MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                        FILED
regarded as precedent or cited before any                               Aug 28 2019, 9:01 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 of Indiana
                                                         Courtney L. Staton
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Michael J. Johnson,                                      August 28, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-167
        v.                                               Appeal from the Noble Superior
                                                         Court
State of Indiana,                                        The Honorable Robert E. Kirsch,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         57D01-1803-MR-1



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-167 | August 28, 2019                   Page 1 of 19
                                             Case Summary
[1]   Michael J. Johnson (“Johnson”) was convicted of two counts of Murder, a

      felony,1 and one count of Attempted Murder, a Level 1 felony. 2 He was also

      found to be a habitual offender.3 The court imposed an aggregate sentence of

      170 years and ordered Johnson to pay restitution. Johnson now appeals. We

      affirm Johnson’s convictions and the length of his sentence. However, because

      we conclude insufficient evidence supports the amount of restitution, we reverse

      the restitution order and remand for further proceedings on that limited issue.



                                                    Issues
[2]   Johnson presents the following restated issues:


                 I.           Whether the trial court abused its discretion when it ruled
                              on particular evidentiary matters, denying a motion to
                              strike testimony and overruling certain objections.


                 II.          Whether sufficient evidence negates the existence of
                              sudden heat.


                 III.         Whether sufficient evidence supports the determination
                              that Johnson is a habitual offender.




      1
          Ind. Code § 35-42-1-1.
      2
          I.C. § 35-42-1-1; 35-41-5-1.
      3
          I.C. § 35-50-2-8.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-167 | August 28, 2019        Page 2 of 19
              III.     Whether the aggregate sentence imposed is inappropriate.


              IV.      Whether sufficient evidence supports the amount Johnson
                       was ordered to pay in restitution.


                            Facts and Procedural History
[3]   On March 5, 2018, Tiffani Cox (“Cox”) borrowed Johnson’s vehicle—a black

      Chevy Impala—and drove from Fort Wayne to Ligonier, where she met with

      Amberly Brown (“Brown”) and Justin Adams (“Adams”). The trio ran errands

      together, after which they traveled to a Ligonier apartment rented to Amanda

      Feldstein (“Feldstein”). Brown and Adams went into the apartment. Cox

      drove back to Fort Wayne and returned the Impala to Johnson, who noticed a

      purse was missing from the trunk. The purse had been a gift to Johnson’s

      fiancée, Kyra Frost (“Frost”). Johnson became angry and threatened to “bust

      loose” in the parking lot if Cox walked away. Tr. Vol. III at 120. Cox took this

      to mean Johnson would get out the gun he usually carried. Johnson demanded

      that Cox get in the Impala with him. Johnson and Cox drove to a gas station,

      and Cox went inside. Frost drove to the gas station in a separate vehicle, then

      went inside after Cox. Frost threatened to tell the police Cox stole the purse

      unless Cox took them to the Ligonier apartment to retrieve the purse. Johnson,




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-167 | August 28, 2019   Page 3 of 19
      Frost, and Cox then began driving to the apartment—thirty or so miles away—

      with Cox and Frost in one vehicle and Johnson following in his Impala. 4


[4]   Cox approached the apartment door, flanked by Johnson and Frost. After Cox

      knocked, either Brown or Feldstein opened the door. Johnson and Frost then

      rushed past Cox and entered the apartment. Johnson took three steps, pulled

      out his gun, and held it “up in the air.” Id. at 133. He demanded the purse.

      Around this time, Adams came out from an adjacent room. Upon seeing the

      gun, Adams ran out the back door into a patio area enclosed by a railing. Frost

      followed and tackled him. Adams—who at one point pleaded for his life—

      managed to escape and leap over the railing. Adams was about seventeen feet

      from the apartment when Johnson shot Adams in the back. The bullet passed

      through Adams’s aorta, grazed his lung, then exited his chest. The wound was

      fatal. After killing Adams, Johnson aimed his gun at Brown. At this point,

      Feldstein entered the room and ducked by the laundry closet, covering her ears.

      Johnson aimed the gun at Feldstein and fired a bullet into the back of her head.

      Johnson then shot at Brown. At that point, Johnson yelled “let’s get the hell

      out of here.” Id. at 34. Johnson, Frost, and Cox fled out the back door. They

      jumped over the railing and took off in the two vehicles. Brown—who had not

      been struck by the bullet—checked on Feldstein and called 9-1-1. Feldstein was

      still breathing when Brown called 9-1-1, but eventually died from the wound.




      4
       We take judicial notice of the approximate distance from Fort Wayne to Ligonier. See Ind. Evidence Rule
      201; see also Moore v. State, 153 N.E. 402, 403 (Ind. 1926).

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-167 | August 28, 2019               Page 4 of 19
[5]   Brown described the Impala to law enforcement and provided a cellphone

      number Cox had used that day. Law enforcement contacted the cellphone

      carrier and obtained the location of the phone, which was north of U.S. 20 and

      just west of LaGrange County. Hearing dispatches about the shooting and the

      cellphone ping, Officer Nicolas J. Dubea (“Officer Dubea”) of the LaGrange

      Police Department positioned his patrol vehicle so it faced U.S. 20. Shortly

      thereafter, Officer Dubea saw a black Impala with one male occupant pass by.

      The driver—Johnson—tried to obscure his face. This movement raised the

      suspicions of Officer Dubea, who was not sure he had located the right Impala.


[6]   Officer Dubea began following Johnson, who drove left of the center line on

      two occasions. Officer Dubea activated his emergency lights to conduct a

      traffic stop. Johnson initially braked but then drove off, reaching speeds in

      excess of 110 m.p.h. Officer Dubea pursued Johnson across LaGrange County

      and into Steuben County. After about twenty minutes, Johnson drove the

      Impala across “stop sticks” law enforcement placed on the road. The devices

      damaged the Impala. After the vehicle rolled into a yard, Johnson got out and

      started running. Officer Dubea then deployed his K-9 partner, Jax. Johnson

      looked back and yelled not to let the dog bite him, at which point Johnson lost

      his balance and fell. Officer Dubea called off Jax and then arrested Johnson.


[7]   Johnson waived his rights and spoke with law enforcement on March 7, 2019.

      During that interview, Johnson admitted he was the shooter and claimed he

      was high on methamphetamine at the time. Johnson said he acted in the heat

      of the moment and indicated he was startled when Adams came into the room.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-167 | August 28, 2019   Page 5 of 19
[8]   The State brought the following charges against Johnson: Count I—Murder

      While Committing Robbery, a felony;5 Count II—Murder While Committing

      Robbery, a felony; Count III—Attempted Murder, a Level 1 felony; Count

      IV—Murder, a felony; and Count V—Murder, a felony. The State also sought

      a sentencing enhancement, alleging Johnson was a habitual offender.


[9]   A jury trial commenced in December 2018, at which Johnson did not dispute

      he was the shooter. Johnson instead claimed he was less culpable because he

      acted either recklessly or under sudden heat. Among the State’s witnesses was

      Michael Biggs (“Biggs”), a crime scene investigator with the Indiana State

      Police who testified he was not a firearms analyst. The State questioned Biggs

      about the size of the apartment, at which point Biggs referred to handwritten

      notes. Johnson asked to review those notes, which led to a hearing outside the

      presence of the jury. At the hearing, Johnson elicited testimony that Biggs had

      not given his field notes to the State. Biggs also testified the measurements in

      those notes “were all included in a 3-D scanner document” that was provided

      to the State. Tr. Vol. III at 78. The State asserted it had provided that other

      document to the defense. Johnson moved to strike Biggs’s testimony, claiming

      the defense had not received the notes. The court denied the motion, offering

      instead to recess and give Johnson time to review the notes. Johnson declined.

      He asked for a copy of the notes and said the defense was “ready to continue

      on.” Id. at 86. During its examination of Biggs, the State asked about the



      5
          I.C. § 35-42-1-1.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-167 | August 28, 2019   Page 6 of 19
       number of shots fired toward Adams and where the shooter was standing when

       firing the fatal shot. Johnson objected to these lines of questioning, claiming a

       lack of foundation. The court overruled the objections. Biggs testified only one

       bullet and shell casing had been found outside. He opined Johnson fired at

       least two shots at Adams, reasoning that the location of the recovered bullet

       was “not consistent with the position from which” a bullet would have exited

       Adams’s body. Id. at 61. Biggs also opined it was not possible to have fired the

       fatal gunshot from a certain position inside of the apartment.


[10]   The jury was instructed on the charged offenses, along with lesser offenses of

       Voluntary Manslaughter and Reckless Homicide. At the conclusion of the guilt

       phase, the jury found Johnson guilty as charged, and Johnson waived his right

       to have a jury consider the alleged enhancement. The judge later determined

       Johnson was a habitual offender. A sentencing hearing was held in early 2019,

       at which the trial court merged each Murder While Committing Robbery count

       with the corresponding Murder count, leaving two counts of Murder (Counts

       IV and V) and one count of Attempted Murder (Count III). The trial court

       sentenced Johnson to sixty years for each count of Murder, then applied a

       fifteen-year enhancement to Count IV. As to the count of Attempted Murder,

       the trial court imposed a sentence of thirty-five years. The trial court ordered

       consecutive sentences, resulting in an aggregate sentence of 170 years in the

       Indiana Department of Correction. The trial court also ordered Johnson to pay

       $2,413.71 in restitution, a figure mentioned in a presentence investigation report

       (“PSI”) and a sentencing memorandum from the State.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-167 | August 28, 2019   Page 7 of 19
[11]   Johnson now appeals.



                                  Discussion and Decision
                                        Evidentiary Matters
                                             Motion to Strike
[12]   Johnson challenges the denial of his motion to strike, arguing the State ran

       afoul of its discovery obligations by failing to timely disclose the handwritten

       notes. Courts have “wide discretion in ruling on violations of a discovery

       order,” and we will reverse only upon an abuse of discretion. Jenkins v. State,

       627 N.E.2d 789, 799 (Ind. 1993). In general, excluding evidence as a discovery

       sanction is proper only upon a showing “the State engaged in deliberate or

       other reprehensible conduct that prevents the defendant from receiving a fair

       trial.” Taylor v. State, 676 N.E.2d 1044, 1046 (Ind. 1997). Instead of excluding

       evidence, “an order compelling disclosure and a continuance are generally the

       appropriate remedies.” Stark v. State, 489 N.E.2d 43, 46 (Ind. 1986).


[13]   The State disputes its discovery obligations extended to Biggs’s handwritten

       notes. Nevertheless, assuming arguendo the notes fell within the State’s

       discovery obligations, Johnson has failed to demonstrate the State engaged in

       deliberate or reprehensible conduct that prejudiced him.


[14]   At trial, it was undisputed the prosecution was unaware of the notes, which

       Biggs had not provided. On appeal, Johnson argues Biggs was an employee of

       the State and we should not condone his failure to turn over the notes.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-167 | August 28, 2019   Page 8 of 19
       However, even assuming non-disclosure was in bad faith, Johnson fails to

       demonstrate how the late disclosure prevented him from receiving a fair trial.

       Indeed, Biggs testified his notes contained measurements he had taken of the

       crime scene. Biggs took those measurements as a precaution, in case there was

       a malfunction with a scanner used to take measurements. Biggs claimed his

       report—which the defense did not dispute receiving—contained measurements

       from the scanner that overlapped with his own. It is conceivable there were

       differences between the report and the notes—and the court offered to recess so

       Johnson could review the documents. However, Johnson declined. Moreover,

       in cross-examining Biggs, Johnson did not identify information in the notes that

       was not in the report. He has also failed to identify any discrepancy on appeal.

       Further, assuming Johnson had no warning of Biggs’s opinion concerning the

       number of shots, Johnson nevertheless ably engaged in cross-examination on

       this issue—asking questions such as why the recovered bullet was deformed and

       whether Adams’s spine could have changed the bullet trajectory. Ultimately,

       we cannot say the court abused its discretion by declining to strike all of Biggs’s

       testimony. See Beavers v. State, 465 N.E.2d 1388, 1390 (Ind. 1984) (observing

       that granting a motion to strike is “a most severe sanction”). Indeed, Johnson

       was not prevented from receiving a fair trial as a result of the late disclosure.


                                                 Foundation
[15]   Johnson argues there was an insufficient foundation to admit Biggs’s opinion

       that Johnson fired more than one shot at Adams. Johnson also challenges the

       admission of Biggs’s opinion that it was not possible to fire the fatal shot at

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-167 | August 28, 2019   Page 9 of 19
       Adams from a position inside the apartment, evidence that indicates Johnson

       followed Adams outside. Both lines of testimony bore on Johnson’s claim of

       sudden heat. We review evidentiary rulings for an abuse of discretion,

       reversing “only when the decision is clearly against the logic and effect of the

       facts and circumstances.” Shinnock v. State, 76 N.E.3d 841, 843 (Ind. 2017).


[16]   Johnson claims—and the State does not dispute—the challenged testimony

       could not be admitted under Evidence Rule 702, which pertains to expert

       witnesses. The parties focus on whether this testimony was admissible under

       Rule 701, which provides as follows: “If a witness is not testifying as an expert,

       testimony in the form of an opinion is limited to one that is: (a) rationally based

       on the witness’s perception; and (b) helpful to a clear understanding of the

       witness’s testimony or to a determination of a fact in issue.” The Indiana

       Supreme Court has explained that the term “perception” contemplates insight,

       intuition, or knowledge gained by direct use of one’s senses, such as the sense of

       sight. Kubsch v. State, 784 N.E.2d 905, 922 (Ind. 2003). Furthermore, witnesses

       testifying under this rule “not only can testify about their observations, they can

       also testify to opinions or inferences that are based solely on facts within their

       own personal knowledge.” A.J.R. v. State, 3 N.E.3d 1000, 1003 (Ind. Ct. App.

       2014) (quoting Hawkins v. State, 884 N.E.2d 939, 944 (Ind. Ct. App. 2008)).


[17]   Johnson asserts the testimony was not helpful because “the record contains no

       evidence that Biggs had any greater knowledge as to the ballistics issues on

       which he testified than the jurors who heard such evidence.” Reply Br. at 11.

       However, so long as the testimony was rationally based on Biggs’s perceptions,

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-167 | August 28, 2019   Page 10 of 19
       we conclude the testimony—which related to the number of shots fired and the

       location of the shooter—was helpful to determining relevant factual matters.


[18]   Johnson also claims Biggs was not present at the shooting and so his opinions

       could not be rationally based on his perceptions. We rejected a similar

       argument in A.J.R.—where an officer familiar with a crime scene opined about

       the direction of gunfire—and concluded the testimony was admissible under

       Evidence Rule 701. 3 N.E.3d at 1004. Here, Biggs was familiar with the layout

       of the crime scene, with knowledge about the locations of the victims and the

       recovered bullets. He also observed the wounds. Evidence Rule 701 permits

       Biggs to opine about matters rationally related to these kinds of perceptions,

       including the number of gunshots and the location of the shooter. We are not

       persuaded the court abused its discretion by admitting the testimony.6



                                                Sudden Heat
[19]   Murder is the knowing or intentional killing of another human. See I.C. § 35-

       42-1-1. “The existence of sudden heat is a mitigating factor that reduces what

       otherwise would be murder . . . to voluntary manslaughter.” I.C. § 35-42-1-3.

       “Sudden heat exists when a defendant is ‘provoked by anger, rage, resentment,

       or terror, to a degree sufficient to obscure the reason of an ordinary person,




       6
         Because the testimony was rationally based on Biggs’s perceptions, we disagree with Johnson’s assertion
       that the testimony was merely speculative. Further, to the extent Johnson is challenging the basis for the
       opinion about the number of shots, his arguments go to the weight of the evidence—not its admissibility.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-167 | August 28, 2019                  Page 11 of 19
       prevent deliberation and premeditation, and render the defendant incapable of

       cool reflection.’” Brantley v. State, 91 N.E.3d 566, 572 (Ind. 2018) (quoting Isom

       v. State, 31 N.E.3d 469, 486 (Ind. 2015), cert. denied). The State must prove

       beyond a reasonable doubt the defendant committed the elements of Murder.

       See I.C. 35-41-4-1; Brantley, 91 N.E.3d at 572. Where there is evidence of

       sudden heat, the defendant may obtain a jury instruction on voluntary

       manslaughter. Brantley, 91 N.E.3d at 572. At that point, the State “bears the

       burden of negating the presence of sudden heat beyond a reasonable doubt.”

       Evans v. State, 727 N.E.2d 1072, 1077 (Ind. 2000). The State meets this burden

       “by rebutting the defendant’s evidence or affirmatively showing in its case-in-

       chief that the defendant was not acting in sudden heat.” Id.


[20]   Johnson challenges the sufficiency of evidence negating sudden heat. Upon a

       sufficiency challenge, we do not reweigh evidence or judge witness credibility.

       Brantley, 91 N.E.3d at 570. We view the evidence in a light most favorable to

       the conviction, and will affirm if there is substantial probative evidence from

       which a reasonable fact-finder could find the defendant guilty beyond a

       reasonable doubt. Davis v. State, 743 N.E.2d 751, 753 (Ind. 2001).


[21]   Johnson focuses on evidence favorable to him, asserting he was “in a drug-

       fueled rage” and the events in the apartment were “chaotic.” Br. of Appellant

       at 37. However, it is undisputed Johnson became angry about a purse. Even

       after a relatively long drive afforded Johnson an opportunity to gather his

       thoughts, he rushed into the apartment and brandished a gun. It was Johnson

       who created a chaotic atmosphere. Moreover, even if Johnson was startled

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-167 | August 28, 2019   Page 12 of 19
       when Adams emerged from a bedroom, there was evidence Johnson followed

       Adams outside of the apartment. Enough time passed for Adams to plead for

       his life and leap over a railing. There was evidence Johnson fired two shots at

       Adams, shooting him in the back when Adams was a considerable distance

       away and posed no threat to Johnson. Moreover, Johnson did not stop there.

       He turned his attention to those inside the apartment, shooting a crouching

       Feldstein in the back of her head, then firing the gun at Brown.


[22]   We identify ample evidence from which a reasonable jury could determine,

       beyond a reasonable doubt, that Johnson was not rendered incapable of cool

       reflection when he committed Murder and Attempted Murder. Thus, the State

       met its burden of negating sudden heat, and we discern no failure of proof.



                                        Habitual Offender
[23]   Johnson alleges insufficient evidence supports the habitual-offender sentence

       enhancement. When a person has been convicted of Murder, this enhancement

       is available if the State proves beyond a reasonable doubt the defendant has

       been convicted of two prior unrelated felonies, at least one of which was not a

       Level 6 felony or a Class D felony. I.C. § 35-50-2-8(b).


[24]   To prove the existence of prior convictions beyond a reasonable doubt, the

       State must introduce certified and authenticated records of the convictions. See

       Dexter v. State, 959 N.E.2d 235, 238 (Ind. 2012). The State must also introduce

       “additional supporting evidence . . . to prove the identity of the defendant.” Id.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-167 | August 28, 2019   Page 13 of 19
       That evidence “may be circumstantial.” Schlomer v. State, 580 N.E.2d 950, 958

       (Ind. 1991). “If the evidence yields logical and reasonable inferences from

       which the finder of fact may determine beyond a reasonable doubt that it was a

       defendant who was convicted of the prior felony, then a sufficient connection

       has been shown.” Hernandez v. State, 716 N.E.2d 948, 953 (Ind. 1999).


[25]   Here, the State introduced certified and authenticated records of convictions

       from Cause No. 02D04-0409-FD-723 and Cause No. 02D04-0907-FB-127. The

       records were for an offender named Michael J. Johnson and showed a Class B

       felony conviction for Robbery in 2009 along with Class D felony convictions for

       Auto Theft and Resisting Law Enforcement in 2005. The State also introduced

       a packet of documents from the Indiana Department of Correction, drawn from

       a certain record number related to a Michael Johnson. The packet refers to

       both causes. It also contains two photographs showing the face of a man.

       Below the photographs are the same record number and the name Michael

       Johnson. The State also elicited testimony from a detective who compared a

       photograph in the packet with Johnson’s in-court appearance. The detective

       testified the photograph looked like Johnson, and that the photograph was a

       way the detective identified Johnson in connection with the criminal record.


[26]   Johnson points out the records do not show a birthdate or a Social Security

       Number, and he claims there are height and weight discrepancies. Johnson

       also asserts the State did not introduce other evidence that might have been

       helpful, such as evidence of his prior addresses or “testimony indicating

       Johnson’s fingerprints matched the fingerprints” contained in the packet. Br. of

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-167 | August 28, 2019   Page 14 of 19
       Appellant at 43. However, in light of the identification of Johnson in the

       photograph—and the connection between the photograph and the two certified

       convictions—we conclude there is sufficient evidence from which a reasonable

       fact-finder could determine, beyond a reasonable doubt, Johnson had the status

       of a habitual offender. Cf. Schlomer, 580 N.E.2d at 958 (identifying sufficient

       evidence of a prior conviction where a witness had filed a prior charge, “viewed

       a photograph” of that prior offender, and “identified appellant in court”).


                                      Inappropriate Sentence
[27]   We have authority to revise a sentence that “is inappropriate in light of the

       nature of the offense and the character of the offender.” Ind. Appellate Rule

       7(B); see Ind. Const art. VII, § 6. Our role is to “leaven the outliers,” Cardwell v.

       State, 895 N.E.2d 1219, 1225 (Ind. 2008), and we reserve appellate revision “for

       exceptional cases.” Livingston v. State, 113 N.E.3d 611, 613 (Ind. 2018).


[28]   Here, the court imposed an aggregate sentence length of 170 years—i.e., sixty

       years for each Murder conviction, thirty-five years for Level 1 felony Attempted

       Murder, and a fifteen-year enhancement—which is within the statutory range.

       See I.C. § 35-50-2-3 (providing a sentencing range for Murder between forty-five

       years and sixty-five years, with an advisory sentence of fifty-five years); I.C. §

       35-50-2-4(b) (providing a sentencing range for a Level 1 felony between twenty

       years and forty years with an advisory sentence of thirty years); I.C. § 35-50-2-8

       (providing an enhancement range of six years to twenty years for a habitual




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-167 | August 28, 2019   Page 15 of 19
       offender convicted of Murder); I.C. § 35-50-1-2 (authorizing consecutive

       sentences for crimes of violence, including Murder and Attempted Murder).


[29]   As to the nature of the offenses, Johnson murdered two people and attempted

       to murder a third person after becoming angry about the location of a purse.

       Johnson—previously convicted of a serious violent felony—committed the

       offenses with a gun that was illegal for him to possess. Moreover, Johnson was

       on parole when he used methamphetamine, armed himself, committed these

       crimes, and evaded law enforcement during a dangerous, high-speed chase.


[30]   The circumstances of the crimes and the flight thereafter—including leaving

       Feldstein to die and running past Adams’s body—do not reflect well on

       Johnson’s character. As to his character, we are not unmindful of evidence

       Johnson had a difficult childhood, which included being exposed to violence,

       drug use, and drug dealing. Moreover, Johnson cooperated with the police

       after his eventual arrest. It also appears Johnson has struggled with substance

       abuse—and his decision to consume methamphetamine might have played

       some part in his conduct. The trial court took note of these potential mitigating

       circumstances when selecting its sentence. We also note Johnson expressed

       remorse, and there is evidence he has several mental-health diagnoses. Johnson

       also points out he has a young child, has overcome academic hardships, and

       has previously maintained employment.


[31]   Nevertheless, Johnson—thirty-five years old when he committed the offenses—

       has had many encounters with law enforcement, with opportunities to address


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-167 | August 28, 2019   Page 16 of 19
       his mental health and his issues with substance abuse. By the time he

       committed these offenses, Johnson had amassed six felony convictions,

       including convictions of Burglary, Robbery, and Unlawful Possession of a

       Firearm by a Serious Violent Felon. Moreover, Johnson has been afforded

       leniency in the past, including receiving a sentence modification and the

       opportunity to participate in a transition program. However, Johnson violated

       the conditions of re-entry programming. He committed the instant offenses

       even after receiving a twenty-year sentence for Robbery, serving time, and

       having the opportunity to re-enter society through the privilege of parole.


[32]   Johnson asks us to revise his sentence to an aggregate length of seventy years,

       removing 100 years from the sentence imposed by the trial court. However,

       after considering the nature of the offenses and the character of the offender, we

       are not persuaded of exceptional circumstances that would warrant disturbing

       the decision of the trial court. We conclude the sentence is not inappropriate.



                                               Restitution
[33]   A court may order restitution for damage “incurred as a result of the crime.”

       I.C. § 35-50-5-3(a)(1). The amount of loss “is a factual matter” that “can be

       determined only upon presentation of evidence.” Smith v. State, 471 N.E.2d

       1245, 1248 (Ind. 1984), trans. denied. We review a restitution order for an abuse

       of discretion, which occurs “if no evidence or reasonable inferences therefrom”

       support the order. Archer v. State, 81 N.E.3d 212, 216 (Ind. 2017) (emphasis

       removed) (quoting Little v. State, 839 N.E.2d 807, 809 (Ind. Ct. App. 2005)).

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-167 | August 28, 2019   Page 17 of 19
[34]   Here, the trial court ordered Johnson to pay $2,413.71 for property damage.

       The PSI cursorily mentions that figure under the Victim Impact section of the

       form: “The Victim Impact Statement was sent to the victim(s) and/or personal

       representative, however, a response has not been received. According to the

       Prosecutor’s Office, Riverside Villa Apartments has requested $2,413.71 in

       restitution.” App. Vol. II at 224. This figure also appears in a sentencing

       memorandum the State filed, which notes “the State requests restitution in the

       amount of two thousand four hundred thirteen dollars and seventy-one cents

       ($2,413.71[]) to the Riverside Villa Apartments, LP. (See Attached).” App.

       Vol. III at 27. Although the sentencing memorandum purports to reference an

       attachment, the document contained in the Appendix does not include an

       attachment. Moreover, the State asserts on appeal that “the State’s Sentencing

       Memorandum was filed without the attachment.” Br. of Appellee at 46 n.4.


[35]   Johnson claims the amount of restitution is not supported by evidence, and the

       State—apart from noting the figure is in the documents—does not argue the

       merits. Instead, the State asserts Johnson waived this challenge by failing to

       object to the restitution request or to the amount mentioned in the PSI.

       However, as Johnson points out, an unsupported restitution order is a type of

       sentencing error that a defendant may raise for the first time on appeal. See, e.g.,

       Rich v. State, 890 N.E.2d 44, 48-49 (Ind. Ct. App. 2008), trans. denied.


[36]   We conclude there is insufficient evidence supporting the amount of restitution,

       and we therefore reverse the restitution order. Anticipating possible reversal,

       the State asks that we remand for a new restitution hearing—a practice

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-167 | August 28, 2019   Page 18 of 19
       endorsed by the Indiana Supreme Court. See Iltzsch v. State, 981 N.E.2d 55, 57

       (Ind. 2013) (per curiam) (“[P]recedent supports remanding for additional

       evidence when appropriate.”). Therefore, we remand solely for an evidentiary

       hearing on the issue of restitution.



                                               Conclusion
[37]   We affirm the convictions and the sentences imposed thereon but remand for

       an evidentiary hearing on the issue of restitution.


[38]   Affirmed in part, reversed in part, and remanded.


       Najam, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-167 | August 28, 2019   Page 19 of 19
