MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Aug 23 2018, 10:15 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
Elizabeth A. Houdek Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
Tyler G. Banks
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Austin D. Johnson, August 23, 2018
Appellant-Defendant, Court of Appeals Case No.
18A-CR-155
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Kurt Eisgruber,
Appellee-Plaintiff Judge
The Honorable Steven J. Rubick,
Magistrate
Trial Court Cause No.
49G01-1708-F5-28201
Altice, Judge.
Case Summary
Court of Appeals of Indiana | Memorandum Decision 18A-CR-155 | August 23, 2018 Page 1 of 7
[1] Following a bench trial, Austin Johnson was convicted of receiving stolen auto
parts as a Level 5 felony and auto theft as a Level 6 felony. The trial court
sentenced Johnson to concurrent terms of 6 years and 910 days respectively.
On appeal, Johnson argues that his convictions violate double jeopardy
principles and that his sentence is inappropriate.
[2] We affirm in part, reverse in part, and remand.
Facts & Procedural History
[3] On July 30, 2017, Stephanie Kellogg was living with her uncle, John Johns, on
Routiers Avenue in Indianapolis. Unbeknownst to her uncle, Kellogg invited
Johnson, whom she had known for a short time through social media and only
by his first name, over to the house. After Johnson arrived, he and Kellogg
talked on the porch for about twenty minutes before going inside. When
Kellogg went to get Johnson a glass of water, Johnson grabbed her uncle’s keys
off of a table in the front room, exited the house, and drove away in her uncle’s
blue 2008 PT Cruiser. Kellogg saw Johnson pull out and drive away from the
house. She immediately called 911 and then woke her uncle to tell him that his
car had been stolen. Neither Kellogg nor Johns gave Johnson permission to
take the car.
[4] Police officers responded to the report of the stolen vehicle. Kellogg shared
with them a picture of Johnson from a social media page from which it was
determined that Johnson was the suspect. About twelve hours later, after
enlisting the help of friends through social media and text messages, Johns
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received information that led him to his car about eight to ten miles away from
his house. He and a group of friends and family members blocked the car in
with another vehicle and apprehended Johnson, holding him down until police
arrived. The keys were recovered from Johnson’s pocket.1 After he was
arrested, Johnson admitted to police that he took the car.
[5] The State charged Johnson with Count I, receiving stolen auto parts elevated to
a Level 5 felony based on a prior conviction, and Count II, auto theft as a Level
6 felony. A bench trial was held on December 6, 2017, at the conclusion of
which the trial court found Johnson guilty of both offenses. On January 5,
2018, the trial court sentenced Johnson to concurrent terms of 6 years on Count
I and 910 days on Count II. Johnson now appeals. Additional facts will be
provided as necessary.
Discussion & Decision
[6] Johnson argues, and the State concedes, that Johnson’s convictions for
receiving stolen auto parts and auto theft violate double jeopardy principles.
We agree. In Count I, the State charged that “[o]n or about July 30 2017,
[Johnson] did knowingly receive, retain or dispose of a motor vehicle of John
Johns, to-wit, a 2008 PT Cruiser, such property having been the subject of a
theft.” Appellant’s Appendix at 16. In Count II, the State charged that [o]n or
1
Once the car was returned, Johns discovered that there were multiple items missing, including his ankle
braces, his cane, his sunglasses, the spare tire, the car jack, and a car seat, among other items.
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about July 30, 2017, [Johnson] did knowingly exert unauthorized control over
the motor vehicle of John Johns, to-wit, a 2008 PT Cruiser, with intent to
deprive the person of the vehicle’s value or use.” Id. Here, the same car is the
subject of the theft and receiving stolen property convictions and thus, the theft
is inherently included in receiving stolen property. See White v. State, 944
N.E.2d 532, 536 (holding that “[w]here . . . the person who committed the theft
was also convicted of receiving that same stolen property, then the elements of
theft are inherently included in receiving stolen property”), trans. granted,
summarily aff’d on this issue 963 N.E.2d 511, 514 (Ind. 2012). We therefore
reverse Johnson’s conviction on Count II and remand to the trial court with
instructions to vacate this conviction.
[7] Johnson also argues that his maximum six-year sentence on Count I is
inappropriate. See Ind. Code § 35-50-2-6 (“[a] person who commits a Level 5
felony . . . shall be imprisoned for a fixed term of between one (1) and six (6)
years, with the advisory sentence being three (3) years”). Article 7, section 4 of
the Indiana Constitution grants our Supreme Court the power to review and
revise criminal sentences. See Knapp v. State, 9 N.E.3d 1274, 1292 (Ind. 2014),
cert. denied, 135 S.Ct. 978 (2015). Pursuant to Ind. Appellate Rule 7, the
Supreme Court authorized this court to perform the same task. Cardwell v. State,
895 N.E.2d 1219, 1224 (Ind. 2008). Per App. R. 7(B), we may revise a sentence
“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.” Inman v. State, 4 N.E.3d 190, 203 (Ind. 2014) (quoting App. R.
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7). “Sentencing review under Appellate Rule 7(B) is very deferential to the trial
court.” Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012). “Such deference
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).
[8] The determination of whether we regard a sentence as inappropriate “turns on
our sense of the culpability of the defendant, the severity of the crime, the
damage done to others, and myriad other factors that come to light in a given
case.” Bethea v. State, 983 N.E.2d 1134, 1145 (Ind. 2013) (quoting Cardwell, 895
N.E.2d at 1224). Moreover, “[t]he principal role of such review is to attempt to
leaven the outliers.” Chambers v. State, 989 N.E.2d 1257, 1259 (Ind. 2013). It is
not our goal in this endeavor to achieve the perceived “correct” sentence in
each case. Knapp, 9 N.E.3d at 1292. Accordingly, “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) (emphasis in original).
[9] The nature of the offense is relatively innocuous in that it involved the
straightforward taking of a car without permission. There was minimal risk and
no one was injured because Johnson seized on a moment of inattention to
accomplish the taking. The owner recovered the car twelve hours later and,
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although some personal items were missing, the car was in the same general
condition as it was when it was taken.
[10] The character of the offender, however, supports the six-year sentence imposed.
Johnson argues that because his age—twenty-three at the time of sentencing—
put him “well within developmental norms to exhibit immaturity or poor
impulse control,” this court should discount the severity and frequency of his
delinquent and criminal behavior. Appellant’s Brief at 11. We view his criminal
and juvenile history in a different light, i.e., as demonstrating a clear disregard
for the law.
[11] As noted by the trial court, Johnson has a history of delinquent and criminal
behavior, having accumulated seven true findings as a juvenile and seven
convictions as an adult, many of which are for property crimes. As a juvenile,
Johnson was adjudicated delinquent for battery resulting in bodily injury to an
endangered adult, two counts of theft, burglary, battery resulting in bodily
injury, burglary of a dwelling, and escape. All but one would have resulted in
felony convictions if committed by an adult. Over the course of the juvenile
adjudications, Johnson violated the terms of formal probation and home
confinement multiple times.
[12] Approximately two months after his eighteenth birthday, Johnson committed
theft and was charged with two counts related to the same. Two days later, he
was charged with unauthorized entry of a motor vehicle. Johnson was
ultimately convicted of all of these offenses and placed on probation. Petitions
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to revoke probation were filed and granted in both cases. Johnson then
committed resisting law enforcement and later, theft as a Class D felony.
Before the theft case was concluded, Johnson was charged with Class D felony
intimidation. In both the theft and intimidation cases, Johnson was placed on
probation, and in both cases, he committed multiple probation violations. In
September 2016, Johnson committed auto theft, and in October 2016, he
committed battery resulting in bodily injury as a Level 5 felony. He was
convicted of both offenses and placed on electronic monitoring. Johnson,
however, tampered with this monitoring device and was ultimately revoked
from electronic monitoring due to his conviction in this case.
[13] Johnson’s history of delinquent and criminal behavior does not reflect upon his
character in a positive light. Johnson has been afforded leniency on numerous
occasions, but with no effect on his criminal behavior. We agree with the trial
court that “his criminal history establishes . . . that he can best be served with
the rehabilitation provided by a penal facility” because he “is likely to reoffend
if he does not receive that rehabilitation.” Transcript at 65-66. In light of the
nature of the offense and character of the offender, we cannot say that
Johnson’s six-year sentence is inappropriate.
[14] Judgment affirmed in part, reversed in part, and remanded.
[15] Brown, J. and Tavitas, J., concur.
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