MEMORANDUM DECISION
                                                                                 FILED
Pursuant to Ind. Appellate Rule 65(D),
                                                                            Feb 13 2017, 9:17 am
this Memorandum Decision shall not be
regarded as precedent or cited before any                                        CLERK
                                                                             Indiana Supreme Court
court except for the purpose of establishing                                    Court of Appeals
                                                                                  and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
P. Jeffrey Schlesinger                                   Curtis T. Hill, Jr.
Office of the Public Defender                            Attorney General of Indiana
Crown Point, Indiana
                                                         George P. Sherman
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Josselyn Patricia Johnson,                               February 13, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         45A03-1606-CR-1478
        v.                                               Appeal from the Lake Superior
                                                         Court
State of Indiana,                                        The Honorable Kathleen Sullivan,
Appellee-Plaintiff.                                      Judge Pro Tempore
                                                         Trial Court Cause No.
                                                         45G01-1510-F3-54



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 45A03-1606-CR-1478 | February 13, 2017             Page 1 of 7
                               Case Summary and Issues
[1]   By virtue of a plea agreement, Josselyn Johnson pleaded guilty to robbery, a

      Level 5 felony. The trial court accepted the plea agreement, entered judgment

      of conviction, and sentenced Johnson to five years in the Indiana Department

      of Correction. Johnson appeals, raising two issues for our review: (1) whether

      the trial court abused its discretion in failing to find certain mitigating

      circumstances; and (2) whether her sentence is inappropriate in light of the

      nature of her offense and her character. Concluding the trial court did not

      abuse its discretion and Johnson’s sentence is not inappropriate, we affirm.



                            Facts and Procedural History
[2]   On August 24, 2015, Johnson, Corey Burton, and Kristen Burton entered Best

      Fashion in Merrillville, Indiana. Corey grabbed the store owner, Doo Chang,

      dragged her to the rear of the store, and began punching her in the face.

      Meanwhile, Johnson and Kristen stole clothing and jewelry. Chang suffered a

      bloody nose and pain and bruising to her body and head.


[3]   The State charged Johnson with Count I, robbery resulting in bodily injury, a

      Level 3 felony; Count II, criminal confinement, a Level 5 felony; and Count III,

      battery, a Level 6 felony. On April 28, 2016, Johnson and the State entered

      into a written plea agreement pursuant to which Johnson agreed to plead open

      to robbery as a Level 5 felony in exchange for the State dismissing the

      remaining three counts. On May 27, 2016, the trial court accepted Johnson’s


      Court of Appeals of Indiana | Memorandum Decision 45A03-1606-CR-1478 | February 13, 2017   Page 2 of 7
      guilty plea and sentenced her to five years in the Indiana Department of

      Correction. As aggravating circumstances, the trial court considered Johnson’s

      criminal history, which consists of prior convictions of robbery and theft, and

      her failure to remedy her criminal behavior after multiple prior contacts with

      the criminal justice system. As mitigating circumstances, the trial court

      considered the fact Johnson pleaded guilty and admitted responsibility. On

      June 3, 2016, the trial court amended its sentencing order to provide that

      Johnson may serve the final year of her five-year sentence in Community

      Transition Court, if she is accepted. Johnson now appeals.



                                 Discussion and Decision
                                I. Mitigating Circumstances
[4]   Johnson argues the trial court abused its discretion in declining to find two

      additional proffered mitigating factors. Sentencing decisions rest within the

      sound discretion of the trial court. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind.

      2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007). As long as a sentence is

      within the statutory range, we review only for an abuse of discretion. Id. A

      trial court abuses its discretion if the sentencing decision is “clearly against the

      logic and effect of the facts and circumstances before the court, or the

      reasonable, probable, and actual deductions to be drawn therefrom.” Id.

      (citation omitted). A trial court is not required to accept a defendant’s

      argument as to what is a mitigating factor or to provide mitigating factors the

      same weight as does a defendant. Conley v. State, 972 N.E.2d 864, 873 (Ind.

      Court of Appeals of Indiana | Memorandum Decision 45A03-1606-CR-1478 | February 13, 2017   Page 3 of 7
      2012). “If the trial court does not find the existence of a mitigating factor after

      it has been argued by counsel, the trial court is not obligated to explain why it

      has found that the factor does not exist.” Anglemyer, 868 N.E.2d at 493.

      However, a court abuses its discretion if it does not consider significant

      mitigating circumstances advanced by the defendant and clearly supported by

      the record. Id. at 490-91.


[5]   Johnson argues the trial court should have found the following as mitigating

      circumstances: (1) Johnson’s diagnosis of schizophrenia and depression, and (2)

      Johnson’s lack of parental supervision or family environment as a child.


[6]   The trial court did not abuse its discretion in declining to find Johnson’s

      diagnoses of schizophrenia and depression as mitigating circumstances.

      Johnson is correct to note our supreme court has identified several factors a trial

      court is to consider in determining what mitigating weight evidence of a mental

      illness may have. Weeks v. State, 697 N.E.2d 28, 30 (Ind. 1998). Those factors

      include: (1) the extent of the defendant’s inability to control his or her behavior

      due to the disorder or impairment; (2) overall limitations on functioning; (3) the

      duration of the mental illness; and (4) the extent of any nexus between the

      disorder or impairment and the commission of the crime. Id. However, it is

      Johnson’s burden to establish the mitigating factors are both significant and

      clearly supported by the record. Anglemyer, 868 N.E.2d at 493. Here, Johnson

      failed to present evidence on any of these factors, and in fact, argued to the trial

      court that schizophrenia and depression had little to no bearing on these crimes.

      At the sentencing hearing, Johnson’s counsel stated “I don’t think she’s going

      Court of Appeals of Indiana | Memorandum Decision 45A03-1606-CR-1478 | February 13, 2017   Page 4 of 7
      to be . . . blaming [her crime] on any of . . . the diagnosed mental illnesses,” and

      that “she appears to be doing well and no longer suffering from serious

      complications . . . .” Transcript at 6. Therefore, the trial court’s sentencing

      decision is not clearly against the logic and effect of the facts and circumstances

      before the court.


[7]   We likewise disagree the trial court abused its discretion in declining to find

      Johnson’s lack of parental supervision or family environment as a child to be a

      mitigating circumstance. As Johnson acknowledges, our supreme court has

      held evidence of a difficult childhood is entitled to little, if any, mitigating

      weight. Ritchie v. State, 875 N.E.2d 706, 725 (Ind. 2007). Again, it is Johnson’s

      burden to establish a mitigating factor and prove it is significant. Anglemyer,

      868 N.E.2d at 493. Johnson was twenty-three years old at sentencing, and the

      trial court was within its discretion to conclude her difficult childhood and lack

      of parental supervision had little relevance to her current criminal conduct.


                                 II. Inappropriate Sentence
[8]   Johnson also argues her sentence is inappropriate in light of the nature of the

      offense and her character. Indiana Rule of Appellate Procedure 7(B) provides

      that 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 burden is on the defendant to persuade the appellate court his or her

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


      Court of Appeals of Indiana | Memorandum Decision 45A03-1606-CR-1478 | February 13, 2017   Page 5 of 7
       Relief is available if, after due consideration of the trial court’s sentencing

       decision, this court, in its independent judgment, finds the sentence is

       inappropriate in light of the nature of the offense and the character of the

       offender. See Hines v. State, 30 N.E.3d 1216, 1225 (Ind. 2015). Sentencing is

       principally a discretionary function in which the trial court’s judgment should

       receive considerable deference. Id. “Whether we regard a sentence as

       appropriate at the end of the day 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.” Id. (citation omitted).


[9]    First, we consider the nature of Johnson’s offense. When reviewing the nature

       of the offense, a relevant factor is whether there is anything more or less

       egregious about the offense which distinguishes it from a “typical” offense

       accounted for by the advisory sentence set by the legislature. Wells v. State, 2

       N.E.3d 123, 131 (Ind. Ct. App. 2014), trans. denied. The sentencing range for a

       Level 5 felony is one to six years, with the advisory sentence being three years.

       Ind. Code § 35-50-2-6(b). Here, Johnson stole clothing and jewelry while her

       confederate mercilessly punched Chang in the face, causing her substantial

       injury to her head, body, and nose. However, as Johnson did not participate in

       the battery upon Chang, we do not think the nature of this offense is overtly

       better or worse than the “typical” robbery offense.


[10]   Next, we consider Johnson’s character. When considering the character of the

       offender, one relevant factor is the defendant’s criminal history. Wells, 2

       N.E.3d at 131. In 2012, Johnson was convicted of robbery and theft, for which

       Court of Appeals of Indiana | Memorandum Decision 45A03-1606-CR-1478 | February 13, 2017   Page 6 of 7
       she received a three-year sentence. Although her criminal history is not

       lengthy, her recidivism exhibits a disregard for the law and a failure to reform

       despite a lenient measure previously extended to her. Further, we note a lack of

       remorse by Johnson. At the sentencing hearing, Johnson attempted to justify

       her actions by pointing to a need to make a living for herself. The transcript is

       void of any form of apology to the victim or indication Johnson is genuinely

       sorry for her actions. Given Johnson’s criminal history, coupled with her lack

       of remorse and failure to reform her criminal behavior, we conclude a five-year

       sentence is not inappropriate.



                                               Conclusion
[11]   The trial court did not abuse its discretion in failing to find certain mitigating

       circumstances and Johnson’s sentence is not inappropriate given the nature of

       the offense and the character of the offender. Therefore, we affirm Johnson’s

       sentence.


[12]   Affirmed.


       Kirsch, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 45A03-1606-CR-1478 | February 13, 2017   Page 7 of 7
