Millard P. Johnson v. State of Indiana (mem. dec.) ( 2017 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Dec 14 2017, 10:47 am
regarded as precedent or cited before any CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Scott L. Barnhart Curtis T. Hill, Jr.
Brooke Smith Attorney General of Indiana
Keffer Barnhart LLP
Indianapolis, Indiana Tyler G. Banks
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Millard P. Johnson, December 14, 2017
Appellant-Defendant, Court of Appeals Case No.
82A01-1706-CR-1240
v. Appeal from the Vanderburgh
Circuit Court
State of Indiana, The Honorable Michael J. Cox,
Appellee-Plaintiff. Magistrate
Trial Court Cause Nos.
82C01-1612-F1-7094
82C01-1701-F4-426
Brown, Judge.
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[1] Millard P. Johnson appeals his sentence for two counts of child molesting as
level 4 felonies. Johnson raises one issue which we revise and restate as
whether his sentence is inappropriate in light of the nature of the offenses and
the character of the offender. We affirm.
Facts and Procedural History
[2] Between May 1 and July 31, 2016, Johnson touched M.E., a child under the
age of fourteen, under her clothing while she was sitting on his lap with the
intent to arouse or satisfy the sexual desires of the child or himself. On or about
December 1, 2016, Johnson touched R.M., a child under the age of fourteen,
under her clothing with the intent to arouse or satisfy the sexual desires of the
child or himself.
[3] On December 8, 2016, the State charged Johnson with two counts of child
molesting related to R.M. as level 1 felonies under cause number 82C01-1612-
F1-7094 (“Cause No. 94”). On January 24, 2017, the State charged Johnson
with two counts of child molesting related to M.E. as level 4 felonies under
cause number 82C01-1701-F4-426 (“Cause No. 26”). On April 13, 2017, the
State filed an amended information under Cause No. 94 alleging Johnson
committed two counts of child molesting related to R.M. as level 4 felonies.
Johnson pled guilty to the first count of child molesting as a level 4 felony under
Cause No. 94 and the first count of child molesting as a level 4 felony under
Cause No. 26, and the State dismissed the other charges.
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[4] At his sentencing hearing, the prosecutor stated that each of the victims were
three years old, that “[t]his was an in-home daycare, so there were multiple
other minors present while these crimes were taking place,” and that the parents
had entrusted their children to care in Johnson’s home. May 11, 2017
Transcript at 9. The prosecutor also noted that Johnson was in poor health
when the crimes were committed and argued that he nevertheless knew what he
was doing was wrong and that his poor health should not be given
consideration. The State asked for a sentence in excess of the advisory sentence
and that the sentences run consecutively. Johnson’s defense counsel argued
that Johnson was seventy-one years old and had no criminal history, the crimes
are highly unlikely to ever reoccur, Johnson is in very poor health and had
several major abdominal surgeries while in jail, the sheriff had suggested or
requested that Johnson be released to home detention while he was in the
hospital, Johnson has difficulty hearing, and Johnson’s hope was that his
brother could arrange a place in a nursing home for him. His counsel also
stated “I don’t think he’d make it 1 year in the Department of Corrections, if he
did, he’d be in the hospital ward being cared for the same way as he is here at
the county’s expense.” Id. at 14. His counsel asked that the sentence be
suspended to probation to allow him to finish out his days in a nursing home.
Johnson said that he was extremely sorry for what he had done. The
presentence investigation report (“PSI”) stated Johnson reported that he
suffered a brain injury while working in his sixties and that after the injury he
stopped working. The PSI also indicated that he was housed in the medical
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unit at the Vanderburgh County Jail and that the results of the IRAS-CST
indicate he is a low risk to reoffend.
[5] The trial court noted that the offenses occurred in a home daycare, Johnson
was in a position of having care, custody, or control of the children, and that
Johnson admitted his guilt, expressed remorse, has poor physical health, and
has no criminal history. The court sentenced Johnson to four years for his
conviction under Cause No. 94 and four years for his conviction under Cause
No. 26 and ordered the sentences to be served consecutively for an aggregate
sentence of eight years.
Discussion
[6] The issue is whether Johnson’s sentence is inappropriate in light of the nature of
the offense and his character. 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).
[7] Johnson argues that there does not appear to be anything particularly
aggravating about the nature of the offenses. He further argues that he had led
a law-abiding life for over seventy years prior to these offenses, that he was
determined to be a low risk to reoffend, and that he was remorseful for his
actions. He also argues that he had been and continues to be in poor health,
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that he was being housed in the medical unit at the jail, and that the State
acknowledged his poor health.
[8] The State argues that Johnson’s sentence is not inappropriate, that he received
less than the advisory sentence on each conviction, that he molested children
who were very young and who had been placed in his care at a daycare, and
that he has made no showing that the Department of Correction cannot
adequately treat and handle any medical ailments he may suffer.
[9] We note that a person who commits a level 4 felony shall be imprisoned for a
fixed term of between two and twelve years with the advisory sentence being six
years. Ind. Code § 35-50-2-5.5.
[10] Our review of the nature of the offenses reveals that Johnson pled guilty to
molesting R.M. and M.E., each of whom were under the age of fourteen, by
touching them under their clothing as level 4 felonies. Johnson committed the
offenses while R.M. and M.E. were in a home daycare. The prosecutor noted
that R.M. and M.E. were three years old. As for his character, Johnson pled
guilty and left sentencing to the discretion of the trial court. Although he did
not have prior convictions, expressed remorse, and may not be in good health,
he was convicted of molesting two young children, the State dismissed two
counts, and he received a sentence below the advisory sentence on each of his
convictions. After due consideration, we conclude that Johnson has not
sustained his burden of establishing that his aggregate sentence of eight years is
inappropriate in light of the nature of the offenses and his character.
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Conclusion
[11] For the foregoing reasons, we affirm Johnson’s sentence.
[12] Affirmed.
Riley, J., concurs.
Baker, J., dissents with separate opinion.
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IN THE
COURT OF APPEALS OF INDIANA
Millard P. Johnson, Court of Appeals Case No.
82A01-1706-CR-1240
Appellant-Defendant,
v.
State of Indiana,
Appellee-Plaintiff.
Baker, Judge, dissenting.
[13] Our standard of review would seem to mandate that I concur, but I cannot. I
see no reason to relegate this offender to spend the remainder of his days in
what will probably be a hospital ward underwritten at taxpayer expense.
[14] I appreciate the seriousness of the offenses and the position of trust that
Johnson violated, but I believe eight years is an inappropriate sentence given
Johnson’s advanced age and declining health. I would reverse and remand
with instructions to make the sentences concurrent.
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