Lonnie Johnson v. State of Indiana

Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any FILED
court except for the purpose of Apr 09 2012, 8:39 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case. CLERK
of the supreme court,
court of appeals and
tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
LEANNA WEISSMANN GREGORY F. ZOELLER
Lawrenceburg, Indiana Attorney General of Indiana
KATHERINE MODESITT COOPER
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
LONNIE JOHNSON, )
)
Appellant-Defendant, )
)
vs. ) No. 15A05-1109-CR-475
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE DEARBORN SUPERIOR COURT
The Honorable Jonathan N. Cleary, Judge
Cause No. 15C01-1006-FC-16
April 9, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
BARTEAU, Senior Judge
STATEMENT OF THE CASE
Lonnie Johnson appeals his eight-year sentence for Class C felony robbery. Ind.
Code § 35-42-5-1 (1984). We affirm.
ISSUE
Johnson presents one issue: whether his sentence is inappropriate.
FACTS AND PROCEDURAL HISTORY
On June 3, 2010, a man, later identified as Johnson, entered United Community
Bank in Lawrenceburg and asked customer service representative Whitney Slayback
about opening a savings account. Slayback gave Johnson a new account application and
told him about the bank’s checking promotion. Johnson spoke very softly, and his eyes
were bloodshot with a yellowish tint. He kept one of his hands out of view. When
Slayback asked him to fill out the application, he slipped a small piece of paper across the
counter. The note read, “This is a robbery, give me all the 50’s and 100’s and give back
the note.” Appellant’s App. p. 28. Slayback, scared that Johnson had a gun in the hand
she could not see, handed him an undetermined amount of money. As soon as Johnson
turned away from the counter, Slayback hit her alarm button, turned to her co-worker,
and stammered, “[H]e took my money.” Tr. p. 38. After Johnson left the bank, Slayback
locked the doors.
Detective Shane McHenry of the Dearborn County Sheriff’s Department and
Officer Nicholas Myers of the Lawrenceburg Police Department reviewed the bank’s
surveillance video, interviewed bank employees, and put out a bulletin about the robbery.
The next day, an officer from the Indiana Gaming Commission contacted Officer Myers
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and said that a man matching the description of the robber had been at Hollywood Casino
in Lawrenceburg on the day of the robbery. After further investigation, Detective
McHenry and Officer Myers identified Johnson as the robber.
The State charged Johnson with Class C felony robbery. A warrant was issued
within twenty-four hours of the robbery, but Johnson was not located until October 2010
when he was found in San Diego, California. The State subsequently charged him with
being a habitual offender. Pursuant to a plea agreement, Johnson pleaded guilty to Class
C felony robbery, and in exchange the State agreed to dismiss the habitual offender
enhancement. The plea agreement provided for open sentencing.
At sentencing, the trial court found that the aggravators outweighed the mitigators
and imposed the maximum sentence of eight years executed. The court also ordered
Johnson to make restitution to United Community Bank in the amount of $7145.95.
Johnson now appeals.
DISCUSSION AND DECISION
Johnson contends that his eight-year executed sentence is inappropriate and asks
us to revise his sentence to eight years with two years suspended to probation. Although
a trial court may have acted within its lawful discretion in imposing a sentence, Article 7,
Sections 4 and 6 of the Indiana Constitution authorize independent appellate review and
revision of sentences through Indiana Appellate Rule 7(B), which provides that a court
“may revise a sentence authorized by statute if, after due consideration of the trial court’s
decision, the Court finds that the sentence is inappropriate in light of the nature of the
offense and the character of the offender.” Reid v. State, 876 N.E.2d 1114, 1116 (Ind.
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2007) (citing Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007), clarified on reh’g,
875 N.E.2d 218 (2007)). The defendant has the burden of persuading us that his sentence
is inappropriate. Id. (citing Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006)). In
assessing whether a sentence is inappropriate, appellate courts may take into account
whether a portion of the sentence is ordered suspended or otherwise crafted using any of
the variety of sentencing tools available to the trial judge. Davidson v. State, 926 N.E.2d
1023, 1025 (Ind. 2010).
We first look to the statutory range established for the class of the offense.
Johnson pleaded guilty to a Class C felony. The statutory range for a Class C felony is
between two and eight years, with the advisory sentence being four years. Ind. Code §
35-50-2-6(a) (2005). The trial court sentenced Johnson to the maximum sentence of
eight years executed.
We next look to the nature of the offense and Johnson’s character. As to the
nature of the offense, Johnson entered United Community Bank and passed a note to
Slayback stating that he was robbing the bank and ordering her to give him money.
Johnson argues that he did not use a weapon during the commission of the offense.
While this may be true, he kept one hand out of Slayback’s view. Slayback testified at
sentencing, “I remember that I couldn’t find his other hand and praying that I wasn’t
about to see a gun pointed in my direction.” Tr. p. 38.
We acknowledge, as did the trial court, that Johnson was remorseful for his
conduct. Nevertheless, Johnson’s character shows a disregard for the law. The
presentence investigation report reveals that less than a week after the instant offense, a
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warrant was issued for his arrest for a robbery in Miami County, Ohio. Johnson has been
convicted in Wayne County, Michigan, of larceny and at least six breaking and entering
offenses. At the time the presentence investigation report was prepared, two probation
violation allegations from 2002 and the Ohio robbery charge were pending against him.
Moreover, Johnson has had long-standing alcohol and drug abuse issues. Johnson, who
was fifty-five years old at the time of sentencing, began drinking when he was nineteen
and using cocaine when he was thirty-three. He admitted that he was a crack addict for
about eight years. He further admitted that he still uses cocaine “every now and then.”
Appellant’s App. p. 27. In addition, although Johnson was apparently struggling
financially at the time of the offense, we note that he managed to gamble at Hollywood
Casino on the day of the robbery. He is a “frequent patron” of that casino and has
sustained a lifetime loss of about $17,000 there. Id. at 29.
Johnson has failed to persuade us that his eight-year executed sentence is
inappropriate in light of the nature of the offense and his character.1
CONCLUSION
For the reasons stated, we affirm Johnson’s sentence.
Affirmed.
RILEY, J., and MATHIAS, J., concur.
1
Johnson asserts in his argument summary that the trial court abused its discretion by not suspending any
of his sentence to probation; however, he fails to develop a corresponding argument. In any event, a trial
court’s decision not to suspend a sentence is reviewable only for an abuse of discretion. Ables v. State,
848 N.E.2d 293, 296 (Ind. Ct. App. 2006). An abuse of discretion occurs if the decision is clearly against
the logic and effect of the facts and circumstances. Id. Given that, by pleading guilty, Johnson avoided a
habitual offender enhancement that could have added up to twelve years to his sentence, and given
Johnson’s criminal history, including his noncompliance with probation, we cannot say that the trial court
abused its discretion by not suspending any of his sentence to probation.
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