MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
FILED
regarded as precedent or cited before any May 22 2020, 6:24 am
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 ATTORNEY FOR APPELLEE
William T. Myers Samantha M. Sumcad
McKown Whitehurst & Myers LLP Deputy Attorney General
Marion, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
James Monteze Johnson, May 22, 2020
Appellant-Defendant, Court of Appeals Case No.
19A-CR-2160
v. Appeal from the Grant Superior
Court
State of Indiana, The Honorable Jeffrey D. Todd,
Appellee-Plaintiff. Judge
Trial Court Cause No.
27D01-1504-F2-3
Darden, Senior Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2160 | May 22, 2020 Page 1 of 9
Statement of the Case
[1] James Johnson appeals the sentence he received for his conviction of possession
1
of a narcotic drug, a Level 5 felony. We affirm.
Issue
[2] Johnson presents one issue for our review, which we restate as: whether his
sentence is inappropriate.
Facts and Procedural History
[3] These are the facts most favorable to the jury’s verdict. In April 2015, members
of the JEAN (Joint Effort Against Narcotics) team in Marion began conducting
surveillance of a residence after receiving a tip that illegal drug activity was
taking place there. While conducting their surveillance, team members
identified a vehicle parked at the property that they determined was registered
to Ashlee Holmes. The team also determined that Holmes had an active
warrant.
[4] On April 3, Detective Wells and other members of JEAN were conducting
surveillance of the residence when they observed Holmes exit the residence,
enter her vehicle with a male, who was later identified as Johnson, and proceed
down an alley. The JEAN team followed the vehicle and observed Johnson
look back over his shoulder and then reach down toward the floorboard. The
1
Ind. Code § 35-48-4-6 (2014).
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team intended to radio an officer in a marked police vehicle to conduct a traffic
stop of Holmes’ vehicle; however, before they could do so, Holmes’ vehicle
came to an abrupt stop in the alley, and Johnson quickly exited and began
walking away from the car. Detective Wells and another detective ordered
Johnson to stop and approached him. As they did so, the officers smelled the
odor of raw marijuana emanating from the vehicle. The detectives made
contact with Johnson, patted him down for weapons, and arrested him.
[5] As Detective Wells and the other officer were speaking with Johnson, Detective
Sergeant Kauffman, who was the supervisor of JEAN, approached Holmes and
asked her to exit the car. As he did so, he also smelled the odor of raw
marijuana coming from the vehicle. Because Holmes was being arrested on her
outstanding warrant, and Johnson did not have a valid driver’s license, the
officers made the decision to tow the car. The officers performed an inventory
search of the car and discovered a white, plastic grocery bag looped around the
gear shift. Inside the white bag were clear plastic bags containing a green leafy
substance, a white rock-type substance, and a tan powder substance. The
substances were later identified to be marijuana, cocaine, and heroin,
respectively. A set of digital scales was also discovered in the back pocket of
the passenger seat. In addition, DNA that was retrieved from pieces of the
plastic baggies matched a DNA sample obtained from Johnson.
[6] The State charged Johnson with dealing in cocaine, a Level 2 felony; possession
of a narcotic drug, a Level 5 felony; and dealing in marijuana, a Level 6 felony.
Following a jury trial June 25-27, 2018, the jury returned a verdict of guilty on
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the charge of possession of a narcotic drug as a Level 6 felony and verdicts of
not guilty on the remaining two charges. Johnson waived trial by jury on the
enhancement of the possession charge due to a prior conviction, and the court,
after hearing evidence, found him guilty of the Level 5 felony. On August 19,
2019, the court sentenced Johnson to five and one-half years. Johnson now
appeals.
Discussion and Decision
[7] Although Johnson frames his issue on appeal as whether the trial court abused
its discretion in sentencing him, the argument section of his brief sets forth the
standard for review of a sentence under Appellate Rule 7(B). Johnson,
however, fails to present any argument on this or any other issue. Nonetheless,
we will review his sentence under the inappropriateness standard. See Thacker v.
Wentzel, 797 N.E.2d 342, 345 (Ind. Ct. App. 2003) (noting Court’s preference
for deciding cases on their merits).
[8] Although a trial court may have acted within its lawful discretion in imposing a
sentence, article VII, sections 4 and 6 of the Indiana Constitution authorize
independent appellate review and revision of sentences through Indiana
Appellate Rule 7(B), which provides that we may revise a sentence authorized
by statute if, after due consideration of the trial court’s decision, we determine
that the sentence is inappropriate in light of the nature of the offense and the
character of the offender. Thompson v. State, 5 N.E.3d 383, 391 (Ind. Ct. App.
2014). However, “we must and should exercise deference to a trial court’s
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sentencing decision, both because Rule 7(B) requires us to give ‘due
consideration’ to that decision and because we understand and recognize the
unique perspective a trial court brings to its sentencing decisions.” Stewart v.
State, 866 N.E.2d 858, 866 (Ind. Ct. App. 2007). Such deference to the trial
court’s 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). Thus, the question under Appellate
Rule 7(B) is not whether another sentence is more appropriate; rather, the
question is whether the sentence imposed is inappropriate. King v. State, 894
N.E.2d 265, 268 (Ind. Ct. App. 2008). The defendant bears the burden of
persuading the appellate court that his or her sentence is inappropriate.
Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).
[9] To assess whether a sentence is inappropriate, we look first to the statutory
range established for the class of the offense. Here, Johnson was convicted of a
Level 5 felony, for which the advisory sentence is three years, with a minimum
sentence of one year and a maximum of six. Ind. Code § 35-50-2-6 (2014). The
court sentenced Johnson to five and one-half years.
[10] Next, we look to the nature of the offense. After leaving a residence that was
under surveillance for illegal drug activity, Johnson was found to be in
possession of heroin.
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[11] With regard to the character of the offender, we observe that the trial court
found Johnson’s criminal history to be an aggravating circumstance and
characterized it as “lengthy and serious.” Tr. Vol. 2, p. 127. Johnson’s
criminal history began in 1995 when he was still a juvenile and continued
consistently, other than a period when he was incarcerated, through 2018. His
juvenile history consists of: felony theft in 1995; incorrigibility in 1998;
misdemeanor illegal possession of alcoholic beverage and curfew violation in
1999; misdemeanor battery with bodily injury, curfew violation, misdemeanor
conversion, and misdemeanor battery in 1999, as well as two probation
violations in that cause; and a probation violation in another cause in 2000.
Johnson’s adult history involves: two different causes of misdemeanor illegal
possession of alcoholic beverage in 2000; misdemeanor possession of marijuana
with a probation violation in 2000; misdemeanor battery with a probation
violation in 2001; misdemeanor illegal possession of an alcoholic beverage in
2001; misdemeanor resisting in 2002; misdemeanor carrying a handgun without
a license in 2003; felony dealing in cocaine or narcotic drug in 2004 for which
he was sentenced to ten years; felony resisting, probation violation, and home
detention violation in 2012; misdemeanor possession of marijuana and a
probation violation in 2012; felony nonsupport of a dependent in 2013; felony
residential entry and misdemeanor harassment in 2016; misdemeanor visiting a
common nuisance (controlled substance) in 2018; and, pending at his
sentencing in this cause, felony dealing in a narcotic drug, felony dealing in
methamphetamine, felony delivery of methamphetamine, felony corrupt
business influence, felony maintaining a common nuisance (controlled
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substance), misdemeanor possession of marijuana, and misdemeanor
possession of paraphernalia in 2018.
[12] Even a minor criminal history is a poor reflection of a defendant’s character.
Moss v. State, 13 N.E.3d 440, 448 (Ind. Ct. App. 2014), trans. denied. Yet,
Johnson’s criminal history is far from minor. In sentencing Johnson, his
history led the court to proclaim, “[W]e’re consistently told by the Court of
Appeals that the maximum sentence is reserved for the worst o[f] the worst. I
don’t find Mr. Johnson to be the worst of the worst, but he’s not a long way
from it. I have to admit that.” Tr. Vol. 2, pp. 127-28.
[13] Moreover, Indiana Code section 35-38-1-7.1(a)(6) (2014) provides that, in
determining a defendant’s sentence, the court may consider as an aggravating
circumstance the fact that the defendant recently violated conditions of
probation, community corrections placement, or pretrial release. At Johnson’s
sentencing, the trial court correctly noted that Johnson had violated the
conditions of his probation several times, as well as violating the terms of his
home detention. The court determined these violations to be a second
aggravating circumstance. Such violations are a significant indicator of poor
character. See Rich v. State, 890 N.E.2d 44, 54 (Ind. Ct. App. 2008)
(determining that defendant’s commission of offenses while on probation is
“substantial consideration” in assessment of his character), trans. denied.
[14] Additionally, we note that in this cause Johnson’s bond was also revoked. He
had bonded out of jail on March 1, 2017, and, in January 2018, the State filed a
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motion to revoke his bond when he was charged with five additional felony and
two misdemeanor drug charges and was found with stolen handguns, a rifle, a
shotgun, ammunition, several high-capacity handgun magazines, and $20,000
in cash.
[15] Johnson’s sole argument on appeal is that his sentence is inappropriate in light
of the mitigating circumstance that he cooperated with law enforcement
regarding a homicide.
[16] At Johnson’s sentencing hearing, Detective Captain Young testified that
Johnson took and passed a polygraph with regard to a 2015 unsolved homicide.
However, the detective also testified that Johnson is a flight risk and that,
although he provided the police with insight, it was not enough information to
support the filing of charges. As requested by Johnson, the trial court found his
cooperation to be a mitigator but did not give it as much weight as Johnson
does: “I don’t give that great weight. I find it to be mostly self-serving in an
effort to, um, reduce the sentence on the case here today.” Tr. Vol. 2, p. 127.
[17] The finding of mitigating circumstances is not mandatory but is within the
discretion of the trial court. Page v. State, 878 N.E.2d 404, 408 (Ind. Ct. App.
2007), trans. denied. Further, the court is not obligated to give the same weight
to a proffered mitigating factor as does the defendant. Id. The trial court found
this factor to be mitigating, and Johnson presents no additional information to
this Court to support a different result than that reached by the trial court.
Thus, Johnson has not met his burden of presenting compelling evidence
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portraying in a positive light the nature of the offense and his character in order
to overcome the trial court’s sentencing decision.
Conclusion
[18] Considering both the nature of the offense and the character of the offender and
giving due consideration to the trial court’s sentencing decision, we are not
persuaded that Johnson’s five and one-half year sentence is inappropriate.
[19] Affirmed.
Najam, J., and Vaidik, J., concur.
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