 Pursuant to Ind. Appellate Rule 65(D),
 this Memorandum Decision shall not be
 regarded as precedent or cited before any
 court except for the purpose of
 establishing the defense of res judicata,
 collateral estoppel, or the law of the case.


                                                               Mar 12 2014, 10:03 am



ATTORNEY FOR APPELLANT:
MARK SMALL
Indianapolis, Indiana




                              IN THE
                    COURT OF APPEALS OF INDIANA

RICHARD W. TOME,                                   )
                                                   )
       Appellant-Defendant,                        )
                                                   )
           vs.                                     )      No. 61A05-1307-CR-324
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )

                        APPEAL FROM THE PARKE CIRCUIT COURT
                            The Honorable Sam A. Swaim, Judge
                              Cause No. 61C01-1004-FB-00066


                                         March 12, 2014
                 MEMORANDUM DECISION – NOT FOR PUBLICATION

MATHIAS, Judge
       Richard Tome (“Tome”) entered into an open plea of “guilty but mentally ill” in

Parke Circuit Court on four counts of Class B felony criminal confinement. The trial

court sentenced Tome to fourteen years executed in the Department of Correction. Tome

appeals and argues that the trial court abused its discretion in sentencing him. We affirm.

                              Facts and Procedural History

       On April 6, 2011, while Tome was on leave from the Camp Atterbury Job Corp

Center, he invited four juveniles ranging in age from eleven to thirteen into an abandoned

barn in Marshall, Indiana. Once the juveniles were inside the barn, Tome held a steak

knife to the throat of one of the juveniles; held a pitchfork to the throat of another; burned

the third juvenile with a cigarette; placed his hands around the third victim’s neck and

threatened to strangle him; and began to choke the fourth victim. Tome threatened to kill

all four juveniles if they reported the attacks. Tome also asked the victims if they were

scared and if they were “ready to die.” Appellant’s App. p. 21.

       A witness called 911 to report the attacks and told the emergency dispatcher that

Tome had fled the property. Shortly thereafter, the Parke County sheriff and his chief

deputy located Tome in the backyard of a nearby residence. Tome had in his possession

what appeared to be a gun. At the deputy’s urging, Tome placed the gun on the ground.

The deputy determined that the gun was a BB gun.

       The sheriff’s deputy subsequently located three of the juvenile victims still inside

the abandoned barn where the attacks had occurred. The deputy also found the pitchfork

and steak knife with which Tome threatened the victims. The fourth victim had fled the

barn and was later located at his home.

                                              2
       On April 7, 2010, the State charged Tome with four counts of Class B felony

criminal confinement and four counts of Class C felony battery by means of a deadly

weapon. The trial court held an initial hearing on April 9, 2010, during which Tome was

determined indigent, was appointed counsel, and entered into an initial plea of not guilty.

       On September 27, 2010, Tome filed a motion for psychiatric examination to

determine competency and sanity. The motion provided, in part:

       1. That the defendant has advised defense counsel that he has a significant
       history of psychiatric or psychological treatment.

       2. That defendant believes that he may be schizophrenic, emotionally
       disturbed, and have other mental issues as well.

       3. That when defense counsel was discussing the allegations that are being
       made by the witnesses for the State of Indiana, the defendant appeared to
       have difficulty in understanding why he was being charged criminally for
       his actions in this case.

       4. That the defendant advised counsel during our second meeting that the
       previous night he had a 4 hour conversation with an inanimate object. That
       the inanimate object had 2 aspects to it. The object was named ‘Otis’, and
       had another part named ‘Rufus’. Otis is the good person and Rufus is the
       bad person.

       5. That due to the foregoing circumstances it is believed that a psychiatric
       evaluation is necessary in order to determine the issue of defendant’s
       competency and sanity.

Appellant’s App. pp. 37-38

       On the same day, the trial court issued an order appointing two experts, Dr.

Rebecca Mueller, a psychiatrist, and Dr. Michael Murphy, a psychologist, to evaluate

Tome’s competency and sanity. After meeting with Tome, both experts concluded that

Tome suffered from bipolar disorder. Dr. Mueller found that Tome also suffered from


                                             3
attention deficit disorder and obsessive-compulsive disorder. Dr. Murphy reported that

Tome functions at a borderline range of intelligence and has a history consistent with

conduct disorder. Both Dr. Mueller and Dr. Murphy found Tome to be sane at the time

the crimes occurred and competent to stand trial.

      On April 23, 2013, Tome entered into a plea agreement with the State whereby

Tome admitted to the factual allegations underlying the four charges of Class B felony

criminal confinement. The plea agreement further provided:

      In return for the defendant’s guilty plea, the State will remain silent and
      sentencing will remain up to the court. The parties further agree that if the
      Judge does not agree with this sentencing recommendation and sentence the
      defendant accordingly, the defendant’s plea of not guilty shall be reinstated.
      If this agreement includes an agreement by the defendant to leave any
      aspect of the defendant’s sentence to the discretion of the Judge of the
      Parke Circuit Court, the defendant further agrees that by entering this guilty
      plea, he or she is waiving the right to appeal the sentence under Rule 7 of
      the Indiana Rules of Appellate Procedure.

Appellant’s App. p. 47.

      On June 6, 2013, the trial court held a sentencing hearing. At the hearing, Tome’s

grandfather, Richard Norman (“Norman”), testified that he had raised Tome since 2001

or 2002, after Tome’s parents, who were both just sixteen years old when Tome was born,

abandoned him. Norman also testified that Tome had suffered from mental health issues

from a young age.

      The trial court sentenced Tome to eighteen years in the Department of Correction

with four years suspended to probation, apparently as a single episode of criminal

conduct under Indiana Code section 35-50-1-2, further noting that:



                                            4
       the defendant does have a history of delinquent behavior. He’s twenty-one
       now, but as a juvenile, defendant had a significant offense of child
       molesting. If he would’ve been an adult at that time, that would’ve been
       the conviction. And spent a significant amount of his teen years in
       placement as a result of that offense and violations of probation during that
       time period. The victims of the offense were less than twelve years of age
       and there is evidence from the probable cause affidavit indicating that the
       defendant did threaten the victims and intimidating the victims so as to . . .
       or in an attempt to keep the victims from reporting the crimes for which
       he’s pled guilty.

       The defendant certainly has some mitigating circumstances that the Court
       needs to discuss. Specifically that the defendant does have significant
       mental health issues and probably has suffered from mental health issues
       during the majority of his life, probably without the appropriate amount of
       treatment that he should’ve received during that time period.

       The Court knows, and Mr. Tome, I certainly have a great deal of
       compassion for you given the situation you were born into. I mean, your
       parents were sixteen years of age and have had very little contact with you
       during your lifetime, and you do have mental health issues on top of all that.
       So I do feel a great deal of compassion for you and the circumstances you
       were born into, and really you had no control over. You, more or less, lost
       the lottery at the beginning. And I wish, you know, there would be more
       that the Court could do for you and could’ve done for you earlier.
       Obviously, it’s a rural community and the area that you grew up in, and
       Parke County in general, just does not have the mental health treatment
       facilities and structure necessary to resolve or treat the mental health
       problems that you do have.

       And the Defendant has testified that he’s learned his lesson and he’s pled
       guilty to these crimes. However, the Court does also need to take into
       account that the defendant has been in placement, detention or jail for the
       majority of his life since the time he was fourteen years of age. So it’s
       difficult for the Court to determine whether the defendant could live a law
       abiding life. The defendant was simply on leave from Camp Atterbury
       when this offense was committed, so the Court is hesitant to accept the
       defendant’s comments that he can lead a law abiding life.

Tr. pp. 26-28.

       Tome now appeals.


                                             5
                                 Discussion and Decision

       Tome argues that the trial court abused its discretion in sentencing him because, at

the sentencing hearing, “[t]he trial court identified the alleged victims as all under the age

of the age of twelve. However, the Affidavit of Probable Cause states the two of the

alleged victims were over that age.” Appellant’s Br. at 8 (internal citations omitted).

       Sentencing decisions rest within the sound discretion of the trial court. Anglemyer

v. State, 868 N.E.2d 482, 490 (Ind. 2007). So long as the sentence is within the statutory

range, it is subject to review only for an abuse of discretion. Id. An abuse of discretion

occurs if the trial court’s 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. at 491. A trial court may abuse its sentencing discretion in a

number of ways, including: (1) failing to enter a sentencing statement at all; (2) entering a

sentencing record; (3) entering a sentencing statement that omits reasons that are clearly

supported by the record; or (4) entering a sentencing statement that includes reasons that

are improper as a matter of law. Id. at 490-91.

       Tome pleaded guilty to four counts of Class B felony criminal confinement, each

of which carries a statutory sentencing range of six to twenty years, with an advisory

sentence of ten years. Ind. Code § 35-50-2-5. Tome received a sentence of eighteen

years, with fourteen years executed and four years suspended to probation.




                                              6
        Tome argues that the trial court abused its discretion in imposing this sentence but

fails to explain how the trial court’s minor incorrect characterization of the victims’ ages1

during the sentencing hearing is an abuse of discretion. Because Tome has failed to

provide us with any cogent argument, and because it is not our role to formulate

arguments on behalf of parties, we conclude that Tome has waived this issue on appeal.

See Lyles v. State, 834 N.E.2d 1035, 1050 (Ind. Ct. App. 2005), trans. denied, (“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.”); Ind. Appellate Rule 46(A)(8)(a).

       Waiver notwithstanding, Tome still cannot prevail. The trial court noted the

seriousness of Tome’s offense and that, as a juvenile, Tome committed the offense of

child molesting and “spent a significant amount of his teen years in placement as a result

of that offense and violations of probation during that time period.” Appellant’s App. p.

26. Tome also threatened the victims of the current offense in an attempt to prevent them

from reporting his crime. He committed the crime while he was on leave from Job Corp

training at Camp Atterbury. The court noted, as mitigating factors, that Tome suffers

from serious mental health issues and experienced a difficult childhood and adolescence.

After considering all of these factors, the court imposed a sentence of fourteen years

executed, well within the Class B felony statutory range of six to twenty years. Under

these facts and circumstances, waiver notwithstanding, we cannot say that the trial court’s

imposition of a sentence of fourteen years executed was an abuse of discretion.


1
  The trial court characterized the victims as under the age of twelve, but the probable cause affidavit
indicates that two of the victims were thirteen.
                                                   7
      Affirmed.

BRADFORD, J., and PYLE, J., concur.




                                      8
