MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                  FILED
this Memorandum Decision shall not be                               Dec 08 2016, 9:30 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.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Matthew J. McGovern                                     Gregory F. Zoeller
Anderson, Indiana                                       Attorney General of Indiana
                                                        J. T. Whitehead
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Gerald Edward Johnson,                                  December 8, 2016
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        82A01-1605-CR-1088
        v.                                              Appeal from the Vanderburgh
                                                        Circuit Court
State of Indiana,                                       The Honorable David D. Kiely,
Appellee-Plaintiff.                                     Judge
                                                        The Honorable Kelli E. Fink,
                                                        Magistrate
                                                        Trial Court Cause No.
                                                        82C01-1508-F5-4792



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 82A01-1605-CR-1088 | December 8, 2016     Page 1 of 7
                                   STATEMENT OF THE CASE

[1]   Appellant-Defendant, Gerald Edward Johnson (Johnson), appeals his sentence

      following his open guilty plea to Count I, battery by means of a deadly weapon,

      a Level 5 felony, Ind. Code § 35-42-2-1(g)(2); Count II, intimidation, a Level 5

      felony, I.C. § 35-45-2-4(a)(2);-(b)(2)(A); and his adjudication as a habitual

      offender, I.C. § 35-50-2-8.


[2]   We affirm and remand.


                                                    ISSUE

[3]   Johnson raises one issue on appeal, which we restate as: Whether Johnson’s

      sentence is appropriate in light of the nature of the offense and his character.


                           FACTS AND PROCEDURAL HISTORY

[4]   On August 8, 2015, Felicia Leachman (Leachman) attempted to end her

      relationship with Johnson because “she no longer wished to be with him.”

      (Appellant’s App. p. 9). The two argued and Johnson armed himself with a

      knife. When Johnson told Leachman that “he was going to kill her,”

      Leachman responded, “[G]o ahead and do it.” (Appellant’s App. p. 9).

      Johnson attempted to stab her in the neck, but “Leachman was able to duck her

      head and was struck in the chin instead.” (Appellant’s App. p. 9). Leachman

      reached up and grabbed the blade of the knife as Johnson was trying to stab her

      again. As a result, she incurred a laceration to her palm and all around her

      hand, which required stitches. During her struggle to escape, Leachman


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      suffered a severe laceration to her knee, in which the tip of the knife broke off

      inside her leg. This injury required extensive surgery. After Leachman began

      screaming for help, neighbors came to her aid and started knocking on the

      apartment’s door. At the time of the sentencing hearing, Leachman was still

      undergoing rehabilitation for the injuries inflicted by Johnson.


[5]   On August 11, 2015, the State filed an Information, charging Johnson with

      Count I, battery by means of a deadly weapon, a Level 5 felony; and Count II,

      intimidation, a Level 5 felony. On October 7, 2015, the State amended the

      Charging Information by adding a habitual offender enhancement. Johnson’s

      jury trial was held on March 9, 2016. Prior to the commencement of trial.

      Johnson pled guilty as charged without the benefit of a plea agreement.


[6]   On May 26, 2016, the trial court conducted a sentencing hearing. At the

      hearing, the trial court articulated as mitigating circumstances the fact that

      Johnson entered a guilty plea without the benefit of a plea agreement and

      Johnson’s health issues. The court found the following aggravators: Johnson’s

      lengthy criminal history, which included eleven felony convictions, the severity

      of Leachman’s injuries, and his parole status at the time of the current offense.

      The trial court sentenced Johnson to five years under each Count, with

      sentences to run concurrently to each other but consecutively to the five-year

      habitual offender enhancement to Count I. Johnson’s aggregate sentence is ten

      years executed.


[7]   Johnson now appeals. Additional facts will be provided as necessary.


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                                   DISCUSSION AND DECISION


[8]   Johnson contends that his enhanced ten-year sentence is inappropriate in light

      of the nature of the offense and his character and requests the imposition of an

      aggregate sentence of six years executed. “[S]entencing is primarily 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).

      “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, 121 (Ind. 2015). Therefore, even where, as here, a trial

      court imposes a sentence that is authorized by statute, our court may revise the

      sentence 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.” Ind. Appellate Rule 7(B).


[9]   Appellate Rule 7(B) provides for sentence review in an “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, 895 N.E.2d at 1225. Nevertheless,

      “whether we regard a sentence as appropriate 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 factors that come to light in a given case.” Id.

      at 1224. On review, we focus on “the length of the aggregate sentence and how

      Court of Appeals of Indiana | Memorandum Decision 82A01-1605-CR-1088 | December 8, 2016   Page 4 of 7
       it is to be served.” Id. Johnson bears the burden of persuading this court that

       his sentence is inappropriate. Corbally v. State, 5 N.E.3d 463, 471 (Ind. Ct. App.

       2014).


[10]   The advisory sentence is the starting point the legislature has selected as an

       appropriate sentence for the crime committed. Abbott v. State, 961 N.E.2d 1016,

       1019 (Ind. 2012). For his Level 5 offense, Johnson faced a sentencing range of

       one to six years, with the advisory sentence being three years. See I.C. § 35-50-

       2-6(b). Johnson’s adjudication as an habitual offender added an additional two

       to six years to his sentence. See I.C. § 35-50-2-8(i)(2). Accordingly, the trial

       court sentenced Johnson to the upper range of the possible penalties.


[11]   Turning to the nature of the offense, we find that this was a particularly brutal

       attack, resulting in numerous lacerations all over Leachman’s body, some of

       which required extensive surgery. Particularly troubling is that Johnson

       initially aimed for her throat, but cut her chin instead. He sliced Leachman’s

       palm, and the force with which he wielded the knife caused its tip to lodge into

       Leachman’s knee. Undeterred, Johnson continued to attack until neighbors,

       who had been alerted by Leachman’s screams, intervened and started knocking

       on the apartment door.


[12]   With respect to his character, Johnson offers no examples of “substantial

       virtuous traits or persistent examples of good character.” Stephenson, 29 N.E.3d

       at 121. First and foremost, the trial court referenced Johnson’s extensive

       criminal history, which included eleven felony convictions. It is notable that


       Court of Appeals of Indiana | Memorandum Decision 82A01-1605-CR-1088 | December 8, 2016   Page 5 of 7
       after being classified as a violent felon in 2008, Johnson continued to commit

       violent crimes, including intimidation and pointing a firearm at Leachman.

       Johnson’s other convictions included, among others, possession of marijuana,

       burglary, theft, terroristic threatening, and carrying a concealed weapon. At the

       time of the current charges, Johnson was on parole. The trial court took “into

       consideration” that Johnson accepted responsibility and pled guilty without the

       benefit of a plea agreement as the court noted that “most likely otherwise”

       Johnson would have been sentenced to the maximum sentence. (Sent.

       Transcript p. 21). Although Johnson now complains that the trial court “did

       not bestow a significant benefit” on him for pleading guilty, a trial court is not

       obligated to give the same weight to mitigating circumstances that a defendant

       would. (Appellant’s Br. p. 12); See Healy v. State, 969 N.E.2d 607, 616 (Ind. Ct.

       App. 2012), trans. denied. Moreover, the relative weight assigned by the trial

       court to mitigating circumstances is not subject to our review. See Anglemyer v.

       State, 868 N.E.2d 482, 491 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind.

       2007).


[13]   Likewise, Johnson complains that the trial court ignored his “profound”

       substance abuse problem. (Appellant’s Br. p. 13). However, our review of the

       sentencing transcript reveals otherwise. During sentencing, the trial court noted

       that it recommended Johnson to “receive drug treatment while” at the Indiana

       Department of Correction as it would “be beneficial to” him. (Sent. Tr. p. 22).

       Again, the trial court’s relative weight awarded to this circumstance is not open

       to our review. See id.


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[14]   Mindful of the brutal nature of the crime and Johnson’s character, Johnson fails

       to persuade us of any virtuous traits or circumstances that would in any way

       justify a downward revision of his sentence.


[15]   Nevertheless, at the request of both parties, we remand to the trial court for

       clarification of its sentencing order. The sentencing order indicates that the

       sentences for each Count are to run both concurrently and consecutively to

       each other. We agree that this is in error and contrary to the trial court’s

       statement at the sentencing hearing where the trial court ordered Count I and II

       to run concurrent, with Count I enhanced by the habitual offender adjudication

       for an aggregate sentence of ten years executed.


                                              CONCLUSION

[16]   Based on the foregoing, we hold that Johnson’s sentence is not inappropriate in

       light of the nature of the offense and his character, but we remand to the trial

       court for clarification of the sentencing order.


[17]   Affirmed and remanded.


[18]   Crone, J. and Altice, J. concur




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