MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                      FILED
this Memorandum Decision shall not be                                  Apr 20 2020, 10:03 am
regarded as precedent or cited before any
court except for the purpose of establishing                                CLERK
                                                                        Indiana Supreme Court
                                                                           Court of Appeals
the defense of res judicata, collateral                                      and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Sean C. Mullins                                           Curtis T. Hill, Jr.
Crown Point, Indiana                                      Attorney General of Indiana

                                                          Tiffany A. McCoy
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Erika Elizabeth Johnson,                                  April 20, 2020
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          19A-CR-2885
        v.                                                Appeal from the Lake Superior
                                                          Court
State of Indiana,                                         The Honorable Diane R. Boswell,
Appellee-Plaintiff                                        Judge
                                                          Trial Court Cause No.
                                                          45G03-1605-F4-25



Altice, Judge.


                                          Case Summary



Court of Appeals of Indiana | Memorandum Decision 19A-CR-2885 | April 20, 2020                  Page 1 of 11
[1]   Erika Elizabeth Johnson pled guilty, pursuant to a plea agreement, to one count

      of Level 4 felony burglary in Lake County. The trial court sentenced her to

      eight years in the Indiana Department of Correction (the DOC) with the last

      four of those years to be served in community corrections. Additionally, the

      court ordered the sentence to run consecutively to the sentences imposed in two

      separate burglary cases out of Porter County. On appeal, Johnson argues that

      the trial court abused its discretion by running the sentence consecutively to the

      other sentences without finding any aggravating circumstances.


[2]   We affirm.


                                       Facts & Procedural History


[3]   Between December 5, 2015 and May 10, 2016, Johnson, along with others,

      committed a string of burglaries in Porter County and Lake County. Charges

      evolved as two codefendants cooperated and provided information to

      investigators.


[4]   The first charges against Johnson – one count of burglary and four drug-related

      counts – were filed in Porter County under cause number 64D05-1605-F4-4486

      (Porter F4-4486) on May 13, 2016. Four days later, under cause number

      45G03-1605-F4-22 (Lake F4-22), five counts of burglary were filed against

      Johnson in Lake County. Charges in the instant case – five counts of burglary –

      were then filed in Lake County on May 18, 2016. Finally, on August 26, 2016,

      cause number 64D05-1608-F4-7895 (Porter F4-7895) was filed in Porter

      County, alleging two counts of burglary.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2885 | April 20, 2020   Page 2 of 11
[5]   In April 2017, Johnson pled guilty to one count of burglary in each of the Porter

      County cases and received consecutive six-year sentences for an aggregate

      sentence of twelve years in the DOC. The remaining five counts between the

      two cases were dismissed pursuant to the plea agreement.


[6]   Thereafter, on June 7, 2017, the pending criminal warrants out of Lake County

      were served on Johnson. Johnson entered into a plea agreement with the State

      on July 30, 2019, pursuant to which she agreed to plead guilty to one count of

      burglary in this case. In exchange, the State agreed to the dismissal of the other

      four counts of burglary in this case, as well as all five counts of burglary in Lake

      F4-22. Additionally, the agreement provided for a sentence of eight years in the

      DOC, which is two years above the advisory sentence for a Level 4 felony. 1

      Finally, the agreement expressly indicated that the parties were free to argue

      whether this sentence should be served consecutively to or concurrently with

      the sentences in Porter F4-4486 and Porter F4-7895. The trial court accepted

      the plea and scheduled a sentencing hearing.


[7]   After multiple delays, the sentencing hearing was held on November 7, 2019.

      The parties made clear to the trial court that the issue before it was whether the

      eight-year sentence should be ordered to be served consecutively to the Porter

      County sentences. The State acknowledged that consecutive sentences were

      not statutorily required but argued that they were appropriate due to the




      1
        “A person who commits a Level 4 felony shall be imprisoned for a fixed term of between two (2) and twelve
      (12) years, with the advisory sentence being six (6) years.” Ind. Code § 35-50-2-5.5.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2885 | April 20, 2020                 Page 3 of 11
      multiple victims involved and the months and locations over which the

      burglaries spanned. The “focus[]” of Johnson’s argument to the trial court was

      that the continuing crime doctrine should apply for imposition of concurrent

      sentences. Transcript at 14. Johnson also asserted in her sentencing

      memorandum filed with the trial court that she “lacks substantial criminal

      history, desires to accept responsibility for her actions, has admitted remorse

      and respects [sic] for the Court by demonstrating a willingness to save the time

      and expense of trial.” Appellant’s Appendix at 77. Despite her good start in life

      and family support, Johnson indicated that drug addiction to

      methamphetamine and heroin turned her into someone that she is not.


[8]   During the sentencing hearing, the trial court observed that Johnson’s criminal

      history was different than one of her codefendants, who received concurrent

      sentences. The court agreed when the State characterized her history as

      “extensive.” Transcript at 11. The court further stated:


              As I read your PSI, my question was, what happened. [Defense
              counsel] has explained that today. Because the first part of your
              PSI shows a bright young lady with a bright future, and then all
              of a sudden, things just went haywire.


              And when they went haywire, they really went haywire. You
              hurt a lot of people.


              I think you heard it in that [victim] letter. I think you felt it in
              that letter. I heard it, I felt it.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2885 | April 20, 2020   Page 4 of 11
              I don’t know if you’ve ever been a victim of someone breaking
              into your home.… That’s a place where you feel you can be safe,
              in your own home, and to come home and find that someone has
              violated that sanctity and done it in such a horrible way.


              I mean, not just go in and take things; you go in and throw stuff
              around and, you know, just ram shackle [sic] the whole place, it’s
              just absolutely unnecessary, absolutely unnecessary, and it does
              affect people for a lifetime.


              These families will never feel safe again….


              This is horrific; this is just horrific. Your activity started at –
              well, there’s a little something at 17 and then at 18, you kind of
              got on a long streak, and this last streak here. You have wasted
              so much potential. You have such potential.


              And I know. I understand drugs. I understand how people get
              involved in drugs, but that’s not an excuse. That’s not an excuse.


      Id. at 19-20.


[9]   After making these statements, the trial court held a bench conference with

      counsel and indicated that the court was “not opposed to the eight-year

      sentence” but thought that a period of probation was needed. Id. at 20. The

      State responded: “That was one of the plea offers the State suggested was an

      agreed term, consecutive, followed by probation. That was a choice by [defense

      counsel] and [Johnson] to prefer to argue for a concurrent sentence in full.” Id.

      at 20-21. The parties and the court proceeded to have a lengthy discussion

      regarding the potential sentencing options, all including some degree of


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2885 | April 20, 2020   Page 5 of 11
consecutive sentencing. For example, the State suggested that the sentence

could be served consecutively to only one of the Porter County sentences,

resulting in lengthening her total sentence by only two years. When the State

noted that probation was not an option under the plea agreement, the following

discussion took place:


        [State]:      Maybe transition court, if your Honor would
        choose to order it. It’s not precluded by the plea that do [sic]
        Therapeutic Community for those final couple years, a way for
        her to reintegrate and get some treatment.


        [Defense Counsel]:                 And that could be ordered?


        [State]:     I believe - - I don’t believe the plea precludes that in
        any way. It simply says [the DOC], and those are [DOC]
        functions.


        [Court]:         Uh-huh.


        [Defense Counsel]:       So it could be six years concurrent and
        then two years consecutive CTC.


        [State]:     I think the Court could order that and it would not
        be counter to the plea in any way.


        [Court]:         Uh-huh.


        [Defense Counsel]:         No matter what, whatever she has
        when she gets out, I think that would be valuable to her. And in
        my talking with her, she has no problem with that. She thinks it
        would be helpful. I didn’t like what Porter County did. It’s just -
        - 12 years, so - -
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2885 | April 20, 2020   Page 6 of 11
               [Court]:     Okay. All right. I’m going to do - - okay. I’m
               going to do four and four. Four consecutive and four
               Community Corrections.


               [State]:         Okay.


               [Defense Counsel]:                 Four concurrent, or four - -


               [Court]:     No, four consecutive and then when she finishes all
               her time, she goes four more years to Community Corrections….


               [Defense Counsel]:                 So that puts her at 16 years, I guess?


                                                       ****


               [State]:  Twelve plus eight is 20, with four to be served at
               Community Corrections.


               [Defense Counsel]:                 Yeah.


               [Court]:         Okay.


       Id. at 24-26.


[10]   Once the bench conference ended, the court orally pronounced the sentence in

       accordance with this discussion. In so doing, the court also noted that it found

       acceptable the eight-year sentence provided by the plea agreement given

       Johnson’s criminal history and the lack of mitigating circumstances.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2885 | April 20, 2020      Page 7 of 11
[11]   The subsequently entered written sentencing order incorrectly indicated that the

       consecutive nature of the sentence was “[p]ursuant to the plea agreement[.]”

       Appellant’s Appendix at 73. The written order also provided: “That since this is

       an agreed sentence, the Court does not set forth any aggravating or mitigating

       circumstances.” Id. at 72.


[12]   Johnson now appeals, relying on the written order and arguing that the trial

       court abused its discretion because it did not expressly find any aggravating

       circumstances. Additional information will be provided below as needed.


                                           Discussion & Decision


[13]   Sentencing decisions rest within the sound discretion of the trial court and are

       reviewed on appeal only for an abuse of discretion. Anglemyer v. State, 868

       N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218. An abuse of

       discretion occurs when the decision is clearly against the logic and effect of the

       evidence before the court or the reasonable inferences to be drawn therefrom.

       Gleason v. State, 965 N.E.2d 702, 710 (Ind. Ct. App. 2012). The trial court can

       abuse its discretion by, among other things, issuing an inadequate sentencing

       statement. Id.


[14]   The decision to impose consecutive sentences generally lies within the

       discretion of the trial court. Ind. Code § 35-50-1-2(c); McBride v. State, 992

       N.E.2d 912, 919 (Ind. Ct. App. 2013), trans. denied. In ordering consecutive

       sentences, however, the trial court must state its reasoning for imposing

       consecutive sentences and find at least one aggravating circumstance. McBride

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2885 | April 20, 2020   Page 8 of 11
       992 N.E.2d at 919; see also Marcum v. State, 725 N.E.2d 852, 864 (Ind. 2000)

       (“In order to impose consecutive sentences, the trial court must find at least one

       aggravating circumstance. The same aggravating circumstance may be used to

       both enhance a sentence and justify consecutive terms.”) (internal citation

       omitted). Further, it is “a well-established principle that the existence of

       multiple crimes or victims constitutes a valid aggravating circumstance that a

       trial court may consider in imposing consecutive sentences.” McBride 992

       N.E.2d at 919-20 (citing O’Connell v. State, 742 N.E.2d 943, 952 (Ind. 2001)).


[15]   Johnson argues that the trial court failed to support its order for consecutive

       sentences with “an explicit finding of at least one aggravating factor.”

       Appellant’s Brief at 8. She notes that the written sentencing order indicates that

       “since this is an agreed sentence, the Court does not set forth any aggravating or

       mitigating circumstances.” Appellant’s Appendix at 72. Regarding the trial

       court’s oral statements at sentencing, she asserts that “they lack an explicit

       mention of an aggravating factor so as to contradict the otherwise unambiguous

       written statement.” 2 Appellant’s Reply Brief at 4. We cannot agree with Johnson.




       2
         Johnson also appears to suggest that the trial court found the aggravating and mitigating circumstances in
       equipoise and, thus, imposition of consecutive sentence was necessarily improper. The trial court, however,
       never made such a finding in its written order and, in fact, made a contrary finding at the sentencing hearing.
       Cf. Wentz v. State, 766 N.E.2d 351, 359 (Ind. 2002) (“the imposition of consecutive sentences here, where the
       trial court twice stated the mitigating and aggravating factors were in balance, was inappropriate”); Marcum,
       725 N.E.2d at 864 (“because the trial court found the aggravating and mitigating circumstances to be in
       balance, there is no basis on which to impose consecutive terms”).

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2885 | April 20, 2020                     Page 9 of 11
[16]   The oral and written sentencing statements in this case clearly conflict. Under

       this circumstance, we “examine both the written and oral sentencing statements

       to discern the findings of the trial court.” McElroy v. State, 865 N.E.2d 584, 589

       (Ind. 2007) (citing Corbett v. State, 764 N.E.2d 622, 631 (Ind. 2002) (“In

       reviewing a sentencing decision in a non-capital case, we are not limited to the

       written sentencing statement but may consider the trial court’s comments in the

       transcript of the sentencing proceedings.”); Strong v. State, 538 N.E.2d 924, 929

       (Ind. 1989) (“In addition to the discussion set forth in the separate sentencing

       order, this Court has reviewed the trial court’s thoughtful comments at the

       conclusion of the sentencing hearing.”)). One type of statement is not

       presumed to be of superior accuracy to the other. See McElroy, 865 N.E.2d at

       589. Rather, we have “the option of crediting the statement that accurately

       pronounces the sentence or remanding for resentencing.” Id.


[17]   The oral sentencing statement here reflects thoughtful comments and

       consideration by the trial court of the sole issue presented at the hearing –

       whether the sentence should be served consecutively or concurrently to the

       Porter County sentences. The trial court, on two separate occasions during the

       hearing, directly referenced Johnson’s extensive criminal history. In fact, the

       court indicated that the aggravated eight-year sentence was proper in light of

       her criminal history. The trial court also detailed the nature and circumstances

       of her offenses, observing that she “hurt a lot of people” and “did it in such a

       horrible way.” Transcript at 19. The court noted that Johnson did not just go in

       and take things. Rather, she unnecessarily threw stuff around and ransacked


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2885 | April 20, 2020   Page 10 of 11
       the homes, “affect[ing] people for a lifetime” and causing the families to “never

       feel safe again.” Id. at 19, 20.


[18]   These oral statements made by the trial court reflect sufficient findings of

       aggravating circumstances that support the imposition of consecutive sentences.

       Moreover, the written order directly conflicts with the realities of the situation.

       It provides that the consecutive nature of the sentence was “[p]ursuant to the

       plea agreement,” which is clearly erroneous. Appellant’s Appendix at 73. Based

       on the unambiguous nature of the trial court’s oral sentencing statement, we

       find no abuse of discretion in ordering that the sentence imposed in this case be

       served consecutively to the Porter County cases.


[19]   Judgment affirmed.


       Bailey, J. and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2885 | April 20, 2020   Page 11 of 11
