MEMORANDUM DECISION
                                                                            FILED
Pursuant to Ind. Appellate Rule 65(D),
                                                                       Nov 14 2017, 8:52 am
this Memorandum Decision shall not be
regarded as precedent or cited before any                                   CLERK
                                                                        Indiana Supreme Court
court except for the purpose of establishing                               Court of Appeals
                                                                             and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Brian A. Karle                                          Curtis T. Hill, Jr.
Ball Eggleston, PC                                      Attorney General
Lafayette, Indiana
                                                        Matthew B. MacKenzie
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Martin L. Johnson,                                      November 14, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        79A04-1704-CR-862
        v.                                              Appeal from the Tippecanoe
                                                        Superior Court
State of Indiana,                                       The Honorable Steven P. Meyer,
Appellee-Plaintiff                                      Judge
                                                        Trial Court Cause No.
                                                        79D02-1606-F5-94



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 79A04-1704-CR-862 | November 14, 2017         Page 1 of 9
                                             Case Summary
[1]   In a bifurcated proceeding, a jury convicted Martin L. Johnson of level 6 felony

      residential entry, class A misdemeanor carrying a handgun without a license,

      and class B misdemeanor criminal mischief, all stemming from an incident in

      which he dented one apartment door with his handgun and then forced his way

      into a different apartment where a mother and her baby were present. Based on

      the same underlying facts, the trial court then convicted Johnson of level 5

      felony carrying a handgun without a license with a prior felony conviction and

      level 4 felony unlawful possession of a firearm by a serious violent felon

      (“SVF”). The trial court entered judgment of conviction on all counts except

      the class A misdemeanor handgun conviction, which it merged with his level 5

      felony handgun conviction, and imposed an aggregate eight-year sentence.


[2]   Johnson appeals, claiming that the trial court’s entry of judgment of conviction

      for both the level 4 and level 5 felony firearm possession offenses violates

      double jeopardy principles. He also challenges the appropriateness of his

      sentence. The State concedes the double jeopardy violation, and we remand

      with instructions to vacate Johnson’s level 5 felony conviction. We also

      conclude that Johnson has failed to meet his burden of establishing that his

      aggregate sentence is inappropriate under Indiana Appellate Rule 7(B).

      Therefore, we affirm his sentence.




      Court of Appeals of Indiana | Memorandum Decision 79A04-1704-CR-862 | November 14, 2017   Page 2 of 9
                                 Facts and Procedural History
[3]   One evening in June 2016, Lafayette Police Department Sergeant Adam

      Mellady was patrolling a Lafayette apartment complex when he observed

      Johnson shouting and banging on the exterior door of one of the apartments

      with a handgun. A neighbor, Taronda Flowers, heard the commotion and

      looked out her door. Shortly thereafter, Sergeant Mellady approached Johnson

      in his police vehicle and ordered him to stop. Johnson disregarded the order,

      shoved the handgun in the back of his waistband, and began running. With

      Sergeant Mellady in pursuit, Johnson forced his way into Flowers’s apartment,

      where she and her one-year-old baby were present. Flowers began screaming,

      “[G]et out of my house,” and “[G]et that gun out of my house.” Tr. Vol. 2 at

      89. Johnson ran into Flowers’s kitchen and discarded the handgun in her

      wastebasket. Immediately thereafter, officers apprehended and arrested

      Johnson and collected the handgun.


[4]   The State charged Johnson with level 6 felony residential entry, class A

      misdemeanor carrying a handgun without a license, level 5 felony carrying a

      handgun with a prior felony conviction (cocaine possession), class B

      misdemeanor criminal mischief, and level 4 felony unlawful possession of a

      firearm by an SVF (with SVF status based on a conviction for conspiracy to

      commit murder). The proceedings were bifurcated, and a jury found Johnson

      guilty as charged on the counts of residential entry, misdemeanor carrying a

      handgun without a license, and criminal mischief. The remaining counts were

      tried before the court, which found Johnson guilty as charged.

      Court of Appeals of Indiana | Memorandum Decision 79A04-1704-CR-862 | November 14, 2017   Page 3 of 9
[5]   At sentencing, the trial court entered judgment of conviction on all counts

      except the class A misdemeanor conviction, which it merged with the level 5

      felony conviction due to double jeopardy concerns. The court sentenced

      Johnson to concurrent terms of eight years for the level 4 felony SVF

      conviction, five years for the level 5 felony handgun conviction, two years for

      the level 6 felony residential entry conviction, and 180 days for the criminal

      mischief conviction. Of the aggregate eight-year term, the court ordered six

      years executed, with two of those years in community corrections, and two

      years suspended to probation.


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


                                     Discussion and Decision

      Section 1 – The trial court violated double jeopardy principles
      by entering judgment of conviction on two firearm possession
                   counts stemming from the same act.
[7]   Johnson asserts, and the State properly concedes, that the trial court violated

      double jeopardy principles when it entered judgment on both his level 4 and

      level 5 felony firearm possession convictions. See Guyton v. State, 771 N.E.2d

      1141, 1143 (Ind. 2002) (double jeopardy includes “[c]onviction and punishment

      for a crime which consists of the very same act as another crime for which the

      defendant has been convicted and punished.”) (quoting Richardson v. State, 717

      N.E.2d 32, 56 (Ind. 1999) (Sullivan, J., concurring))). As such, we remand with

      instructions to vacate Johnson’s conviction for level 5 felony carrying a

      handgun without a license with a previous felony conviction. See West v. State,
      Court of Appeals of Indiana | Memorandum Decision 79A04-1704-CR-862 | November 14, 2017   Page 4 of 9
      22 N.E.3d 872, 875 (Ind. Ct. App. 2014) (remedy for double jeopardy violation

      is vacatur of lesser offense), trans. denied (2015). On remand, the trial court

      should also amend its sentencing order to state that the sentence for the

      criminal mischief conviction is 180 days instead of five years.


             Section 2 – Johnson has failed to meet his burden of
         establishing that his eight-year sentence is inappropriate in
             light of the nature of the offenses and his character.
[8]   Johnson also asks that we review and revise his sentence pursuant to Indiana

      Appellate Rule 7(B), which states that we “may revise a sentence authorized by

      statute if, after due consideration of the trial court’s decision, [this] Court finds

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

      character of the offender.” When a defendant requests appellate review and

      revision of his sentence, we have the power to affirm or reduce the sentence.

      Akard v. State, 937 N.E.2d 811, 813 (Ind. 2010). In conducting our review, we

      may consider all aspects of the penal consequences imposed by the trial court in

      sentencing, i.e., whether it consists of executed time, probation, suspension,

      home detention, or placement in community corrections, and whether the

      sentences run concurrently or consecutively. Davidson v. State, 926 N.E.2d

      1023, 1025 (Ind. 2010). We do not look to see whether the defendant’s

      sentence is appropriate or if another sentence might be more appropriate; rather,

      the test is whether the sentence is “inappropriate.” Fonner v. State, 876 N.E.2d

      340, 344 (Ind. Ct. App. 2007). A defendant bears the burden of persuading this




      Court of Appeals of Indiana | Memorandum Decision 79A04-1704-CR-862 | November 14, 2017   Page 5 of 9
       Court that his sentence meets the inappropriateness standard. Anglemyer v.

       State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218.


[9]    In considering the nature of Johnson’s offenses, “the advisory sentence is the

       starting point the Legislature has selected as an appropriate sentence.” Id. at

       494. When determining the appropriateness of a sentence that deviates from an

       advisory sentence, we consider whether there is anything more or less egregious

       about the offense as committed by the defendant that “makes it different from

       the typical offense accounted for by the legislature when it set the advisory

       sentence.” Holloway v. State, 950 N.E.2d 803, 807 (Ind. Ct. App. 2011).


[10]   Having ordered that the trial court vacate Johnson’s level 5 felony handgun

       conviction, we note that his aggregate eight-year sentence now comprises one

       level 4 felony, for which the sentencing range is two to twelve years with a six-

       year advisory term, Ind. Code § 35-50-2-5.5; one level 6 felony, which carries a

       sentencing range of six months to two and one-half years with a one-year

       advisory term, Ind. Code § 35-50-2-7; and one class B misdemeanor, which

       carries a sentence of not more than 180 days. Ind. Code § 35-50-3-3.


[11]   Johnson characterizes his offenses as neither more nor less egregious than the

       typical offense in each category and thus undeserving of a sentence above the

       advisory for each count. While he may be correct regarding the nature of his

       misdemeanor criminal mischief offense, we find his most serious offenses to be

       more egregious than the typical offenses as defined by the legislature. Unlawful

       possession of a firearm by an SVF is a status offense that requires Johnson’s


       Court of Appeals of Indiana | Memorandum Decision 79A04-1704-CR-862 | November 14, 2017   Page 6 of 9
       knowing or intentional possession of a firearm coupled with his status as an

       SVF, here, for his prior conviction for conspiracy to commit murder. Ind. Code

       §§ 35-47-4-5(a)(1)(B), -5(b)(1), -5(c). Police did not merely find Johnson in

       possession of a firearm at his home, hidden in his vehicle, or under some other

       set of comparatively benign circumstances. Rather, they found him using it to

       damage property and then carrying it during a confrontational home invasion.

       This conduct also implicates the nature of his residential entry offense as

       atypical and egregious. Indiana Code Section 35-43-2-1.5 defines residential

       entry as knowingly or intentionally breaking and entering the dwelling of

       another person. This was not a typical break-in to steal some cash or baubles.

       Instead, Johnson, armed with a handgun, forced his way into Flowers’s home,

       placing her in fear for her life and the life of her baby. In the context of

       Johnson’s request for a reduced sentence, we simply do not find the nature of

       his offenses to merit a shorter term.


[12]   Similarly, Johnson’s character does not merit a shorter sentence. We conduct

       our review of his character by engaging in a broad consideration of his qualities.

       Aslinger v. State, 2 N.E.3d 84, 95 (Ind. Ct. App. 2014), clarified on other grounds on

       reh’g, 11 N.E.3d 571. Based on our review of the record, we agree with the trial

       court’s assessment that the thirty-five-year-old Johnson has demonstrated “a

       pattern of complete disregard for the law since [he was] a young teenager.” Tr.

       Vol. 2 at 200. His lengthy criminal record includes more than twenty

       misdemeanor convictions for a variety of offenses such as battery, marijuana

       possession, resisting law enforcement, and failure to stop after an accident, with


       Court of Appeals of Indiana | Memorandum Decision 79A04-1704-CR-862 | November 14, 2017   Page 7 of 9
       repeated convictions for domestic battery and criminal trespass and numerous

       convictions for driving without a license and driving while suspended. Even

       more significant are his felony convictions for conspiracy to commit murder,

       cocaine possession, home invasion, and driving while suspended. He also has

       demonstrated a failure to respond positively to more lenient sentencing options.

       He has been the subject of several probation revocation proceedings, and his

       probation was twice terminated unsuccessfully. Additionally, the presentence

       investigation report indicates that he has not conducted himself well when

       sentenced to community corrections in the past. See Appellant’s App. Vol. 2 at

       164 (“Tippecanoe County Community Corrections reported [Johnson] was

       classified as a Habitual Rule Violator.”). To the extent that he characterizes his

       criminal behavior and probation failures as old news, we note that he was on

       probation for a felony drug conviction at the time he committed the current

       offenses. We acknowledge that he participated in programs to better himself

       while in jail, but we also note that the trial court built some leniency into his

       current sentence by executing only six years, with two of those years in

       community corrections, and granting him two years of probation despite his

       record of probation failures.


[13]   Simply put, Johnson has failed to demonstrate that his sentence is inappropriate

       in light of the nature of the offenses and his character. Accordingly, we affirm

       his sentence.




       Court of Appeals of Indiana | Memorandum Decision 79A04-1704-CR-862 | November 14, 2017   Page 8 of 9
[14]   Affirmed and remanded.


       Vaidik, C.J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 79A04-1704-CR-862 | November 14, 2017   Page 9 of 9
