MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any                                    FILED
court except for the purpose of establishing
the defense of res judicata, collateral                                 Nov 28 2018, 10:02 am

estoppel, or the law of the case.                                            CLERK
                                                                         Indiana Supreme Court
                                                                            Court of Appeals
                                                                              and Tax Court




ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
R. Brian Woodward                                       Curtis T. Hill, Jr.
Appellate Public Defender                               Attorney General of Indiana
Crown Point, Indiana
                                                        Chandra K. Hein
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

John Fitzgerald Johnson, Jr.,                           November 28, 2018
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        18A-CR-1682
        v.                                              Appeal from the Lake Superior
                                                        Court
State of Indiana,                                       The Honorable Clarence D.
Appellee-Plaintiff.                                     Murray, Judge
                                                        Trial Court Cause Nos.
                                                        45G02-1602-F2-3
                                                        45G02-1606-F3-21



Bradford, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1682 | November 28, 2018                Page 1 of 6
                                          Case Summary
[1]   In April of 2018, pursuant to a plea agreement, John Fitzgerald Johnson, Jr.,

      pled guilty to one count of Level 5 felony battery by means of a deadly weapon

      and two counts of Level 5 felony robbery in Lake County. In exchange, the

      State agreed to dismiss all remaining counts. The trial court sentenced Johnson

      to fifteen years of incarceration. Johnson contends that the trial court abused its

      discretion by finding his eleven victims, who were listed in the stipulated factual

      basis, to be an aggravating circumstance. Further, Johnson contends that his

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

      Because we disagree, we affirm.



                            Facts and Procedural History
[2]   On January 23, 2016, Johnson and N’Vaun Lewis arranged to meet with

      Robert Wisniewski about Johnson’s truck, which he had listed for sale on

      Craigslist. When Wisniewski and his father arrived, Johnson demanded that

      they hand over money and other property or be shot. Johnson and Lewis took

      Wisniewski’s mobile telephone and fled. On February 2, 2016, Johnson and

      Lewis again arranged a meeting about Johnson’s truck, this time with Cain

      Herrera. When Herrera arrived accompanied by his father and brother, Johnson

      and Lewis rushed their vehicle. As Herrera and his family drove away, Johnson

      pulled out a handgun and fired multiple close-range shots at the vehicle, one

      striking Herrera in the face. Herrera’s jaw was fractured, he lost teeth and part

      of his tongue, and he had to attend speech therapy to relearn to talk and eat.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1682 | November 28, 2018   Page 2 of 6
      The State charged Johnson, in cause number 45G02-1602-F2-3 (“Cause No.

      F2-3”), with one count of Level 2 felony attempted robbery resulting in serious

      bodily injury, two counts of Level 3 felony armed robbery, and two counts of

      Level 3 felony attempted robbery.


[3]   On April 14, 2016, Brandon Arizpe agreed to meet Johnson to purchase a

      television that Johnson had listed for sale on Craigslist. When Arizpe arrived,

      Johnson demanded money and began making threats, including telling Arizpe

      that he had a gun. Johnson ultimately took money, two mobile telephones, and

      a handgun from Arizpe. On June 17, 2016, the State charged Johnson, under

      cause number 45G02-1606-F3-21 (“Cause No. F3-21”), with two counts of

      Level 3 felony armed robbery and two counts of Level 3 felony criminal

      confinement.


[4]   Pursuant to a plea agreement, on April 3, 2018, Johnson pled guilty in

      amended Cause No. F2-3 to Level 5 felony battery by means of a deadly

      weapon and Level 5 felony robbery and in amended Cause No. F3-21 to Level

      5 felony robbery. In exchange, the State agreed to dismiss all remaining counts,

      and Johnson consented to the stipulated factual basis which was submitted to

      the trial court by the State. On June 1, 2018, the trial court sentenced Johnson

      to consecutive five-year terms of incarceration on each count, for an aggregate

      sentence of fifteen years. The trial court concluded that the aggravating

      circumstances outweighed any mitigating circumstances, most notably

      Johnson’s criminal history, the number of victims, and the nature and

      circumstances of the offenses.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1682 | November 28, 2018   Page 3 of 6
                                Discussion and Decision
                                     I. Abuse of Discretion
[5]   Johnson contends that the trial court abused its discretion by improperly finding

      his eleven victims to be an aggravating circumstance at sentencing. We review

      the trial court’s finding of an aggravating circumstance for an abuse of

      discretion. Spiller v. State, 740 N.E.2d 1270, 1274 (Ind. Ct. App. 2001), trans.

      denied. “An abuse of discretion occurs when the trial court’s decision is clearly

      against the logic and effect of the facts and circumstances before the court or

      when the court misinterprets the law.” Johnson v. State, 36 N.E.3d 1130, 1133

      (Ind. Ct. App. 2015), trans. denied.


[6]   Johnson specifically asserts that the trial court abused its discretion by

      considering his eleven victims to be an aggravating circumstance when only

      nine where included in the stipulated factual basis and the trial court failed to

      establish that each of those victims was harmed. Both of Johnson’s assertions

      fail. First, the stipulated factual basis did list eleven different victims.

      Moreover, the trial court did not need to establish that a particular harm

      occurred to each person because Johnson stipulated that these eleven named

      persons were victims. Johnson has failed to establish that the trial court abused

      its discretion by finding the eleven victims of his crimes to be an aggravating

      circumstance.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1682 | November 28, 2018   Page 4 of 6
                                        II. Appropriateness
[7]   Johnson contends that his fifteen-year sentence is inappropriate. We may revise

      a sentence if, “after due consideration of the trial court’s decision, the Court

      finds that the sentence is inappropriate in light of the nature of the offense and

      the character of the offender.” Ind. Appellate Rule 7(B). “Sentencing is

      principally a discretionary function in which the trial court’s judgment should

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

      2008) (internal citations omitted). The defendant bears the burden of proving

      that his sentence is inappropriate in the light of both the nature of his offense

      and his character. Gil v. State, 988 N.E.2d 1231, 1237 (Ind. Ct. App. 2013).

      Johnson pled guilty to one count of Level 5 felony battery by means of a deadly

      weapon and two counts of Level 5 felony robbery and received a sentence of

      five years executed for each conviction, to be served consecutively, which is

      above the advisory, but below the maximum. See Ind. Code § 35-50-2-6.


[8]   The nature of Johnson’s offenses does not support a reduction in his sentence.

      Johnson carefully planned to lure his victims to a place where he would rob

      them and battered one in a far more brutal manner then was necessary to

      sustain his conviction. Moreover, by committing multiple crimes against

      multiple victims, the trial court was justified in imposing consecutive sentences.

      See O’Connell v. State, 742 N.E.2d 943, 952 (Ind. 2001) (emphasizing that

      multiple crimes or victims constitute a valid aggravating circumstance for

      imposing consecutive sentences).



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1682 | November 28, 2018   Page 5 of 6
[9]    Johnson’s character also does not support a reduction in his sentence. The

       thirty-two-year-old Johnson has a history with the criminal and juvenile justice

       systems that dates back to an arrest for truancy at age fifteen. As a juvenile,

       Johnson was adjudicated delinquent for what would be Class D felony theft and

       Class A misdemeanor conversion if committed by an adult. As an adult,

       Johnson has convictions for Class A misdemeanor possession of marijuana,

       Class B misdemeanor visiting a common nuisance, and Class C felony criminal

       recklessness. Johnson has also violated parole. At the time of sentencing in this

       case, Johnson had pending charges in Marion County for Level 5 felony

       possession of a handgun. Despite his many contacts with the criminal and

       juvenile justice systems, Johnson has been unwilling to conform his actions to

       societal norms. Johnson has failed to establish that his sentence is

       inappropriate.


[10]   The judgment of the trial court is affirmed.


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




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1682 | November 28, 2018   Page 6 of 6
