Gerald Edward Johnson v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Dec 08 2016, 9:30 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.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Matthew J. McGovern Gregory F. Zoeller
Anderson, Indiana Attorney General of Indiana
J. T. Whitehead
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Gerald Edward Johnson, December 8, 2016
Appellant-Defendant, Court of Appeals Case No.
82A01-1605-CR-1088
v. Appeal from the Vanderburgh
Circuit Court
State of Indiana, The Honorable David D. Kiely,
Appellee-Plaintiff. Judge
The Honorable Kelli E. Fink,
Magistrate
Trial Court Cause No.
82C01-1508-F5-4792
Riley, Judge.
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STATEMENT OF THE CASE
[1] Appellant-Defendant, Gerald Edward Johnson (Johnson), appeals his sentence
following his open guilty plea to Count I, battery by means of a deadly weapon,
a Level 5 felony, Ind. Code § 35-42-2-1(g)(2); Count II, intimidation, a Level 5
felony, I.C. § 35-45-2-4(a)(2);-(b)(2)(A); and his adjudication as a habitual
offender, I.C. § 35-50-2-8.
[2] We affirm and remand.
ISSUE
[3] Johnson raises one issue on appeal, which we restate as: Whether Johnson’s
sentence is appropriate in light of the nature of the offense and his character.
FACTS AND PROCEDURAL HISTORY
[4] On August 8, 2015, Felicia Leachman (Leachman) attempted to end her
relationship with Johnson because “she no longer wished to be with him.”
(Appellant’s App. p. 9). The two argued and Johnson armed himself with a
knife. When Johnson told Leachman that “he was going to kill her,”
Leachman responded, “[G]o ahead and do it.” (Appellant’s App. p. 9).
Johnson attempted to stab her in the neck, but “Leachman was able to duck her
head and was struck in the chin instead.” (Appellant’s App. p. 9). Leachman
reached up and grabbed the blade of the knife as Johnson was trying to stab her
again. As a result, she incurred a laceration to her palm and all around her
hand, which required stitches. During her struggle to escape, Leachman
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suffered a severe laceration to her knee, in which the tip of the knife broke off
inside her leg. This injury required extensive surgery. After Leachman began
screaming for help, neighbors came to her aid and started knocking on the
apartment’s door. At the time of the sentencing hearing, Leachman was still
undergoing rehabilitation for the injuries inflicted by Johnson.
[5] On August 11, 2015, the State filed an Information, charging Johnson with
Count I, battery by means of a deadly weapon, a Level 5 felony; and Count II,
intimidation, a Level 5 felony. On October 7, 2015, the State amended the
Charging Information by adding a habitual offender enhancement. Johnson’s
jury trial was held on March 9, 2016. Prior to the commencement of trial.
Johnson pled guilty as charged without the benefit of a plea agreement.
[6] On May 26, 2016, the trial court conducted a sentencing hearing. At the
hearing, the trial court articulated as mitigating circumstances the fact that
Johnson entered a guilty plea without the benefit of a plea agreement and
Johnson’s health issues. The court found the following aggravators: Johnson’s
lengthy criminal history, which included eleven felony convictions, the severity
of Leachman’s injuries, and his parole status at the time of the current offense.
The trial court sentenced Johnson to five years under each Count, with
sentences to run concurrently to each other but consecutively to the five-year
habitual offender enhancement to Count I. Johnson’s aggregate sentence is ten
years executed.
[7] Johnson now appeals. Additional facts will be provided as necessary.
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DISCUSSION AND DECISION
[8] Johnson contends that his enhanced ten-year sentence is inappropriate in light
of the nature of the offense and his character and requests the imposition of an
aggregate sentence of six years executed. “[S]entencing is primarily a
discretionary function in which the trial court’s judgment should receive
considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008).
“Such deference should prevail unless overcome by compelling evidence
portraying in a positive light the nature of the offense (such as accompanied by
restraint, regard, and lack of brutality) and the defendant’s character (such as
substantial virtuous traits or persistent examples of good character).” Stephenson
v. State, 29 N.E.3d 111, 121 (Ind. 2015). Therefore, even where, as here, a trial
court imposes a sentence that is authorized by statute, our court may revise the
sentence 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.” Ind. Appellate Rule 7(B).
[9] Appellate Rule 7(B) provides for sentence review in an “attempt 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, 895 N.E.2d at 1225. Nevertheless,
“whether we regard a sentence as appropriate at the end of the day turns 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.” Id.
at 1224. On review, we focus on “the length of the aggregate sentence and how
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it is to be served.” Id. Johnson bears the burden of persuading this court that
his sentence is inappropriate. Corbally v. State, 5 N.E.3d 463, 471 (Ind. Ct. App.
2014).
[10] The advisory sentence is the starting point the legislature has selected as an
appropriate sentence for the crime committed. Abbott v. State, 961 N.E.2d 1016,
1019 (Ind. 2012). For his Level 5 offense, Johnson faced a sentencing range of
one to six years, with the advisory sentence being three years. See I.C. § 35-50-
2-6(b). Johnson’s adjudication as an habitual offender added an additional two
to six years to his sentence. See I.C. § 35-50-2-8(i)(2). Accordingly, the trial
court sentenced Johnson to the upper range of the possible penalties.
[11] Turning to the nature of the offense, we find that this was a particularly brutal
attack, resulting in numerous lacerations all over Leachman’s body, some of
which required extensive surgery. Particularly troubling is that Johnson
initially aimed for her throat, but cut her chin instead. He sliced Leachman’s
palm, and the force with which he wielded the knife caused its tip to lodge into
Leachman’s knee. Undeterred, Johnson continued to attack until neighbors,
who had been alerted by Leachman’s screams, intervened and started knocking
on the apartment door.
[12] With respect to his character, Johnson offers no examples of “substantial
virtuous traits or persistent examples of good character.” Stephenson, 29 N.E.3d
at 121. First and foremost, the trial court referenced Johnson’s extensive
criminal history, which included eleven felony convictions. It is notable that
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after being classified as a violent felon in 2008, Johnson continued to commit
violent crimes, including intimidation and pointing a firearm at Leachman.
Johnson’s other convictions included, among others, possession of marijuana,
burglary, theft, terroristic threatening, and carrying a concealed weapon. At the
time of the current charges, Johnson was on parole. The trial court took “into
consideration” that Johnson accepted responsibility and pled guilty without the
benefit of a plea agreement as the court noted that “most likely otherwise”
Johnson would have been sentenced to the maximum sentence. (Sent.
Transcript p. 21). Although Johnson now complains that the trial court “did
not bestow a significant benefit” on him for pleading guilty, a trial court is not
obligated to give the same weight to mitigating circumstances that a defendant
would. (Appellant’s Br. p. 12); See Healy v. State, 969 N.E.2d 607, 616 (Ind. Ct.
App. 2012), trans. denied. Moreover, the relative weight assigned by the trial
court to mitigating circumstances is not subject to our review. See Anglemyer v.
State, 868 N.E.2d 482, 491 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind.
2007).
[13] Likewise, Johnson complains that the trial court ignored his “profound”
substance abuse problem. (Appellant’s Br. p. 13). However, our review of the
sentencing transcript reveals otherwise. During sentencing, the trial court noted
that it recommended Johnson to “receive drug treatment while” at the Indiana
Department of Correction as it would “be beneficial to” him. (Sent. Tr. p. 22).
Again, the trial court’s relative weight awarded to this circumstance is not open
to our review. See id.
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[14] Mindful of the brutal nature of the crime and Johnson’s character, Johnson fails
to persuade us of any virtuous traits or circumstances that would in any way
justify a downward revision of his sentence.
[15] Nevertheless, at the request of both parties, we remand to the trial court for
clarification of its sentencing order. The sentencing order indicates that the
sentences for each Count are to run both concurrently and consecutively to
each other. We agree that this is in error and contrary to the trial court’s
statement at the sentencing hearing where the trial court ordered Count I and II
to run concurrent, with Count I enhanced by the habitual offender adjudication
for an aggregate sentence of ten years executed.
CONCLUSION
[16] Based on the foregoing, we hold that Johnson’s sentence is not inappropriate in
light of the nature of the offense and his character, but we remand to the trial
court for clarification of the sentencing order.
[17] Affirmed and remanded.
[18] Crone, J. and Altice, J. concur
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