MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Feb 05 2020, 7:51 am
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 Brian A. Karle Curtis T. Hill, Jr. Ball Eggleston, PC Attorney General of Indiana Lafayette, Indiana Josiah Swinney Deputy Attorney General
Matthew J. Goldsmith Certified Legal Intern Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Alexander Isaiah Garcia- February 5, 2020 Johnson, Court of Appeals Case No. Appellant-Defendant, 19A-CR-1213 Appeal from the Tippecanoe v. Superior Court The Honorable Steven P. Meyer, State of Indiana, Judge Appellee-Plaintiff. Trial Court Cause No. 79D02-1811-F4-45
Friedlander, Senior Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1213 | February 5, 2020 Page 1 of 8 [1] Alexander Garcia-Johnson appeals his sentence for his conviction of possession 1 of a firearm by a serious violent felon, a Level 4 felony.
[2] The sole issue presented on appeal is whether Garcia-Johnson’s sentence is
inappropriate.
[3] On November 18, 2018 at approximately 4:30 a.m., officers were dispatched to
a residence for a report of a shooting. When they arrived, they spoke with a
female who reported being awakened and entering her living room to see a
male she knew as “Alex” with a handgun. Based on the description, officers
determined that “Alex” was Garcia-Johnson. They spoke with Garcia-Johnson
who acknowledged that he had been present at the residence and in possession
of a firearm.
[4] Based upon this incident and a prior conviction of Level 4 felony burglary,
Garcia-Johnson was charged with unlawful possession of a firearm by a serious
violent felon as a Level 4 felony. Garcia-Johnson pleaded guilty as charged,
and the court sentenced him to eight years. This appeal ensued.
[5] Indiana 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 determine
that the sentence is inappropriate in light of the nature of the offense and the
character of the offender. Thompson v. State, 5 N.E.3d 383 (Ind. Ct. App. 2014).
1 Ind. Code § 35-47-4-5 (2018).
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1213 | February 5, 2020 Page 2 of 8 However, “we must and should exercise deference to a trial court’s sentencing
decision, both because Rule 7(B) requires us to give ‘due consideration’ to that
decision and because we understand and recognize the unique perspective a
trial court brings to its sentencing decisions.” Stewart v. State, 866 N.E.2d 858,
866 (Ind. Ct. App. 2007). The principal role of appellate review under Rule
7(B) is to attempt to leaven the outliers, not to achieve a perceived “correct”
result in each case. Garner v. State, 7 N.E.3d 1012 (Ind. Ct. App. 2014). The
defendant bears the burden of persuading the appellate court that his or her
sentence is inappropriate. Childress v. State, 848 N.E.2d 1073 (Ind. 2006).
[6] To assess whether the sentence is inappropriate, we look first to the statutory
range established for the level of the offense. The advisory sentence for a Level
4 felony is six years, with a minimum sentence of two years and a maximum of
twelve. Ind. Code § 35-50-2-5.5 (2014). Garcia-Johnson’s sentence of eight
years is only modestly above the advisory and well below the maximum.
[7] Next, we look to the nature of the offense and the character of the offender.
With regard to the nature of the offense, the sparse facts indicate that a female
awoke at 4:30 in the morning to find Garcia-Johnson in her residence with a
handgun. There is also a brief mention, without further explanation or details,
that this crime resulted in a death.
[8] As for the character of the offender, Garcia-Johnson emphasizes his guilty plea,
family support, mental health, and age. A guilty plea does not automatically
amount to a significant mitigating factor. Powell v. State, 895 N.E.2d 1259 (Ind.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1213 | February 5, 2020 Page 3 of 8 Ct. App. 2008), trans. denied. For instance, a guilty plea does not rise to the
level of significant mitigation where the defendant has received a substantial
benefit from the plea or where the evidence against him is such that the decision
to plead guilty is merely a pragmatic one. Id. Here, Garcia-Johnson’s plea was
pragmatic because he admitted his guilt to the police. Further, the plea
agreement called for his admission to pending probation violations in exchange
for which the State agreed to recommend no additional sanctions. In light of
these circumstances, Garcia-Johnson’s plea was not necessarily deserving of
significant mitigating effect, yet the trial court considered the plea as such.
[9] Garcia-Johnson claims that his good character is demonstrated by his strong
family support. Despite questioning Garcia-Johnson’s failure to take advantage
of that support in the past to avoid his current situation, the trial court
recognized his family support as a mitigator.
[10] Garcia-Johnson also contends that his mental health issues and intellectual
impairments warrant a reduced sentence; yet, there is nothing in the record
indicating that his mental health issues were responsible for his decision-making
process on the day of this offense. See Corralez v. State, 815 N.E.2d 1023 (Ind.
Ct. App. 2004) (stating that there must be nexus between defendant’s mental
health and crime in question in order for mental history to be considered
mitigating factor). Nevertheless, the trial court recognized Garcia-Johnson’s
mental health issues as a mitigating circumstance.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1213 | February 5, 2020 Page 4 of 8 [11] The finding of mitigating circumstances is not mandatory but is within the
discretion of the trial court. Page v. State, 878 N.E.2d 404 (Ind. Ct. App. 2007),
trans. denied. Further, the court is not obligated to give the same weight to a
proffered mitigating factor as does the defendant. Id. Garcia-Johnson presents
this Court with the same mitigating factors he argued to the trial court. The
trial court found these factors to be mitigating, and Garcia-Johnson presents no
additional information to this Court to support a result different from that
reached by the trial court.
[12] Garcia-Johnson additionally suggests that his age (twenty-one) justifies a
reduced sentence.
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Feb 05 2020, 7:51 am
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 Brian A. Karle Curtis T. Hill, Jr. Ball Eggleston, PC Attorney General of Indiana Lafayette, Indiana Josiah Swinney Deputy Attorney General
Matthew J. Goldsmith Certified Legal Intern Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Alexander Isaiah Garcia- February 5, 2020 Johnson, Court of Appeals Case No. Appellant-Defendant, 19A-CR-1213 Appeal from the Tippecanoe v. Superior Court The Honorable Steven P. Meyer, State of Indiana, Judge Appellee-Plaintiff. Trial Court Cause No. 79D02-1811-F4-45
Friedlander, Senior Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1213 | February 5, 2020 Page 1 of 8 [1] Alexander Garcia-Johnson appeals his sentence for his conviction of possession 1 of a firearm by a serious violent felon, a Level 4 felony.
[2] The sole issue presented on appeal is whether Garcia-Johnson’s sentence is
inappropriate.
[3] On November 18, 2018 at approximately 4:30 a.m., officers were dispatched to
a residence for a report of a shooting. When they arrived, they spoke with a
female who reported being awakened and entering her living room to see a
male she knew as “Alex” with a handgun. Based on the description, officers
determined that “Alex” was Garcia-Johnson. They spoke with Garcia-Johnson
who acknowledged that he had been present at the residence and in possession
of a firearm.
[4] Based upon this incident and a prior conviction of Level 4 felony burglary,
Garcia-Johnson was charged with unlawful possession of a firearm by a serious
violent felon as a Level 4 felony. Garcia-Johnson pleaded guilty as charged,
and the court sentenced him to eight years. This appeal ensued.
[5] Indiana 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 determine
that the sentence is inappropriate in light of the nature of the offense and the
character of the offender. Thompson v. State, 5 N.E.3d 383 (Ind. Ct. App. 2014).
1 Ind. Code § 35-47-4-5 (2018).
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1213 | February 5, 2020 Page 2 of 8 However, “we must and should exercise deference to a trial court’s sentencing
decision, both because Rule 7(B) requires us to give ‘due consideration’ to that
decision and because we understand and recognize the unique perspective a
trial court brings to its sentencing decisions.” Stewart v. State, 866 N.E.2d 858,
866 (Ind. Ct. App. 2007). The principal role of appellate review under Rule
7(B) is to attempt to leaven the outliers, not to achieve a perceived “correct”
result in each case. Garner v. State, 7 N.E.3d 1012 (Ind. Ct. App. 2014). The
defendant bears the burden of persuading the appellate court that his or her
sentence is inappropriate. Childress v. State, 848 N.E.2d 1073 (Ind. 2006).
[6] To assess whether the sentence is inappropriate, we look first to the statutory
range established for the level of the offense. The advisory sentence for a Level
4 felony is six years, with a minimum sentence of two years and a maximum of
twelve. Ind. Code § 35-50-2-5.5 (2014). Garcia-Johnson’s sentence of eight
years is only modestly above the advisory and well below the maximum.
[7] Next, we look to the nature of the offense and the character of the offender.
With regard to the nature of the offense, the sparse facts indicate that a female
awoke at 4:30 in the morning to find Garcia-Johnson in her residence with a
handgun. There is also a brief mention, without further explanation or details,
that this crime resulted in a death.
[8] As for the character of the offender, Garcia-Johnson emphasizes his guilty plea,
family support, mental health, and age. A guilty plea does not automatically
amount to a significant mitigating factor. Powell v. State, 895 N.E.2d 1259 (Ind.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1213 | February 5, 2020 Page 3 of 8 Ct. App. 2008), trans. denied. For instance, a guilty plea does not rise to the
level of significant mitigation where the defendant has received a substantial
benefit from the plea or where the evidence against him is such that the decision
to plead guilty is merely a pragmatic one. Id. Here, Garcia-Johnson’s plea was
pragmatic because he admitted his guilt to the police. Further, the plea
agreement called for his admission to pending probation violations in exchange
for which the State agreed to recommend no additional sanctions. In light of
these circumstances, Garcia-Johnson’s plea was not necessarily deserving of
significant mitigating effect, yet the trial court considered the plea as such.
[9] Garcia-Johnson claims that his good character is demonstrated by his strong
family support. Despite questioning Garcia-Johnson’s failure to take advantage
of that support in the past to avoid his current situation, the trial court
recognized his family support as a mitigator.
[10] Garcia-Johnson also contends that his mental health issues and intellectual
impairments warrant a reduced sentence; yet, there is nothing in the record
indicating that his mental health issues were responsible for his decision-making
process on the day of this offense. See Corralez v. State, 815 N.E.2d 1023 (Ind.
Ct. App. 2004) (stating that there must be nexus between defendant’s mental
health and crime in question in order for mental history to be considered
mitigating factor). Nevertheless, the trial court recognized Garcia-Johnson’s
mental health issues as a mitigating circumstance.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1213 | February 5, 2020 Page 4 of 8 [11] The finding of mitigating circumstances is not mandatory but is within the
discretion of the trial court. Page v. State, 878 N.E.2d 404 (Ind. Ct. App. 2007),
trans. denied. Further, the court is not obligated to give the same weight to a
proffered mitigating factor as does the defendant. Id. Garcia-Johnson presents
this Court with the same mitigating factors he argued to the trial court. The
trial court found these factors to be mitigating, and Garcia-Johnson presents no
additional information to this Court to support a result different from that
reached by the trial court.
[12] Garcia-Johnson additionally suggests that his age (twenty-one) justifies a
reduced sentence. “‘Age is neither a statutory nor a per se mitigating factor.’”
Bostick v. State, 804 N.E.2d 218, 225 (Ind. Ct. App. 2004) (quoting Monegan v.
State, 756 N.E.2d 499, 504 (Ind. 2001)). Further, twenty-one years old is past
the age that our courts have afforded special consideration. See, e.g., Corcoran v.
State, 774 N.E.2d 495, 500 (Ind. 2002) (holding that age of defendant, twenty-
two, was “well past the age of sixteen where the law requires special
treatment”); Monegan, 756 N.E.2d 499 (holding that trial court did not err in
failing to give significant weight to the age of an almost eighteen-year-old
defendant); Ketcham v. State, 780 N.E.2d 1171 (Ind. Ct. App. 2003) (holding
that failure to give mitigating weight to defendant’s age, twenty, at the time of
the crime was not error), trans. denied. Garcia-Johnson reasons that he is young
and still capable of rehabilitation. We need only review his criminal history,
however, to see that he has squandered numerous opportunities for
rehabilitation and conclude otherwise.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1213 | February 5, 2020 Page 5 of 8 [13] We observe that Garcia-Johnson’s criminal history is not insignificant, and
even a minor criminal history is a poor reflection of a defendant’s character.
Moss v. State, 13 N.E.3d 440 (Ind. Ct. App. 2014), trans. denied. When
considering Garcia-Johnson’s history at sentencing, the trial court characterized
it as having “ramped up in the last two years” and stated that “since 2016, we
have one, two, three, four, five, six criminal contacts in a very short period of
time.” Tr. Vol. 2, p. 43.
[14] Garcia-Johnson’s documented criminal history began as a juvenile in 2014 with
two incidents that were not adjudicated. As an adult, Garcia-Johnson was
convicted of misdemeanor possession of marijuana in 2016. During the
pendency of the case, he violated the terms of his pre-trial release, causing the
State to file two separate motions to revoke his bond. Upon being convicted,
he was sentenced to community corrections, but that program subsequently
filed a petition for him to execute his sentence in custody due to a violation.
[15] Also in 2016, Garcia-Johnson was convicted of felony burglary, causing the
enhancement of the current charge. For his burglary conviction, he was
sentenced to the DOC but was permitted to serve his sentence in community
corrections. That program later filed a motion to commit him to the DOC due
to a violation. In addition, once Garcia-Johnson was released on probation, at
least two petitions to revoke were filed, and twice he failed to appear.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1213 | February 5, 2020 Page 6 of 8 [16] In 2018, Garcia-Johnson was convicted of misdemeanor possession of
paraphernalia and given a suspended sentence. Once again, a petition to
revoke his probation was filed.
[17] In 2019, Garcia-Johnson was convicted of felony possession of marijuana.
During the pendency of the case, the State filed a motion to revoke his bond for
a violation of the terms of his pre-trial release.
[18] Furthermore, Garcia-Johnson was on probation in two different cases and on
bond in a third case when he committed the present offense. A defendant’s
commission of an offense while on probation is a “substantial consideration” in
our assessment of his character. Rich v. State, 890 N.E.2d 44, 54 (Ind. Ct. App.
2008), trans. denied.
[19] As his criminal history demonstrates, Garcia-Johnson has been offered several
chances to pull himself together and live a law-abiding life and has chosen
instead to continue to disobey the laws of society. The court aptly summarized
this notion in its remarks at sentencing: “So you’re just on this collision course
that you can’t seem to break, even with the help that the Court has offered and
given you in these various cases through probation, through community
corrections. It’s not working.” Tr. Vol. 2, p. 43.
[20] Considering both the nature of the offense and the character of the offender and
giving due consideration to the trial court’s sentencing decision, we are unable
to conclude that Garcia-Johnson’s sentence is inappropriate.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1213 | February 5, 2020 Page 7 of 8 [21] Judgment affirmed.
Bradford, C.J., and Riley, J., concur.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1213 | February 5, 2020 Page 8 of 8