Richard A. Cope v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: January 31, 2018
• Docket: 46A05-1707-CR-1674
• Status: Published

Opinion

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