                                                                FILED
                                                           Aug 02 2016, 5:43 am

                                                                CLERK
                                                            Indiana Supreme Court
                                                               Court of Appeals
                                                                 and Tax Court




ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
R. Patrick Magrath                                       Gregory F. Zoeller
Laura Raiman                                             Attorney General of Indiana
Alcorn Sage Schwartz & Magrath, LLP                      Tyler G. Banks
Madison, Indiana                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

William A. Connor,                                       August 2, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         03A05-1511-CR-1893
        v.                                               Appeal from the Bartholomew
                                                         Superior Court
State of Indiana,                                        The Honorable James D. Worton,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause Nos.
                                                         03D01-1502-FB-1033
                                                         03D01-1504-F3-1937



Robb, Judge.




Court of Appeals of Indiana | Opinion 03A05-1511-CR-1893 | August 2, 2016              Page 1 of 20
                                  Case Summary and Issue
[1]   William Connor entered a plea of guilty to criminal deviate conduct as a Class

      B felony, in exchange for which the State dismissed a charge in a separate case.

      The trial court sentenced Connor to fourteen years in the Indiana Department

      of Correction (“DOC”) with four years suspended to probation. Connor

      appeals his sentence, raising the sole issue of whether it is inappropriate in light

      of the nature of his offense and his character. Concluding his sentence is not

      inappropriate, we affirm.



                             Facts and Procedural History                                    1




[2]   Connor was born in 1997 in Russia. At age three, severely malnourished and

      unable to speak, he was placed in an orphanage. He was adopted by the

      Connors at age four and raised with the Connors’ two biological daughters,

      M.C. and J.C. Connor has attempted suicide on several occasions and has

      been involved with mental health services for several years. He has been

      diagnosed with reactive attachment and bipolar disorders.


[3]   On February 23, 2015, sixteen-year-old J.C. reported to law enforcement that

      Connor, then seventeen years old, had engaged in sexual conduct with her

      against her will multiple times over the past two years. Connor admitted to the




      1
        No transcript of the change of plea hearing was provided to this court, and therefore, the facts underlying
      the offense come primarily from the Affidavit for Probable Cause. The parties’ recitation of the facts in their
      briefs also come from the affidavit.

      Court of Appeals of Indiana | Opinion 03A05-1511-CR-1893 | August 2, 2016                          Page 2 of 20
      sexual contact when interviewed by police. On February 27, 2015, the State

      charged Connor with criminal deviate conduct, a Class B felony (“Cause

      1033”).2 A jury trial was scheduled for July 28, 2015.


[4]   On April 15, 2015, the State charged Connor with rape as a Level 3 felony for

      acts committed against a second victim (“Cause 1937”). Connor obtained a

      continuance of his July jury trial date in Cause 1033 and ultimately reached an

      agreement with the State to plead guilty to criminal deviate conduct in Cause

      1033 in exchange for the State dismissing Cause 1937. The trial court held a

      change of plea hearing in Cause 1033 on September 21, 2015, at which time

      Connor filed a Waiver of Rights, Withdrawal of Plea of Not Guilty and Plea of

      Guilty. The trial court accepted the plea of guilty, entered judgment of

      conviction, ordered a pre-sentence investigation report to be prepared, and

      scheduled a sentencing hearing.


[5]   Connor had one prior contact with the juvenile court system, in late 2014, when

      he was alleged to have committed two acts of conversion, Class A

      misdemeanors if committed by an adult, and leaving home without permission.

      He was remanded to a shelter before being released approximately six weeks

      later to his parents. He was given a 120-day suspended detention and placed on




      2
        It appears the State may have actually charged two counts of criminal deviate conduct in Cause 1033. See,
      e.g., Appellant’s Appendix at 1 (Chronological Case Summary); id. at 32 (letter from the State offering to
      “dismiss the remaining counts and [Cause 1937]” in exchange for Connor’s plea of guilty to Count I in Cause
      1033); id. at 55 (Abstract of Judgment). However, there is but one charging information in the record
      alleging one count of criminal deviate conduct in Cause 1033. See id. at 6.

      Court of Appeals of Indiana | Opinion 03A05-1511-CR-1893 | August 2, 2016                      Page 3 of 20
      probation with the requirement that he complete a psychological evaluation and

      follow up as recommended. He was on probation when the current charge was

      filed. The pre-sentence investigation report noted that Connor’s overall risk

      assessment score indicated he was a low to moderate risk in most areas but a

      high risk with regard to his criminal attitudes and behavior patterns and was

      therefore at an overall high risk category to reoffend.


[6]   At the sentencing hearing on October 20, 2015, Connor spoke on his own

      behalf, and both his father and J.C. gave statements. The trial court sentenced

      Connor to fourteen years in the DOC with four years suspended to probation:

              This is a very difficult case . . . [a]nd it is difficult on everybody
              involved, but the Court does agree with the State’s contention
              that there is a balancing act to try and accomplish here today in
              formatting an appropriate sentence. And that is the mental
              health treatment and, and rehabilitating treatment for the
              defendant, which is important. And the safety of the victim in
              this case, which is very important and the safety of the rest of the
              community. . . . The Court is not insensitive to the, to the fact
              that you have had some, had some rough times in your life,
              especially at the beginning of your life . . . but I would like to say
              that in this Court’s mind does not in any way justify the actions
              that you did. . . . So we start with the advisory term of ten years
              and then the Court weighs aggravators and mitigators. . . . In
              this case the Court finds the following aggravators. The
              defendant does have a history of criminal delinquent behavior.
              The, yes there is not an extensive criminal history there, but the
              Court does note that there were more than, though you’ve plead
              to one offense there were [sic] more than one offense that
              occurred. This is something that occurred over a period of time.
              The Court also finds as an aggravator that the harm, injury or
              loss or damage suffered by the victim of the offense was

      Court of Appeals of Indiana | Opinion 03A05-1511-CR-1893 | August 2, 2016    Page 4 of 20
              significant and greater than the elements necessary to approve
              [sic] the commission of the offense. The Court will take the
              defendant’s mental health and find that as a slight mitigator . . .
              that those issues are present. . . . The Court . . . notes that the
              Indiana Risk Assessment Tool, shows that the defendant, as it
              stands today has a high risk to re-offend. So the Court does,
              doesn’t find that as an aggravator, but the Court does note that
              for the record. The Court considers the balance of aggravating
              and mitigating factors to be that the aggravators outweigh the
              mitigators.


      Transcript at 22-25. Connor now appeals his sentence.



                                 Discussion and Decision
                                     I. Standard of Review
[7]   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 sentences. Trainor v. State, 950

      N.E.2d 352, 355 (Ind. Ct. App. 2011), trans. denied. Indiana Appellate Rule

      7(B) implements that authority and provides, “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.” The defendant bears the burden of

      persuading this court that his or her sentence is inappropriate. Childress v. State,

      848 N.E.2d 1073, 1080 (Ind. 2006). Whether we regard a sentence as

      inappropriate “turns on our sense of the culpability of the defendant, the

      severity of the crime, the damage done to others, and myriad other factors that

      Court of Appeals of Indiana | Opinion 03A05-1511-CR-1893 | August 2, 2016     Page 5 of 20
      come to light in a given case.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind.

      2008). Finally, we note the principal role of appellate review is to “leaven the

      outliers,” not achieve the perceived “correct” result in each case. Id. at 1225.


                                 II. Inappropriate Sentence
                                                A. Waiver
[8]   We address first the State’s contention that Connor has waived review of his

      sentence because he did not make a specific argument that the nature of his

      offense makes his sentence inappropriate, citing Anderson v. State, 989 N.E.2d

      823 (Ind. Ct. App. 2013), trans. denied. See Brief of Appellee at 9-10. Anderson

      does state that “[a]n appellant bears the burden of showing both prongs of the

      inquiry favor revision of her sentence[,]” citing Childress v. State, 848 N.E.2d

      1073, 1080 (Ind. 2006). Our reading of Childress finds no such statement,

      however, just a simple declaration that “a defendant must persuade the

      appellate court that his or her sentence has met th[e] inappropriateness standard

      of review.” 848 N.E.2d at 1080; see, e.g., Johnson v. State, 986 N.E.2d 852, 856

      (Ind. Ct. App. 2013) (citing Childress for the proposition that “[t]he appellant

      bears the burden of demonstrating his sentence is inappropriate”).


[9]   In fact, our courts have frequently treated the two prongs as separate inquiries

      to ultimately be balanced in determining whether a sentence is inappropriate.

      See, e.g., Eckelbarger v. State, 51 N.E.3d 169, 170-71 (Ind. 2016) (revising

      defendant’s sentence from thirty-two years to sixteen years upon finding the

      nature of his offenses—drug offenses facilitated by a State informant—did not

      Court of Appeals of Indiana | Opinion 03A05-1511-CR-1893 | August 2, 2016   Page 6 of 20
warrant consecutive sentences, without also discussing whether his character

warranted revision); Isom v. State, 31 N.E.3d 469, 494 (Ind. 2015) (noting “[t]he

character of the offender, rather than the nature of the offense, presents

[defendant’s] strongest support for revision[,]” but ultimately declining to revise

the sentence because the nature of the offenses “far outweigh his otherwise

favorable character”), cert. denied, 136 S. Ct. 1161 (2016); Rice v. State, 6 N.E.3d

940, 947 (Ind. 2014) (stating, in declining to revise defendant’s sentence, “[w]e

are thus not convinced that either the nature of the offense or the character of the

offender warrants a revision”) (emphasis added); Cardwell, 895 N.E.2d at 1226

(revising defendant’s sentence without considering the nature of the defendant’s

character because “the record contains a number of inconclusive factors on

which the trial court made no findings”); Schaaf v. State, No. 85A04-1506-CR-

796, 2016 WL 2899460, at *3 (Ind. Ct. App. May 18, 2016) (revising a sentence

upon finding that although the defendant’s criminal history was significant and

would make a below-advisory sentence too lenient, the nature of his “relatively

minor” offenses rendered his above-advisory sentences too harsh); Norris v.

State, 27 N.E.3d 333, 336 (Ind. Ct. App. 2015) (acknowledging defendant’s

criminal history but revising sentence as inappropriate due to “the relatively

innocuous nature of this offense”); Williams v. State, 891 N.E.2d 621, 633-35

(Ind. Ct. App. 2008) (revising defendant’s sentence on the basis of the nature of

his offense even though defendant did not make an argument regarding his

sentence in light of his character); Douglas v. State, 878 N.E.2d 873, 881 (Ind.

Ct. App. 2007) (revising defendant’s sentence “[a]fter due consideration of [his]


Court of Appeals of Indiana | Opinion 03A05-1511-CR-1893 | August 2, 2016    Page 7 of 20
       minimal criminal history, probation violations, and guilty plea,” which are all

       factors weighing on defendant’s character).3


[10]   In other words, although the rule does state that we may revise a sentence we

       find to be inappropriate “in light of the nature of the offense and the character of

       the offender,” App. R. 7(B) (emphasis added), we view that as a statement that

       we as the reviewing court must consider both of those prongs in our assessment,4

       and not as a requirement that the defendant must necessarily prove each of those

       prongs render his sentence inappropriate. In practice, as illustrated by the cases

       cited above, we often exercise our review and revise power where only one of

       the prongs weighs heavily in favor of either affirming or revising the sentence.

       See Payton v. State, 818 N.E.2d 493, 498 (Ind. Ct. App. 2004) (“[I]t is clear that

       [the defendant’s] character falls within the category of the worst offenders.

       However, we are also obliged to consider the nature of the offenses. In our

       opinion, the offenses committed, while egregious, are by far not the worst we

       have reviewed. Therefore, in this category of offenses, we do not find [the

       defendant’s] actions to be the worst we have reviewed and, thus, we deem his

       aggregate . . . sentence to be inappropriate. Therefore, we revise [the




       3
         Conversely, we have found an inappropriate sentence argument to be waived when the defendant invokes
       the rule but sets forth no reasons supporting that claim, see, e.g., Boyle v. State, 868 N.E.2d 435, 437 (Ind.
       2007), or when the defendant claims to be making a 7(B) argument but instead asserts the trial court erred in
       its identification or weighing of aggravators and mitigators, see, e.g., Sandleben v. State, 29 N.E.3d 126, 135-36
       (Ind. Ct. App. 2015), trans. denied.
       4
        This is not to say that we should consider only one prong or the other, see slip op. at 19, but that we must
       consider both prongs together.

       Court of Appeals of Indiana | Opinion 03A05-1511-CR-1893 | August 2, 2016                             Page 8 of 20
       defendant’s] sentence to reflect the presumptive for each offense . . . .”), trans.

       denied. In short, 7(B) review is a holistic approach, “focus[ing] on the forest . . .

       rather than the trees . . . .” Cardwell, 895 N.E.2d at 1225. This is in line with

       the acknowledgement in Childress that the 2003 amendment to Rule 7

       “represented a shift from a prohibition on revising sentences unless certain

       narrow conditions were met to an authorization to revise sentences when

       certain broad conditions are satisfied.” 848 N.E.2d at 1079 (quotation

       omitted).


[11]   Even the most heinous offense—and no one could dispute with a straight face

       that every child molesting offense is heinous—comes with an advisory sentence

       that can be reduced or enhanced within a given range. Although the trial

       court’s reasons for imposing a given sentence within that range can be reviewed

       for abuse of discretion, the trial court’s weighing of those reasons cannot.

       Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007). By arguing only that the

       nature of his character warrants a lesser sentence, Connor has essentially

       conceded that if we were reviewing the circumstances of his crime alone, his

       sentence would be warranted; however, he urges us to give more weight to the

       nature of his character than to the circumstances of his crime. We believe this

       is an appropriate acknowledgement of the seriousness of his offense and an

       acceptable request for exercise of our review and revise power. We therefore do

       not believe Connor has waived our review of his sentence under Rule 7(B). His

       burden of persuading us that his sentence is inappropriate has not been




       Court of Appeals of Indiana | Opinion 03A05-1511-CR-1893 | August 2, 2016   Page 9 of 20
       lessened, and, in fact, may be heightened by the need to prove the nature of his

       character should overcome the admittedly serious nature of his offense.


                                        B. Rule 7(B) Review
[12]   We begin by noting that the advisory sentence is the starting point the

       legislature has selected as an appropriate sentence for the crime committed.

       Childress, 848 N.E.2d at 1081. Connor was convicted of criminal deviate

       conduct, a Class B felony. A Class B felony carries a possible sentence of six to

       twenty years, with an advisory sentence of ten years. Ind. Code § 35-50-2-5(a).

       The victim in this case was Connor’s sister and the forced sexual contact

       occurred multiple times over the course of at least two years. The trial court

       found two aggravating circumstances—Connor’s history of criminal or

       delinquent behavior and the harm to the victim was significant and greater than

       required to prove the elements of the offense—and one mitigating

       circumstance—Connor’s mental health condition. The trial court found the

       aggravating circumstances outweighed the mitigating circumstance and ordered

       an enhanced sentence of fourteen years, with four years suspended to probation

       with community corrections placement.


[13]   As Connor himself acknowledges, the nature of his offense is serious because

       “the sexual victimization of a person, particularly a minor, is a heinous act.”

       Amended Appellant’s Brief at 8. Connor therefore focuses solely on the nature

       of his character in contending his sentence is inappropriate, asserting his

       sentence should be reduced because he is young, had a difficult early childhood,


       Court of Appeals of Indiana | Opinion 03A05-1511-CR-1893 | August 2, 2016   Page 10 of 20
and later developed behavioral and mental health issues and substance abuse

problems. In all respects, this case is tragic. At the time he was sentenced for

forcibly engaging in sexual activity with his adoptive sister, Connor was

eighteen years old. He was neglected as an infant and left in an orphanage as a

toddler. These early childhood traumas adversely affected his life even after he

was adopted into a family who supported and tried to assist him, and who,

despite his actions, recognize he needs treatment and continue to offer support.

See Tr. at 13 (Connor’s adoptive father testifying at the sentencing hearing that

“we love him very much, he’s our son, . . . and we still care about his future

very much. We are in a difficult position in this case, but still feel that he has a

lot of potential in his future”); id. at 16 (J.C. testifying at the sentencing hearing

that “I don’t think he learned to be comforted in his early years. I think that his

views on family, authority and trust were formed during this time.

Unfortunately he does not seem to understand the assistance that his current

family has tried to offer. He has rejected our comfort and treatment that my

parents has been [sic] . . . seeking [for him] for a long period of time. He’s

never really gotten the appropriate kind of help. I hope that he can now receive

the help that he needs, I want to see him get better more than I want to see him

punished”). Connor reported during the pre-sentence investigation that he

struggled to bond with his family and feels detached from them; he has in fact




Court of Appeals of Indiana | Opinion 03A05-1511-CR-1893 | August 2, 2016   Page 11 of 20
       been diagnosed with reactive attachment disorder.5 He has also been diagnosed

       with bipolar disorder and has attempted suicide three or four times.


[14]   While we acknowledge the serious challenges Connor has faced, we must also

       acknowledge that he has been provided multiple opportunities to address those

       challenges and has not fully accepted those opportunities. Connor’s parents

       have pursued mental health services for him for several years. He was

       hospitalized after one suicide attempt and prescribed medication that he was

       resistant to taking. He has, however, self-medicated with drugs including

       marijuana, hydrocodone, Adderall, and on one occasion, heroin. He has been

       in counseling for several years with several counselors. The most recent

       attempt at counseling lasted approximately one year, but was terminated

       because Connor did not fully engage in the process and ultimately refused to

       participate.


[15]   In addition, although Connor’s prior criminal history is limited to juvenile

       adjudications for conversion and leaving home without permission, he was only

       seventeen when he was arrested on the current charge. His juvenile

       adjudications also demonstrate, in part, his disregard for the authority of his

       parents and his disrespect of the family unit. We must also note that Connor

       was charged with a sex crime against another family member, although the




       5
        Reactive attachment disorder “is a rare but serious condition in which an infant or young child doesn’t
       establish healthy attachments with parents or caregivers.” Mayo Clinic Online,
       http://www.mayoclinic.org/diseases-conditions/reactive-attachment-disorder/basics/definition/con-
       20032126 (last visited May 27, 2016).

       Court of Appeals of Indiana | Opinion 03A05-1511-CR-1893 | August 2, 2016                       Page 12 of 20
       charge was dismissed as part of the plea agreement in this case. And finally we

       note that Connor pleaded guilty to using force to compel J.C. and reiterated at

       the sentencing hearing that force was involved, but reported during the pre-

       sentence investigation that the sexual contact with J.C. was consensual. This at

       least reflects a disregard for the victim, and at most, a failure to take full

       responsibility for the wrongfulness of his conduct.


[16]   We agree with the trial court, the victim and her family, and Connor himself

       that he is in need of rehabilitative and mental health treatment. We also note

       Connor has not to this point taken advantage of opportunities for such

       treatment and has instead wandered down a dangerous path. Given the serious

       nature of his offense and the fact that he has not yet demonstrated a

       commitment to helping himself overcome the difficult circumstances of his

       birth, we cannot say that Connor has persuaded us his fourteen-year sentence is

       inappropriate.



                                               Conclusion
[17]   Connor has not met his burden of persuading us that his fourteen year sentence

       is inappropriate in light of the nature of his offenses and his character.

       Accordingly, the sentence is affirmed.


[18]   Affirmed.


       Crone, J., concurs.


       Court of Appeals of Indiana | Opinion 03A05-1511-CR-1893 | August 2, 2016    Page 13 of 20
Najam, J., concurs in result with separate opinion.




Court of Appeals of Indiana | Opinion 03A05-1511-CR-1893 | August 2, 2016   Page 14 of 20
                                                  IN THE
           COURT OF APPEALS OF INDIANA

       William A. Connor
       Appellant-Defendant,
                                                                Court of Appeals Case No.
               v.                                               03A05-1511-CR-1893

       State of Indiana,
       Appellee-Plaintiff.




       Najam, Judge, concurring in result.


[19]   I concur in the result. I agree that Connor’s sentence should be affirmed, but I

       cannot join in the majority’s interpretation of Indiana Appellate Rule 7(B). The

       majority states that we can review and revise a sentence on appeal when the

       appellant argues that his sentence is inappropriate under either the nature of the

       offense or his character. See Slip op. at 6-10. That interpretation is contrary to

       how Indiana’s appellate courts have consistently understood and applied Rule

       7(B). And, for this court to address both parts of Rule 7(B) in the absence of an

       appellant’s own cogent argument, this court will have to become an advocate

       for the appellant, which is not our role. See, e.g., Thacker v. Wentzel, 797 N.E.2d

       342, 345 (Ind. Ct. App. 2003); see also Ford v. State, 718 N.E.2d 1104, 1107 n.1

       (Ind. 1999) (concluding that the appellant forfeited appellate review of his Rule

       7(B) issue for failing to state a cogent argument).



       Court of Appeals of Indiana | Opinion 03A05-1511-CR-1893 | August 2, 2016            Page 15 of 20
[20]   Appellate Rule 7(B) states: “The Court may revise a sentence . . . 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.” That language is clear: Rule 7(B) plainly requires, as this court has

       long acknowledged, “the appellant to demonstrate that his sentence is

       inappropriate in light of both the nature of the offenses and his character.”

       Williams v. State, 891 N.E.2d 621, 633 (Ind. Ct. App. 2008) (citing Ind.

       Appellate Rule 7(B)) (emphasis original to Williams); see also Anderson v. State,

       989 N.E.2d 823, 827 (Ind. Ct. App. 2013) (“An appellant bears the burden

       [under Rule 7(B)] of showing both prongs of the inquiry favor revision of her

       sentence.”) (citing Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006)), trans.

       denied.


[21]   The majority asserts that Childress does not support that reading of Rule 7(B).

       Slip op. at 6. To the contrary, Childress anticipated and rejected the majority’s

       analysis. In Childress, our supreme court reviewed the context and history of

       Indiana Appellate Rule 7(B). The court explained that, under the prior version

       of the Rule, “an appellate court needed to find that a trial court’s sentence was

       ‘manifestly unreasonable’ before it could revise the sentence.” Childress, 848

       N.E.2d at 1079.6 The court then stated that the current version of the Rule was

       drafted to permit independent appellate review of sentences “when certain




       6
         Like the current version of Rule 7(B), the prior version of the Rule included the phrase “the nature of the
       offense and the character of the offender.” Ind. Appellate Rule 7(B) (2002) (emphasis added).

       Court of Appeals of Indiana | Opinion 03A05-1511-CR-1893 | August 2, 2016                         Page 16 of 20
       broad conditions are satisfied.” Id. (emphasis added). In particular, the court

       stated:

                 In essence[,] rather than a procedural barrier over which a
                 defendant must climb in order to be heard, the Rule articulates a
                 standard of review designed as guidance for appellate courts.


                 Of course[,] a defendant must persuade the appellate court that
                 his or her sentence has met this inappropriateness standard of
                 review. . . .


       Id. at 1080. In other words, the Childress court expressly declared that Rule 7(B)

       establishes the necessary “conditions”—plural—that an appellant “must

       persuade the appellate court” have been “satisfied” to meet “this

       inappropriateness standard of review.”7 Id. And those conditions, plainly

       stated in the Rule, are both the nature of the offense and the character of the

       offender. App. R. 7(B).


[22]   Nonetheless, the majority declares that Rule 7(B) requires only that

       “we . . . must consider both prongs in our assessment” and that it does not

       require “that the defendant must necessarily prove both of those prongs . . . .”

       Slip op. at 8. The majority’s declaration is consistent with only half of Childress.

       That is, the majority recognizes that Rule 7(B) “articulates a standard of review




       7
         In Childress, our supreme court used “conditions” as a synonym for “elements,” each of which must be
       satisfied before this court can exercise its authority under the Rule. See Webster’s 3d New Int’l Dictionary
       473 (2002) (a “condition” is a “prerequisite” or “circumstance that is essential to the . . . occurrence of
       something else”). Contrary to what the majority’s analysis implies, a “condition” is not a “factor.”

       Court of Appeals of Indiana | Opinion 03A05-1511-CR-1893 | August 2, 2016                        Page 17 of 20
       designed as guidance for appellate courts.” Childress, 848 N.E.2d at 1080. But

       the majority disregards our supreme court’s further admonition that it is

       incumbent on the appellant to “persuade the appellate court” that his sentence

       is inappropriate in light of the two “conditions” articulated in the Rule. Id.


[23]   Further, the cases relied on by the majority do not declare that the “and” in

       Rule 7(B) really means “or.” In only one instance has the Indiana Supreme

       Court revised an appellant’s sentence even though the appellant made no

       argument on appeal with respect to his character. Hamilton v. State, 955 N.E.2d

       723, 726-27 (Ind. 2011). But the supreme court’s opinion in Hamilton did not

       analyze Rule 7(B) or disapprove of any case law, such as Childress, Ford, or

       Williams, and this court has continued to rely on those cases well after Hamilton.

       E.g., Simmons v. State, 999 N.E.2d 1005, 1013 (Ind. Ct. App. 2013) (following

       Williams and holding that the appellant’s failure to argue both prongs of Rule

       7(B) resulted in waiver), trans. denied.


[24]   Indeed, no subsequent Indiana appellate court decision has relied on Hamilton

       for the proposition that it overrules prior case law or otherwise modifies well-

       settled Rule 7(B) jurisprudence. Neither did the Hamilton court state that it

       meant to rewrite Indiana Appellate Rule 7(B). Given the frequency with which

       the bench and the bar encounter Rule 7(B), had our supreme court intended its

       holding in Hamilton to break new ground it would have explained as much.

       Absent such a declaration or a revised analytical framework, we cannot assume

       that the Hamilton court intended to rewrite Rule 7(B) by adjudication. And it is

       not our prerogative, as an intermediate appellate court, to rewrite the Rule.
       Court of Appeals of Indiana | Opinion 03A05-1511-CR-1893 | August 2, 2016   Page 18 of 20
[25]   This is not a semantic or grammatical quibble. This is significant. If a court on

       appeal need only “consider” one or the other conditions of Rule 7(B), it dilutes

       our standard of review. Appellate revision of a sentence under Rule 7(B) is

       intended to be an exception reserved for those rare cases in which the defendant

       can satisfy both conditions. See, e.g., Satterfield v. State, 33 N.E.3d 344, 355 (Ind.

       2015). Indeed, the purpose of our review is to “leaven the outliers.” Cardwell v.

       State, 895 N.E.2d 1219, 1225 (Ind. 2008). If the defendant were allowed to

       address only one of those two conditions, his burden would be reduced by half,

       and, in effect, we would review and revise sentences that are not outliers.


[26]   Here, Connor presents no argument on appeal that his sentence should be

       revised in light of the nature of his offense. Rather, he argues that his sentence

       is inappropriate only in light of his character. Connor has entirely failed to

       address a condition of Rule 7(B)—the nature of the offense—required for this

       court to review and revise his sentence, and it is not our place to make that

       argument on Connor’s behalf or to disregard his failure to make that argument

       for himself. As such, I conclude that Connor has not met his burden to

       demonstrate that his sentence satisfies the inappropriateness standard of review,

       and Connor has forfeited our review of that issue.


[27]   Accordingly, I concur only in the result and cannot agree that an appellant no

       longer carries the burden of persuasion under Indiana Appellate Rule 7(B) to

       demonstrate that his sentence is inappropriate in accordance with the plain

       meaning of that Rule. Rather, I would follow Childress, Ford, Anderson,

       Simmons, Williams, and the substantial number of similar cases that hold that it

       Court of Appeals of Indiana | Opinion 03A05-1511-CR-1893 | August 2, 2016   Page 19 of 20
is an appellant’s burden to demonstrate that his sentence has met the

inappropriateness standard of review as defined in the Rule. 8 As Connor did

not argue that his sentence is inappropriate in light of both the nature of his

offense and his character, I would hold that he forfeited our review of his

sentence under Indiana Appellate Rule 7(B).




8
  Other published opinions that acknowledge this proposition include the following: Swallow v. State, 19
N.E.3d 396, 402 n.2 (Ind. Ct. App. 2014), trans. denied; Gil v. State, 988 N.E.2d 1231, 1237-38 (Ind. Ct. App.
2013); Mateo v. State, 981 N.E.2d 59, 74 (Ind. Ct. App. 2012), trans. denied; and Paul v. State, 971 N.E.2d 172,
177 (Ind. Ct. App. 2012). However, the substantial body of cases in which this issue arises are disposed of by
this court as memorandum decisions using a waiver-waiver notwithstanding analysis.

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