MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                         FILED
this Memorandum Decision shall not be                                     Dec 14 2017, 10:47 am
regarded as precedent or cited before any                                      CLERK
court except for the purpose of establishing                               Indiana Supreme Court
                                                                              Court of Appeals
the defense of res judicata, collateral                                         and Tax Court

estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                 ATTORNEYS FOR APPELLEE
Scott L. Barnhart                                       Curtis T. Hill, Jr.
Brooke Smith                                            Attorney General of Indiana
Keffer Barnhart LLP
Indianapolis, Indiana                                   Tyler G. Banks
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Millard P. Johnson,                                     December 14, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        82A01-1706-CR-1240
        v.                                              Appeal from the Vanderburgh
                                                        Circuit Court
State of Indiana,                                       The Honorable Michael J. Cox,
Appellee-Plaintiff.                                     Magistrate
                                                        Trial Court Cause Nos.
                                                        82C01-1612-F1-7094
                                                        82C01-1701-F4-426



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 82A01-1706-CR-1240 | December 14, 2017           Page 1 of 7
[1]   Millard P. Johnson appeals his sentence for two counts of child molesting as

      level 4 felonies. Johnson raises one issue which we revise and restate as

      whether his sentence is inappropriate in light of the nature of the offenses and

      the character of the offender. We affirm.


                                      Facts and Procedural History

[2]   Between May 1 and July 31, 2016, Johnson touched M.E., a child under the

      age of fourteen, under her clothing while she was sitting on his lap with the

      intent to arouse or satisfy the sexual desires of the child or himself. On or about

      December 1, 2016, Johnson touched R.M., a child under the age of fourteen,

      under her clothing with the intent to arouse or satisfy the sexual desires of the

      child or himself.


[3]   On December 8, 2016, the State charged Johnson with two counts of child

      molesting related to R.M. as level 1 felonies under cause number 82C01-1612-

      F1-7094 (“Cause No. 94”). On January 24, 2017, the State charged Johnson

      with two counts of child molesting related to M.E. as level 4 felonies under

      cause number 82C01-1701-F4-426 (“Cause No. 26”). On April 13, 2017, the

      State filed an amended information under Cause No. 94 alleging Johnson

      committed two counts of child molesting related to R.M. as level 4 felonies.

      Johnson pled guilty to the first count of child molesting as a level 4 felony under

      Cause No. 94 and the first count of child molesting as a level 4 felony under

      Cause No. 26, and the State dismissed the other charges.




      Court of Appeals of Indiana | Memorandum Decision 82A01-1706-CR-1240 | December 14, 2017   Page 2 of 7
[4]   At his sentencing hearing, the prosecutor stated that each of the victims were

      three years old, that “[t]his was an in-home daycare, so there were multiple

      other minors present while these crimes were taking place,” and that the parents

      had entrusted their children to care in Johnson’s home. May 11, 2017

      Transcript at 9. The prosecutor also noted that Johnson was in poor health

      when the crimes were committed and argued that he nevertheless knew what he

      was doing was wrong and that his poor health should not be given

      consideration. The State asked for a sentence in excess of the advisory sentence

      and that the sentences run consecutively. Johnson’s defense counsel argued

      that Johnson was seventy-one years old and had no criminal history, the crimes

      are highly unlikely to ever reoccur, Johnson is in very poor health and had

      several major abdominal surgeries while in jail, the sheriff had suggested or

      requested that Johnson be released to home detention while he was in the

      hospital, Johnson has difficulty hearing, and Johnson’s hope was that his

      brother could arrange a place in a nursing home for him. His counsel also

      stated “I don’t think he’d make it 1 year in the Department of Corrections, if he

      did, he’d be in the hospital ward being cared for the same way as he is here at

      the county’s expense.” Id. at 14. His counsel asked that the sentence be

      suspended to probation to allow him to finish out his days in a nursing home.

      Johnson said that he was extremely sorry for what he had done. The

      presentence investigation report (“PSI”) stated Johnson reported that he

      suffered a brain injury while working in his sixties and that after the injury he

      stopped working. The PSI also indicated that he was housed in the medical



      Court of Appeals of Indiana | Memorandum Decision 82A01-1706-CR-1240 | December 14, 2017   Page 3 of 7
      unit at the Vanderburgh County Jail and that the results of the IRAS-CST

      indicate he is a low risk to reoffend.


[5]   The trial court noted that the offenses occurred in a home daycare, Johnson

      was in a position of having care, custody, or control of the children, and that

      Johnson admitted his guilt, expressed remorse, has poor physical health, and

      has no criminal history. The court sentenced Johnson to four years for his

      conviction under Cause No. 94 and four years for his conviction under Cause

      No. 26 and ordered the sentences to be served consecutively for an aggregate

      sentence of eight years.


                                                  Discussion

[6]   The issue is whether Johnson’s sentence is inappropriate in light of the nature of

      the offense and his character. Ind. Appellate Rule 7(B) provides that we “may

      revise a sentence authorized by statute if, after due consideration of the trial

      court’s decision, [we find] 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 that his or her

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


[7]   Johnson argues that there does not appear to be anything particularly

      aggravating about the nature of the offenses. He further argues that he had led

      a law-abiding life for over seventy years prior to these offenses, that he was

      determined to be a low risk to reoffend, and that he was remorseful for his

      actions. He also argues that he had been and continues to be in poor health,


      Court of Appeals of Indiana | Memorandum Decision 82A01-1706-CR-1240 | December 14, 2017   Page 4 of 7
       that he was being housed in the medical unit at the jail, and that the State

       acknowledged his poor health.


[8]    The State argues that Johnson’s sentence is not inappropriate, that he received

       less than the advisory sentence on each conviction, that he molested children

       who were very young and who had been placed in his care at a daycare, and

       that he has made no showing that the Department of Correction cannot

       adequately treat and handle any medical ailments he may suffer.


[9]    We note that a person who commits a level 4 felony shall be imprisoned for a

       fixed term of between two and twelve years with the advisory sentence being six

       years. Ind. Code § 35-50-2-5.5.


[10]   Our review of the nature of the offenses reveals that Johnson pled guilty to

       molesting R.M. and M.E., each of whom were under the age of fourteen, by

       touching them under their clothing as level 4 felonies. Johnson committed the

       offenses while R.M. and M.E. were in a home daycare. The prosecutor noted

       that R.M. and M.E. were three years old. As for his character, Johnson pled

       guilty and left sentencing to the discretion of the trial court. Although he did

       not have prior convictions, expressed remorse, and may not be in good health,

       he was convicted of molesting two young children, the State dismissed two

       counts, and he received a sentence below the advisory sentence on each of his

       convictions. After due consideration, we conclude that Johnson has not

       sustained his burden of establishing that his aggregate sentence of eight years is

       inappropriate in light of the nature of the offenses and his character.


       Court of Appeals of Indiana | Memorandum Decision 82A01-1706-CR-1240 | December 14, 2017   Page 5 of 7
                                                   Conclusion

[11]   For the foregoing reasons, we affirm Johnson’s sentence.


[12]   Affirmed.


       Riley, J., concurs.


       Baker, J., dissents with separate opinion.




       Court of Appeals of Indiana | Memorandum Decision 82A01-1706-CR-1240 | December 14, 2017   Page 6 of 7
                                                 IN THE
           COURT OF APPEALS OF INDIANA

       Millard P. Johnson,                                     Court of Appeals Case No.
                                                               82A01-1706-CR-1240
       Appellant-Defendant,

               v.

       State of Indiana,
       Appellee-Plaintiff.




       Baker, Judge, dissenting.

[13]   Our standard of review would seem to mandate that I concur, but I cannot. I

       see no reason to relegate this offender to spend the remainder of his days in

       what will probably be a hospital ward underwritten at taxpayer expense.


[14]   I appreciate the seriousness of the offenses and the position of trust that

       Johnson violated, but I believe eight years is an inappropriate sentence given

       Johnson’s advanced age and declining health. I would reverse and remand

       with instructions to make the sentences concurrent.




       Court of Appeals of Indiana | Memorandum Decision 82A01-1706-CR-1240 | December 14, 2017   Page 7 of 7
