MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                      FILED
this Memorandum Decision shall not be
                                                                       Jan 31 2018, 10:52 am
regarded as precedent or cited before any
court except for the purpose of establishing                                CLERK
                                                                        Indiana Supreme Court
the defense of res judicata, collateral                                    Court of Appeals
                                                                             and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Mary P. Lake                                             Curtis T. Hill, Jr.
La Porte, Indiana                                        Attorney General of Indiana
                                                         Matthew B. MacKenzie
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Richard A. Cope,                                         January 31, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         46A05-1707-CR-1674
        v.                                               Appeal from the LaPorte Superior
                                                         Court
State of Indiana,                                        The Honorable Greta S. Friedman,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause Nos.
                                                         46D04-1601-F6-10
                                                         46D04-1601-F6-21



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 46A05-1707-CR-1674 | January 31, 2018         Page 1 of 14
[1]   Richard A. Cope appeals an order of restitution and his sentence for

      intimidation as a level 6 felony, torturing or mutilating a vertebrate animal as a

      level 6 felony, and animal neglect/abandonment as a class A misdemeanor.

      Cope raises two issues which we revise and restate as:


               I.      Whether the trial court erred in ordering him to pay restitution;
                       and

              II.      Whether his sentence is inappropriate in light of the nature of
                       the offenses and the character of the offender.

      We affirm.


                                            Facts and Procedural History

[2]   On December 14, 2015, Cope called his ex-wife Kristine Rice and stated: “I will

      kill you all.” Appellant’s Appendix Volume II at 15.1 Rice promptly hung up

      the phone. Cope also called Rice that day and left a message in which he

      stated:


                    Most of the snitches that I know don’t live very long. You’re
                    going to get yours. If you ever snitch on me to the cops again,
                    you’re going to wake up and you’re [sic] life will be very
                    different. That shit you pulled last night calling the cops on me
                    cost me $1500 and you’re going to see the consequences of that.


      Id. On December 16, 2015, Michigan City Police Detective Al Bush received a

      phone call from Rice regarding another threatening phone call message from




      1
          Cope cites police reports in his statement of facts. See Appellant’s Brief at 7.


      Court of Appeals of Indiana | Memorandum Decision 46A05-1707-CR-1674 | January 31, 2018   Page 2 of 14
      Cope in which he threatened to kill them. On December 22, 2015, Detective

      Bush met with Rice about the phone calls and saw that her phone had over

      ninety calls and texts from Cope. That same day, Detective Bush talked to

      Cope, told him he needed to stop calling Rice and her boyfriend, and noticed

      that Cope’s “white puppy was sitting on the couch and there was nothing

      wrong with it.” Id. at 17.


[3]   On December 25, 2015, a “white pit bull puppy” was discovered in a yard in

      close proximity to where Cope resided with electrical tape around its mouth

      and suffering from two broken hips by people who then took the dog to an

      emergency veterinarian. Id. at 49. The veterinarian center called Sherri

      Christopher, the executive director and founder of Guardians of the Green Mile

      (“Guardians”), a non-profit dog rescue, because the center needed someone to

      take financial responsibility for the dog, and the Guardians agreed to take on

      that responsibility. During questioning by police, Cope stated that he placed

      the tape on the dog’s mouth to keep it shut because he did not want the dog to

      bite him any longer and that he threw the dog once in the garage and kicked the

      dog once.


[4]   In January 2016, the State charged Cope with intimidation as a level 6 felony

      under cause number 46D04-1601-F6-10 (“Cause No. 10”). The State also

      charged Cope under cause number 46D01-1601-F6-21 (“Cause No. 21”) with

      Count I, torturing or mutilating a vertebrate animal as a level 6 felony; Count

      II, cruelty to an animal as a class A misdemeanor; Count III, animal



      Court of Appeals of Indiana | Memorandum Decision 46A05-1707-CR-1674 | January 31, 2018   Page 3 of 14
      neglect/abandonment as a class A misdemeanor; and Count IV, animal

      neglect/abandonment as a class A misdemeanor.


[5]   On February 10, 2017, Cope and the State filed a plea agreement in which he

      agreed to plead guilty to intimidation as a level 6 felony under Cause No. 10,

      and Count I, torturing or mutilating a vertebrate animal as a level 6 felony, and

      Count IV, animal neglect/abandonment as a class A misdemeanor, under

      Cause No. 21. The agreement provided that the parties agreed to cap any

      initially ordered executed time at forty-eight months, and that Cope “shall pay

      restitution to the appropriate individual/entity equal to the amount of the

      animal’s surgery bills” and “shall pay restitution to Laporte County for the cost

      of extraditing him to Indiana.” Id. at 218. That same day, the court held a

      hearing.2


[6]   On March 10, 2017, the court held a consolidated sentencing hearing.

      Christopher testified that when the dog was found, he was roughly five months

      old, he had his muzzle taped with electrical tape, his airway was cut off so he

      was foaming at the mouth, he was dragging his back end, he could not walk,

      and he was emaciated. She stated that “[t]hey had to remove the tape and –

      carefully because the tissue had become so necrotic that it literally went through

      his muzzle all the way to his gum that’s how rotten the tissue was” and that

      “everybody was pretty much afraid his muzzle was going to fall off because it




      2
          The record does not contain a transcript of this hearing.


      Court of Appeals of Indiana | Memorandum Decision 46A05-1707-CR-1674 | January 31, 2018   Page 4 of 14
      was that bad.” Transcript Volume I at 4. She also testified that the dog had a

      severe infection in his mouth, had two broken legs by his hips, and his femur

      was snapped off from the hip socket. According to Christopher, the dog

      underwent surgery immediately for his muzzle and then his hips, and received

      water therapy, therapy with his foster home, and laser therapy. When asked if

      she was given any long-term prognosis for the dog, she testified that the dog

      would suffer from arthritis “at a much sooner rate” and would have range of

      motion issues “because the hips were broke literally at the socket and into the

      femur so – and he doesn’t have muscle mass in his back end to compensate for

      those broken hips.” Id. at 5.


[7]   The defense presented the testimony of Sara Molebash, a field officer employed

      by LaPorte County Community Correction. She testified that she supervised

      Cope since November and that he was on home detention, worked five to seven

      days a week, had not committed conduct violations since she supervised him,

      and had passed every drug test. She testified that Cope was not current on his

      fees because he did not find employment as soon as he was placed on the

      program.


[8]   LaPorte County Sheriff’s Deputy James Fish testified that he came into contact

      with Cope on January 17, 2017, and Cope reached out and assisted with the

      apprehension of a suspect wanted for escape. Kimberly Jean Novak, Cope’s

      supervisor at NDP News, testified that Cope’s employment with her started a

      month earlier and that he exceeded her expectations.



      Court of Appeals of Indiana | Memorandum Decision 46A05-1707-CR-1674 | January 31, 2018   Page 5 of 14
[9]    Rice testified that she was married to Cope from 2009 until 2012 and that they

       had a child who was seven years old. She stated that Cope left an intimidating

       message on her answering machine in December 2015, but she was no longer

       terrified of him, he apologized numerous times for the message, he was a great

       father, and he contributed financially. On cross-examination, Rice testified that

       she contacted the police on December 14, 2015, because of the threatening

       voicemail she received from Cope, that she told the police at that time that she

       was terrified for herself and her children, and that she informed the police that

       she believed or knew that Cope had seven to eight marijuana plants in the

       basement.


[10]   Cope’s counsel mentioned that Cope had agreed to pay restitution as part of his

       plea agreement and asked Cope how he was going to pay for the restitution.

       Cope answered that with the newspaper job “there’s some opportunity for

       growth and opportunity for additional earnings to be made that stability of a

       full-time job like that is what I was lacking so I think that combined with my

       tattooing income leaves me feeling very comfortable about being able to satisfy

       these obligations.” Id. at 26. He testified that he wanted to maintain a stable

       relationship with his son and have an impact on his life. He testified that he

       contacted law enforcement regarding a woman who had warrants for her arrest.

       He also stated that he provided information after his return from Texas towards

       building a case against the two individuals who helped him leave Indiana.

       When asked if he had anything to say to the “supporters of the dogs and the

       Guardians,” he stated in part: “I think I’d like to apologize for each and every


       Court of Appeals of Indiana | Memorandum Decision 46A05-1707-CR-1674 | January 31, 2018   Page 6 of 14
       person that’s came here as my actions are not indicative of the character of me

       as a person or the manner in which my parents raised me.” Id. at 33.


[11]   The prosecutor asked the court to sentence Cope to five years with four years

       executed followed by one year of probation. The prosecutor also stated: “And I

       also have the restitution order that I drafted, in this – I don’t think defense has

       ab [sic] objection to, it indicates restitution will be paid to Guardians of the

       Green Mile in the amount of $3895.00, and the La Porte County Sheriff’s

       Office $1163.20.” Id. at 40-41. Cope’s counsel stated: “Without objection,

       Judge.” Id. at 41. In his closing argument, Cope’s counsel stated in part:


               As the Court is well aware restitution is part of this plea, and it’s
               not insignificant amount it’s several thousands of dollars. We
               feel that In-home detention is going to be the right place to serve
               this because it allows him to, you know, not only support child,
               support his family, but also begin to make restitution as he’s
               agreed to pay.


       Id. at 43. He also argued that the fact that Cope would be making restitution

       was a statutory mitigator. Cope’s counsel requested a sentence as follows: “60

       months, 12 suspended served on probation, reporting general probation, 48

       months executed, credit for time served, the balance of that executed through

       La Porte Corrections GPS.” Id. at 45. The court took the matter under

       advisement.


[12]   On April 21, 2017, the court held a hearing. It found Cope’s lengthy criminal

       history, the fact he had previously violated probation, that he had care, custody,

       and control of the injured dog, and the fact he fled the jurisdiction while the
       Court of Appeals of Indiana | Memorandum Decision 46A05-1707-CR-1674 | January 31, 2018   Page 7 of 14
case was pending and had to be extradited as aggravators. It found the

following mitigators: Cope’s guilty plea; his agreement to make restitution to

the Guardians for the cost of treatment for the dog’s injuries and to the Sheriff’s

Department for the cost of extraditing him from Texas; his post-traumatic stress

disorder; and his remorse. The court found that the aggravators outweighed the

mitigators and stated that Cope’s request “to serve his entire sentence on house

arrest because his son needs him rings hollow in consideration that he

threatened the child’s mother.” Transcript Volume II at 5. The court also

observed that Cope returned to Indiana only when the LaPorte County Sheriff

delegated officers to go down to Texas and bring him back. It further observed

that “[h]e left this son behind then most obviously not putting his son’s welfare

upper most in his thoughts, so to now indicate that his son needs him when he

apparently did not need him while he left the state, does not carry much

w[e]ight.” Id. at 6. The court stated that Cope’s “tip to the police which played

a role in apprehending a fugitive in January is commendable, but it does not

excuse his previous poor decision making in the Court’s eyes.” Id. With

respect to the treatment of the dog, the court stated:


        The injury and disregard for the animal was significant. He was
        not only left outside in winter weather for hours his hips were
        broken, in addition to that his mouth was taped shut so that even
        if he could manage to get to shelter or food or water, he would
        not be able to eat or drink.


Id. at 7.




Court of Appeals of Indiana | Memorandum Decision 46A05-1707-CR-1674 | January 31, 2018   Page 8 of 14
[13]   The court sentenced Cope to consecutive sentences of twenty-four months for

       intimidation as a level 6 felony under Cause No. 10, twelve months for

       torturing or mutilating a vertebrate animal as a level 6 felony under Cause No.

       21, and twelve months for cruelty to an animal as a class A misdemeanor under

       Cause No. 21. Cope was ordered to pay restitution in the amount of $3,895 to

       the “appropriate individual/entity equal to the amount of the animal’s surgery

       bills (Guardian of the Green Mile)” and $1,163.20 to the LaPorte County

       Sheriff’s Department for the cost of extradition to Indiana. Appellant’s

       Appendix Volume III at 7. The court ordered that “[s]aid restitution shall be

       entered as a civil judgment.” Id.


                                                   Discussion

                                                          I.


[14]   The first issue is whether the trial court erred in ordering Cope to pay

       restitution. Cope argues that, despite the plea agreement’s language, the State

       did not prove that LaPorte County or the Guardians were victims for purposes

       of Ind. Code § 35-31.5-2-348 and that the court committed fundamental error in

       awarding restitution to them. He contends that, although he agreed in his plea

       to pay restitution, Guardians was not proven to be the appropriate

       individual/entity to receive the restitution award.


[15]   The State argues that Cope cannot challenge the legality of this sentencing term

       on appeal because he received the benefit of his bargain and waived any

       argument that the restitution orders were improper because he agreed to pay


       Court of Appeals of Indiana | Memorandum Decision 46A05-1707-CR-1674 | January 31, 2018   Page 9 of 14
       those entities for those specific costs as an explicit term of the plea agreement.

       The State also asserts that Cope waived any claim by failing to object to the

       amount of restitution put forward at the sentencing hearing.


[16]   “An order of restitution is generally within the trial court’s discretion, and it

       will be reversed only upon a finding of an abuse of that discretion.” Gonzalez v.

       State, 3 N.E.3d 27, 30 (Ind. Ct. App. 2014) (citing Edsall v. State, 983 N.E.2d

       200 (Ind. Ct. App. 2013), reh’g denied). A trial court abuses its discretion when

       “the court’s decision is clearly against the logic and effects of the facts and

       circumstances before it.” Wolff v. State, 914 N.E.2d 299, 303 (Ind. Ct. App.

       2009).


[17]   Generally, “[d]efendants who plead guilty to achieve favorable outcomes give

       up a plethora of substantive claims and procedural rights, such as challenges to

       convictions that would otherwise constitute double jeopardy.” Lee v. State, 816

       N.E.2d 35, 40 (Ind. 2004) (quoting Davis v. State, 771 N.E.2d 647, 649 n.4 (Ind.

       2002) (citation and quotation omitted)). If the court accepts a plea agreement,

       it shall be bound by its terms. Berry v. State, 10 N.E.3d 1243, 1246 (Ind. 2014).


[18]   As noted, the plea agreement provided that Cope “shall pay restitution to the

       appropriate individual/entity equal to the amount of the animal’s surgery bills”

       and “shall pay restitution to La[P]orte County for the cost of extraditing him to

       Indiana.” Appellant’s Confidential Appendix Volume II at 218. Cope does not

       challenge the amount of restitution. At the sentencing hearing, the prosecutor

       stated that he drafted an order that Cope pay restitution of $3,895 to the


       Court of Appeals of Indiana | Memorandum Decision 46A05-1707-CR-1674 | January 31, 2018   Page 10 of 14
       Guardians and $1,163.20 to the LaPorte County Sheriff’s Office, and Cope’s

       counsel stated that he did not object. To the extent Cope argues that the

       Guardians was not proven to be the appropriate individual/entity to receive the

       restitution award, we note he asserts in his statement of facts that the

       veterinarian center contacted the executive director of the Guardians about

       someone taking financial responsibility for the dog’s care and that Dr. Maggie

       Sharpe told a Michigan City Police Detective that the Guardians had agreed to

       take care of the dog and pay its medical expenses.


[19]   The plea agreement provided that Cope would plead guilty to only two of the

       four counts under Cause No. 21, and the other two counts under Cause No. 21

       were dismissed. The plea agreement also stated that the parties agreed to cap

       any initially ordered executed time at forty-eight months. In his closing

       argument, Cope’s counsel argued that the fact that Cope would be making

       restitution was a statutory mitigator, and the trial court found Cope’s guilty plea

       and agreement to make restitution to the Guardians and LaPorte County

       Sheriff’s Department to be mitigators. Under the circumstances, we cannot say

       that the trial court abused its discretion in ordering that Cope pay restitution.


                                                         II.


[20]   The next issue is whether Cope’s sentence is inappropriate in light of the nature

       of the offenses and his character. Ind. Appellate Rule 7(B) provides that we

       “may revise a sentence authorized by statute if, after due consideration of the

       trial court’s decision, [we find] that the sentence is inappropriate in light of the


       Court of Appeals of Indiana | Memorandum Decision 46A05-1707-CR-1674 | January 31, 2018   Page 11 of 14
       nature of the offense and the character of the offender.” Under this rule, the

       burden is on the defendant to persuade the appellate court that his or her

       sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).


[21]   Cope argues that he and his wife were in the process of splitting up at the time

       he made the threats, he did not make any threats to her in person, he confessed

       to the charges, he suffers from post-traumatic stress disorder, he expressed

       remorse, and his Indiana Risk Assessment System score shows only a moderate

       risk to reoffend. He requests that we reduce his sentence or change the

       commitment to electronic monitoring. The State argues that Cope’s actions

       were deplorable and deserving of his sentence.


[22]   Our review of the nature of the offenses reveals that Cope called Rice and

       threatened to kill her. Cope also tortured or mutilated his dog and abandoned

       or neglected the animal by depriving it of food and water by taping its mouth

       shut. When the dog was found, it had electrical tape around its mouth and had

       suffered two broken hips.


[23]   Our review of the character of the offender reveals that Cope was convicted of

       or sentenced for criminal conversion in 1985; forgery in 1988; theft and

       possession of a controlled substance as class D felonies in 1989; battery as a

       class B misdemeanor, battery against a person less than thirteen years of age

       resulting in bodily injury as a class D felony, and insurance fraud as a class D

       felony in 1992; bank robbery in 1999; public intoxication as a class B

       misdemeanor in 2008; false report of a felony in 2012; operating a vehicle while


       Court of Appeals of Indiana | Memorandum Decision 46A05-1707-CR-1674 | January 31, 2018   Page 12 of 14
       intoxicated as a class A misdemeanor and “Controlled Substance-

       Delivery/Manufacture Marijuana” as a felony in 2012; and driving without an

       operator’s license on person as a misdemeanor in 2015. Appellant’s Appendix

       Volume II at 191. The presentence investigation report (“PSI”) states that Cope

       had been placed on probation six known times and released unsatisfactorily

       three known times. The PSI indicates that Cope reported being very sorry for

       calling his ex-wife and ashamed of his actions in Cause No. 10 and that he

       admitted he hurt his dog and was very disturbed when he committed the

       offenses related to his dog.


[24]   The PSI reveals that Cope reported that he graduated from high school in 1984,

       and attended Ivy Tech Community College from 2010 to 2013 and Purdue

       North Central from 2014 to 2015. It indicates that he reported working at an

       inn and a restaurant and had been self-employed as a tattoo artist. The PSI

       states that Cope reported his financial situation and his physical and mental

       health as fair. Cope reported that his physical and mental health were fair, and

       that he was diagnosed with Attention Deficit Hyperactivity Disorder when he

       was eleven or twelve years old, bipolar disorder when he was thirteen years old,

       and post-traumatic stress disorder after being sexually abused in federal prison.

       He reported that he smoked marijuana weekly and last smoked it in 2015, and

       that he completed a substance abuse program successfully after being ordered to

       participate in 2007. The PSI states that Cope’s overall risk assessment score

       using the Indiana Risk Assessment System places him in the moderate risk to

       reoffend category.


       Court of Appeals of Indiana | Memorandum Decision 46A05-1707-CR-1674 | January 31, 2018   Page 13 of 14
[25]   After due consideration, we conclude that Cope has not sustained his burden of

       establishing that his sentence is inappropriate in light of the nature of the

       offenses and his character.


                                                   Conclusion

[26]   For the foregoing reasons, we affirm Cope’s sentence.


[27]   Affirmed.


       Baker, J., and Riley, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 46A05-1707-CR-1674 | January 31, 2018   Page 14 of 14
