MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      FILED
regarded as precedent or cited before any                             Nov 22 2017, 6:47 am
court except for the purpose of establishing
                                                                           CLERK
the defense of res judicata, collateral                                Indiana Supreme Court
                                                                          Court of Appeals
estoppel, or the law of the case.                                           and Tax Court




ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
R. Patrick Magrath                                      Curtis T. Hill, Jr.
Alcorn Sage Schwartz & Magrath, LLP                     Attorney General of Indiana
Madison, Indiana                                        Michael Gene Worden
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Charles P. Clark,                                       November 22, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        15A05-1706-CR-1432
        v.                                              Appeal from the Dearborn
                                                        Superior Court
State of Indiana,                                       The Honorable Sally A.
Appellee-Plaintiff.                                     McLaughlin, Judge
                                                        Trial Court Cause No.
                                                        15D02-1704-F6-100



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 15A05-1706-CR-1432 | November 22, 2017       Page 1 of 7
                               STATEMENT OF THE CASE
[1]   Appellant-Defendant, Charles P. Clark (Clark), appeals his sentence following a

      guilty plea to two Counts of cruelty to an animal, Level 6 felonies, Ind. Code §

      35-46-3-12(c).


[2]   We affirm.


                                                   ISSUE
[3]   Clark presents us with one issue on appeal, which we restate as: Whether his

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


                      FACTS AND PROCEDURAL HISTORY
[4]   On March 20, 2017, Clark’s girlfriend reported to the Aurora Police

      Department, in Indiana, that Clark had been abusing their dog, a rescued boxer

      breed, named Dudley. She presented Sergeant Shane Slack (Sergeant Slack)

      with videos that she had secretly recorded in an attempt to catch Clark cheating

      on her with another woman “because he had been acting different lately.”

      (Appellant’s App. Vol. II, p. 8). The videos depicted Clark picking “the dog up

      and slam[ming] it [in]to the couch and then put[ting] it in a choke hold and

      begin[ing] to punch it repeatedly in the rib cage.” (Appellant’s App. Vol. II, p.

      8). The animal attempted to escape the punishment and was crying. In another

      clip of the video, Clark is observed “stomping down on the dog as it was sitting

      on the floor below him on the couch.” (Appellant’s App. Vol. II, p. 8). After

      reviewing the videos, Sergeant Slack declared this to be “one of the worst cases

      I’ve seen in thirteen years as far as animal abuse.” (Transcript p. 29). Police
      Court of Appeals of Indiana | Memorandum Decision 15A05-1706-CR-1432 | November 22, 2017   Page 2 of 7
      officers arrested Clark at his home, where he admitted that he had abused the

      animal but that “afterwards he feels bad about it.” (Appellant’s App. Vol. II, p.

      9).


[5]   On March 28, 2017, the State filed an Information, charging Clark with two

      Counts of cruelty to an animal, as Class A misdemeanors, which the State

      subsequently amended to Level 6 felonies. On April 26, 2017, Clark entered

      into a plea agreement with the State in which he agreed to plead guilty as

      charged and with sentencing left open to the trial court, with the exception that

      the sentences would run concurrent.


[6]   On May 25, 2017, the trial court conducted a sentencing hearing. During the

      hearing, Clark testified that he was forty-three years old and had no criminal

      history. He has four children from two previous marriages; he is ordered to pay

      child support for one child, and shares financial responsibility for two of the

      other children. Although Clark had been employed most of his adult life, he

      was unemployed at the time of the current charges. Clark testified that while he

      admitted to the offenses, he claimed not to remember them due to a black-out

      as a result of medication he was taking for his mental health problems. He

      stated that after he was confronted with the evidence, he “went into a very bad

      anxiety attack and [he] tried to commit suicide.” (Tr. p. 21). Clark was

      admitted to the Community Mental Health Center for six days, where he

      received counseling and therapy. Concluding that the “nature of the offenses as

      depicted on the video demonstrate[d] extreme cruelty towards the animal with

      no provocation[,]” the trial court sentenced Clark to 910 days of incarceration

      Court of Appeals of Indiana | Memorandum Decision 15A05-1706-CR-1432 | November 22, 2017   Page 3 of 7
      on each Count, with 365 days suspended to probation for each Count, and with

      sentences to run concurrently. (Appellant’s App. Vol. II, p. 46).


[7]   Clark now appeals. Additional facts will be provided as necessary.


                              DISCUSSION AND DECISION
[8]   Clark contends that the trial court abused its discretion by imposing a sentence

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

      Pursuant to Indiana Appellate Rule 7(B), we 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.” Under this rule, the question is not whether another

      sentence is more appropriate, but whether the sentence imposed is

      inappropriate. King v. State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008). The

      principal role of appellate review is to “leaven the outliers;” it is “not to achieve

      a perceived correct result in each case.” Cardwell v. State, 895 N.E.2d 1219,

      1225 (Ind. 2008). The appropriateness of the sentence turns on this court’s

      “sense of the culpability of the defendant, the severity of the crime, the damage

      done to others, and a myriad other factors that come to light in a given case.”

      Id. at 1224. The defendant carries the burden of persuading this court that his

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

      When assessing the nature of the offense and the defendant’s character, the

      appellate court may look to any factors appearing in the record. Thompson v.

      State, 5 N.E.3d 383, 391 (Ind. Ct. App. 2014). To successfully carry his burden,


      Court of Appeals of Indiana | Memorandum Decision 15A05-1706-CR-1432 | November 22, 2017   Page 4 of 7
       “[t]he defendant must show that his sentence is inappropriate in light of both

       his character and the nature of the offense.” Williams v. State, 891 N.E.2d 621,

       633 (Ind. 2006).


[9]    That an appellate court must give due consideration to the trial court’s

       sentencing decision is based on “the trial court’s unique perspective” during the

       sentencing process. Kovats v. State, 982 N.E.2d 409, 416 (Ind. Ct. App. 2013).

       Therefore, it must be understood that the deference accorded to a trial court’s

       sentencing judgment “should prevail unless overcome by compelling evidence

       portraying in a positive light the nature of the offense (such as accompanied by

       restraint, regard, and lack of brutality) and the defendant’s character (such as

       substantial virtuous traits or persistent examples of good character).” Stephenson

       v. State, 29 N.E.3d 111, 122 (Ind. 2015).


[10]   When considering the nature of the offense, the advisory sentence is the starting

       point to determine the appropriateness of a sentence. Anglemyer, 868 N.E.2d at

       494. The sentencing range for a Level 6 felony is between six months and two

       and one-half years, with the advisory sentence being one year. See I.C. § 35-50-

       2-7(b). Here, the trial court sentenced Clark to concurrent sentences of 910

       days incarceration, with 365 days on each Count suspended to probation.

       Therefore, Clark effectively received a sentence of one and one-half years of

       imprisonment.


[11]   Clark severely beat, punched, and strangled a helpless dog without any

       provocation. The animal was a family pet and the senseless violence occurred


       Court of Appeals of Indiana | Memorandum Decision 15A05-1706-CR-1432 | November 22, 2017   Page 5 of 7
       on more than one occasion. While the visible injuries may have healed,

       Dudley continued to experience mental scars for a significant period of time

       after Clark relinquished the dog. Dudley’s current owner, who adopted him

       approximately a week later, testified that Dudley, at first, was “very guarded”

       and “depressed.” (Tr. p. 31). “It was like he was afraid to do anything except

       lay or sit. He was just scared.” (Tr. p. 31). For a time, Dudley experienced

       “quite violent nightmares,” during which he cried out loud and shook all over.

       (Tr. p. 33).


[12]   Turning to Clark’s character, we note that he has no criminal history, has been

       employed for most of his adult life, and showed remorse. Even though Clark

       admitted that he had abused Dudley after being confronted with the video

       recordings; nevertheless, during the sentencing hearing, Clark attempted to

       present himself as the victim by claiming that he had blacked out because of

       medication. However, besides his own self-serving statement, he presented no

       evidence that he was on any medication at the time of the offenses. While it is

       commendable that Clark has accepted his mental health problems and is

       seeking help, this acknowledgment is a bit late for Dudley. We conclude that

       Clark’s sentence is not inappropriate in light of the nature of the offenses and

       Clark’s character.


                                            CONCLUSION
[13]   Based on the foregoing, we hold that the trial court’s imposed sentence is not

       inappropriate in light of the nature of the offenses and Clark’s character.


       Court of Appeals of Indiana | Memorandum Decision 15A05-1706-CR-1432 | November 22, 2017   Page 6 of 7
[14]   Affirmed.


[15]   Baker, J. and Brown, J. concur




       Court of Appeals of Indiana | Memorandum Decision 15A05-1706-CR-1432 | November 22, 2017   Page 7 of 7
