [Tkachik], who was present during nearly all of the events in
       question, testified that the rest of that day was uneventful. The next morning,
       on June 13, [Castillo] discovered that [J.J.] had locked herself in her bedroom.
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After unlocking the door, [Castillo] found that [J.J.] had made a mess on the
bedroom floor with syrup and powdered Hawaiian Punch packets that [J.J.]
had found in the kitchen. Again, [Castillo] yelled at and spanked [J.J.] and
then cleaned up the mess, pushing [J.J.] aside roughly as she cleaned.
         Later in the day, around lunchtime, [Castillo] gave [J.J.] a pre-packaged
lunch to eat. [J.J.] did not eat much of it, mostly playing with the food and
throwing pieces of it to the dog. This made [Castillo] angry. As punishment,
[Castillo] put [J.J.] in a corner in [J.J.]’s bedroom and then, after cleaning the
mess in the kitchen, sat on the couch with [Tkachik] in the living room.
[Castillo] could see [J.J.] in her bedroom from the couch and, soon after
sitting, noticed that [J.J.] was no longer standing but instead sitting down in the
corner and playing with toys. [Castillo] then returned to the bedroom, spanked
[J.J.], and attempted to force her to stand upright by yanking her and holding
her upright by her arms. [Castillo] then went back to the living room and again
sat on the couch. Approximately five minutes later, [Castillo] again became
irritated with [J.J.] and returned to the bedroom. The facts are not clear as to
what exactly occurred during this confrontation, but [Tkachik] testified that he
could hear [Castillo] speaking in an irritated tone to [J.J.] when the door was
closed and that, at one point when the door was open, he saw [Castillo]
holding [J.J.] by the hair, poking her in the body, and slapping her. At one
point during this confrontation, [Castillo] brought [J.J.] into the living room
and, with [Tkachik]’s help, spanked [J.J.] several times on her bare bottom
using a belt. Approximately one and one-half hours after this confrontation
began, [Castillo] came out of [J.J.]’s bedroom and told [Tkachik] that [J.J.] had
hit her head on a table in the bedroom when [Castillo] had slapped her.
[Tkachik] testified that [J.J.] sustained a small cut above her right eye that bled
only a small amount and that [Castillo] put a small bandage over it. He also
testified that he noticed red marks on [J.J.]’s face and bruises on her buttocks
around that same time.
         Shortly after [J.J.] hit her head, [Tkachik] became frustrated by the
ongoing confrontation between [J.J.] and [Castillo]. He ran into [J.J.]’s
bedroom and “knuckled” [J.J.] in the head “pretty hard” four to six times
“hoping that everything would stop after that.” Tr. at 334-35. Afterward,
[Castillo] continued to hold [J.J.] by the hair, yanking and pushing her, and
eventually tied [J.J.] to a chair with [Tkachik]’s belts. She initially placed one
belt around [J.J.]’s waist and another around her neck but removed the belt
from around [J.J.]’s neck after [Tkachik] told her to do so. Still frustrated with
the situation, [Tkachik] then went to the gas station. When he arrived home,
he heard “boom, boom, boom, boom” coming from [J.J.]’s bedroom, but he
couldn’t see what was causing the noise because the bedroom door was shut.
Tr. at 341. He then made plans to go to Chicago that evening to purchase
heroin.
                                           3
               Approximately thirty minutes later, [Castillo] and [Tkachik] left for
       Chicago to retrieve the heroin. [Tkachik] testified that, while they were
       getting [J.J.] ready to leave, he noticed that [J.J.] had a bruise on her face, that
       she seemed “out of it,” and that she was unable to hold her bottle while sitting
       in her carseat. Tr. at 344. [Castillo] wrapped [J.J.] in a blanket to hide the
       marks on her body because they were going to take a friend with them to
       Chicago. Shortly after leaving the house, while driving on Interstate 94,
       [Tkachik] noticed that [J.J.]’s head was leaning down towards her chest with
       her eyes closed. He then jumped in the back seat, found that she was not
       breathing, and attempted to administer CPR as [Castillo] pulled off the road.
       At that point, [Castillo] and [Tkachik] switched places, and [Castillo]
       continued CPR while [Tkachik] drove the truck back to their house. Once they
       arrived home, they stopped administering CPR and left [J.J.] in the backseat of
       the truck covered with a tarp. Sometime later, they set off for Chicago again,
       without [J.J.]. The precise timing of [J.J.]’s death is unclear, but both
       [Castillo] and [Tkachik] testified that she was dead when they returned from
       Chicago later that night.

Castillo v. State, 974 N.E.2d 458, 461, 463-65 (Ind. 2012). After Tkachik and Castillo

returned from Chicago, they put J.J.’s body into garbage bags and left her in the basement

while they consumed drugs.

       The next day, realizing that they needed to get rid of the body, Tkachik and Castillo

purchased gasoline, charcoal, and lighter fluid and drove out to a wooded area. Tkachik and

Castillo placed J.J.’s body into a hole in the ground and attempted to burn it. Their attempt to

burn J.J.’s body was unsuccessful and Tkachik was severely burned in the process. Tkachik

and Castillo then left J.J.’s body in the hole and returned home.

       The next day, Tkachik and Castillo went to retrieve the body after purchasing

concrete, a rope, a dolly, and a large bucket. Tkachik and Castillo tied J.J.’s body so that it

would fit in the container that they purchased, poured concrete over J.J.’s body, and waited

for the concrete to dry. In the early morning hours, Tkachik and Castillo returned to the

                                                4
wooded area and dumped J.J.’s body into a swamp. Tkachik and Castillo later lied to police,

claiming that J.J. had been kidnapped when Castillo left J.J. in the car when she went to

purchase something from a gas station. At some later time, Tkachik informed police about

what had happened to J.J. and led police to where he and Castillo had left J.J.’s body.

       On June 26, 2009, Tkachik and Castillo were charged with one count of murder, two

counts of Class A felony neglect of a dependent, one count of Class A felony battery, and one

count of Class A misdemeanor false informing. Tkachik pled guilty to two counts of Class A

felony neglect of a dependent. In exchange for Tkachik’s guilty plea, the State agreed to

dismiss charges alleging that Tkachik committed murder, Class A felony battery, and Class A

misdemeanor false informing.

       In pleading guilty, Tkachik admitted that he and Castillo acted in concert with each

other in beating J.J., he delivered “several blows to the head” of J.J., and he held J.J. down

while Castillo repeated struck her with a belt. Appellant’s App. p. 80. Tkachik further

admitted that although he recognized the “dire circumstances faced by [J.J.]” as well as her

“immediate need for prompt medical attention,” he did not seek medical attention for J.J. but

rather left her body in the backseat of a vehicle while he and Castillo took a different vehicle

into Chicago to buy drugs. Appellant’s App. p. 80. He also acknowledged that J.J. died as a

result of the beating inflicted upon her by him and Castillo.

       Pursuant to the terms of Tkachik’s plea agreement, Tkachik agreed to testify against

Castillo and sentencing was left to the discretion of the trial court. The trial court accepted

Tkachik’s guilty plea and sentenced Tkachik to two concurrent forty-year terms of

                                               5
incarceration. This appeal follows.

                             DISCUSSION AND DECISION

       Tkachik challenges his sentencing on appeal. In doing so, Stachik acknowledges the

“abhorrent” nature of his actions but nevertheless contends that the trial court abused its

discretion in sentencing him. Appellant’s Br. p. 6. Sentencing decisions rest within the

sound discretion of the trial court and are reviewed on appeal only for an abuse of discretion.

Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), modified on other grounds on reh’g,

875 N.E.2d 218 (Ind. 2007). “An abuse of discretion occurs if the decision is clearly against

the logic and effect of the facts and circumstances before the court, or the reasonable,

probable, and actual deductions to be drawn therefrom.” Id. (quotation omitted). When

imposing a sentence in a felony case, the trial court must provide a reasonably detailed

sentencing statement explaining its reason for imposing the sentence. Id.

       One way in which a trial court may abuse its discretion is failing to enter a
       sentencing statement at all. Other examples include entering a sentencing
       statement that explains reasons for imposing a sentence-including a finding of
       aggravating and mitigating factors if any-but the record does not support the
       reasons, or the sentencing statement omits reasons that are clearly supported by
       the record and advanced for consideration, or the reasons given are improper
       as a matter of law. Under those circumstances, remand for resentencing may
       be the appropriate remedy if we cannot say with confidence that the trial court
       would have imposed the same sentence had it properly considered reasons that
       enjoy support in the record.

Id. at 490-91.

       In sentencing Tkachik, the trial court found the following aggravating factors: (1)

Tkachik’s criminal history, which included prior misdemeanor convictions; (2) prior leniency


                                              6
did not deter future criminal behavior; (3) at the time of J.J.’s death, Tkachik was involved in

drug dealing; (4) Tkachik is in need of correctional and rehabilitative treatment that can be

best provided by his commitment to a penal facility; and (5) Tkachik “knuckled” J.J. in the

head “pretty hard” four to seven times. Tr. p. 74; Appellant’s App. p. 132. The trial court

also found the following mitigating factors: (1) Tkachik pled guilty; (2) Tkachik expressed

remorse; (3) Tkachik testified against Castillo; (4) Trachik essentially confessed and led law

enforcement to J.J.’s body; and (5) the devastating and traumatic effect of the murder-suicide

situation involving his parents when Tkachik was seventeen. After considering each of these

factors, the trial court imposed two concurrent forty-year terms of imprisonment.

       On appeal, Tkachik does not challenge the aggravating factors considered by the trial

court. Tkachik recognizes that the trial court considered the above-stated mitigating factors

when sentencing him but argues that the trial court failed to consider as additional mitigating

factors the accidental nature of J.J.’s death, the fact that Castillo was the controlling party in

their relationship, and the fact that Tkachik’s addiction to heroin contributed to his actions.

       Although a sentencing court must consider all evidence of mitigating factors offered

by a defendant, the finding of mitigating factors rests within the court’s discretion.

Henderson v. State, 769 N.E.2d 172, 179 (Ind. 2002). “A court does not err in failing to find

mitigation when a mitigation claim is highly disputable in nature, weight, or significance.”

Id. (internal quotations omitted). The trial court is not obligated to explain why it did not

find a factor to be significantly mitigating. Sherwood v. State, 749 N.E.2d 36, 38 (Ind. 2001)

(citing Birdsong v. State, 685 N.E.2d 42, 47 (Ind. 1997)). Furthermore, while Indiana law

                                                7
mandates that the trial judge not ignore facts in the record that would mitigate an offense, and

a failure to find mitigating factors that are clearly supported by the record may imply that the

trial court failed to properly consider them, id., an allegation that the trial court failed to find

a mitigating factor requires the defendant to establish that the mitigating evidence is both

significant and clearly supported by the record. Carter v. State, 711 N.E.2d 835, 838 (Ind.

1999).

                            A. Accidental Nature of J.J.’s Death

         Tkachik claims that the trial court should have considered the accidental nature of

J.J.’s death to be a mitigating factor. Tkachik, however, did not raise this claim before the

trial court. “‘A defendant who fails to raise proposed mitigators at the trial court level is

precluded from advancing them for the first time on appeal.’” Johnson v. State, 837 N.E.2d

209, 215 (Ind. Ct. App. 2005) (quoting Pennington v. State, 821 N.E.2d 899, 905 (Ind. Ct.

App. 2005)). Therefore, Tkachik has waived this claim on appeal.

                        B. Castillo Dominant Party in Relationship

         Tkachik also claims that the trial court should have considered the fact that Castillo

was the dominant party in his relationship with Castillo. Again, the finding of mitigating

factors is within the discretion of the trial court, and the trial court is not obligated to accept

the defendant’s contentions as to what constitutes a significant mitigating factor. McCann v.

State, 749 N.E.2d 1116, 1121 (Ind. 2001) (citing Legue v. State, 688 N.E.2d 408, 411 (Ind.

1997)). “‘An allegation that the trial court failed to identify or find a mitigating [factor]

requires the defendant to establish that the mitigating evidence is both significant and clearly

                                                 8
supported by the record.’” Id. (citing Carter, 711 N.E.2d at 838). Tkachik has failed to do

so.

       While it may be true that Castillo was the dominant individual in the relationship

between Tkachik and Castillo, the record contains a great deal of evidence demonstrating that

Tkachik played a significant role in the actions that led to J.J.’s death. Tkachik admitted that

he and Castillo acted in concert with each other in beating J.J., he delivered “several blows to

the head” of J.J., and he held J.J. down while Castillo repeated struck J.J. with a belt.

Appellant’s App. p. 80. Tkachik further admitted that although he recognized the “dire

circumstances faced by [J.J.]” as well as her “immediate need for prompt medical attention,”

he did not seek medical attention for J.J. but rather left her body in the backseat of a vehicle

while he and Castillo took a different vehicle into Chicago to buy drugs. Appellant’s App. p.

80. Furthermore, Tkachik did not argue that Castillo forced him to participate in the actions

that led to J.J.’s death. In light of this evidence, the trial court appeared to be unconvinced

that Castillo’s alleged dominance over Tkachik amounted to a significant mitigating factor.

The trial court did not abuse its discretion in this regard.

                                  C. Tkachik’s Drug Use

       Tkachik also claims that the trial court abused its discretion in failing to find as a

mitigating factor that his drug abuse contributed to his actions. Again, the trial court is not

obligated to accept the defendant’s contentions as to what constitutes a significant mitigating

factor, and an allegation that the trial court failed to identify or find a mitigating factor

requires the defendant to establish that the mitigating evidence is both significant and clearly

                                               9
supported by the record. McCann, 749 N.E.2d at 1121 (citing Carter, 711 N.E.2d at 838). In

addition, we note that the Indiana Supreme Court has held that a trial court is not required to

consider a defendant’s substance abuse to be a mitigating factor. See James v. State, 643

N.E.2d 321, 323 (Ind. 1994).

       We note that Tkachik fails to make any specific argument relating to why he believes

that the trial court abused its discretion in failing to find the fact that his heroin use

contributed to his actions to be a mitigating factor. Tkachik merely raises this claim without

any explanation as to why his heroin use was significant enough to warrant mitigating

weight. As such, Tkachik has waived this claim on appeal. See Lyles v. State, 834 N.E.2d

1035, 1050 (Ind. Ct. App. 2005) (providing that a party waives an issue where the party fails

to develop a cogent argument or provide adequate citation to authority and portions of the

record), trans. denied. Furthermore, waiver notwithstanding, the record demonstrates that

the trial court considered Tkachik’s drug use at sentencing but apparently did not consider it

to be a significant mitigating factor. The trial court did not abuse its discretion in this regard.

                                        CONCLUSION

       Having concluded that Tkachik has waived his claim relating to the accidental nature

of J.J.’s death and that the trial court did not abuse its discretion in failing to find Castillo’s

alleged dominant position in Tkachik’s and Castillo’s relationship or Tkachik’s drug use to

be significant mitigating factors, we conclude that the valid aggravating factors found by the

trial court warranted an enhanced sentence and, accordingly, that the trial court did not abuse

its discretion in sentencing Tkachik.

                                                10
      The judgment of the trial court is affirmed.

MATHIAS, J., and PYLE, J., concur.




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