MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                    FILED
regarded as precedent or cited before any                           Aug 23 2018, 10:15 am
court except for the purpose of establishing                             CLERK
the defense of res judicata, collateral                              Indiana Supreme Court
                                                                        Court of Appeals
estoppel, or the law of the case.                                         and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Elizabeth A. Houdek                                      Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana

                                                         Tyler G. Banks
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Austin D. Johnson,                                       August 23, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-155
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Kurt Eisgruber,
Appellee-Plaintiff                                       Judge
                                                         The Honorable Steven J. Rubick,
                                                         Magistrate
                                                         Trial Court Cause No.
                                                         49G01-1708-F5-28201



Altice, Judge.


                                         Case Summary

Court of Appeals of Indiana | Memorandum Decision 18A-CR-155 | August 23, 2018               Page 1 of 7
[1]   Following a bench trial, Austin Johnson was convicted of receiving stolen auto

      parts as a Level 5 felony and auto theft as a Level 6 felony. The trial court

      sentenced Johnson to concurrent terms of 6 years and 910 days respectively.

      On appeal, Johnson argues that his convictions violate double jeopardy

      principles and that his sentence is inappropriate.


[2]   We affirm in part, reverse in part, and remand.


                                       Facts & Procedural History


[3]   On July 30, 2017, Stephanie Kellogg was living with her uncle, John Johns, on

      Routiers Avenue in Indianapolis. Unbeknownst to her uncle, Kellogg invited

      Johnson, whom she had known for a short time through social media and only

      by his first name, over to the house. After Johnson arrived, he and Kellogg

      talked on the porch for about twenty minutes before going inside. When

      Kellogg went to get Johnson a glass of water, Johnson grabbed her uncle’s keys

      off of a table in the front room, exited the house, and drove away in her uncle’s

      blue 2008 PT Cruiser. Kellogg saw Johnson pull out and drive away from the

      house. She immediately called 911 and then woke her uncle to tell him that his

      car had been stolen. Neither Kellogg nor Johns gave Johnson permission to

      take the car.


[4]   Police officers responded to the report of the stolen vehicle. Kellogg shared

      with them a picture of Johnson from a social media page from which it was

      determined that Johnson was the suspect. About twelve hours later, after

      enlisting the help of friends through social media and text messages, Johns

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-155 | August 23, 2018   Page 2 of 7
      received information that led him to his car about eight to ten miles away from

      his house. He and a group of friends and family members blocked the car in

      with another vehicle and apprehended Johnson, holding him down until police

      arrived. The keys were recovered from Johnson’s pocket.1 After he was

      arrested, Johnson admitted to police that he took the car.


[5]   The State charged Johnson with Count I, receiving stolen auto parts elevated to

      a Level 5 felony based on a prior conviction, and Count II, auto theft as a Level

      6 felony. A bench trial was held on December 6, 2017, at the conclusion of

      which the trial court found Johnson guilty of both offenses. On January 5,

      2018, the trial court sentenced Johnson to concurrent terms of 6 years on Count

      I and 910 days on Count II. Johnson now appeals. Additional facts will be

      provided as necessary.


                                            Discussion & Decision


[6]   Johnson argues, and the State concedes, that Johnson’s convictions for

      receiving stolen auto parts and auto theft violate double jeopardy principles.

      We agree. In Count I, the State charged that “[o]n or about July 30 2017,

      [Johnson] did knowingly receive, retain or dispose of a motor vehicle of John

      Johns, to-wit, a 2008 PT Cruiser, such property having been the subject of a

      theft.” Appellant’s Appendix at 16. In Count II, the State charged that [o]n or




      1
       Once the car was returned, Johns discovered that there were multiple items missing, including his ankle
      braces, his cane, his sunglasses, the spare tire, the car jack, and a car seat, among other items.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-155 | August 23, 2018                   Page 3 of 7
      about July 30, 2017, [Johnson] did knowingly exert unauthorized control over

      the motor vehicle of John Johns, to-wit, a 2008 PT Cruiser, with intent to

      deprive the person of the vehicle’s value or use.” Id. Here, the same car is the

      subject of the theft and receiving stolen property convictions and thus, the theft

      is inherently included in receiving stolen property. See White v. State, 944

      N.E.2d 532, 536 (holding that “[w]here . . . the person who committed the theft

      was also convicted of receiving that same stolen property, then the elements of

      theft are inherently included in receiving stolen property”), trans. granted,

      summarily aff’d on this issue 963 N.E.2d 511, 514 (Ind. 2012). We therefore

      reverse Johnson’s conviction on Count II and remand to the trial court with

      instructions to vacate this conviction.


[7]   Johnson also argues that his maximum six-year sentence on Count I is

      inappropriate. See Ind. Code § 35-50-2-6 (“[a] person who commits a Level 5

      felony . . . shall be imprisoned for a fixed term of between one (1) and six (6)

      years, with the advisory sentence being three (3) years”). Article 7, section 4 of

      the Indiana Constitution grants our Supreme Court the power to review and

      revise criminal sentences. See Knapp v. State, 9 N.E.3d 1274, 1292 (Ind. 2014),

      cert. denied, 135 S.Ct. 978 (2015). Pursuant to Ind. Appellate Rule 7, the

      Supreme Court authorized this court to perform the same task. Cardwell v. State,

      895 N.E.2d 1219, 1224 (Ind. 2008). Per App. R. 7(B), 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.” Inman v. State, 4 N.E.3d 190, 203 (Ind. 2014) (quoting App. R.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-155 | August 23, 2018   Page 4 of 7
      7). “Sentencing review under Appellate Rule 7(B) is very deferential to the trial

      court.” Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012). “Such deference

      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).


[8]   The determination of whether we regard a sentence as inappropriate “turns on

      our sense of the culpability of the defendant, the severity of the crime, the

      damage done to others, and myriad other factors that come to light in a given

      case.” Bethea v. State, 983 N.E.2d 1134, 1145 (Ind. 2013) (quoting Cardwell, 895

      N.E.2d at 1224). Moreover, “[t]he principal role of such review is to attempt to

      leaven the outliers.” Chambers v. State, 989 N.E.2d 1257, 1259 (Ind. 2013). It is

      not our goal in this endeavor to achieve the perceived “correct” sentence in

      each case. Knapp, 9 N.E.3d at 1292. Accordingly, “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) (emphasis in original).


[9]   The nature of the offense is relatively innocuous in that it involved the

      straightforward taking of a car without permission. There was minimal risk and

      no one was injured because Johnson seized on a moment of inattention to

      accomplish the taking. The owner recovered the car twelve hours later and,



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-155 | August 23, 2018   Page 5 of 7
       although some personal items were missing, the car was in the same general

       condition as it was when it was taken.


[10]   The character of the offender, however, supports the six-year sentence imposed.

       Johnson argues that because his age—twenty-three at the time of sentencing—

       put him “well within developmental norms to exhibit immaturity or poor

       impulse control,” this court should discount the severity and frequency of his

       delinquent and criminal behavior. Appellant’s Brief at 11. We view his criminal

       and juvenile history in a different light, i.e., as demonstrating a clear disregard

       for the law.


[11]   As noted by the trial court, Johnson has a history of delinquent and criminal

       behavior, having accumulated seven true findings as a juvenile and seven

       convictions as an adult, many of which are for property crimes. As a juvenile,

       Johnson was adjudicated delinquent for battery resulting in bodily injury to an

       endangered adult, two counts of theft, burglary, battery resulting in bodily

       injury, burglary of a dwelling, and escape. All but one would have resulted in

       felony convictions if committed by an adult. Over the course of the juvenile

       adjudications, Johnson violated the terms of formal probation and home

       confinement multiple times.


[12]   Approximately two months after his eighteenth birthday, Johnson committed

       theft and was charged with two counts related to the same. Two days later, he

       was charged with unauthorized entry of a motor vehicle. Johnson was

       ultimately convicted of all of these offenses and placed on probation. Petitions


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-155 | August 23, 2018   Page 6 of 7
       to revoke probation were filed and granted in both cases. Johnson then

       committed resisting law enforcement and later, theft as a Class D felony.

       Before the theft case was concluded, Johnson was charged with Class D felony

       intimidation. In both the theft and intimidation cases, Johnson was placed on

       probation, and in both cases, he committed multiple probation violations. In

       September 2016, Johnson committed auto theft, and in October 2016, he

       committed battery resulting in bodily injury as a Level 5 felony. He was

       convicted of both offenses and placed on electronic monitoring. Johnson,

       however, tampered with this monitoring device and was ultimately revoked

       from electronic monitoring due to his conviction in this case.


[13]   Johnson’s history of delinquent and criminal behavior does not reflect upon his

       character in a positive light. Johnson has been afforded leniency on numerous

       occasions, but with no effect on his criminal behavior. We agree with the trial

       court that “his criminal history establishes . . . that he can best be served with

       the rehabilitation provided by a penal facility” because he “is likely to reoffend

       if he does not receive that rehabilitation.” Transcript at 65-66. In light of the

       nature of the offense and character of the offender, we cannot say that

       Johnson’s six-year sentence is inappropriate.


[14]   Judgment affirmed in part, reversed in part, and remanded.


[15]   Brown, J. and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-155 | August 23, 2018   Page 7 of 7
