Martin L. Johnson v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D),
Nov 14 2017, 8:52 am
this Memorandum Decision shall not be
regarded as precedent or cited before any CLERK
Indiana Supreme Court
court except for the purpose of establishing Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Brian A. Karle Curtis T. Hill, Jr.
Ball Eggleston, PC Attorney General
Lafayette, Indiana
Matthew B. MacKenzie
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Martin L. Johnson, November 14, 2017
Appellant-Defendant, Court of Appeals Case No.
79A04-1704-CR-862
v. Appeal from the Tippecanoe
Superior Court
State of Indiana, The Honorable Steven P. Meyer,
Appellee-Plaintiff Judge
Trial Court Cause No.
79D02-1606-F5-94
Crone, Judge.
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Case Summary
[1] In a bifurcated proceeding, a jury convicted Martin L. Johnson of level 6 felony
residential entry, class A misdemeanor carrying a handgun without a license,
and class B misdemeanor criminal mischief, all stemming from an incident in
which he dented one apartment door with his handgun and then forced his way
into a different apartment where a mother and her baby were present. Based on
the same underlying facts, the trial court then convicted Johnson of level 5
felony carrying a handgun without a license with a prior felony conviction and
level 4 felony unlawful possession of a firearm by a serious violent felon
(“SVF”). The trial court entered judgment of conviction on all counts except
the class A misdemeanor handgun conviction, which it merged with his level 5
felony handgun conviction, and imposed an aggregate eight-year sentence.
[2] Johnson appeals, claiming that the trial court’s entry of judgment of conviction
for both the level 4 and level 5 felony firearm possession offenses violates
double jeopardy principles. He also challenges the appropriateness of his
sentence. The State concedes the double jeopardy violation, and we remand
with instructions to vacate Johnson’s level 5 felony conviction. We also
conclude that Johnson has failed to meet his burden of establishing that his
aggregate sentence is inappropriate under Indiana Appellate Rule 7(B).
Therefore, we affirm his sentence.
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Facts and Procedural History
[3] One evening in June 2016, Lafayette Police Department Sergeant Adam
Mellady was patrolling a Lafayette apartment complex when he observed
Johnson shouting and banging on the exterior door of one of the apartments
with a handgun. A neighbor, Taronda Flowers, heard the commotion and
looked out her door. Shortly thereafter, Sergeant Mellady approached Johnson
in his police vehicle and ordered him to stop. Johnson disregarded the order,
shoved the handgun in the back of his waistband, and began running. With
Sergeant Mellady in pursuit, Johnson forced his way into Flowers’s apartment,
where she and her one-year-old baby were present. Flowers began screaming,
“[G]et out of my house,” and “[G]et that gun out of my house.” Tr. Vol. 2 at
89. Johnson ran into Flowers’s kitchen and discarded the handgun in her
wastebasket. Immediately thereafter, officers apprehended and arrested
Johnson and collected the handgun.
[4] The State charged Johnson with level 6 felony residential entry, class A
misdemeanor carrying a handgun without a license, level 5 felony carrying a
handgun with a prior felony conviction (cocaine possession), class B
misdemeanor criminal mischief, and level 4 felony unlawful possession of a
firearm by an SVF (with SVF status based on a conviction for conspiracy to
commit murder). The proceedings were bifurcated, and a jury found Johnson
guilty as charged on the counts of residential entry, misdemeanor carrying a
handgun without a license, and criminal mischief. The remaining counts were
tried before the court, which found Johnson guilty as charged.
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[5] At sentencing, the trial court entered judgment of conviction on all counts
except the class A misdemeanor conviction, which it merged with the level 5
felony conviction due to double jeopardy concerns. The court sentenced
Johnson to concurrent terms of eight years for the level 4 felony SVF
conviction, five years for the level 5 felony handgun conviction, two years for
the level 6 felony residential entry conviction, and 180 days for the criminal
mischief conviction. Of the aggregate eight-year term, the court ordered six
years executed, with two of those years in community corrections, and two
years suspended to probation.
[6] Johnson now appeals. Additional facts will be provided as necessary.
Discussion and Decision
Section 1 – The trial court violated double jeopardy principles
by entering judgment of conviction on two firearm possession
counts stemming from the same act.
[7] Johnson asserts, and the State properly concedes, that the trial court violated
double jeopardy principles when it entered judgment on both his level 4 and
level 5 felony firearm possession convictions. See Guyton v. State, 771 N.E.2d
1141, 1143 (Ind. 2002) (double jeopardy includes “[c]onviction and punishment
for a crime which consists of the very same act as another crime for which the
defendant has been convicted and punished.”) (quoting Richardson v. State, 717
N.E.2d 32, 56 (Ind. 1999) (Sullivan, J., concurring))). As such, we remand with
instructions to vacate Johnson’s conviction for level 5 felony carrying a
handgun without a license with a previous felony conviction. See West v. State,
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22 N.E.3d 872, 875 (Ind. Ct. App. 2014) (remedy for double jeopardy violation
is vacatur of lesser offense), trans. denied (2015). On remand, the trial court
should also amend its sentencing order to state that the sentence for the
criminal mischief conviction is 180 days instead of five years.
Section 2 – Johnson has failed to meet his burden of
establishing that his eight-year sentence is inappropriate in
light of the nature of the offenses and his character.
[8] Johnson also asks that we review and revise his sentence pursuant to Indiana
Appellate Rule 7(B), which states that we “may revise a sentence authorized by
statute if, after due consideration of the trial court’s decision, [this] Court finds
that the sentence is inappropriate in light of the nature of the offense and the
character of the offender.” When a defendant requests appellate review and
revision of his sentence, we have the power to affirm or reduce the sentence.
Akard v. State, 937 N.E.2d 811, 813 (Ind. 2010). In conducting our review, we
may consider all aspects of the penal consequences imposed by the trial court in
sentencing, i.e., whether it consists of executed time, probation, suspension,
home detention, or placement in community corrections, and whether the
sentences run concurrently or consecutively. Davidson v. State, 926 N.E.2d
1023, 1025 (Ind. 2010). 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.” Fonner v. State, 876 N.E.2d
340, 344 (Ind. Ct. App. 2007). A defendant bears the burden of persuading this
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Court that his sentence meets the inappropriateness standard. Anglemyer v.
State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218.
[9] In considering the nature of Johnson’s offenses, “the advisory sentence is the
starting point the Legislature has selected as an appropriate sentence.” Id. at
494. When determining the appropriateness of a sentence that deviates from an
advisory sentence, we consider whether there is anything more or less egregious
about 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.” Holloway v. State, 950 N.E.2d 803, 807 (Ind. Ct. App. 2011).
[10] Having ordered that the trial court vacate Johnson’s level 5 felony handgun
conviction, we note that his aggregate eight-year sentence now comprises one
level 4 felony, for which the sentencing range is two to twelve years with a six-
year advisory term, Ind. Code § 35-50-2-5.5; one level 6 felony, which carries a
sentencing range of six months to two and one-half years with a one-year
advisory term, Ind. Code § 35-50-2-7; and one class B misdemeanor, which
carries a sentence of not more than 180 days. Ind. Code § 35-50-3-3.
[11] Johnson characterizes his offenses as neither more nor less egregious than the
typical offense in each category and thus undeserving of a sentence above the
advisory for each count. While he may be correct regarding the nature of his
misdemeanor criminal mischief offense, we find his most serious offenses to be
more egregious than the typical offenses as defined by the legislature. Unlawful
possession of a firearm by an SVF is a status offense that requires Johnson’s
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knowing or intentional possession of a firearm coupled with his status as an
SVF, here, for his prior conviction for conspiracy to commit murder. Ind. Code
§§ 35-47-4-5(a)(1)(B), -5(b)(1), -5(c). Police did not merely find Johnson in
possession of a firearm at his home, hidden in his vehicle, or under some other
set of comparatively benign circumstances. Rather, they found him using it to
damage property and then carrying it during a confrontational home invasion.
This conduct also implicates the nature of his residential entry offense as
atypical and egregious. Indiana Code Section 35-43-2-1.5 defines residential
entry as knowingly or intentionally breaking and entering the dwelling of
another person. This was not a typical break-in to steal some cash or baubles.
Instead, Johnson, armed with a handgun, forced his way into Flowers’s home,
placing her in fear for her life and the life of her baby. In the context of
Johnson’s request for a reduced sentence, we simply do not find the nature of
his offenses to merit a shorter term.
[12] Similarly, Johnson’s character does not merit a shorter sentence. We conduct
our review of his character by engaging in a broad consideration of his qualities.
Aslinger v. State, 2 N.E.3d 84, 95 (Ind. Ct. App. 2014), clarified on other grounds on
reh’g, 11 N.E.3d 571. Based on our review of the record, we agree with the trial
court’s assessment that the thirty-five-year-old Johnson has demonstrated “a
pattern of complete disregard for the law since [he was] a young teenager.” Tr.
Vol. 2 at 200. His lengthy criminal record includes more than twenty
misdemeanor convictions for a variety of offenses such as battery, marijuana
possession, resisting law enforcement, and failure to stop after an accident, with
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repeated convictions for domestic battery and criminal trespass and numerous
convictions for driving without a license and driving while suspended. Even
more significant are his felony convictions for conspiracy to commit murder,
cocaine possession, home invasion, and driving while suspended. He also has
demonstrated a failure to respond positively to more lenient sentencing options.
He has been the subject of several probation revocation proceedings, and his
probation was twice terminated unsuccessfully. Additionally, the presentence
investigation report indicates that he has not conducted himself well when
sentenced to community corrections in the past. See Appellant’s App. Vol. 2 at
164 (“Tippecanoe County Community Corrections reported [Johnson] was
classified as a Habitual Rule Violator.”). To the extent that he characterizes his
criminal behavior and probation failures as old news, we note that he was on
probation for a felony drug conviction at the time he committed the current
offenses. We acknowledge that he participated in programs to better himself
while in jail, but we also note that the trial court built some leniency into his
current sentence by executing only six years, with two of those years in
community corrections, and granting him two years of probation despite his
record of probation failures.
[13] Simply put, Johnson has failed to demonstrate that his sentence is inappropriate
in light of the nature of the offenses and his character. Accordingly, we affirm
his sentence.
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[14] Affirmed and remanded.
Vaidik, C.J., and Mathias, J., concur.
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