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).


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2160 | May 22, 2020   Page 2 of 9
      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

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2160 | May 22, 2020   Page 3 of 9
      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


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2160 | May 22, 2020   Page 4 of 9
       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.



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2160 | May 22, 2020   Page 5 of 9
[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

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2160 | May 22, 2020   Page 6 of 9
       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


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2160 | May 22, 2020   Page 7 of 9
       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


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2160 | May 22, 2020   Page 8 of 9
       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.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2160 | May 22, 2020   Page 9 of 9
