MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                           FILED
this Memorandum Decision shall not be
                                                                            Feb 18 2019, 7:02 am
regarded as precedent or cited before any
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.


ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
R. Patrick Magrath                                       Curtis T. Hills, Jr.
Matthew T. Bates                                         Attorney General of Indiana
Alcorn Sage Schwartz & Magrath, LLP
                                                         Robert Austin Rowlett
Madison, Indiana                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Larry P. Johnson,                                        February 18, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-2249
        v.                                               Appeal from the Dearborn
                                                         Superior Court
State of Indiana,                                        The Honorable Sally A.
Appellee-Plaintiff.                                      McLaughlin, Judge
                                                         Trial Court Cause No.
                                                         15D02-1803-F6-80



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2249 | February 18, 2019                    Page 1 of 6
                                        Statement of the Case
[1]   Larry P. Johnson (“Johnson”) appeals the two-year sentence imposed for his

      Level 6 felony escape conviction,1 arguing that it is inappropriate. Concluding

      that Johnson has failed to show that his sentence is inappropriate, we affirm his

      sentence.


[2]   We affirm.


                                                       Issue
                 Whether Johnson’s sentence is inappropriate pursuant to Indiana
                 Appellate Rule 7(B).


                                                       Facts
[3]   On February 27, 2018, after Johnson had been convicted of Class A

      misdemeanor criminal trespass, the trial court imposed a one (1) year sentence

      and suspended all of it to reporting probation, which included work release and

      GPS monitoring.2 Less than two weeks later, on March 6, 2018, Johnson

      removed his GPS monitoring device and threw it behind a dumpster.




      1
          IND. CODE § 35-44.1-3-4.
      2
        The same day, Johnson was also sentenced in two separate causes, and these sentences were ordered to be
      served consecutively to the above criminal trespass conviction. In one of these causes, he was convicted of
      Class A misdemeanor theft and Class A misdemeanor criminal trespass and was sentenced to concurrent one
      (1) year executed sentences for each conviction. In the other cause, he was convicted of Class A
      misdemeanor invasion of privacy and was sentenced to a one (1) year sentence suspended to probation.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2249 | February 18, 2019               Page 2 of 6
[4]   Thereafter, the State charged Johnson with Level 6 felony escape. Johnson

      entered into a plea agreement, pled guilty to the crime as charged, and agreed to

      open sentencing. The trial court accepted Johnson’s plea and entered judgment

      of conviction. When sentencing Johnson, the trial court found Johnson’s guilty

      plea to be a mitigating circumstance. The trial court found Johnson’s criminal

      history, which the trial court stated was “significant” and “quite extensive” and

      included his violations of probation and community corrections, to be an

      aggravating circumstance. (Tr. 17, 18). The trial court determined that

      Johnson did “not appear to be someone who could be a candidate that could be

      helped by probation[.]” (Tr. 18). The trial court imposed a two (2) year

      sentence and stated that the “reason for the sentence is, again, [his] extensive

      criminal history and history of probation violations and violations of

      community corrections[.]” (Tr. 18). Johnson now appeals.


                                                  Decision
[5]   Johnson argues that his two-year sentence is inappropriate. We may revise a

      sentence if it is inappropriate in light of the nature of the offense and the

      character of the offender. Ind. Appellate Rule 7(B). The defendant has the

      burden of persuading us that his sentence is inappropriate. Childress v. State, 848

      N.E.2d 1073, 1080 (Ind. 2006). The principal role of a Rule 7(B) review

      “should be to attempt to leaven the outliers, and identify some guiding

      principles for trial courts and those charged with improvement of the sentencing

      statutes, but not to achieve a perceived ‘correct’ result in each case.” Cardwell v.

      State, 895 N.E.2d 1219, 1225 (Ind. 2008).

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2249 | February 18, 2019   Page 3 of 6
[6]   When determining whether a sentence is inappropriate, we acknowledge that

      the advisory sentence “is the starting point the Legislature has selected as an

      appropriate sentence for the crime committed.” Childress, 848 N.E.2d at 1081.

      Here, Johnson entered a guilty plea and was convicted of Level 6 felony escape.

      A Level 6 felony has a sentencing range of six (6) months to two and one-half

      (2½) years with an advisory sentence of one (1) year. I.C. § 35-50-2-7(b). The

      trial court imposed a two-year sentence, which is less than the maximum

      sentence.


[7]   The nature of Johnson’s offense involved him removing his GPS monitoring

      device and throwing it behind a dumpster. He argues that his crime was not

      “particularly heinous or extreme” and did not involve any “egregious

      behavior.” (Johnson’s Br. 9). Johnson attempts to diminish the nature of his

      offense by focusing on the method he used to remove the GPS monitor, stating

      that he disassembled it instead of cutting it off. Johnson fails to grasp that he

      was shown leniency by being placed on work release instead of being

      incarcerated and that he showed extreme disregard of that leniency when, less

      than two weeks after being placed on work release, he removed his device and

      abandoned it.


[8]   Turning to Johnson’s character, we note that the presentence investigation

      report (“PSI”) shows that thirty-four-year-old Johnson has a criminal history

      consisting of five juvenile adjudications and numerous adult convictions and

      arrests in both Indiana and Ohio. Johnson received his first juvenile

      adjudication for theft at age thirteen. His adult convictions include: (1) a 2008

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2249 | February 18, 2019   Page 4 of 6
      felony breaking and entering conviction (Ohio); (2) a 2010 possessing criminal

      tools conviction (Ohio); (3) a 2010 Class C felony possession of a controlled

      substance within 1,000 feet of school property conviction (Indiana); (4) a 2010

      Class C felony forgery conviction (Indiana); (5) a 2012 obstructing official

      business conviction (Ohio); (6) a 2012 felony possession of heroin conviction

      (Ohio); (7) a 2013 felonious assault conviction (Ohio); (8) a 2018 Class A

      misdemeanor criminal trespass conviction (Indiana); (9) a 2018 Class A

      misdemeanor theft conviction (Indiana); (10) an additional 2018 Class A

      misdemeanor criminal trespass conviction (Indiana); and (11) a 2018 Class A

      misdemeanor invasion of privacy conviction (Indiana). As noted by the trial

      court, Johnson has also violated probation and community corrections. For

      example, Johnson was sentenced to three years on probation in community

      corrections for his 2008 felony breaking and entering conviction in Ohio, and

      he violated that community corrections on five separate occasions and had his

      probation terminated. He also violated his Ohio community correction

      placement from his possession of heroin conviction in 2012. Johnson’s

      character reveals a disregard for the law and the authority of the courts.

      Johnson’s character is further revealed by his history of drug use. The PSI

      indicates that Johnson started using drugs and alcohol at age seventeen and that

      he had used methamphetamine on a daily basis prior to arrest in 2018.


[9]   Johnson has not persuaded us that his two-year sentence for Level 6 felony

      escape is inappropriate. Therefore, we affirm the sentence imposed by the trial

      court.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2249 | February 18, 2019   Page 5 of 6
[10]   Affirmed.


       Najam, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2249 | February 18, 2019   Page 6 of 6
