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.
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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