MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                   FILED
regarded as precedent or cited before any                          May 27 2020, 8:17 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                                  ATTORNEYS FOR APPELLEE
Jennifer A. Joas                                        Myriam Serrano
Madison, Indiana                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Robyn Johnson,                                          May 27, 2020
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        19A-CR-1406
        v.                                              Appeal from the
                                                        Switzerland Circuit Court
State of Indiana,                                       The Honorable
Appellee-Plaintiff.                                     W. Gregory Coy, Judge
                                                        Trial Court Cause No.
                                                        78C01-1808-F1-344



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1406 | May 27, 2020                Page 1 of 10
[1]   The State charged Robyn Johnson (“Johnson”) with neglect of a dependent1 as

      a Level 1 felony. Johnson and the State entered a plea agreement, and Johnson

      reserved the right to appeal her sentence. Following her guilty plea, Johnson

      was sentenced to an aggregate sentence of twenty-five years with five years

      suspended to probation and the remaining twenty years executed in the

      Department of Correction (“DOC”). Contending that her sentence is

      inappropriate in light of the nature of the offense and her character, Johnson

      now appeals.


[2]   We affirm.


                                       Facts and Procedural History
[3]   Johnson is the mother of eight children. Tr. Vol. II at 11. C.B.J. was one of her

      children. Id. at 33, 46. He was born on March 3, 2015 with a twisted bowel

      and required multiple bowel resection surgeries. Id. at 46, 48-49; Def.’s Ex. 3 at

      92-94. As a result of these surgeries, C.B.J. suffered from malabsorption,

      required hydration and long-term care, and underwent additional surgeries and

      hospitalizations. Tr. Vol. II at 49, 55, 57; Def.’s Ex. 3 at 92-93.


[4]   In April of 2017, C.B.J. underwent surgery at Cincinnati Children’s Hospital

      (“the Hospital”) and was hospitalized for nine weeks due to complications

      arising from that surgery. Tr. Vol. II at 56. He was discharged on June 14, 2017




      1
          See Ind. Code § 35-46-1-4.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1406 | May 27, 2020   Page 2 of 10
      and returned home for two days. Id. at 61. On June 16, 2017, his mother took

      him back to the Hospital due to problems with his gastro-intestinal feeding tube.

      Id. at 61-63. While C.B.J. was at the Hospital, Dr. Timothy Brenkert (“Dr.

      Brenkert”), an emergency room physician, wanted to do bloodwork on C.B.J.

      out of concerns related to dehydration and a possible infection. Id. at 66-67;

      Def.’s Ex. 3 at 125.


[5]   C.B.J. was known as a “hard stick,” and problems arose when nurses attempted

      to take blood from him. Tr. Vol. II at 67. C.B.J. was crying and writhing in

      pain throughout the procedure. Id. Finally, Hospital personnel succeeded in

      filling two vials with blood; however, one of the vials was coagulated and could

      not be used. Id. at 68. Hospital staff wanted to draw more blood from C.B.J.

      Id. Johnson, who had witnessed the entire procedure and was upset with their

      treatment of her son, decided that she was going to take C.B.J. home. Id.

      Johnson believed that C.B.J. was dehydrated because his feeding pump was

      turned off after his arrival at the Hospital, and she felt that she could rehydrate

      C.B.J. at home. Id. at 69, 135. She also expressed to Hospital personnel that

      she needed to leave the Hospital to attend to her other children and go to work

      and would not leave without C.B.J. Def.’s Ex. 3 at 30.


[6]   Dr. Brenkert discussed C.B.J.’s discharge with Johnson. Id. at 177. At that

      time, Dr. Brenkert was unaware of the lab results from the vial of C.B.J.’s blood

      that was not coagulated. Id. at 179. When Dr. Brenkert learned of the blood

      test results, he was concerned with C.B.J.’s hydration levels and kidney

      function. Id. at 159-63. Combined with C.B.J.’s unmanaged heart rate, Dr.
      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1406 | May 27, 2020   Page 3 of 10
      Brenkert was concerned that C.B.J. had an infection, and he presented Johnson

      with an “Against Medical Advice” form (“A.M.A.”). Id. at 164, 178-82.

      Handwritten on the A.M.A. form was “short gut syndrome with tachycardia,

      dehydration, death and kidney failure.” Def.’s Ex. 4 at 9.


[7]   Johnson signed the A.M.A. form and left the Hospital with C.B.J. at 5:40 a.m.

      Tr. Vol. II at 68-69, 154. At 5:51 a.m., another Hospital physician, Dr. David

      Vitale, contacted Johnson and informed her that C.B.J.’s vital signs and labs

      indicated life-threatening dehydration and a possible infection and that C.B.J.

      needed to be returned immediately or he would contact police. Id. at 153, 156,

      169-70; Def.’s Ex. 4 at 158. Johnson did not return C.B.J. to the Hospital. Tr.

      Vol. II at 70, 99. Instead, she called the Vevay Police Department to ask if she

      could be arrested for not returning C.B.J. to the Hospital. Id. at 108, 153. Her

      call was re-routed to the Switzerland County Sheriff’s office. Id. at 153, 158-59,

      161. She then continued driving home, arriving there at 7:33 a.m. Id. at 153.


[8]   Upon her arrival at home, Johnson put C.B.J. to bed and reconnected his

      feeding tube to give him PediaLite. Id. at 72, 103. At 8:33 a.m., Dr. Annie

      Ferguson called from the Hospital to reiterate that C.B.J.’s blood work showed

      a possible infection and that C.B.J. needed to be returned to the Hospital

      immediately. Id. at 153, 160; Def.’s Ex. 4 at 171. Johnson agreed to do so.

      Def.’s Ex. 4 at 171.


[9]   At 8:45 a.m., Johnson left her home to pick up her other children and returned

      at 9:09 a.m. Tr. Vol. II at 153. At 9:27 a.m., she began attempting to arrange


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1406 | May 27, 2020   Page 4 of 10
       for an ambulance that could take C.B.J. back to the Hospital. Id. at 101, 153.

       Noticing that C.B.J.’s breathing had changed, she again called to request an

       ambulance. Id. at 73, 153. At 9:37 a.m., C.B.J. was in cardiac arrest, and

       Johnson and her boyfriend performed CPR on C.B.J. Id. at 73, 101, 153-54.


[10]   C.B.J was flown to the Hospital where he was pronounced dead on June 17,

       2017. Id. at 73. An autopsy determined the cause of C.B.J.’s death to be

       “severe dehydration complicating short gut syndrome with jejunostomy tube

       dependence due to small bowel resection with complications due to congenital

       intestinal malformation with midgut volvulus and the manner of death to be

       homicide (child neglect).” Appellant’s Conf. App. Vol. II at 10.


[11]   On August 29, 2018, the State charged Johnson with neglect of a dependent as

       a Level 1 felony. Id. at 7-8. On April 17, 2019, Johnson and the State entered a

       plea agreement by which Johnson pleaded guilty to the offense of neglect of a

       dependent as a Level 1 felony with a maximum sentence of thirty years and a

       minimum, nonsuspendible sentence of twenty years. Id. at 12-14. On that

       same day, the trial court took her guilty plea under advisement and scheduled a

       sentencing hearing for May 17, 2019. Id. at 5. At the sentencing hearing, the

       trial court heard the parties’ presentations of evidence and arguments,

       considered Johnson’s presentence investigation report (“PSI”), and imposed its

       sentence on Johnson. Tr. Vol. II at 7-186. Before sentencing Johnson, the trial

       court stated as follows:


               The Court does find that the mitigating factors outweigh the
               aggravating factors in this case and the plea agreement should be
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1406 | May 27, 2020   Page 5 of 10
               accepted and the defendant sentenced accordingly. I would find
               that that means that the advisory sentence of 30 years, which is
               the maximum under the plea agreement, the sentence needs to be
               under that. I do find, this is not set out in here specifically, that
               this not a case where the Court is going to consider alternative
               sentencing, if at all. This is a Level 1 Felony and I believe it
               mentions in the pre-sentence that there was contact with
               community corrections or an effort to contact them and they did
               not respond. In my experience, and I was a lawyer [for] 20 and
               I’ve been up here about 10 1/2, I’ve not seen anyone on Class A
               or Level 1 doing it on detention. That doesn’t mean they have or
               haven’t done some other alternative but in my experience, that
               hasn’t happened.


       Id. at 185. The trial court then imposed an aggregate sentence of twenty-five

       years with five years suspended to probation and twenty years executed in the

       DOC, the minimum sentence provided in the plea agreement. Id. at 185-86;

       Appellant’s Conf. App. Vol. II at 15-19. Johnson now appeals.


                                      Discussion and Decision
[12]   Johnson contends that her sentence is inappropriate in light of the nature of her

       offense and her character. Under Indiana Appellate Rule 7(B), we may revise

       a sentence if, after due consideration of the trial court’s decision, we find

       the sentence inappropriate considering the nature of the offense and the

       character of the offender. Whether a sentence is inappropriate turns on the

       culpability of the defendant, the severity of the crime, the damage done to

       others, and other factors that come to light in a given case. Cardwell v. State, 895

       N.E.2d 1219, 1224 (Ind. 2008). We defer to the trial court’s decision, and our

       goal is to determine whether an appellant’s sentence is inappropriate, not

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1406 | May 27, 2020   Page 6 of 10
       whether some other sentence would be more appropriate. 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). The

       location where a sentence is to be served is an appropriate focus for our review

       and revise authority. Biddinger v. State, 868 N.E.2d 407, 414 (Ind. 2007).

       However, a defendant faces a rigorous burden convincing us that a given

       placement is inappropriate. Fonner v. State, 876 N.E.2d 340, 343 (Ind. Ct. App.

       2007). In reviewing a sentence, we seek to leaven the outliers rather than to

       achieve a perceived correct result in each case. Cardwell, 895 N.E.2d at 1225.


[13]   On appeal, Johnson requests that her sentence be reduced from twenty-five

       years to twenty years and that she be permitted to serve the sentence on home

       detention. We decline her request.


[14]   The advisory sentence is the starting point the legislature has selected as an

       appropriate sentence for the crime committed. Abbott v. State, 961 N.E.2d 1016,

       1019 (Ind. 2012). The sentencing range for a Level 1 felony is a fixed term of

       imprisonment between twenty and forty years, with the advisory sentence being

       thirty years. Ind. Code § 35-50-2-4(b). An addendum to Johnson’s guilty plea

       agreement established additional sentencing parameters for the trial court to

       consider, with the advisory sentence for a Level 1 felony of thirty years as the

       maximum sentence and twenty years, nonsuspendible, as the minimum

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1406 | May 27, 2020   Page 7 of 10
       sentence. Johnson received an aggregate sentence of twenty-five years with five

       years suspended to probation and the remaining twenty years executed in the

       DOC. Her sentence is less than the advisory sentence for a Level 1 felony and

       within the range established by the guilty plea. In fact, the executed time of

       twenty years in the DOC to which Johnson was sentenced is the minimum term

       of imprisonment for a Level 1 felony.


[15]   The nature of the offense compares the defendant’s actions with the required

       showing to sustain a conviction under the charged offense. Cardwell, 895

       N.E.2d at 1224. When Johnson committed the offense, she ignored the

       repeated requests of medical personnel to keep two-year old C.B.J. at the

       Hospital and to return him after she removed him against medical advice. Tr.

       Vol. II at 68-69, 154-56, 169-70; Def.’s Ex. 3 at 164, 178-82; Def.’s Ex. 4 at 158.

       Instead of keeping C.B.J. at the Hospital to control and address his underlying

       medical condition, Johnson took C.B.J. home and contacted the Vevay Police

       Department along the way to inquire as to whether her conduct in taking C.B.J.

       from the Hospital could be considered criminal. Tr. Vol. II at 153, 158-59, 161.

       In pleading guilty to the offense, Johnson admitted to knowingly or

       intentionally putting C.B.J. in a situation that resulted in his death. Tr. Vol. II

       at 5; Appellant’s Conf. App. Vol. II at 12-14. We acknowledge that Johnson felt

       she was trying to help C.B.J. by taking him home to rehydrate him outside of

       the Hospital setting. Tr. Vol. II at 69, 135. However, Johnson was keenly

       aware that C.B.J. could become critically ill in a “moment’s notice” and that

       dehydration and the critical nature of his illness could quickly escalate. Id. at


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1406 | May 27, 2020   Page 8 of 10
       92. In light of the severity of C.B.J.’s chronic medical condition and the urgent

       need for additional testing to properly assess his condition, we do not find her

       sentence to be inappropriate based on the nature of the offense.


[16]   The character of the offender permits a broader consideration of the defendant’s

       character. Anderson v. State, 989 N.E.2d 823, 827 (Ind. Ct. App. 2013). The

       trial court reviewed Johnson’s PSI, which revealed limited criminal history and

       her own extensive medical history. Appellant’s Conf. App. Vol. II at 20-199;

       Appellant’s Conf. App. Vol. III at 2-95. The trial court found Johnson’s criminal

       history to be negligible and acknowledged the hardship that her incarceration

       would cause for her other children. Appellant’s Conf. App. Vol. II at 15-16. It

       also found that Johnson showed remorse by pleading guilty and that her

       conviction was due to events that were unlikely to reoccur. Id. The trial court

       noted, based on the severity of the crime, that Johnson’s situation was “not a

       case where the Court is going to consider alternative sentencing.” Tr. Vol. II at

       185. The trial court sentenced Johnson to a term of twenty-five years, with five

       years suspended to probation and the remaining twenty years executed in the

       DOC. Appellant’s Conf. App. Vol. II at 16-17. Her sentence reflects the

       considerations applicable to her case, including the hardship caused by her

       incarceration, and the executed portion of the sentence is equivalent to the

       minimum sentence for her offense. Johnson’s request to serve her sentence on

       home detention due to her extensive medical conditions and the hardship of

       incarceration on her other children, focuses on why home detention would be

       more appropriate than placement at the DOC and not why placement at the


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1406 | May 27, 2020   Page 9 of 10
       DOC is inappropriate, which is not our prerogative under Appellate Rule

       7(B). Fonner, 876 N.E.2d at 343-44. We cannot say that Johnson has shown

       “substantial virtuous traits or persistent examples of good character” such that

       reducing her sentence to twenty years served on home detention is warranted

       based on her character. Stephenson, 29 N.E.3d at 122. Therefore, in light of the

       nature of Johnson’s offense and her character, we cannot say that her sentence

       is inappropriate.


[17]   Affirmed.


       Bailey, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1406 | May 27, 2020   Page 10 of 10
