MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                          FILED
this Memorandum Decision shall not be                                       Nov 27 2019, 9:48 am
regarded as precedent or cited before any
court except for the purpose of establishing                                    CLERK
                                                                            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
Alexander L. Hoover                                     Curtis T. Hill, Jr.
Law Office of Christopher G. Walter,                    Attorney General of Indiana
P.C.                                                    Tiffany A. McCoy
Nappanee, Indiana                                       Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Ronald Victor Johnson,                                  November 27, 2019
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        19A-CR-994
        v.                                              Appeal from the Marshall Superior
                                                        Court
State of Indiana,                                       The Honorable Robert O. Bowen,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        50D01-1804-F3-6



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-994 | November 27, 2019                Page 1 of 11
[1]   Ronald Victor Johnson appeals his conviction for dealing in a look-a-like

      substance as a level 5 felony and asserts his sentence is inappropriate. We

      affirm.


                                         Facts and Procedural History

[2]   On October 2, 2017, Johnson discussed selling marijuana to a confidential

      informant (“C.I.1.”), negotiated the weight of the marijuana, and selected to

      meet at the Family Express. While an undercover officer and C.I.1. were at the

      Family Express, “the message came through saying that . . . D would drop it

      off,” and Deandre Pickford met C.I.1. and sold her marijuana. Transcript

      Volume II at 77. On October 6, 2017, Johnson sold marijuana to a second

      confidential informant (“C.I.2.”).


[3]   On November 30, 2017, Johnson contacted C.I.2. and stated he had liquid

      morphine available for purchase which he had obtained from his grandfather.

      He indicated he might have “D” meet C.I.2. Id. at 63. Johnson met with

      C.I.2., C.I.2. handed money to Johnson, and Johnson poured a substance into

      a water bottle because C.I.2. was not buying the entire bottle. C.I.2. believed he

      was buying morphine.


[4]   On April 2, 2018, the State charged Johnson with three counts of dealing in

      marijuana as level 6 felonies as Counts I, II, and III, and one count of dealing

      in a schedule II controlled substance as a level 3 felony as Count IV. 1 The State



      1
          Count I alleged dealing on September 21, 2017.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-994 | November 27, 2019   Page 2 of 11
      also filed a notice of intent to seek an enhancement based upon a prior

      conviction with respect to Counts I, II, and III. On February 27, 2019, the

      State filed an amended charging information modifying Count IV to dealing in

      a look-a-like substance as a level 5 felony.


[5]   The court held a bench trial and found Johnson not guilty on Count I and guilty

      on Counts II, III, and IV. At sentencing, Johnson apologized to his family and

      stated jail helped him understand that he has so much more to offer. Johnson’s

      counsel mentioned Article 1 Section 16 of the Indiana Constitution and the rule

      of proportionality and argued:


              Now that particular article indicates that if he commits one (1)
              set of – commits an offense and the facts in those particular
              offense would also be grounds for conviction in a . . . situation
              where it’s a lower felony, the Court should take that into account
              in terms of sentencing. I point that out because under 35-48-4-4.5
              Dealing in a Substance Represented to be a Controlled Substance
              what he did fits in that particular situation because it says a
              person who knowingly or intentionally delivers a substance other
              than a controlled substance, which that was the case, or a drug
              for which prescription is required, which it is for morphine,
              under federal or state law that is expressly or impliedly
              represented to be a controlled substance. That’s a Level 6
              Felony. They charged him under a Level 5 on the exact facts
              that he would be guilty of a Level 6, so, I think, under the
              Constitution, I think the Court can’t sentence him beyond the
              Level 6 framework. So we’re asking the Court to impose just an
              advisory sentence on all of the sentences, run them concurrent,
              which I think the Court has to do and we’d ask the Court to
              sentence him in that fashion.


      Id. at 96-97.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-994 | November 27, 2019   Page 3 of 11
[6]   On April 4, 2019, the court sentenced Johnson to one and one-half years for

      Counts II and III and four years with one year suspended for Count IV to be

      served concurrently. The court also stated that it would consider a sentence

      modification if Johnson successfully completes the clinically appropriate

      substance abuse treatment as determined by the Department of Correction

      (“DOC”) and is free of conduct violations during incarceration.


                                                  Discussion

[7]   Johnson argues that he should not have been convicted under Count IV of

      dealing in a look-alike substance pursuant to the doctrine of proportionality

      under Article 1, Section 16 of the Indiana Constitution. He also argues that his

      sentence is inappropriate because the facts do not warrant any enhancements

      and he was contrite, battled with illicit substances, and was only twenty-five

      years old.


[8]   As for Johnson’s proportionality argument, Article 1, Section 16 provides that

      “[a]ll penalties shall be proportioned to the nature of the offense.” It is violated

      only when the criminal penalty is not graduated and proportioned to the nature

      of the offense. Knapp v. State, 9 N.E.3d 1274, 1289 (Ind. 2014), cert. denied, 135

      S. Ct. 978 (2015). Though we “cannot set aside a legislatively sanctioned

      penalty merely because it seems too severe,” Article 1, Section 16 requires us to

      review whether a sentence is not only within statutory parameters, but also

      constitutional as applied to the particular defendant. Id. at 1290. “A sentence

      violates the Proportionality Clause when ‘offenses with identical elements [are]

      given different sentences.’” Johnson v. State, 103 N.E.3d 704, 707 (Ind. Ct. App.
      Court of Appeals of Indiana | Memorandum Decision 19A-CR-994 | November 27, 2019   Page 4 of 11
      2018) (quoting Poling v. State, 853 N.E.2d 1270, 1276-1277 (Ind. Ct. App. 2006),

      reh’g denied), trans. denied.


[9]   The State charged Johnson with Count IV under Ind. Code § 35-48-4-4.6(a),

      which at the time of the offense and sentencing provided:


               A person who knowingly or intentionally:

                        (1) manufactures;

                        (2) finances the manufacture of;

                        (3) advertises;

                        (4) distributes; or

                        (5) possesses with intent to manufacture, finance the
                        manufacture of, advertise, or distribute;

               a substance described in section 4.5 of this chapter commits a
               Level 5 felony.


      (Subsequently amended by Pub. L. No. 80-2019, § 27 (eff. July 1, 2019)). 2 The

      amended charging information alleged that Johnson “did knowingly distribute

      a substance other than a controlled substance or a drug for which a prescription

      is required under federal or state law, said substance being expressly or

      impliedly represented to be a controlled substance, to-wit: Ronald Victor




      2
       The legislature amended the statute in 2019 to provide that “[a] person who knowingly or intentionally . . .
      distributes . . . a substance represented to be a controlled substance commits a Level 6 felony. However, the
      offense is a Level 5 felony if the person has a prior unrelated conviction under this chapter.” Ind. Code § 35-
      48-4-4.6; see Pub. L. No. 80-2019, § 27 (eff. July 1, 2019).

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-994 | November 27, 2019                   Page 5 of 11
       Johnson advised he has 15ml of purported Morphine Sulfate Oral Solution . . .

       .” Appellant’s Appendix Volume II at 120.


[10]   Johnson points to Ind. Code § 35-48-4-4.5, which at the time of the offense

       provided:


               (a) A person who knowingly or intentionally delivers or finances
               the delivery of any substance, other than a controlled substance
               or a drug for which a prescription is required under federal or
               state law, that:

                       (1) is expressly or impliedly represented to be a controlled
                       substance;

                       (2) is distributed under circumstances that would lead a
                       reasonable person to believe that the substance is a
                       controlled substance; or

                       (3) by overall dosage unit appearance, including shape,
                       color, size, markings, or lack of markings, taste,
                       consistency, or any other identifying physical
                       characteristic of the substance, would lead a reasonable
                       person to believe the substance is a controlled substance;

               commits dealing in a substance represented to be a controlled
               substance, a Level 6 felony.

               (b) In determining whether representations have been made,
               subject to subsection (a)(1), or whether circumstances of
               distribution exist, subject to subsection (a)(2), the trier of fact
               may consider, in addition to other relevant factors, the following:

                       (1) Statements made by the owner or other person in
                       control of the substance, concerning the substance’s
                       nature, use, or effect.



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-994 | November 27, 2019   Page 6 of 11
                       (2) Statements made by any person, to the buyer or
                       recipient of the substance, that the substance may be resold
                       for profit.

                       (3) Whether the substance is packaged in a manner
                       uniquely used for the illegal distribution of controlled
                       substances.

                       (4) Whether:

                                (A) the distribution included an exchange of, or
                                demand for, money or other property as
                                consideration; and

                                (B) the amount of the consideration was
                                substantially greater than the reasonable retail
                                market value of the substance.


       (Subsequently repealed by Pub. L. No. 80-2019, § 26 (eff. July 1, 2019)).


[11]   Johnson asserts that “each and every element could have been checked off

       under former Ind. Code § 35-48-4-4.5 just as easily as former Ind. Code § 35-48-

       4-4.6(a)” and that “the nature of the offense was exactly what is described

       under Ind. Code § 35-48-4-4.5 in that [he] was attempting to deal a substance

       represented to be a controlled substance.” Appellant’s Brief at 10. He requests

       that we remand with instructions to sentence him under a level 6 felony as

       opposed to a level 5 felony.


[12]   The State asserts that convictions under Ind. Code §§ 35-48-4-4.5 and 4.6 do not

       require proof of identical elements. It points out that to convict a defendant

       under subsection 4.5(a) it was required to prove that a defendant delivered or

       financed the delivery of a look-a-like substance, while subsection 4.6(a) required

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-994 | November 27, 2019   Page 7 of 11
       it to prove that a defendant distributed a look-a-like substance described in

       subsection 4.5. It also correctly points out that Ind. Code § 35-48-1-11 defines

       “[d]elivery” as “(1) an actual or constructive transfer from one (1) person to

       another of a controlled substance, whether or not there is an agency

       relationship; or (2) the organizing or supervising of an activity described in

       subdivision (1),” and that Ind. Code § 35-48-1-14 defines “[d]istribute” as “to

       deliver other than by administering or dispensing a controlled substance.”


[13]   In Conner v. State, 626 N.E.2d 803, 804 (Ind. 1993), the Indiana Supreme Court

       mentioned the distinction between Ind. Code §§ 35-48-4-4.5 and 35-48-4-4.6. In

       that case, James Conner conveyed sixteen small plastic bags of plant material to

       a police informant in exchange for $1,600. Subsequent testing found no traces

       of marijuana in the various test samples of the plant material. 626 N.E.2d at

       804. On appeal, the Indiana Supreme Court observed that “[i]f only James

       Conner had filled his sandwich baggies with real marijuana instead of the

       harmless moist plant material he sold to the police informant” and that “[t]o his

       surprise and dismay, under Indiana’s drug statutes selling fake marijuana is

       classified as a much more serious crime than selling actual marijuana.” Id. The

       Court observed that Conner’s sentence was twice as long as the maximum

       penalty he would have faced had the chemist found any evidence of marijuana

       and that “dealing nearly ten pounds of real marijuana exposes one to less

       criminal liability than distributing even one gram of fake marijuana.” Id. at

       805. The Court found that the six-year prison term he received was twice the

       maximum penalty available had he sold actual marijuana to the police


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-994 | November 27, 2019   Page 8 of 11
       informant and that such a doubling of the penalty was out of proportion to the

       nature of the offense. Id. at 806. The Court noted:


               The distinction between dealing (§ 35-48-4-4.5) and distributing
               (§ 35-48-4-4.6) is less than precise. The structure of § 4.6 suggests
               it is geared to larger, commercial operations, prohibiting
               manufacturing, financing the manufacture, advertising, or
               distributing substances represented to be controlled substances.

               Unfortunately, the term “distribute” also appears in § 4.5’s
               prohibition on dealing in such substances. For example, sub-
               section (a)(2) refers to substances which are “distributed under
               circumstances that would lead a reasonable person to believe that
               the substance is a controlled substance,” (emphasis supplied),
               and sub-section (b)(4)(A) focuses on whether “the distribution
               included an exchange of . . . money,” (emphasis supplied).

               Though cognizant of this ambiguity, we decline to find fault with
               the prosecution’s decision to charge Conner under § 4.6.


       Id. at 805 n.4.


[14]   Unlike in Conner, Johnson informed C.I.2. that he had liquid morphine

       available for purchase. Further, while the Court noted that the distinction

       between dealing (Ind. Code § 35-48-4-4.5) and distributing (Ind. Code § 35-48-

       4-4.6) is “less than precise,” it suggested a distinction existed and declined to

       find fault with the prosecution’s decision to charge Conner under Ind. Code §

       35-48-4-4.6. The record reveals that Johnson, who previously dealt marijuana

       to two separate confidential informants, poured liquid out of a bottle he alleged

       to contain morphine and sold it to C.I.2. We do not find a violation of Article

       1, Section 16.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-994 | November 27, 2019   Page 9 of 11
[15]   With respect to Johnson’s argument that his sentence is inappropriate, we note

       that Ind. Appellate Rule 7(B) provides that we “may revise a sentence

       authorized by statute 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.” Under this rule, the burden is on the defendant

       to persuade the appellate court that his or her sentence is inappropriate.

       Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).


[16]   Ind. Code § 35-50-2-6 provides that a person who commits a level 5 felony shall

       be imprisoned for a fixed term of between one and six years with the advisory

       sentence being three years. Ind. Code § 35-50-2-7 provides that a person who

       commits a level 6 felony shall be imprisoned for a fixed term of between six

       months and two and one-half years with the advisory sentence being one year.


[17]   Our review of the nature of the offense reveals that Johnson twice sold

       marijuana and sold what he asserted to be morphine. Our review of the

       character of the offender reveals that Johnson pled guilty to dealing in

       marijuana as a class A misdemeanor in 2017 and had other pending cases

       involving charges for disorderly conduct as a class B misdemeanor, battery

       resulting in bodily injury as a class A misdemeanor, battery as a class B

       misdemeanor, theft as a class A misdemeanor, and theft of a firearm as a level 6

       felony. The presentence investigation report indicates that Johnson reported

       using marijuana and morphine on a daily basis and that he had never been in

       treatment. It also states that his overall risk assessment score using the Indiana

       risk assessment system places him in the moderate risk to reoffend category.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-994 | November 27, 2019   Page 10 of 11
[18]   After due consideration, we conclude that Johnson has not sustained his burden

       of establishing that the concurrent sentences of one and one-half years for

       Counts II and III and four years with one year suspended for Count IV is

       inappropriate. Additionally, the court’s order states that it would consider a

       sentence modification if he successfully completes the clinically appropriate

       substance abuse treatment program as determined by the DOC and is free of

       conduct violations. His sentence is not inappropriate in light of the nature of

       the offense and his character.


[19]   For the foregoing reasons, we affirm Johnson’s convictions and sentence.


[20]   Affirmed.


       Tavitas, J., concurs.


       Altice, J., concurs in result without opinion.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-994 | November 27, 2019   Page 11 of 11
