MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be May 08 2019, 9:05 am regarded as precedent or cited before any 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 Steven E. Ripstra Curtis T. Hill, Jr. Ripstra Law Office Attorney General of Indiana Jasper, Indiana Taylor C. Byrley Angela Sanchez Deputy Attorneys General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Johnathon B. Franzell, May 8, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-2806 v. Appeal from the Dubois Superior Court State of Indiana, The Honorable Appellee-Plaintiff. Mark R. McConnell, Judge Trial Court Cause No. 19D01-1710-F5-1047
Kirsch, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2806 | May 8, 2019 Page 1 of 13 [1] Johnathon B. Franzell (“Franzell”) pleaded guilty to trafficking with an inmate1
as a Level 5 felony and was sentenced to four years in the Indiana Department
of Correction (“the DOC”), which were ordered to be served consecutive to
sentences ordered in two other cause numbers. Franzell appeals his sentence
and raises the following restated issues:
I. Whether the trial court abused its discretion in sentencing Franzell because it did not find a mitigating factor that was clearly supported by the record and because it found an aggravating factor that was not supported by the record;
II. Whether Franzell’s sentence is inappropriate in light of the nature of the offense and the character of the offender; and
III. Whether Franzell’s sentence was required to be served consecutively under Indiana Code section 35-50-1-2(e).
[2] We affirm.
Facts and Procedural History [3] On October 12, 2017, Franzell was incarcerated in the Dubois County Security
Center while serving a sentence in Cause Number 19D01-1101-FB-24 (“Cause
24”) and awaiting sentencing in Cause Number 19C01-1701-F5-114 (“Cause
114”). Tr. at 3-4; Appellant’s App. Vol. 2 at 19. The Dubois County Jail
commander received information that drugs were being smuggled into the jail
1 See Ind. Code § 35-44.1-3-5(b)(1).
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2806 | May 8, 2019 Page 2 of 13 and were possibly located in a contact solution bottle behind the light in cell D-
3. Appellant’s App. Vol. 2 at 9, 18. Officers went to cell D-3 to investigate, and
when they got there, they saw an inmate, Damion Pryor (“Pryor”), pick up a
cup and drink all the liquid inside the cup before the officers could begin their
search. Id. at 9. After reviewing several jail calls by inmates and speaking with
other inmates, the officers determined that Franzell was the one who had
arranged for the drugs to be brought into the facility. Id. at 9-10.
[4] Officers interviewed Franzell, and he told them that he had arranged for the
drugs to come into the facility and that the drugs were a form of payback from
someone who owed him money. Id. at 10. After analyzing Franzell’s phone
calls, officers determined that Franzell was contacting his step-daughter to
obtain the drugs and that she would find someone else to bring them to the jail
because she did not want to transport the drugs to the jail. Id. When the drugs
arrived in the jail, the inmates would place the liquid, which contained
methamphetamine, on a mirror and wait for it to dry, then scrape up the
powder and snort it. Id. at 9. Franzell told officers that this was the second
time that drugs had come into the facility in a contact solution bottle; he also
stated that the first time had been a few days earlier, but that delivery had been
too weak to get anything from it. Id. at 10.
[5] The officers then tried to speak to Pryor, who immediately became angry and
refused to talk with the officers. Id. at 10. They noticed that Pryor was acting
strangely and that his eyes were rolling back into his head. Id. The officers
took Pryor to the emergency room and informed the staff that they believed
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2806 | May 8, 2019 Page 3 of 13 Pryor had ingested drugs at the jail. Id. When asked by the nurses what he had
taken, Pryor told them that he was under the influence of methamphetamine
and that he had been taking methamphetamine for the past several days. Id. at
10-11. Pryor informed the nurses that he had drunk the methamphetamine but
did not know how much he ingested and that he had been awake for four days
straight. Id. at 11. Lab results indicated that Pryor was under the influence of
amphetamines, methamphetamine, and ecstasy. Id.
[6] On October 16, 2017, the State charged Franzell with one count of trafficking
with an inmate as a Level 5 felony. On May 17, 2018, Franzell pleaded guilty
to the charge, and on August 15, 2018, the trial court sentenced him to four
years in the DOC. This sentence was ordered to be served consecutive to the
sentences in Cause 24 and Cause 114. Id. at 12. In sentencing Franzell, the
trial court found as aggravating factors Franzell’s extensive criminal history, the
fact that the offense occurred while Franzell was serving another sentence, and
the harm or injury suffered as a result of the offense was greater than the
elements of the offense. Tr. at 21-22. The trial court stated that it considered
Franzell’s remorse and the fact that his imprisonment might cause undue
hardship to his dependents as mitigating factors but gave them little weight and
found the aggravating factors to outweigh the mitigating factors. Id. at 22-23.
Franzell now appeals.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2806 | May 8, 2019 Page 4 of 13 Discussion and Decision
I. Aggravating and Mitigating Factors [7] Franzell contends that the trial court abused its discretion when it sentenced
him because it failed to consider a mitigating factor that was supported by the
record and relied on an improper aggravating factor. Sentencing decisions rest
within the sound discretion of the trial court and are reviewed on appeal only
for an abuse of discretion. Forshee v. State, 56 N.E.3d 1182, 1185 (Ind. Ct. App.
2016). “An abuse of discretion occurs if the 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. (quotation marks
omitted). When imposing a sentence in a felony case, the trial court must
provide a reasonably detailed sentencing statement explaining its reason for
imposing the sentence. Id. The trial court can abuse its discretion in four ways
when sentencing a defendant: (1) failing to enter a sentencing statement at all;
(2) finding an aggravating circumstance that is not supported by the record; (3)
failing to find a mitigating circumstance that is significant and supported by the
record; and (4) relying on reasons that are improper as a matter of law.
Anglemyer v. State, 868 N.E.2d 482, 490-91 (Ind. 2007), clarified on other grounds
on reh’g, 875 N.E.2d 218 (Ind. 2007).
[8] Franzell first argues that the trial court abused its discretion in sentencing him
because it failed to consider a significant mitigating factor that was clearly
supported by the record. He asserts that his guilty plea should have been found
to be a significant mitigator because it spared the State the expense of a trial.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2806 | May 8, 2019 Page 5 of 13 [9] The determination of mitigating circumstances is within the discretion of the
trial court. Rogers v. State, 878 N.E.2d 269, 272 (Ind. Ct. App. 2007), trans.
denied. The trial court is not obligated to accept the defendant’s argument as to
what constitutes a mitigating factor, and it is not required to give the same
weight to proffered mitigating factors as does a defendant. Id. An allegation
that the trial court failed to identify or find a mitigating factor requires the
defendant to establish that the mitigating evidence is both significant and clearly
supported by the record. Edsall v. State, 983 N.E.2d 200, 205 (Ind. Ct. App.
2013). If the trial court does not find the existence of a mitigating factor after it
has been argued by counsel, it is not obligated to explain why it has found that
the factor does not exist. Anglemyer, 868 N.E.2d at 493.
[10] Here, the trial court did not ignore the fact that Franzell pleaded guilty and
showed remorse. In fact, it acknowledged his guilty plea and remorsefulness
and considered it as a mitigating factor but stated that it gave it “very little
weight.” Tr. at 22. The trial court was not required to give the guilty plea the
weight Franzell requested, so its decision to give it less weight cannot be an
abuse of discretion. See Rogers, 878 N.E.2d at 272. Because Franzell’s guilty
plea was not ignored as a mitigating factor by the trial court, Franzell’s
argument amounts to a request for this court to reweigh a sentencing factor
already considered by the trial court, which we cannot do. Anglemyer, 868
N.E.2d at 490-91.
[11] Franzell next argues that the trial court abused its discretion when it found that
the harm or injury suffered as a result of the offense was significant and greater
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2806 | May 8, 2019 Page 6 of 13 than the elements of the offense to be an aggravating factor. He contends that
his actions in committing the offense of trafficking with an inmate “did not
exceed, even slightly, the elements required by the statute.” Appellant’s Br. at
11. He, therefore, asserts that this aggravating factor was not supported by the
record.
[12] The crime to which Franzell pleaded guilty, trafficking with an inmate, requires
a showing that a person, without prior authorization of someone in charge of
the penal facility, knowingly or intentionally delivered or carried a controlled
substance into the penal facility. Ind. Code § 35-44.1-3-5(b). The evidence in
the record establishes that Franzell, without authorization of anyone in charge
of the penal facility, knowingly and intentionally arranged for a controlled
substance to be brought into the facility and delivered to an inmate. These facts
provide evidence beyond what is required by the elements. The evidence
supports the finding by the trial court that the harm, injury, loss, or damage
suffered by the victim was significant. The victim in this case was Pryor, who
ingested the methamphetamine that Franzell brought into the facility. Pryor
drank a cup of the methamphetamine and water mixture that was contained in
the contact solution bottle, which was how the drugs were brought into the
facility. Appellant’s App. Vol. 2 at 10. The harm that Pryor suffered was
significant because as a result of Franzell’s action of delivering the drugs into
the facility, Pryor ingested a potentially lethal amount of methamphetamine
and had to be taken to the emergency room for treatment. Id. We conclude
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2806 | May 8, 2019 Page 7 of 13 that the trial court did not abuse its discretion in its finding of aggravating and
mitigating factors.
II. Inappropriate Sentence [13] Pursuant to Indiana Appellate Rule 7(B), this court “may revise a sentence
authorized by statute if, after due consideration of the trial court’s decision, the
[c]ourt finds that the sentence is inappropriate in light of the nature of the
offense and the character of the offender.” Our Supreme Court has explained
that the principal role of appellate review should be to attempt to leaven the
outliers, “not to achieve a perceived ‘correct’ result in each case.” Cardwell v.
State, 895 N.E.2d 1219, 1225 (Ind. 2008). We independently examine the
nature of Franzell’s offense and his character under Appellate Rule 7(B) with
substantial deference to the trial court’s sentence. Satterfield v. State, 33 N.E.3d
344, 355 (Ind. 2015). “In conducting our review, 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.’” Barker v.
State, 994 N.E.2d 306, 315 (Ind. Ct. App. 2013), trans. denied. Whether a
sentence is inappropriate ultimately depends upon “the culpability of the
defendant, the severity of the crime, the damage done to others, and a myriad
of other factors that come to light in a given case.” Cardwell, 895 N.E.2d at
1224. Franzell bears the burden of persuading this court that his sentence is
inappropriate. Id.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2806 | May 8, 2019 Page 8 of 13 [14] Franzell contends that his four-year sentence is inappropriate in light of the
nature of his offense and his character. He asserts that, as to the nature of his
offense, the facts of his offense track the statutory elements and are not unusual,
violent, or excessive. As to his character, Franzell concedes that he has a
lengthy criminal history but asserts that it “is not as bad as it looks.” Appellant’s
Br. at 12. He reasons that, although his criminal history spans twenty-four
years, it only contains eight felony and eight misdemeanor convictions. Based
on an analysis under Appellate Rule 7(B), Franzell argues that his sentence is
inappropriate and that he deserves a community-based sentence or, at worst,
the three-year advisory sentence.
[15] When determining whether a sentence is inappropriate, the advisory sentence is
the starting point the legislature has selected as an appropriate sentence for the
crime committed. Kunberger v. State, 46 N.E.3d 966, 973 (Ind. Ct. App. 2015);
Thompson v. State, 5 N.E.3d 383, 391 (Ind. Ct. App. 2014). Franzell was
convicted of a Level 5 felony, and the advisory sentence for a Level 5 felony
conviction is three years, with a range of between one and six years. Ind. Code
§ 35-50-2-6(b). Franzell was given a four-year sentence for his Level 5 felony
conviction.
[16] As this court has recognized, the nature of the offense is found in the details
and circumstances of the commission of the offense and the defendant’s
participation. Perry v. State, 78 N.E.3d 1, 13 (Ind. Ct. App. 2017). “When
determining the appropriateness of a sentence that deviates from an advisory
sentence, we consider whether there is anything more or less egregious about
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2806 | May 8, 2019 Page 9 of 13 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.’” Moyer v. State, 83 N.E.3d 136, 142 (Ind. Ct. App. 2017) (quoting
Holloway v. State, 950 N.E.2d 803, 807 (Ind. Ct. App. 2011)), trans. denied.
Here, Franzell, while incarcerated for other offenses, contacted his step-
daughter from a jail phone to have her obtain narcotics so that he and other
inmates could ingest the drugs. Appellant’s App. Vol. 2 at 10. Franzell told the
officers that these drugs were a form of payment from someone who owed him
money. Id. The drugs were brought into the facility in contact solution bottles
in order to hide them from the officers. Id. Franzell enlisted his step-daughter
in his criminal scheme by making her obtain the drugs and find someone to
deliver them because she was not comfortable bringing them to the jail. Id.
The offense is made more egregious by the fact that Pryor, who ingested the
drugs, was taken to the emergency room after the officers attempting to
interview him noticed that he was acting strange and his eyes were rolling into
the back of his head. Id. The nature of this offense is clearly aggravating given
the fact that Franzell was obtaining an extremely addictive and harmful
controlled substance by concealing the substance and having it brought into the
facility. We conclude that Franzell’s sentence is not inappropriate in light of
the nature of the offense.
[17] The character of the offender is found in what we learn of the offender’s life and
conduct. Perry, 78 N.E.3d at 13. When considering the character of the
offender, one relevant fact is the defendant’s criminal history. Johnson v. State,
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2806 | May 8, 2019 Page 10 of 13 986 N.E.2d 852, 857 (Ind. Ct. App. 2013). The evidence presented showed that
Franzell has an extensive and lengthy criminal history spanning twenty-four
years. Although many of his charges were dismissed or the dispositions are
unknown, Franzell has amassed a criminal history consisting of twenty-seven
cases containing at least forty-three charges and resulting in approximately
sixteen felony convictions and six misdemeanor convictions. At sentencing,
Franzell admitted that most of his extensive criminal history is related to or
involved the use of illegal drugs, and he reported that he had been using illegal
drugs since he was a teenager and continued such use even when incarcerated.
Tr. at 11; Appellant’s App. Vol. 2 at 32. Over the course of his criminal history,
Franzell has had many probation violations. Both the extensive nature of his
criminal history and his many violations of probation demonstrate that he is
likely to reoffend and continue his pattern of criminal activity. We conclude
that Franzell’s four-year sentence, which is one year over the advisory sentence,
is not inappropriate in light of his character.
III. Consecutive Sentences [18] Franzell argues that the trial court erred when it ordered that his sentence in the
present case be served consecutive to his sentence in Cause 24. He contends
that his sentence in the present case should run concurrent with and not
consecutive to the sentence he received under Cause 24. He further asserts that
the trial court erred in not awarding him credit time to be applied to his present
sentence.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2806 | May 8, 2019 Page 11 of 13 [19] Under Indiana Code section 35-50-1-2(e), if after being arrested for one crime, a
person commits another crime before being discharged from probation, parole,
or a term of imprisonment for the first crime, the terms of imprisonment for the
crimes shall be served consecutively. “To determine whether a prisoner is
entitled to pre-trial credit for actual time served, we must determine whether the
defendant was confined before trial and whether that confinement was the
‘result of the criminal charge for which [the] sentence is being imposed.’”
Maciaszek v. State, 75 N.E.3d 1089, 1092 (Ind. Ct. App. 2017) (quoting Stephens
v. State, 735 N.E.2d 278, 284 (Ind. Ct. App. 2000), trans. denied), trans. denied.
See Ind. Code § 35-50-6-3 (requiring defendant be “confined awaiting trial or
sentencing”).
Thus, for example, [i]f a person incarcerated awaiting trial on more than one charge is sentenced to concurrent terms for the separate crimes, he or she is entitled to receive credit time applied against each separate term. However, if the defendant receives consecutive terms, he or she is only allowed credit time against the total or aggregate of the terms.
Maciaszek, 75 N.E.3d at 1092 (quoting Payne v. State, 838 N.E.2d 503, 510 (Ind.
Ct. App. 2005), trans. denied).
[20] Here, when Franzell was charged with the crime in the present case, he was in
jail serving the remainder of two sentences under Cause 24 and Cause 114.
Appellant’s App. Vol. 2 at 27-29. Franzell does not challenge the consecutive
sentence as applied to Cause 144, only that he is entitled to have his sentence
run concurrent with the sentence in Cause 24, contending that his sentence
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2806 | May 8, 2019 Page 12 of 13 under Cause 24 was completed on October 29, 2017. Appellant’s Br. at 13-16. If
we take Franzell’s contention as true, then at the time of the instant crime,
October 12, 2017, he was still serving his term of imprisonment under Cause
24. Therefore, pursuant to Indiana Code section 35-50-1-2(e), the sentence in
the present case is required to be served consecutive to the sentence in Cause
24.
[21] As to Franzell’s assertion that he is entitled to credit time for the time he spent
incarcerated awaiting trial in this case, such an assertion is entirely dependent
on a finding that the sentence in Cause 24 was to be served concurrent with the
sentence in the present case. However, Franzell is not entitled to credit time
because he was not confined as a “result of the criminal charge for which [the]
sentence is being imposed.” Maciaszek, 75 N.E.3d at 1092. Instead, he was
confined on the charges originating from Cause 24 and Cause 114. Therefore,
Franzell is not entitled to credit time because, at the time he committed the
instant crime, he was serving time for other charges. We conclude that
Franzell’s argument that he is entitled to additional credit time is without merit.
[22] Affirmed.
Vaidik, C.J., and Altice, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2806 | May 8, 2019 Page 13 of 13