MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any                            Dec 23 2015, 8:19 am

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
Anthony S. Churchward                                   Gregory F. Zoeller
Deputy Public Defender                                  Attorney General of Indiana
Fort Wayne, Indiana                                     Eric P. Babbs
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Birol Simsek,                                           December 23, 2015
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        02A04-1505-CR-455
        v.                                              Appeal from the Allen Superior
                                                        Court
State of Indiana,                                       The Honorable John F. Surbeck,
Appellee-Plaintiff                                      Jr., Judge
                                                        Trial Court Cause No.
                                                        02D06-1412-F5-143



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 02A04-1505-CR-455| December 23, 2015      Page 1 of 5
                                            Case Summary
[1]   Birol Simsek appeals his four-year sentence for level 5 felony battery resulting in

      bodily injury, arguing that it is inappropriate based on the nature of the offense

      and his character. We conclude that he has failed to carry his burden to

      persuade us that his sentence is inappropriate, and therefore we affirm.


                                 Facts and Procedural History
[2]   In the summer of 2014, Simsek became the primary custodian of his two

      daughters after their mother died. A.S. was six years old. In October 2014,

      A.S. told a school official that Simsek was spanking her hard and she was afraid

      of him. The school official saw that A.S. had severe bruising to her buttocks

      and contacted the Department of Child Services (“DCS”).


[3]   That same day a DCS caseworker made an unannounced visit to Simsek’s

      residence, photographed A.S.’s bruises, and removed A.S. and her sister from

      the home. Simsek admitted that he spanked A.S. with an open hand and was

      aware of A.S.’s bruised buttocks and felt bad about it.


[4]   During a forensic interview, A.S. described an incident that occurred at the

      YMCA after her swimming class when she was in the shower without her

      bathing suit or clothes on. She said that Simsek spanked her buttocks with his

      hand, and she slipped and fell to the floor. She also disclosed that Simsek had

      slapped her face while she was doing homework.




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[5]   In December 2014, the State charged Simsek with level 5 felony battery

      resulting in bodily injury. Simsek pled guilty as charged without a plea

      agreement. At the sentencing hearing, A.S.’s therapist testified. She said that

      she believed that Simsek’s treatment of A.S. showed “a pattern of behavior”

      and that A.S. was afraid of Simsek. Tr. at 52. Also, a counselor who had

      supervised a visit between Simsek and A.S. testified that during the visit,

      Simsek told A.S. that he was upset because she had lied again and he had to go

      to jail because she told people that he beat her and threw her down. Id. at 57.

      The presentence investigation report showed that Simsek previously had been

      convicted of battery resulting in bodily injury against A.S. For that offense, he

      was sentenced in August 2011 to one year and 183 days, all suspended to

      probation. He was discharged from probation in April 2013.


[6]   After hearing all the evidence, the trial court stated that Simsek had committed

      a prior battery on the same victim and participated in services, but had “made

      [the professionals] happy, and reverted to precisely the same conduct.” Id. at

      87. The trial court sentenced him to four years with two years suspended to

      probation and also issued a no-contact order. This appeal ensued.


                                     Discussion and Decision
[7]   Simsek asks us to reduce his sentence pursuant to Indiana Appellate Rule 7(B),

      which states, “The 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.” When reviewing a sentence, our principal role is to leaven the
      Court of Appeals of Indiana | Memorandum Decision 02A04-1505-CR-455| December 23, 2015   Page 3 of 5
      outliers rather than necessarily achieve what is perceived as the correct result.

      Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). “We do not look to

      determine if the sentence was appropriate; instead we look to make sure the

      sentence was not inappropriate.” Conley v. State, 972 N.E.2d 864, 876 (Ind.

      2012). Simsek has the burden to show that his sentence is inappropriate.

      Anglemyer v. State, 868 N.E.2d 482, 494 (Ind. 2007), clarified on reh’g, 875 N.E.2d

      218.


[8]   Turning first to the nature of the offense, we observe that “the advisory sentence

      is the starting point the Legislature selected as appropriate for the crime

      committed.” Pierce v. State, 949 N.E.2d 349, 352 (Ind. 2011). The sentencing

      range for a level 5 felony is between one and six years, with an advisory

      sentence of three years. The trial court gave Simsek one year above the

      advisory but moderated the sentence by suspending two years. See Davidson v.

      State, 926 N.E.2d 1023, 1025 (Ind. 2010) (“Upon the review of sentence

      appropriateness under Appellate Rule 7, appellate courts may consider all

      aspects of the penal consequences imposed by the trial judge in sentencing the

      defendant.”). Here, Simsek caused both physical and psychological harm to

      A.S. As A.S.’s father, he violated a position of trust. A.S. can no longer turn to

      him for love and support because she is afraid of him as a result of repeated

      abuse. See Kincaid v. State, 839 N.E.2d 1201, 1205 (Ind. Ct. App. 2005)

      (observing that a parent’s position of trust is relevant to sentencing).


[9]   As for Simsek’s character, he stresses that he has shown remorse. Yet, this is

      his second conviction for battering A.S. As the trial court noted, although he

      Court of Appeals of Indiana | Memorandum Decision 02A04-1505-CR-455| December 23, 2015   Page 4 of 5
       had counseling and parenting services, he did not correct his behavior. He also

       accused A.S. of lying and blamed her for his incarceration. See Boling v. State,

       982 N.E.2d 1055, 1060-61 (Ind. Ct. App. 2013) (stating that blaming the victim,

       his daughter, reflected poorly on Boling’s character). We conclude that Simsek

       has failed to persuade us that his sentence is inappropriate. Therefore, we

       affirm.


[10]   Affirmed.


       Vaidik, C.J., and Bailey, J., concur.




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