Brandon Lawrence Johnson v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: December 29, 2020
• Docket: 20A-CR-1489
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be regarded as precedent or cited before any Dec 29 2020, 9:18 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 A. David Hutson Curtis T. Hill, Jr. Hutson Legal Attorney General of Indiana Jeffersonville, Indiana Tina L. Mann Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Brandon Lawrence Johnson, December 29, 2020 Appellant-Defendant, Court of Appeals Case No. 20A-CR-1489 v. Appeal from the Orange Circuit Court State of Indiana, The Honorable Steven L. Owen, Appellee-Plaintiff. Judge Trial Court Cause No. 59C01-1602-F4-160

Mathias, Judge.

[1] Brandon Lawrence Johnson (“Johnson”) pleaded guilty in Orange Circuit

Court to Level 4 felony dealing in methamphetamine. The trial court sentenced

Court of Appeals of Indiana | Memorandum Decision 20A-CR-1489 | December 29, 2020 Page 1 of 12 Johnson to twelve years executed in the Department of Correction. Johnson

appeals and argues that his sentence is inappropriate in light of the nature of the

offense and the character of the offender. Johnson also claims that the trial

court erred when it withheld his public defender fees from the cash bond posted

by his mother.

[2] We affirm Johnson’s sentence, but reverse and remand for an evidentiary

hearing on the bond issue.

Facts and Procedural History [3] In January 2016, law enforcement officials executed a search warrant at a home

Johnson shared with numerous individuals. Johnson was not present when the

warrant was executed. On February 4, an informant revealed Johnson’s

location to Indiana State Police Detective Shane Staggs. That same day,

Detective Staggs learned that Johnson was driving from Paoli, Indiana to

French Lick, Indiana in a white Oldsmobile. The detective sought assistance

from the French Lick Police Department, and Officer Kenneth Qualkenbush

observed a white Oldsmobile traveling on the highway.

[4] The officer stopped the vehicle after witnessing a traffic violation. Johnson gave

a false name to Officer Qualkenbush during the traffic stop. When Detective

Staggs arrived at the scene, Johnson admitted his true identity. Because

Johnson was on probation in Dubois County, the officers searched him and the

vehicle. During the vehicle search, the officers found a digital scale, plastic

baggies containing .001 gram of methamphetamine, and two hypodermic

Court of Appeals of Indiana | Memorandum Decision 20A-CR-1489 | December 29, 2020 Page 2 of 12 needles. Johnson was arrested, and subsequent to his arrest, he gave a statement

to Detective Staggs. Johnson admitted that the items found during the search

belonged to him. He also confessed to dealing methamphetamine and provided

details of his dealing activities to the detective.

[5] On February 8, 2016, Johnson was charged with Level 4 felony dealing in

methamphetamine, Level 5 felony possession of methamphetamine, and Class

B misdemeanor false informing. The State also alleged that Johnson was a

habitual offender. Johnson was also denied bond because a petition to revoke

his probation was pending in Dubois County. After the probation proceedings

were resolved, a bond amount was established. Johnson was released on bond

in September 2016 after his mother posted a $5,000 cash bond. But his bond

was revoked one month later, after Johnson was arrested for a new offense.

[6] On April 3, 2017, Johnson agreed to plead guilty to Level 4 felony dealing in

methamphetamine in exchange for dismissal of the remaining charges and

dismissal of two additional pending cases involving drug-related charges

committed while Johnson was on bond. The plea agreement left sentencing to

the trial court’s discretion.

[7] Johnson’s sentencing hearing was held on May 1, 2017. At sentencing, Johnson

claimed he engaged in dealing solely to support his own drug addiction. The

trial court rejected Johnson’s claim after reviewing Johnson’s statement to

Detective Staggs concerning the extent of his dealing activities. The trial court

found three mitigating circumstances: Johnson’s guilty plea; his drug addiction;

Court of Appeals of Indiana | Memorandum Decision 20A-CR-1489 | December 29, 2020 Page 3 of 12 and that he suffers from mental illness. The court weighed these circumstances

against the following aggravating circumstances: Johnson’s criminal history;

that he was on probation when he committed this offense; that he committed

additional offenses while he was released on bond; and the circumstances

surrounding this offense. The court then ordered Johnson to serve twelve years

executed in the Department of Correction.

[8] Also, at the hearing, the court asked Johnson’s public defender to submit a bill

for his pauper counsel fees. Johnson’s counsel submitted a bill totaling $3,126,

and that amount plus $383 in court fees were deducted from the $5,000 cash

bond. The remaining amount was eventually released to Johnson’s mother.

[9] In 2018, Johnson requested permission to file a belated appeal, which the trial

court denied on January 14, 2019. Our court affirmed the trial court’s denial of

Johnson’s request. But our supreme court granted Johnson’s petition to transfer

and found that Johnson did not knowingly and voluntarily waive his right to

appeal his sentence. Johnson v. State, 145 N.E.3d 785, 787 (Ind. 2020) (per

curiam). Therefore, our supreme court reversed the trial court’s order denying

Johnson’s motion, id., and he filed his belated notice of appeal on August 13,

2020.

I. Inappropriate Sentence

[10] Johnson argues that his twelve-year sentence is inappropriate under Indiana

Appellate Rule 7(B), which provides the standard by which we exercise our

constitutional authority to review and revise sentences. Under this rule, we

Court of Appeals of Indiana | Memorandum Decision 20A-CR-1489 | December 29, 2020 Page 4 of 12 modify a sentence when we find that “the sentence is inappropriate in light of

the nature of the offense and the character of the offender.” App. R. 7(B).

Making this determination “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.” Cardwell v. State, 895 N.E.2d

1219, 1224 (Ind. 2008). Yet, sentence modification under Rule 7(B) is reserved

for “a rare and exceptional case.” Livingston v. State, 113 N.E.3d 611, 612 (Ind.

2018) (per curiam).

[11] When conducting this review, we generally defer to the sentence imposed by

the trial court. Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012). Indeed, our role

is 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.

Thus, deference to the sentence imposed by the trial court will prevail unless the

defendant produces compelling evidence portraying in a positive light the

nature of the offense—such as showing restraint or a lack of brutality—and the

defendant’s character—such as showing substantial virtuous traits or persistent

examples of positive attributes. Robinson v. State, 91 N.E.3d 574, 577 (Ind.

2018); Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015).

[12] The range of sentence that may be imposed for a Level 4 felony is two to twelve

years. Ind. Code § 35-50-2-5.5. Here, the trial court ordered Johnson to serve a

maximum twelve-year executed sentence. We have often said that maximum

sentences should generally be reserved for the worst offenders and offenses. See,

Court of Appeals of Indiana | Memorandum Decision 20A-CR-1489 | December 29, 2020 Page 5 of 12 e.g., Payton v. State, 818 N.E.2d 493, 498 (Ind. Ct. App. 2004), trans. denied. But

determining which cases constitute “the worst of the worst” is a task we entrust

to our trial courts—they “will know them when they see them.” Hamilton v.

State, 955 N.E.2d 723, 727 (Ind. 2011).

[13] Concerning the nature of the offense, Johnson focuses on the small amount of

methamphetamine found during the vehicle search and his self-serving claim

that he was dealing to support his drug addiction. However, the record supports

a reasonable inference that Johnson’s dealing activities were not minimal.

[14] Johnson admitted that he drove to both Indianapolis and Louisville to obtain

methamphetamine. For an unspecified period of time, he drove to Louisville

every day to purchase at least one-half ounce of methamphetamine. Ex. Vol.,

State’s Ex. 1. Two days before he was arrested in this case, Johnson drove to

Indianapolis to purchase eight grams of methamphetamine. Id. Johnson also

sold a gram of methamphetamine approximately twenty minutes before the

traffic stop that led to his arrest. Id. Although Johnson was only convicted of

one count of dealing in methamphetamine, by his own admission, he was

engaged in activities related to dealing for many days, and he sold a significant

amount of methamphetamine. Id.

[15] The character of the offender also supports the sentence imposed. Johnson’s

criminal history dates back to 2003, and most of it involves drug-related

charges. In addition to felony possession charges involving illegal substances

and paraphernalia, he was convicted, in 2007, of dealing in methamphetamine.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-1489 | December 29, 2020 Page 6 of 12 His probation was revoked in several causes while serving sentences for his

various convictions. In fact, Johnson was on probation when he committed

dealing in this case.

[16] Although Johnson accepted responsibility for his offenses, he also received a

significant benefit for pleading guilty in this case. In exchange for his guilty

plea, the State agreed to dismiss the possession and false informing charges and

the habitual offender allegation in this case as well as charges in two separate

cases filed while this case was pending. Those charges included possession of

methamphetamine, possession of a controlled substance, possession of

marijuana, unlawful possession or use of a legend drug, maintaining a common

nuisance, and unlawful possession of a syringe. Johnson was out on bond in

this case when he was arrested for the offenses charged in those two cases.

[17] Johnson argues that the facts that he did not commit any new criminal offenses

for eight years—after he was sentenced for the 2007 dealing conviction—and

was sober for many years after that conviction reflect positively on his

character. And Johnson alleged that his wife tried to kill him in 2013 by

burning down his house, which caused the death of his best friend and dogs. As

a result, Johnson suffers from anxiety and depression. Johnson argues that he

relapsed and returned to illegal substance abuse to cope with these tragedies and

the deaths of other family members and friends.

[18] While Johnson was on probation for his 2015 possession of paraphernalia

conviction in Dubois County, he was ordered to participate in a drug program.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-1489 | December 29, 2020 Page 7 of 12 Instead of taking advantage of that opportunity for rehabilitation, Johnson

continued to use illegal substances and was dealing methamphetamine. Even

being out on bond for the charges in this case did not deter Johnson from

continuing to possess various illegal substances. Additionally, during the traffic

stop that led to the charges in this case, Johnson lied about his identity. None of

these facts reflect well on Johnson’s character.

[19] Johnson may have led a law-abiding life for several years, and we are

sympathetic to the tragedies that he has suffered. If another judge had been

tasked with sentencing Johnson, he or she may have been more lenient after

considering these circumstances. However, Johnson failed to take advantage of

the opportunities available to him for rehabilitation. Instead, he began using

illegal substances again and committed numerous drug-related offenses until he

was incarcerated for the dealing-in-methamphetamine conviction in this case.

For all of these reasons, we conclude that his sentence is not inappropriate in

light of the nature of the offense and the character of the offender. Quite simply,

this is not “a rare and exceptional case” warranting sentence modification

under Rule 7(B). Livingston, 113 N.E.3d at 612.

II. Bond

[20] Johnson’s mother posted a $5,000 bond in this case. During Johnson’s

sentencing hearing, the trial court ordered the public defender to submit a

request for pauper counsel fees to the court. The court stated that it intended to

withhold the fees from Johnson’s bond. Tr. pp. 57–58. The public defender

submitted a bill in the amount of $3,126. These fees and other court costs were Court of Appeals of Indiana | Memorandum Decision 20A-CR-1489 | December 29, 2020 Page 8 of 12 deducted from Johnson’s bond, and the remaining amount was eventually

returned to his mother. Johnson argues that the trial court abused its discretion

when it ordered the public defender fees to be withheld from the cash bond.

[21] Sentencing decisions include decisions to impose fines, costs, and fees. Polk v.

State, 88 N.E.3d 226, 229 (Ind. Ct. App. 2017). We review a trial court’s

sentencing decisions for an abuse of discretion. Coleman v. State, 61 N.E.3d 390,

392 (Ind. Ct. App. 2016). An abuse of discretion occurs when a sentencing

decision is clearly against the logic and effect of the facts and circumstances

before the court, or the reasonable, probable, and actual deductions to be drawn

therefrom. Id.

[22] Bail bonds are governed by statute. See Ind. Code ch. 35-33-8.

When a clerk receives a criminal defendant’s bond, she holds it (among other reasons) to ensure the defendant’s appearance in court. . . . But a defendant may be entitled to recoup any remaining portion of the cash bond if the court alters or revokes bail, or when the criminal matter ends[].

Garner v. Kempf, 93 N.E.3d 1091, 1095–96 (Ind. 2018) (internal citations and

quotations omitted).

[23] The bail bond statute in effect when Johnson posted his bond provided in

relevant part:

(a) A court may admit a defendant to bail and impose any of the following conditions to assure the defendant’s appearance at any stage of the legal proceedings, or, upon a showing of clear and

Court of Appeals of Indiana | Memorandum Decision 20A-CR-1489 | December 29, 2020 Page 9 of 12 convincing evidence that the defendant poses a risk of physical danger to another person or the community, to assure the public’s physical safety:

(1) Require the defendant to:

(A) execute a bail bond with sufficient solvent sureties;

(B) deposit cash or securities in an amount equal to the bail;

(C) execute a bond secured by real estate in the county, where thirty-three hundredths (0.33) of the true tax value less encumbrances is at least equal to the amount of the bail;

(D) post a real estate bond; or

(E) perform any combination of the requirements described in clauses (A) through (D).

If the court requires the defendant to deposit cash or cash and another form of security as bail, the court may require the defendant and each person who makes the deposit on behalf of the defendant to execute an agreement that allows the court to retain all or a part of the cash to pay publicly paid costs of representation and fines, costs, fees, and restitution that the court may order the defendant to pay if the defendant is convicted. The defendant must also pay the fee required by subsection (d).

I.C. § 35-33-8-3.2(a)(1) (2016) (emphasis added).1

1 The subsection that follows, 3.2(a)(2), offers an alternative: ten percent of the bail may be posted, but that amount is subject to retention by the clerk of the court for the reimbursement of publicly paid costs of representation by operation of law. Ind. Code § 35-33-8-3.2(a)(2) (requiring the defendant to execute an agreement that allows the court to retain the cash or securities to pay costs and fees if the defendant is

Court of Appeals of Indiana | Memorandum Decision 20A-CR-1489 | December 29, 2020 Page 10 of 12 [24] Subsection 3.2(a)(1) gives the trial court discretion to require the defendant or

person posting the bond on his or her behalf to execute an agreement to allow

the court to retain all or part of the cash bond to pay publicly paid costs of

representation. Here, the record fails to indicate whether such an agreement

was executed. This is problematic for two reasons.

[25] First, we cannot say whether Johnson’s mother agreed to “allow[] the court to

retain . . . part of the cash to pay publicly paid costs of representation.” I.C. §

35-33-8-3.2(a)(1). If she did not execute an agreement, the trial court should not

have retained the cash bond to pay Johnson’s public defender’s fees. And

second, Johnson notes that an indigency hearing was not held before the court

ordered the costs of representation withheld from his cash bond. But whether

such a hearing was required depends on whether Johnson’s mother executed a

bail-bond agreement. Wright v. State, 949 N.E.2d 411, 416 (Ind. Ct. App. 2011)

(“[W]hen a bail bond agreement is executed, [an indigency] hearing is not

required.”).

[26] The State suggests that we remand this case to determine whether Johnson’s

mother executed the agreement permitted by subsection 3.2(a)(1) when she

posted the cash bond on Johnson’s behalf.2 Because the existence of the

convicted). Johnson’s mother posted the full amount of bail in a $5,000 cash bond pursuant to subsection 3.2(a)(1). 2 Without citation to authority, the State suggests that if Johnson’s bond was revoked, his cash bond “could have been forfeited.” Appellee’s Br. at 17. There is no language in Indiana Code section 35-33-8-3.2 that would support his argument. Moreover, in Garner, our supreme court stated that a defendant may be entitled to recoup the remainder of his or her cash bond if the trial court revokes bail. 93 N.E.3d at 1095–96.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-1489 | December 29, 2020 Page 11 of 12 agreement determines the outcome of this issue, we agree that the best course is

to remand for an evidentiary hearing to determine whether Johnson’s mother

executed an agreement when she posted the cash bond in this case.

Conclusion [27] Johnson has not persuaded us that his twelve-year sentence is inappropriate in

light of the nature of the offense and the character of the offender. However, we

reverse the trial court’s order allowing Johnson’s bond to be used to pay his

public defender’s fee and remand this case to the trial court for an evidentiary

hearing concerning the bond issue raised in this appeal.

[28] Affirmed in part, reversed in part, and remanded for proceedings consistent

with this opinion.

Altice, J., and Weissmann, J., concur.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-1489 | December 29, 2020 Page 12 of 12