MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                        FILED
this Memorandum Decision shall not be
                                                                       May 08 2019, 9:05 am
regarded as precedent or cited before any
court except for the purpose of establishing                                  CLERK
                                                                        Indiana Supreme Court
the defense of res judicata, collateral                                    Court of Appeals
                                                                             and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Steven E. Ripstra                                        Curtis T. Hill, Jr.
Ripstra Law Office                                       Attorney General of Indiana
Jasper, Indiana
                                                         Taylor C. Byrley
                                                         Angela Sanchez
                                                         Deputy Attorneys General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Johnathon B. Franzell,                                   May 8, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-2806
        v.                                               Appeal from the
                                                         Dubois Superior Court
State of Indiana,                                        The Honorable
Appellee-Plaintiff.                                      Mark R. McConnell, Judge
                                                         Trial Court Cause No.
                                                         19D01-1710-F5-1047



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2806 | May 8, 2019                     Page 1 of 13
[1]   Johnathon B. Franzell (“Franzell”) pleaded guilty to trafficking with an inmate1

      as a Level 5 felony and was sentenced to four years in the Indiana Department

      of Correction (“the DOC”), which were ordered to be served consecutive to

      sentences ordered in two other cause numbers. Franzell appeals his sentence

      and raises the following restated issues:


                 I.       Whether the trial court abused its discretion in sentencing
                          Franzell because it did not find a mitigating factor that was
                          clearly supported by the record and because it found an
                          aggravating factor that was not supported by the record;


                 II.      Whether Franzell’s sentence is inappropriate in light of the
                          nature of the offense and the character of the offender; and


                 III.     Whether Franzell’s sentence was required to be served
                          consecutively under Indiana Code section 35-50-1-2(e).


[2]   We affirm.


                                      Facts and Procedural History
[3]   On October 12, 2017, Franzell was incarcerated in the Dubois County Security

      Center while serving a sentence in Cause Number 19D01-1101-FB-24 (“Cause

      24”) and awaiting sentencing in Cause Number 19C01-1701-F5-114 (“Cause

      114”). Tr. at 3-4; Appellant’s App. Vol. 2 at 19. The Dubois County Jail

      commander received information that drugs were being smuggled into the jail




      1
          See Ind. Code § 35-44.1-3-5(b)(1).


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2806 | May 8, 2019    Page 2 of 13
      and were possibly located in a contact solution bottle behind the light in cell D-

      3. Appellant’s App. Vol. 2 at 9, 18. Officers went to cell D-3 to investigate, and

      when they got there, they saw an inmate, Damion Pryor (“Pryor”), pick up a

      cup and drink all the liquid inside the cup before the officers could begin their

      search. Id. at 9. After reviewing several jail calls by inmates and speaking with

      other inmates, the officers determined that Franzell was the one who had

      arranged for the drugs to be brought into the facility. Id. at 9-10.


[4]   Officers interviewed Franzell, and he told them that he had arranged for the

      drugs to come into the facility and that the drugs were a form of payback from

      someone who owed him money. Id. at 10. After analyzing Franzell’s phone

      calls, officers determined that Franzell was contacting his step-daughter to

      obtain the drugs and that she would find someone else to bring them to the jail

      because she did not want to transport the drugs to the jail. Id. When the drugs

      arrived in the jail, the inmates would place the liquid, which contained

      methamphetamine, on a mirror and wait for it to dry, then scrape up the

      powder and snort it. Id. at 9. Franzell told officers that this was the second

      time that drugs had come into the facility in a contact solution bottle; he also

      stated that the first time had been a few days earlier, but that delivery had been

      too weak to get anything from it. Id. at 10.


[5]   The officers then tried to speak to Pryor, who immediately became angry and

      refused to talk with the officers. Id. at 10. They noticed that Pryor was acting

      strangely and that his eyes were rolling back into his head. Id. The officers

      took Pryor to the emergency room and informed the staff that they believed

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2806 | May 8, 2019   Page 3 of 13
      Pryor had ingested drugs at the jail. Id. When asked by the nurses what he had

      taken, Pryor told them that he was under the influence of methamphetamine

      and that he had been taking methamphetamine for the past several days. Id. at

      10-11. Pryor informed the nurses that he had drunk the methamphetamine but

      did not know how much he ingested and that he had been awake for four days

      straight. Id. at 11. Lab results indicated that Pryor was under the influence of

      amphetamines, methamphetamine, and ecstasy. Id.


[6]   On October 16, 2017, the State charged Franzell with one count of trafficking

      with an inmate as a Level 5 felony. On May 17, 2018, Franzell pleaded guilty

      to the charge, and on August 15, 2018, the trial court sentenced him to four

      years in the DOC. This sentence was ordered to be served consecutive to the

      sentences in Cause 24 and Cause 114. Id. at 12. In sentencing Franzell, the

      trial court found as aggravating factors Franzell’s extensive criminal history, the

      fact that the offense occurred while Franzell was serving another sentence, and

      the harm or injury suffered as a result of the offense was greater than the

      elements of the offense. Tr. at 21-22. The trial court stated that it considered

      Franzell’s remorse and the fact that his imprisonment might cause undue

      hardship to his dependents as mitigating factors but gave them little weight and

      found the aggravating factors to outweigh the mitigating factors. Id. at 22-23.

      Franzell now appeals.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2806 | May 8, 2019   Page 4 of 13
                                     Discussion and Decision

                         I.       Aggravating and Mitigating Factors
[7]   Franzell contends that the trial court abused its discretion when it sentenced

      him because it failed to consider a mitigating factor that was supported by the

      record and relied on an improper aggravating factor. Sentencing decisions rest

      within the sound discretion of the trial court and are reviewed on appeal only

      for an abuse of discretion. Forshee v. State, 56 N.E.3d 1182, 1185 (Ind. Ct. App.

      2016). “An abuse of discretion occurs if the decision is clearly against the logic

      and effect of the facts and circumstances before the court, or the reasonable,

      probable, and actual deductions to be drawn therefrom.” Id. (quotation marks

      omitted). When imposing a sentence in a felony case, the trial court must

      provide a reasonably detailed sentencing statement explaining its reason for

      imposing the sentence. Id. The trial court can abuse its discretion in four ways

      when sentencing a defendant: (1) failing to enter a sentencing statement at all;

      (2) finding an aggravating circumstance that is not supported by the record; (3)

      failing to find a mitigating circumstance that is significant and supported by the

      record; and (4) relying on reasons that are improper as a matter of law.

      Anglemyer v. State, 868 N.E.2d 482, 490-91 (Ind. 2007), clarified on other grounds

      on reh’g, 875 N.E.2d 218 (Ind. 2007).


[8]   Franzell first argues that the trial court abused its discretion in sentencing him

      because it failed to consider a significant mitigating factor that was clearly

      supported by the record. He asserts that his guilty plea should have been found

      to be a significant mitigator because it spared the State the expense of a trial.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2806 | May 8, 2019   Page 5 of 13
[9]    The determination of mitigating circumstances is within the discretion of the

       trial court. Rogers v. State, 878 N.E.2d 269, 272 (Ind. Ct. App. 2007), trans.

       denied. The trial court is not obligated to accept the defendant’s argument as to

       what constitutes a mitigating factor, and it is not required to give the same

       weight to proffered mitigating factors as does a defendant. Id. An allegation

       that the trial court failed to identify or find a mitigating factor requires the

       defendant to establish that the mitigating evidence is both significant and clearly

       supported by the record. Edsall v. State, 983 N.E.2d 200, 205 (Ind. Ct. App.

       2013). If the trial court does not find the existence of a mitigating factor after it

       has been argued by counsel, it is not obligated to explain why it has found that

       the factor does not exist. Anglemyer, 868 N.E.2d at 493.


[10]   Here, the trial court did not ignore the fact that Franzell pleaded guilty and

       showed remorse. In fact, it acknowledged his guilty plea and remorsefulness

       and considered it as a mitigating factor but stated that it gave it “very little

       weight.” Tr. at 22. The trial court was not required to give the guilty plea the

       weight Franzell requested, so its decision to give it less weight cannot be an

       abuse of discretion. See Rogers, 878 N.E.2d at 272. Because Franzell’s guilty

       plea was not ignored as a mitigating factor by the trial court, Franzell’s

       argument amounts to a request for this court to reweigh a sentencing factor

       already considered by the trial court, which we cannot do. Anglemyer, 868

       N.E.2d at 490-91.


[11]   Franzell next argues that the trial court abused its discretion when it found that

       the harm or injury suffered as a result of the offense was significant and greater

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2806 | May 8, 2019   Page 6 of 13
       than the elements of the offense to be an aggravating factor. He contends that

       his actions in committing the offense of trafficking with an inmate “did not

       exceed, even slightly, the elements required by the statute.” Appellant’s Br. at

       11. He, therefore, asserts that this aggravating factor was not supported by the

       record.


[12]   The crime to which Franzell pleaded guilty, trafficking with an inmate, requires

       a showing that a person, without prior authorization of someone in charge of

       the penal facility, knowingly or intentionally delivered or carried a controlled

       substance into the penal facility. Ind. Code § 35-44.1-3-5(b). The evidence in

       the record establishes that Franzell, without authorization of anyone in charge

       of the penal facility, knowingly and intentionally arranged for a controlled

       substance to be brought into the facility and delivered to an inmate. These facts

       provide evidence beyond what is required by the elements. The evidence

       supports the finding by the trial court that the harm, injury, loss, or damage

       suffered by the victim was significant. The victim in this case was Pryor, who

       ingested the methamphetamine that Franzell brought into the facility. Pryor

       drank a cup of the methamphetamine and water mixture that was contained in

       the contact solution bottle, which was how the drugs were brought into the

       facility. Appellant’s App. Vol. 2 at 10. The harm that Pryor suffered was

       significant because as a result of Franzell’s action of delivering the drugs into

       the facility, Pryor ingested a potentially lethal amount of methamphetamine

       and had to be taken to the emergency room for treatment. Id. We conclude




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2806 | May 8, 2019   Page 7 of 13
       that the trial court did not abuse its discretion in its finding of aggravating and

       mitigating factors.


                                     II.     Inappropriate Sentence
[13]   Pursuant to Indiana Appellate Rule 7(B), this court “may revise a sentence

       authorized by statute if, after due consideration of the trial court’s decision, the

       [c]ourt finds that the sentence is inappropriate in light of the nature of the

       offense and the character of the offender.” Our Supreme Court has explained

       that the principal role of appellate review should be to attempt to leaven the

       outliers, “not to achieve a perceived ‘correct’ result in each case.” Cardwell v.

       State, 895 N.E.2d 1219, 1225 (Ind. 2008). We independently examine the

       nature of Franzell’s offense and his character under Appellate Rule 7(B) with

       substantial deference to the trial court’s sentence. Satterfield v. State, 33 N.E.3d

       344, 355 (Ind. 2015). “In conducting our review, 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.’” Barker v.

       State, 994 N.E.2d 306, 315 (Ind. Ct. App. 2013), trans. denied. Whether a

       sentence is inappropriate ultimately depends upon “the culpability of the

       defendant, the severity of the crime, the damage done to others, and a myriad

       of other factors that come to light in a given case.” Cardwell, 895 N.E.2d at

       1224. Franzell bears the burden of persuading this court that his sentence is

       inappropriate. Id.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2806 | May 8, 2019   Page 8 of 13
[14]   Franzell contends that his four-year sentence is inappropriate in light of the

       nature of his offense and his character. He asserts that, as to the nature of his

       offense, the facts of his offense track the statutory elements and are not unusual,

       violent, or excessive. As to his character, Franzell concedes that he has a

       lengthy criminal history but asserts that it “is not as bad as it looks.” Appellant’s

       Br. at 12. He reasons that, although his criminal history spans twenty-four

       years, it only contains eight felony and eight misdemeanor convictions. Based

       on an analysis under Appellate Rule 7(B), Franzell argues that his sentence is

       inappropriate and that he deserves a community-based sentence or, at worst,

       the three-year advisory sentence.


[15]   When determining whether a sentence is inappropriate, the advisory sentence is

       the starting point the legislature has selected as an appropriate sentence for the

       crime committed. Kunberger v. State, 46 N.E.3d 966, 973 (Ind. Ct. App. 2015);

       Thompson v. State, 5 N.E.3d 383, 391 (Ind. Ct. App. 2014). Franzell was

       convicted of a Level 5 felony, and the advisory sentence for a Level 5 felony

       conviction is three years, with a range of between one and six years. Ind. Code

       § 35-50-2-6(b). Franzell was given a four-year sentence for his Level 5 felony

       conviction.


[16]   As this court has recognized, the nature of the offense is found in the details

       and circumstances of the commission of the offense and the defendant’s

       participation. Perry v. State, 78 N.E.3d 1, 13 (Ind. Ct. App. 2017). “When

       determining the appropriateness of a sentence that deviates from an advisory

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

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2806 | May 8, 2019   Page 9 of 13
       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.’” Moyer v. State, 83 N.E.3d 136, 142 (Ind. Ct. App. 2017) (quoting

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

       Here, Franzell, while incarcerated for other offenses, contacted his step-

       daughter from a jail phone to have her obtain narcotics so that he and other

       inmates could ingest the drugs. Appellant’s App. Vol. 2 at 10. Franzell told the

       officers that these drugs were a form of payment from someone who owed him

       money. Id. The drugs were brought into the facility in contact solution bottles

       in order to hide them from the officers. Id. Franzell enlisted his step-daughter

       in his criminal scheme by making her obtain the drugs and find someone to

       deliver them because she was not comfortable bringing them to the jail. Id.

       The offense is made more egregious by the fact that Pryor, who ingested the

       drugs, was taken to the emergency room after the officers attempting to

       interview him noticed that he was acting strange and his eyes were rolling into

       the back of his head. Id. The nature of this offense is clearly aggravating given

       the fact that Franzell was obtaining an extremely addictive and harmful

       controlled substance by concealing the substance and having it brought into the

       facility. We conclude that Franzell’s sentence is not inappropriate in light of

       the nature of the offense.


[17]   The character of the offender is found in what we learn of the offender’s life and

       conduct. Perry, 78 N.E.3d at 13. When considering the character of the

       offender, one relevant fact is the defendant’s criminal history. Johnson v. State,

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2806 | May 8, 2019   Page 10 of 13
       986 N.E.2d 852, 857 (Ind. Ct. App. 2013). The evidence presented showed that

       Franzell has an extensive and lengthy criminal history spanning twenty-four

       years. Although many of his charges were dismissed or the dispositions are

       unknown, Franzell has amassed a criminal history consisting of twenty-seven

       cases containing at least forty-three charges and resulting in approximately

       sixteen felony convictions and six misdemeanor convictions. At sentencing,

       Franzell admitted that most of his extensive criminal history is related to or

       involved the use of illegal drugs, and he reported that he had been using illegal

       drugs since he was a teenager and continued such use even when incarcerated.

       Tr. at 11; Appellant’s App. Vol. 2 at 32. Over the course of his criminal history,

       Franzell has had many probation violations. Both the extensive nature of his

       criminal history and his many violations of probation demonstrate that he is

       likely to reoffend and continue his pattern of criminal activity. We conclude

       that Franzell’s four-year sentence, which is one year over the advisory sentence,

       is not inappropriate in light of his character.


                                     III. Consecutive Sentences
[18]   Franzell argues that the trial court erred when it ordered that his sentence in the

       present case be served consecutive to his sentence in Cause 24. He contends

       that his sentence in the present case should run concurrent with and not

       consecutive to the sentence he received under Cause 24. He further asserts that

       the trial court erred in not awarding him credit time to be applied to his present

       sentence.



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2806 | May 8, 2019   Page 11 of 13
[19]   Under Indiana Code section 35-50-1-2(e), if after being arrested for one crime, a

       person commits another crime before being discharged from probation, parole,

       or a term of imprisonment for the first crime, the terms of imprisonment for the

       crimes shall be served consecutively. “To determine whether a prisoner is

       entitled to pre-trial credit for actual time served, we must determine whether the

       defendant was confined before trial and whether that confinement was the

       ‘result of the criminal charge for which [the] sentence is being imposed.’”

       Maciaszek v. State, 75 N.E.3d 1089, 1092 (Ind. Ct. App. 2017) (quoting Stephens

       v. State, 735 N.E.2d 278, 284 (Ind. Ct. App. 2000), trans. denied), trans. denied.

       See Ind. Code § 35-50-6-3 (requiring defendant be “confined awaiting trial or

       sentencing”).


               Thus, for example, [i]f a person incarcerated awaiting trial on
               more than one charge is sentenced to concurrent terms for the
               separate crimes, he or she is entitled to receive credit time applied
               against each separate term. However, if the defendant receives
               consecutive terms, he or she is only allowed credit time against
               the total or aggregate of the terms.


       Maciaszek, 75 N.E.3d at 1092 (quoting Payne v. State, 838 N.E.2d 503, 510 (Ind.

       Ct. App. 2005), trans. denied).


[20]   Here, when Franzell was charged with the crime in the present case, he was in

       jail serving the remainder of two sentences under Cause 24 and Cause 114.

       Appellant’s App. Vol. 2 at 27-29. Franzell does not challenge the consecutive

       sentence as applied to Cause 144, only that he is entitled to have his sentence

       run concurrent with the sentence in Cause 24, contending that his sentence

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2806 | May 8, 2019   Page 12 of 13
       under Cause 24 was completed on October 29, 2017. Appellant’s Br. at 13-16. If

       we take Franzell’s contention as true, then at the time of the instant crime,

       October 12, 2017, he was still serving his term of imprisonment under Cause

       24. Therefore, pursuant to Indiana Code section 35-50-1-2(e), the sentence in

       the present case is required to be served consecutive to the sentence in Cause

       24.


[21]   As to Franzell’s assertion that he is entitled to credit time for the time he spent

       incarcerated awaiting trial in this case, such an assertion is entirely dependent

       on a finding that the sentence in Cause 24 was to be served concurrent with the

       sentence in the present case. However, Franzell is not entitled to credit time

       because he was not confined as a “result of the criminal charge for which [the]

       sentence is being imposed.” Maciaszek, 75 N.E.3d at 1092. Instead, he was

       confined on the charges originating from Cause 24 and Cause 114. Therefore,

       Franzell is not entitled to credit time because, at the time he committed the

       instant crime, he was serving time for other charges. We conclude that

       Franzell’s argument that he is entitled to additional credit time is without merit.


[22]   Affirmed.


       Vaidik, C.J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2806 | May 8, 2019   Page 13 of 13
