MEMORANDUM DECISION 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 establishing the defense of res judicata, collateral Nov 28 2018, 10:02 am
estoppel, or the law of the case. CLERK Indiana Supreme Court Court of Appeals and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE R. Brian Woodward Curtis T. Hill, Jr. Appellate Public Defender Attorney General of Indiana Crown Point, Indiana Chandra K. Hein Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
John Fitzgerald Johnson, Jr., November 28, 2018 Appellant-Defendant, Court of Appeals Case No. 18A-CR-1682 v. Appeal from the Lake Superior Court State of Indiana, The Honorable Clarence D. Appellee-Plaintiff. Murray, Judge Trial Court Cause Nos. 45G02-1602-F2-3 45G02-1606-F3-21
Bradford, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1682 | November 28, 2018 Page 1 of 6 Case Summary [1] In April of 2018, pursuant to a plea agreement, John Fitzgerald Johnson, Jr.,
pled guilty to one count of Level 5 felony battery by means of a deadly weapon
and two counts of Level 5 felony robbery in Lake County. In exchange, the
State agreed to dismiss all remaining counts. The trial court sentenced Johnson
to fifteen years of incarceration. Johnson contends that the trial court abused its
discretion by finding his eleven victims, who were listed in the stipulated factual
basis, to be an aggravating circumstance. Further, Johnson contends that his
sentence is inappropriate in light of the nature of his offenses and his character.
Because we disagree, we affirm.
Facts and Procedural History [2] On January 23, 2016, Johnson and N’Vaun Lewis arranged to meet with
Robert Wisniewski about Johnson’s truck, which he had listed for sale on
Craigslist. When Wisniewski and his father arrived, Johnson demanded that
they hand over money and other property or be shot. Johnson and Lewis took
Wisniewski’s mobile telephone and fled. On February 2, 2016, Johnson and
Lewis again arranged a meeting about Johnson’s truck, this time with Cain
Herrera. When Herrera arrived accompanied by his father and brother, Johnson
and Lewis rushed their vehicle. As Herrera and his family drove away, Johnson
pulled out a handgun and fired multiple close-range shots at the vehicle, one
striking Herrera in the face. Herrera’s jaw was fractured, he lost teeth and part
of his tongue, and he had to attend speech therapy to relearn to talk and eat.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1682 | November 28, 2018 Page 2 of 6 The State charged Johnson, in cause number 45G02-1602-F2-3 (“Cause No.
F2-3”), with one count of Level 2 felony attempted robbery resulting in serious
bodily injury, two counts of Level 3 felony armed robbery, and two counts of
Level 3 felony attempted robbery.
[3] On April 14, 2016, Brandon Arizpe agreed to meet Johnson to purchase a
television that Johnson had listed for sale on Craigslist. When Arizpe arrived,
Johnson demanded money and began making threats, including telling Arizpe
that he had a gun. Johnson ultimately took money, two mobile telephones, and
a handgun from Arizpe. On June 17, 2016, the State charged Johnson, under
cause number 45G02-1606-F3-21 (“Cause No. F3-21”), with two counts of
Level 3 felony armed robbery and two counts of Level 3 felony criminal
confinement.
[4] Pursuant to a plea agreement, on April 3, 2018, Johnson pled guilty in
amended Cause No. F2-3 to Level 5 felony battery by means of a deadly
weapon and Level 5 felony robbery and in amended Cause No. F3-21 to Level
5 felony robbery. In exchange, the State agreed to dismiss all remaining counts,
and Johnson consented to the stipulated factual basis which was submitted to
the trial court by the State. On June 1, 2018, the trial court sentenced Johnson
to consecutive five-year terms of incarceration on each count, for an aggregate
sentence of fifteen years. The trial court concluded that the aggravating
circumstances outweighed any mitigating circumstances, most notably
Johnson’s criminal history, the number of victims, and the nature and
circumstances of the offenses.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1682 | November 28, 2018 Page 3 of 6 Discussion and Decision I. Abuse of Discretion [5] Johnson contends that the trial court abused its discretion by improperly finding
his eleven victims to be an aggravating circumstance at sentencing. We review
the trial court’s finding of an aggravating circumstance for an abuse of
discretion. Spiller v. State, 740 N.E.2d 1270, 1274 (Ind. Ct. App. 2001), trans.
denied. “An abuse of discretion occurs when the trial court’s decision is clearly
against the logic and effect of the facts and circumstances before the court or
when the court misinterprets the law.” Johnson v. State, 36 N.E.3d 1130, 1133
(Ind. Ct. App. 2015), trans. denied.
[6] Johnson specifically asserts that the trial court abused its discretion by
considering his eleven victims to be an aggravating circumstance when only
nine where included in the stipulated factual basis and the trial court failed to
establish that each of those victims was harmed. Both of Johnson’s assertions
fail. First, the stipulated factual basis did list eleven different victims.
Moreover, the trial court did not need to establish that a particular harm
occurred to each person because Johnson stipulated that these eleven named
persons were victims. Johnson has failed to establish that the trial court abused
its discretion by finding the eleven victims of his crimes to be an aggravating
circumstance.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1682 | November 28, 2018 Page 4 of 6 II. Appropriateness [7] Johnson contends that his fifteen-year sentence is inappropriate. We may revise
a sentence 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.” Ind. Appellate Rule 7(B). “Sentencing is
principally 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) (internal citations omitted). The defendant bears the burden of proving
that his sentence is inappropriate in the light of both the nature of his offense
and his character. Gil v. State, 988 N.E.2d 1231, 1237 (Ind. Ct. App. 2013).
Johnson pled guilty to one count of Level 5 felony battery by means of a deadly
weapon and two counts of Level 5 felony robbery and received a sentence of
five years executed for each conviction, to be served consecutively, which is
above the advisory, but below the maximum. See Ind. Code § 35-50-2-6.
[8] The nature of Johnson’s offenses does not support a reduction in his sentence.
Johnson carefully planned to lure his victims to a place where he would rob
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MEMORANDUM DECISION 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 establishing the defense of res judicata, collateral Nov 28 2018, 10:02 am
estoppel, or the law of the case. CLERK Indiana Supreme Court Court of Appeals and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE R. Brian Woodward Curtis T. Hill, Jr. Appellate Public Defender Attorney General of Indiana Crown Point, Indiana Chandra K. Hein Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
John Fitzgerald Johnson, Jr., November 28, 2018 Appellant-Defendant, Court of Appeals Case No. 18A-CR-1682 v. Appeal from the Lake Superior Court State of Indiana, The Honorable Clarence D. Appellee-Plaintiff. Murray, Judge Trial Court Cause Nos. 45G02-1602-F2-3 45G02-1606-F3-21
Bradford, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1682 | November 28, 2018 Page 1 of 6 Case Summary [1] In April of 2018, pursuant to a plea agreement, John Fitzgerald Johnson, Jr.,
pled guilty to one count of Level 5 felony battery by means of a deadly weapon
and two counts of Level 5 felony robbery in Lake County. In exchange, the
State agreed to dismiss all remaining counts. The trial court sentenced Johnson
to fifteen years of incarceration. Johnson contends that the trial court abused its
discretion by finding his eleven victims, who were listed in the stipulated factual
basis, to be an aggravating circumstance. Further, Johnson contends that his
sentence is inappropriate in light of the nature of his offenses and his character.
Because we disagree, we affirm.
Facts and Procedural History [2] On January 23, 2016, Johnson and N’Vaun Lewis arranged to meet with
Robert Wisniewski about Johnson’s truck, which he had listed for sale on
Craigslist. When Wisniewski and his father arrived, Johnson demanded that
they hand over money and other property or be shot. Johnson and Lewis took
Wisniewski’s mobile telephone and fled. On February 2, 2016, Johnson and
Lewis again arranged a meeting about Johnson’s truck, this time with Cain
Herrera. When Herrera arrived accompanied by his father and brother, Johnson
and Lewis rushed their vehicle. As Herrera and his family drove away, Johnson
pulled out a handgun and fired multiple close-range shots at the vehicle, one
striking Herrera in the face. Herrera’s jaw was fractured, he lost teeth and part
of his tongue, and he had to attend speech therapy to relearn to talk and eat.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1682 | November 28, 2018 Page 2 of 6 The State charged Johnson, in cause number 45G02-1602-F2-3 (“Cause No.
F2-3”), with one count of Level 2 felony attempted robbery resulting in serious
bodily injury, two counts of Level 3 felony armed robbery, and two counts of
Level 3 felony attempted robbery.
[3] On April 14, 2016, Brandon Arizpe agreed to meet Johnson to purchase a
television that Johnson had listed for sale on Craigslist. When Arizpe arrived,
Johnson demanded money and began making threats, including telling Arizpe
that he had a gun. Johnson ultimately took money, two mobile telephones, and
a handgun from Arizpe. On June 17, 2016, the State charged Johnson, under
cause number 45G02-1606-F3-21 (“Cause No. F3-21”), with two counts of
Level 3 felony armed robbery and two counts of Level 3 felony criminal
confinement.
[4] Pursuant to a plea agreement, on April 3, 2018, Johnson pled guilty in
amended Cause No. F2-3 to Level 5 felony battery by means of a deadly
weapon and Level 5 felony robbery and in amended Cause No. F3-21 to Level
5 felony robbery. In exchange, the State agreed to dismiss all remaining counts,
and Johnson consented to the stipulated factual basis which was submitted to
the trial court by the State. On June 1, 2018, the trial court sentenced Johnson
to consecutive five-year terms of incarceration on each count, for an aggregate
sentence of fifteen years. The trial court concluded that the aggravating
circumstances outweighed any mitigating circumstances, most notably
Johnson’s criminal history, the number of victims, and the nature and
circumstances of the offenses.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1682 | November 28, 2018 Page 3 of 6 Discussion and Decision I. Abuse of Discretion [5] Johnson contends that the trial court abused its discretion by improperly finding
his eleven victims to be an aggravating circumstance at sentencing. We review
the trial court’s finding of an aggravating circumstance for an abuse of
discretion. Spiller v. State, 740 N.E.2d 1270, 1274 (Ind. Ct. App. 2001), trans.
denied. “An abuse of discretion occurs when the trial court’s decision is clearly
against the logic and effect of the facts and circumstances before the court or
when the court misinterprets the law.” Johnson v. State, 36 N.E.3d 1130, 1133
(Ind. Ct. App. 2015), trans. denied.
[6] Johnson specifically asserts that the trial court abused its discretion by
considering his eleven victims to be an aggravating circumstance when only
nine where included in the stipulated factual basis and the trial court failed to
establish that each of those victims was harmed. Both of Johnson’s assertions
fail. First, the stipulated factual basis did list eleven different victims.
Moreover, the trial court did not need to establish that a particular harm
occurred to each person because Johnson stipulated that these eleven named
persons were victims. Johnson has failed to establish that the trial court abused
its discretion by finding the eleven victims of his crimes to be an aggravating
circumstance.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1682 | November 28, 2018 Page 4 of 6 II. Appropriateness [7] Johnson contends that his fifteen-year sentence is inappropriate. We may revise
a sentence 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.” Ind. Appellate Rule 7(B). “Sentencing is
principally 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) (internal citations omitted). The defendant bears the burden of proving
that his sentence is inappropriate in the light of both the nature of his offense
and his character. Gil v. State, 988 N.E.2d 1231, 1237 (Ind. Ct. App. 2013).
Johnson pled guilty to one count of Level 5 felony battery by means of a deadly
weapon and two counts of Level 5 felony robbery and received a sentence of
five years executed for each conviction, to be served consecutively, which is
above the advisory, but below the maximum. See Ind. Code § 35-50-2-6.
[8] The nature of Johnson’s offenses does not support a reduction in his sentence.
Johnson carefully planned to lure his victims to a place where he would rob
them and battered one in a far more brutal manner then was necessary to
sustain his conviction. Moreover, by committing multiple crimes against
multiple victims, the trial court was justified in imposing consecutive sentences.
See O’Connell v. State, 742 N.E.2d 943, 952 (Ind. 2001) (emphasizing that
multiple crimes or victims constitute a valid aggravating circumstance for
imposing consecutive sentences).
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1682 | November 28, 2018 Page 5 of 6 [9] Johnson’s character also does not support a reduction in his sentence. The
thirty-two-year-old Johnson has a history with the criminal and juvenile justice
systems that dates back to an arrest for truancy at age fifteen. As a juvenile,
Johnson was adjudicated delinquent for what would be Class D felony theft and
Class A misdemeanor conversion if committed by an adult. As an adult,
Johnson has convictions for Class A misdemeanor possession of marijuana,
Class B misdemeanor visiting a common nuisance, and Class C felony criminal
recklessness. Johnson has also violated parole. At the time of sentencing in this
case, Johnson had pending charges in Marion County for Level 5 felony
possession of a handgun. Despite his many contacts with the criminal and
juvenile justice systems, Johnson has been unwilling to conform his actions to
societal norms. Johnson has failed to establish that his sentence is
inappropriate.
[10] The judgment of the trial court is affirmed.
Bailey, J., and Mathias, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1682 | November 28, 2018 Page 6 of 6