MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                                    FILED
regarded as precedent or cited before any                                            Aug 14 2020, 9:06 am
court except for the purpose of establishing                                             CLERK
the defense of res judicata, collateral                                              Indiana Supreme Court
                                                                                        Court of Appeals
                                                                                          and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Kimberly A. Jackson                                      Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General
                                                         Samuel J. Dayton
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Tyler Johnson,                                           August 14, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         20A-CR-697
        v.                                               Appeal from the Noble Circuit
                                                         Court
State of Indiana,                                        The Honorable Michael J. Kramer,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         57C01-1809-F6-14



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A-CR-697 | August 14, 2020        Page 1 of 9
                                             Case Summary
[1]   Tyler Johnson appeals the aggregate two-year sentence imposed by the trial

      court after he was terminated from participation in a drug court program

      following his guilty plea to four criminal offenses. He contends that the trial

      court abused its discretion during sentencing and that his sentence is

      inappropriate in light of the nature of his offenses and his character. Finding no

      abuse of discretion, and further concluding that Johnson has not met his burden

      to demonstrate that his sentence is inappropriate, we affirm.


                                 Facts and Procedural History
[2]   On March 20, 2018, Indiana State Police Trooper Justin Snyder initiated a

      traffic stop of a vehicle for committing the traffic offense of following too

      closely. Trooper Snyder observed that the driver, Johnson, had bloodshot eyes

      and poor manual dexterity. Trooper Snyder believed that Johnson was

      intoxicated. Johnson admitted to having marijuana in the vehicle, and when

      Trooper Snyder conducted a search of the vehicle, he located marijuana in a

      grinder in the center console. Trooper Snyder also discovered a plastic bag

      containing cocaine on Johnson’s person. Approximately two hours after the

      traffic stop, Johnson tested positive for both cannabinoid and cocaine.


[3]   The State subsequently charged Johnson with level 6 felony possession of

      cocaine, class B misdemeanor possession of marijuana, class C misdemeanor

      operating a vehicle with a schedule I or II controlled substance or its metabolite

      in the body, and class C misdemeanor possession of paraphernalia. On October


      Court of Appeals of Indiana | Memorandum Decision 20A-CR-697 | August 14, 2020   Page 2 of 9
      10, 2018, Johnson pled guilty to all four charges. In addition to accepting his

      plea agreement, the trial court also accepted Johnson’s agreement to participate

      in the Noble County Problem-Solving Court (the Drug Court). Johnson

      specifically agreed to abide by the conditions of the Drug Court program. The

      trial court ordered that sentencing was continued “pending participation in

      Drug Court.” Appellant’s App. Vol. 2 at 48.


[4]   Thereafter, multiple times in 2018, 2019, and 2020, following hearings, the

      Drug Court found that Johnson had violated the terms of his participation

      agreement. The violations included failing to attend required support group

      meetings, operating a vehicle without a license, testing positive for marijuana,

      possessing contraband, and violating a no-contact order. On February 19,

      2020, the Noble County Probation Department filed a report recommending

      that Johnson be terminated from participation in the Drug Court program. The

      Drug Court terminated Johnson from participation in the program that same

      day.


[5]   Accordingly, on March 9, 2020, the trial court held a sentencing hearing. The

      trial court sentenced Johnson to two years for possession of cocaine, 180 days

      for possession of marijuana, sixty days for operating a vehicle with a schedule I

      or II controlled substance or its metabolite in the body, and sixty days for

      possession of paraphernalia, all to be served concurrently. This appeal ensued.




      Court of Appeals of Indiana | Memorandum Decision 20A-CR-697 | August 14, 2020   Page 3 of 9
       Section 1 – The trial court did not abuse its discretion during
                                sentencing.
[6]   Johnson first asserts that the trial court abused its discretion during sentencing.

      Specifically, he challenges the trial court’s treatment of aggravating and

      mitigating factors. Sentencing decisions rest within the sound discretion of the

      trial court, and as long as a sentence is within the statutory range, it is subject to

      review 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

      where the trial court’s decision is clearly against the logic and effect of the facts

      and circumstances before it, or the reasonable, probable, and actual deductions

      to be drawn therefrom. Sloan v. State, 16 N.E.3d 1018, 1026 (Ind. Ct. App.

      2014). When reviewing the aggravating and mitigating circumstances identified

      by the trial court in its sentencing statement, we will remand only if “the record

      does not support the reasons, or the sentencing statement omits reasons that are

      clearly supported by the record, and advanced for consideration, or the reasons

      given are improper as a matter of law.” Anglemyer, 868 N.E.2d at 490-91.


[7]   During sentencing, the trial court found as an aggravating factor that Johnson

      lacked “the desire to comply with any of the terms” of the Drug Court program.

      Tr. Vol. 2 at 192. Johnson suggests that this finding is unsupported by the

      record and constitutes an abuse of discretion. Johnson concedes that he indeed

      violated the rules of the Drug Court program multiple times, but he opines that

      his “only significant rule[-]breaking occurred near the end of his Drug Court

      Participation,” and the trial court should have found that he complied with the

      Court of Appeals of Indiana | Memorandum Decision 20A-CR-697 | August 14, 2020   Page 4 of 9
      rules “most” of the time. Appellant’s Br. at 12. It is neither Johnson’s

      prerogative nor ours to dictate the significance attached by the trial court to one

      type of rule-breaking over another. The record unquestionably supports the

      trial court’s finding that Johnson’s multiple violations demonstrated a lack of

      desire to comply with the terms of the Drug Court program, and Johnson’s

      argument to the contrary is a nonstarter. We find no abuse of discretion in this

      regard.


[8]   Johnson next argues that the trial court abused its discretion in failing to

      identify his guilty plea as a mitigating factor. A defendant who alleges that the

      trial court failed to identify a mitigating factor has the burden to establish that

      the proffered factor is both significant and “clearly supported by the record.”

      Anglemyer, 868 N.E.2d at 493. We will not remand for reconsideration of

      alleged mitigating factors that have debatable nature, weight, and significance.

      Newsome v. State, 797 N.E.2d 293, 301 (Ind. Ct. App. 2003), trans. denied (2004).

      It is well settled that a guilty plea “is not necessarily a mitigating factor where

      the defendant receives a substantial benefit from the plea or where evidence

      against the defendant is so strong that the decision to plead guilty is merely

      pragmatic.” Amalfitano v. State, 956 N.E.2d 208, 212 (Ind. Ct. App. 2011), trans.

      denied (2012).


[9]   Here, the evidence against Johnson was overwhelming, and, in pleading guilty

      to his crimes, Johnson received the substantial benefit of being able to

      participate in the Drug Court program rather than being incarcerated.

      Johnson’s decision to plead guilty was merely pragmatic, and his multiple

      Court of Appeals of Indiana | Memorandum Decision 20A-CR-697 | August 14, 2020   Page 5 of 9
       violations of the Drug Court program rules clearly overshadow any initial

       acceptance of responsibility demonstrated by his guilty plea. The trial court did

       not abuse its discretion in not finding his guilty plea to be a significant

       mitigating factor, and Johnson has failed to establish that the trial court abused

       its discretion.


          Section 2 – Johnson has not met his burden to demonstrate
                       that his sentence is inappropriate.
[10]   Johnson requests that we reduce his sentence pursuant to 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 find that the sentence

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

       offender.” The defendant bears the burden to persuade this Court that his or her

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

       Indiana’s flexible sentencing scheme allows trial courts to tailor an appropriate

       sentence to the circumstances presented, and the trial court’s judgment “should

       receive considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind.

       2008). The principal role of appellate review is to attempt to “leaven the

       outliers.” Id. at 1225. Whether we regard a sentence as inappropriate 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 facts that come to light

       in a given case.” Id. at 1224. “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.” Fonner v. State, 876 N.E.2d 340, 344

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-697 | August 14, 2020   Page 6 of 9
       (Ind. Ct. App. 2007). Appellate review “should focus on the forest—the

       aggregate sentence—rather than the trees—consecutive or concurrent, number

       of counts, or length of the sentence on any individual count.” Cardwell, 895

       N.E.2d at 1225.


[11]   Regarding the nature of the offense, the advisory sentence is the starting point

       that the legislature has selected as an appropriate sentence for the crime

       committed. Fuller v. State, 9 N.E.3d 653, 657 (Ind. 2014). Johnson was

       convicted of one level 6 felony, one class B misdemeanor, and two class C

       misdemeanors. The sentencing range for a level 6 felony is between “six (6)

       months and two and one-half (2½) years, with the advisory sentence being one

       (1) year.” Ind. Code § 35-50-2-7(b). A person who commits a class B

       misdemeanor “shall be imprisoned for a fixed term of not more than one

       hundred eighty (180) days[.]” Ind. Code § 35-50-3-3. A person who commits a

       class C misdemeanor “shall be imprisoned for a fixed term of not more than

       sixty (60) days[.]” Ind. Code § 35-50-3-4. The trial court here imposed a two-

       year aggregate sentence, which was well below the maximum allowable

       sentence for all four crimes.


[12]   When reviewing the nature of the offense, this Court considers “the details and

       circumstances of the commission of the offense.” Washington v. State, 940

       N.E.2d 1220, 1222 (Ind. Ct. App. 2011), trans. denied. Johnson simply states

       that his offenses were “unremarkable,” but he makes no argument as to why he

       feels that the less-than-maximum sentence imposed here was still “unduly

       harsh.” Appellant’s Br. at 15. The record establishes that Johnson dangerously
       Court of Appeals of Indiana | Memorandum Decision 20A-CR-697 | August 14, 2020   Page 7 of 9
       operated a vehicle with both cannabinoid and cocaine in his system, and he was

       found in possession of numerous items of contraband. The details and

       circumstances of Johnson’s offenses do not persuade us that a sentence

       reduction is warranted.


[13]   Turning to Johnson’s character, we note that the character of the offender is

       found in what we learn of his life and conduct. Croy v. State, 953 N.E.2d 660,

       664 (Ind. Ct. App. 2011). Included in that assessment is a review of an

       offender’s criminal history. Garcia v. State, 47 N.E.3d 1249, 1251 (Ind. Ct. App.

       2015), trans. denied (2016). Johnson notes that he only has one prior

       misdemeanor conviction for carrying a handgun without a license. He further

       emphasizes that he has generally maintained steady employment and helped

       take care of his family. We do not discount any of these things. Nevertheless,

       Johnson’s recent behavior in the Drug Court program does not reflect favorably

       on his character. As noted by the State, Johnson violated the rules of that

       program seven times in just sixteen months. The trial court gave Johnson the

       opportunity for rehabilitation outside a jail cell, and Johnson essentially

       thumbed his nose at the trial court’s leniency. Johnson has not convinced us

       that his aggregate sentence is inappropriate in light of his character.


[14]   In sum, the trial court did not abuse its discretion during sentencing, and

       Johnson has not met his burden to demonstrate that his sentence is

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

       Accordingly, we affirm the sentence imposed by the trial court.



       Court of Appeals of Indiana | Memorandum Decision 20A-CR-697 | August 14, 2020   Page 8 of 9
[15]   Affirmed.


       Robb, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A-CR-697 | August 14, 2020   Page 9 of 9
