MEMORANDUM DECISION
                                                                         Apr 16 2015, 6:05 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Scott King                                                Gregory F. Zoeller
Russell W. Brown, Jr.                                     Attorney General of Indiana
Merrillville, Indiana
                                                          Karl M. Scharnberg
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Eric P. Johnson,                                          April 16, 2015

Appellant-Defendant,                                      Court of Appeals Case No.
                                                          20A05-1410-CR-512
        v.                                                Appeal from the Elkhart Circuit
                                                          Court.
State of Indiana,                                         The Honorable Terry C. Shewmaker,
                                                          Judge.
Appellee-Plaintiff.
                                                          Cause No. 20C01-1308-FA-42




Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision | 20A05-1410-CR-512 | April 16, 2015          Page 1 of 12
                                    STATEMENT OF THE CASE

[1]   Appellant-Defendant, Eric P. Johnson (Johnson), appeals his thirty-year

      sentence following his conviction of dealing in cocaine, a Class A felony, Ind.

      Code § 35-48-4-1(a)(2)(C),(b)(1) (2013).


[2]   We affirm.


                                                    ISSUES

[3]   Johnson raises two issues on appeal, which we restate as follows:

      (1) Whether the trial court abused its discretion in sentencing Johnson; and

      (2) Whether Johnson’s sentence is inappropriate in light of the nature of the

      offense and his character.


                           FACTS AND PROCEDURAL HISTORY

[4]   On July 30, 2013, the Elkhart City Police Department obtained a warrant to

      search the apartment of Geraldine Jones (Jones) in the course of a narcotics

      investigation. Just prior to executing the search warrant, a police officer had

      observed that Johnson repeatedly walked back and forth from Jones’ apartment

      to a beige-colored Cadillac parked out front. Because Johnson’s behavior was

      indicative of street level narcotics sales, a warrant was obtained to search the

      vehicle. In the vehicle’s center console, the officers discovered a clear plastic

      bag, which contained forty-five separate packages of cocaine having a total

      weight of 13.2 grams. Johnson subsequently admitted that the cocaine was his,


      Court of Appeals of Indiana | Memorandum Decision | 20A05-1410-CR-512 | April 16, 2015   Page 2 of 12
      that he had been selling cocaine out of Jones’ home for approximately one and

      one-half months, and that he provided Jones with cocaine in exchange for

      allowing him to use her house for his dealing.


[5]   On August 2, 2013, the State filed an Information, charging Johnson with one

      Count of dealing in cocaine, a Class A felony. Four days before his trial was set

      to begin, on June 26, 2014, Johnson pled guilty without the benefit of a plea

      agreement, and the trial court entered a judgment of conviction on the Class A

      felony. On October 2, 2014, the trial court held a sentencing hearing and

      sentenced Johnson to a term of thirty years, with twenty-three years executed in

      the Indiana Department of Correction (DOC) and seven years suspended to

      probation.


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


                                  DISCUSSION AND DECISION

                                      I. Abuse of Sentencing Discretion

[7]   Johnson claims that the trial court abused its sentencing discretion. At the

      outset, we note that the trial court imposed the advisory sentence of thirty years

      for a Class A felony, of which seven years was suspended to probation. See I.C.

      § 35-50-2-4 (2013). For a Class A felony, the maximum and minimum

      sentences are fifty years and twenty years, respectively. See I.C. § 35-50-2-4

      (2013).


[8]   A trial court is vested with broad discretion in matters of sentencing and may

      impose any sentence authorized by statute. Anglemyer v. State, 868 N.E.2d 482,

      Court of Appeals of Indiana | Memorandum Decision | 20A05-1410-CR-512 | April 16, 2015   Page 3 of 12
      490, clarified on reh’g, 875 N.E.2d 218 (Ind. 2007). Our court reviews a trial

      court’s sentencing decision only for an abuse of discretion. Id. It is an abuse of

      discretion if the trial court’s decision is contrary to “the logic and effect of the

      facts and circumstances before the court or the reasonable, probable, and actual

      deductions to be drawn therefrom.” Williams v. State, 997 N.E.2d 1154, 1163

      (Ind. Ct. App. 2013). We will find an abuse of discretion if the trial court fails

      to enter a sentencing statement, enters a finding of aggravating and mitigating

      factors that are unsupported by the record, omits reasons that are clearly

      supported by the record and are advanced for consideration, or includes reasons

      that are improper as a matter of law. Gomillia v. State, 13 N.E.3d 846, 849 (Ind.

      2014).


[9]   In its sentencing statement, the trial court identified the following aggravating

      circumstances: Johnson’s criminal history; the fact that Johnson compensated

      Jones with cocaine; Johnson’s history of marijuana use; and Johnson’s use of

      marijuana while released on bond in the instant case. The trial court also found

      a number of mitigating circumstances, including Johnson’s acceptance of

      responsibility for his criminal conduct; the abundant support of his family and

      friends; and his relatively young age—twenty-one years old at the commission

      of his crime. In weighing the aggravating and mitigating factors, the trial court

      concluded “that they are in balance.” (Appellant’s App. p. 34).




      Court of Appeals of Indiana | Memorandum Decision | 20A05-1410-CR-512 | April 16, 2015   Page 4 of 12
                                                 A. Criminal History

[10]   Johnson now contends that the trial court improperly considered his criminal

       history as an aggravating circumstance.1 Indiana’s sentencing statutes instruct

       the trial court that it may consider that a “person has a history of criminal or

       delinquent behavior” as an aggravating circumstance. I.C. § 35-38-1-7.1(a)(2).

       Accordingly, in rendering its sentence, the trial court found that Johnson’s

       criminal record includes one juvenile gambling offense out of Cook County,

       Illinois, the disposition of which is unknown. As an adult, Johnson had a

       pending case in Marshall County, Indiana, for a Class C misdemeanor

       operating a vehicle without ever having been licensed. Pertaining to the Class

       C misdemeanor, the pre-sentence investigation (PSI) report indicates that

       Johnson failed to appear in court on four separate occasions and had an

       outstanding warrant. However, by the time of the sentencing hearing, Johnson

       stated that the bench warrant had been withdrawn. The PSI report also

       references another Cook County case, under which Johnson was charged with

       obstructing identification, not wearing his seatbelt, driving without a license,

       and not having a valid registration; the disposition of this case is unknown.




       1
         Although we will review Johnson’s claim to determine whether the trial court relied only upon proper
       aggravating circumstances, we must mention that because the trial court imposed the advisory—not an
       aggravated—sentence, our finding of an improper aggravator will not ultimately affect the propriety of the
       sentence. Johnson apparently suggests that if the trial court relied on improper aggravators, the presence of
       valid mitigating circumstances would warrant a lesser sentence. We disagree. As the trial court is under no
       obligation to weigh aggravating and mitigating circumstances, we cannot say that the mitigating
       circumstances would require imposing less than the advisory sentence. See Anglemyer, 868 N.E.2d at 491.
       Moreover, the fact that the trial court suspended seven years of Johnson’s sentence indicates that it accorded
       some weight to the mitigating circumstances that it identified, and we will not second-guess this decision.

       Court of Appeals of Indiana | Memorandum Decision | 20A05-1410-CR-512 | April 16, 2015            Page 5 of 12
[11]   Johnson now asserts that his juvenile referral, arrest record, and failures to

       appear do “not suffice as proof of a criminal history.” (Appellant’s Br. p. 6).

       Johnson relies on Tunstill v. State, 568 N.E.2d 539, 544 (Ind. 1991), where our

       supreme court held that the defendant’s three prior arrests did not qualify as

       “instances of criminal behavior establishing . . . a history” of criminal or

       delinquent activity. Specifically, the Tunstill Court stated,

               In order to enhance a criminal sentence based, in whole or in part, on
               the defendant’s history of criminal activity, a sentencing court must
               find instances of specific criminal conduct shown by probative
               evidence to be attributable to the defendant. A bare record of arrest
               will not suffice to meet this standard.
       Id. “The substance of the aggravator, ‘history of criminal activity,’ is the fact

       that the defendant committed the other crime, not that he was arrested for it.”

       Id. Thus, the record must reveal that the defendant was either convicted of or

       admitted guilt to another crime, or there must be other admissible evidence

       demonstrating that the defendant committed another offense. Id. Here, except

       to indicate that between the ages of fifteen and twenty-one, Johnson was

       arrested on several occasions, the PSI report provides no information as to the

       disposition of those cases. As such, Johnson’s arrest record, by itself, is

       insufficient evidence of a criminal history. See Vermillion v. State, 978 N.E.2d

       459, 468 (Ind. Ct. App. 2012).


[12]   Regardless, we find that any error in the trial court’s consideration of Johnson’s

       arrest record as evidence of his criminal history is harmless because a lengthy

       record of arrest “may reveal that a defendant has not been deterred even after

       having been subject to the police authority of the State.” Cotto v. State, 829
       Court of Appeals of Indiana | Memorandum Decision | 20A05-1410-CR-512 | April 16, 2015   Page 6 of 12
       N.E.2d 520, 526 (Ind. 2005). Accordingly, Johnson’s arrest record may still be

       considered as an aggravator as part of the trial court’s assessment of his

       character and the risk that he will reoffend. Vermillion, 978 N.E.2d at 468.

       Likewise, the fact that Johnson had a criminal charge pending at the time of

       sentencing could properly be considered as an aggravating circumstance based

       on his character and propensity for future criminal conduct. Tunstill, 568

       N.E.2d at 545. In fact, the trial court found that by failing to appear on a

       pending criminal matter in Marshall County, Johnson exhibited “contempt for

       the laws and court proceedings.” (Sent. Tr. p. 17). Therefore, we find no abuse

       of discretion.


[13]   Nevertheless, Johnson argues that his juvenile referral for gambling and his

       pending case in Marshall County for driving without ever having been licensed

       are unrelated to the present crime of dealing cocaine and, therefore, are

       inappropriate bases for an aggravating factor. We disagree, instead finding that

       his argument concerns the weight, rather than validity, of the aggravating

       factor. Even if Johnson’s prior arrests are only marginally relevant to the

       present offense of dealing in cocaine, the trial court is under no obligation to

       assign any particular weight to any aggravating or mitigating factor, and we will

       not interfere with the trial court’s sentencing discretion by reweighing the

       various circumstances. See Kimbrough v. State, 979 N.E.2d 625, 628 (Ind. 2012).

                                          B. Cocaine as Compensation

[14]   Johnson also contends that there is no evidence to support the trial court’s

       finding as an aggravating circumstance that he compensated Jones with

       Court of Appeals of Indiana | Memorandum Decision | 20A05-1410-CR-512 | April 16, 2015   Page 7 of 12
       cocaine. It is well established that the aggravating and mitigating circumstances

       enumerated in the sentencing statutes “do not limit the matters that the court

       may consider in determining the sentence.” I.C. § 35-38-1-7.1(c). Specifically,

       at the sentencing hearing, the trial court explained, “You paid your rent with

       cocaine, which the essence of dealing cocaine is transferring possession. It

       would appear you transferred possession. That makes you a dealer in cocaine.”

       (Sent. Tr. p. 13). According to Johnson,

               It appears that the trial court was relying upon the probable cause
               affidavit in support of this finding; however, the probable cause
               affidavit was never admitted during the change of plea hearing or
               sentencing hearing. Nor was Mr. Johnson asked about the contents of
               the probable cause affidavit and whether the representations therein
               were accurate. Therefore, the probable cause affidavit is not part of
               the record that the trial court can rely upon in finding aggravating
               circumstances.
       (Appellant’s Br. p. 8). Again, we disagree.


[15]   When reviewing a sentencing decision, our court will “presume the trial [court]

       is aware of and knows the law, and considers only evidence properly before the

       judge in reaching a decision.” Malenchik v. State, 928 N.E.2d 564, 574 (Ind.

       2010). In this case, the trial court considered, in part, the information in the

       PSI report in determining the existence of aggravating and mitigating factors.

       Dillard v. State, 827 N.E.2d 570, 576 (Ind. Ct. App. 2005), trans. denied. The

       purpose of a PSI investigation and report is “to provide information to the court

       for use at individualized sentencing.” Id. Prior to sentencing, the defendant

       must be afforded an opportunity to examine the PSI report and to challenge any

       inaccuracies. Id.

       Court of Appeals of Indiana | Memorandum Decision | 20A05-1410-CR-512 | April 16, 2015   Page 8 of 12
[16]   By statute, the PSI report must contain information concerning “the

       circumstances attending the commission of the offense.” I.C. § 35-38-1-9(b)(1).

       It may also include any other “matter that the probation officer conducting the

       investigation believes is relevant to the question of sentence.” I.C. § 35-38-1-

       9(c). In the information related to the “Present Offense,” the PSI report stated

       that “Johnson reported the crack cocaine belonged to him. He stated he had

       been selling crack cocaine from Ms. Jones’ home for a month and a half. He

       stated he compensated Ms. Jones with cocaine for allowing him to sell from her

       home.” (Appellant’s App. p. 53). At the start of the sentencing hearing,

       Johnson indicated that he had reviewed the PSI report, and with the exception

       of updating the status of his pending Marshall County case, agreed that the PSI

       report was accurate. By not raising any factual challenges to the PSI report,

       Johnson essentially admitted “to the accuracy of the facts contained therein.”

       Chupp v. State, 830 N.E.2d 119, 126 n.12 (Ind. Ct. App. 2005). Because the trial

       court is entitled to accept the PSI report and make a decision based “on the

       facts recited therein[,]” we find that the trial court did not abuse its discretion by

       considering Johnson’s use of cocaine as compensation to Jones as an

       aggravating circumstance. Butrum v. State, 469 N.E.2d 1174, 1178 (Ind. 1984).


                                      II. Appropriateness of the Sentence

[17]   Lastly, Johnson requests that our court exercise its authority to revise his

       sentence to a term of twenty years, with ten years executed in the DOC and ten

       years suspended to probation. As already noted, the trial court imposed the

       advisory sentence of thirty years, with seven years suspended to probation. The


       Court of Appeals of Indiana | Memorandum Decision | 20A05-1410-CR-512 | April 16, 2015   Page 9 of 12
       advisory sentence “is the starting point the Legislature selected as an

       appropriate sentence for the crime committed.” Gomillia, 13 N.E.3d at 852

       (quoting Anglemyer, 868 N.E.2d at 494). Even though the trial court imposed a

       sentence that is permissible under Indiana’s sentencing statutes, we may revise

       the sentence if 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).

       Notwithstanding our power to review and revise sentences, we are mindful of

       the deference owed to the trial court based on its unique perspective in matters

       of sentencing. Williams, 997 N.E.2d at 1165.


[18]   As our supreme court has explained, “‘reasonable minds may differ’ on the

       appropriateness of a sentence based 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.’” Parks v. State, 22 N.E.3d 552,

       555 (Ind. 2014) (quoting Buchanan v. State, 767 N.E.2d 967, 970 (Ind. 2002)).

       Thus, in an Appellate Rule 7(B) review, our role is to seek “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). Johnson bears the burden of persuading this court that his sentence has

       satisfied the “inappropriateness standard of review.” Kimbrough, 979 N.E.2d at

       630.


[19]   Regarding the nature of the offense, Johnson posits that “[t]here are no facts in

       the record that would indicate the nature of the crime was anything more than

       Court of Appeals of Indiana | Memorandum Decision | 20A05-1410-CR-512 | April 16, 2015   Page 10 of 12
       just a run of the mill dealing in cocaine.” (Appellant’s Br. p. 9). However, the

       record reveals that Johnson was found in possession of 13.2 grams of cocaine,

       packaged in forty-five individual bags. Possession of cocaine in an amount that

       exceeds three grams elevates the charge from a Class B felony to a Class A

       felony. I.C. § 35-48-4-1(b)(1) (2013). Johnson possessed more than four times

       the amount necessary to satisfy the enhancement. Furthermore, Johnson had

       been using Jones’ apartment to conduct his drug business, and he compensated

       her with cocaine. Although Johnson argues that “[t]here were no weapons or

       children present[,]” the State stated at the sentencing hearing that Johnson’s

       “run of the mill” operation was located less than 1,000 feet from a public park.

       (Appellant’s Br. p. 9). Finally, we are unpersuaded by Johnson’s assertion that

       he “took full responsibility for his actions.” (Appellant’s Br. p. 9). Nearly a full

       year passed between Johnson’s arrest and guilty plea, and he waited until four

       days prior to the trial before changing his plea.


[20]   As to the character of the offender, the record establishes that Johnson has a

       tenth grade education; he lives with his mother; and even before his arrest, his

       employment history was sporadic at best. Johnson also has a young daughter,

       of whom he does not have custody, and is required to pay $55 per week in child

       support. Despite Johnson’s comments to law enforcement that he generates a

       $200 profit by selling an “eight ball” of cocaine, at the time of sentencing,

       Johnson was approximately $1,500 in arrears in his child support obligation.

       (Sent. Tr. p. 9). Moreover, Johnson has continually displayed his disregard for

       the court’s authority and the laws of this State. Not only did he fail to appear


       Court of Appeals of Indiana | Memorandum Decision | 20A05-1410-CR-512 | April 16, 2015   Page 11 of 12
       on four separate occasions, he admittedly smoked marijuana while he was

       released on bond for a serious drug charge. Johnson attempted to justify his

       marijuana use based on the stress he experienced as a result of his criminal

       proceedings, but as the trial court aptly remarked, Johnson created his own

       stress; nobody forced him to sell cocaine and then “make the situation worse by

       doing another illegal act.” (Sent. Tr. p. 17). Rather than taking advantage of

       his youth and minimal criminal history to pursue an education or meaningful

       employment in order to provide a better life for his daughter, Johnson chose to

       pursue a criminal lifestyle. Under these circumstances, we cannot conclude

       that the advisory sentence was inappropriate.


                                               CONCLUSION

[21]   Based on the foregoing, we conclude that the trial court did not abuse its

       discretion because it found valid aggravating circumstances and imposed a

       sentence authorized by statute. We further conclude that Johnson’s sentence is

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


[22]   Affirmed.


[23]   Bailey, J. and Barnes, J. concur




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