Najam, J.
Stephen M. Davis appeals his sentence after he pleaded guilty to attempted overpass mischief, as a Level 5 felony. Davis raises two issues for our review: 1. Whether the trial court abused its discretion when it sentenced him. 2. Whether his sentence is inappropriate in light of the nature of the offense and his character.
We affirm.
…
Davis first contends that the trial court abused its discretion when it sentenced him.
…
Davis…contends that his sentence is inappropriate in light of the nature of the offense and his character…Davis’ argument is simply that his five-year executed sentence is inappropriate only in light of the nature of the offense. He makes no argument that his sentence is inappropriate in light of his character.
…
However, that argument, by itself, is not sufficient to invoke this Court’s authority to revise a sentence under Indiana Appellate Rule 7(B). As this Court has previously explained, revision of a sentence under Rule 7(B) “requires the appellant to demonstrate that his sentence is inappropriate in light of the nature of the offense and the character of the offender.” Sanders v. State, 71 N.E.3d 839, 843 (Ind. Ct. App. 2017) (quotation marks omitted, emphasis in original), trans. denied. The language of that rule plainly requires “the appellant to demonstrate that his sentence is inappropriate in light of both the nature of the offenses and his character.” Id. (quotation marks omitted, emphasis in original). Because Davis’ argument on appeal does not address his sentence in relation to his character, he has waived our review of the appropriateness of his sentence. See id.
There is a split of opinion on how to apply Appellate Rule 7(B). For example, this Court has previously held that we can review and revise a sentence based only on a consideration of both prongs without requiring the appellant to prove both. See, e.g., Connor v. State, 58 N.E.3d 215, 219 (Ind. Ct. App. 2016). But Rule 7(B) is not written in the disjunctive. Rather, that rule uses the word “and” not “or.” “And” is a coordinating conjunction, which connects words that are of equal importance in the sentence. Indeed, as our Supreme Court has pointed out, the current version of the rule was drafted to permit appellate review of sentences “when certain broad conditions are satisfied.” Childress v. State, 848 N.E.2d 1073, 1079 (Ind. 2006) (emphasis added). The Court further stated that “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 Supreme Court has expressly declared that Rule 7(B) establishes the necessary conditions—plural—that an appellant must prove have been satisfied. And those conditions, under the plain language of the rule, include both the nature of the offense and the character of the offender.
For this Court to consider or address both prongs of Rule 7(B) in the absence of an appellant’s own cogent argument, we would 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). As in all appeals, an appellant under Rule 7(B) has the burden to demonstrate entitlement to relief. If the appellant were only required to prove one of the conditions of Rule 7(B), his burden would be reduced by half, and our standard of review would be diluted. Accordingly, Rule 7(B) plainly requires “the appellant to demonstrate that his sentence is inappropriate in light of both the nature of the offenses and his character.” Sanders, 71 N.E.3d at 843 (quotation marks omitted, emphasis in original), trans. denied.
Waiver notwithstanding, Davis has failed to persuade us that his five-year executed sentence is inappropriate.
…
In sum, the trial court did not abuse its discretion when it sentenced Davis. And Davis’ sentence is not inappropriate in light of the nature of the offense and his character. We therefore affirm his sentence.
Affirmed.
Pyle, J., concurs in result.
Tavitas, J., concurs in result with opinion.
Tavitas, J., concurring in result.
I respectfully concur in the result. I write separately to express my disagreement with the majority’s assertion that Appellate Rule 7(B) requires that a criminal defendant make a showing that his sentence is inappropriate in light of both his character and the nature of the offense. As Judge Bailey recently pointed out:
Some judges construe the Court’s use of the word “and” in the governing Rule and in caselaw to mean that a successful appellant must identify compelling positivity related to both the nature of the offense and to the appellant’s character. See Landske v. State, 147 N.E.3d 387 (Ind. Ct. App. 2020). Other judges are persuaded that an appellant is not required to independently show revision is warranted with reference to each prong, because the role of this Court is to “ultimately balance” what is known of the nature of the offense and the character of the offender. Connor v. State, 58 N.E.3d 215, 218 (Ind. Ct. App. 2016).
Turkette v. State, 151 N.E.3d 782, 790 (Ind. Ct. App. 2020) (Bailey, J., concurring), trans. denied.
I find myself in the latter camp. A formalistic reading of Rule 7(B), in my opinion, belies the rule’s purpose. The rule is intended to express a constitutional power: “review and revision of sentences for defendants in all criminal cases.” Ind. Const. art. 7, § 6. The power springs from a commitment to fundamental fairness. The contours of this power are determined by rules promulgated by our Supreme Court. Nevertheless, the authority to determine the propriety of a criminal sentence is an independent discretionary exercise, separate from the question of whether a trial court has abused its discretion. Such a determination, in my view, must necessarily be made holistically, particularly in instances where the statutory definition of a given crime forecloses entirely a conclusion that the nature of the offense renders the sentence inappropriate.
…
My interpretation of Rule 7(B) finds support in the fact that our Supreme Court has issued opinions regarding Appellate Rule 7(B) which have focused primarily—if not entirely—on one factor, while assigning little to no weight to the other. See, e.g., Mullins v. State, 148 N.E.3d 986, 987 (Ind. 2020); Wampler v. State, 67 N.E.3d 633, 635 (Ind. 2017); Eckelbarger v. State, 51 N.E.3d 169, 170 (Ind. 2016). Moreover, in at least one case, our Supreme Court has granted a sentence reduction while explicitly recognizing that the petitioner argued only one factor of Rule 7(B). See Hamilton v. State, 955 N.E.2d 723, 726-27 (Ind. 2011) (granting sentence reduction despite petitioner “not call[ing] [the Court’s] attention to any aspects of his character that argue for a reduction in his sentence”).
…
Finally, it is worth noting that the majority’s interpretation of Rule 7(B), if accurate, would render the rule functionally impotent. The only litigants eligible for a sentence reduction under such a rule would be those that could establish both good character and that the crime committed is a mild example of such an offense.
In short, reading Rule 7(B) as establishing a two-pronged elements test strangles the rule’s meaning. I find that our Supreme Court has made it abundantly clear that our role under Rule 7(B) is to consider both the nature of the offense and the character of the offender, without a requirement that a defendant must show that a sentence is inappropriate with respect to each factor that the court must consider. For these reasons, I respectfully concur in the result only.