Josselyn Patricia Johnson v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: February 13, 2017
• Docket: 45A03-1606-CR-1478
• Status: Published

Opinion

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Feb 13 2017, 9:17 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 P. Jeffrey Schlesinger Curtis T. Hill, Jr. Office of the Public Defender Attorney General of Indiana Crown Point, Indiana George P. Sherman Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Josselyn Patricia Johnson, February 13, 2017 Appellant-Defendant, Court of Appeals Case No. 45A03-1606-CR-1478 v. Appeal from the Lake Superior Court State of Indiana, The Honorable Kathleen Sullivan, Appellee-Plaintiff. Judge Pro Tempore Trial Court Cause No. 45G01-1510-F3-54

Robb, Judge.

Court of Appeals of Indiana | Memorandum Decision 45A03-1606-CR-1478 | February 13, 2017 Page 1 of 7 Case Summary and Issues [1] By virtue of a plea agreement, Josselyn Johnson pleaded guilty to robbery, a

Level 5 felony. The trial court accepted the plea agreement, entered judgment

of conviction, and sentenced Johnson to five years in the Indiana Department

of Correction. Johnson appeals, raising two issues for our review: (1) whether

the trial court abused its discretion in failing to find certain mitigating

circumstances; and (2) whether her sentence is inappropriate in light of the

nature of her offense and her character. Concluding the trial court did not

abuse its discretion and Johnson’s sentence is not inappropriate, we affirm.

Facts and Procedural History [2] On August 24, 2015, Johnson, Corey Burton, and Kristen Burton entered Best

Fashion in Merrillville, Indiana. Corey grabbed the store owner, Doo Chang,

dragged her to the rear of the store, and began punching her in the face.

Meanwhile, Johnson and Kristen stole clothing and jewelry. Chang suffered a

bloody nose and pain and bruising to her body and head.

[3] The State charged Johnson with Count I, robbery resulting in bodily injury, a

Level 3 felony; Count II, criminal confinement, a Level 5 felony; and Count III,

battery, a Level 6 felony. On April 28, 2016, Johnson and the State entered

into a written plea agreement pursuant to which Johnson agreed to plead open

to robbery as a Level 5 felony in exchange for the State dismissing the

remaining three counts. On May 27, 2016, the trial court accepted Johnson’s

Court of Appeals of Indiana | Memorandum Decision 45A03-1606-CR-1478 | February 13, 2017 Page 2 of 7 guilty plea and sentenced her to five years in the Indiana Department of

Correction. As aggravating circumstances, the trial court considered Johnson’s

criminal history, which consists of prior convictions of robbery and theft, and

her failure to remedy her criminal behavior after multiple prior contacts with

the criminal justice system. As mitigating circumstances, the trial court

considered the fact Johnson pleaded guilty and admitted responsibility. On

June 3, 2016, the trial court amended its sentencing order to provide that

Johnson may serve the final year of her five-year sentence in Community

Transition Court, if she is accepted. Johnson now appeals.

Discussion and Decision I. Mitigating Circumstances [4] Johnson argues the trial court abused its discretion in declining to find two

additional proffered mitigating factors. Sentencing decisions rest within the

sound discretion of the trial court. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind.

2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007). As long as a sentence is

within the statutory range, we review only for an abuse of discretion. Id. A

trial court abuses its discretion if the 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.

(citation omitted). A trial court is not required to accept a defendant’s

argument as to what is a mitigating factor or to provide mitigating factors the

same weight as does a defendant. Conley v. State, 972 N.E.2d 864, 873 (Ind.

Court of Appeals of Indiana | Memorandum Decision 45A03-1606-CR-1478 | February 13, 2017 Page 3 of 7 2012). “If the trial court does not find the existence of a mitigating factor after

it has been argued by counsel, the trial court is not obligated to explain why it

has found that the factor does not exist.” Anglemyer, 868 N.E.2d at 493.

However, a court abuses its discretion if it does not consider significant

mitigating circumstances advanced by the defendant and clearly supported by

the record. Id. at 490-91.

[5] Johnson argues the trial court should have found the following as mitigating

circumstances: (1) Johnson’s diagnosis of schizophrenia and depression, and (2)

Johnson’s lack of parental supervision or family environment as a child.

[6] The trial court did not abuse its discretion in declining to find Johnson’s

diagnoses of schizophrenia and depression as mitigating circumstances.

Johnson is correct to note our supreme court has identified several factors a trial

court is to consider in determining what mitigating weight evidence of a mental

illness may have. Weeks v. State, 697 N.E.2d 28, 30 (Ind. 1998). Those factors

include: (1) the extent of the defendant’s inability to control his or her behavior

due to the disorder or impairment; (2) overall limitations on functioning; (3) the

duration of the mental illness; and (4) the extent of any nexus between the

disorder or impairment and the commission of the crime. Id. However, it is

Johnson’s burden to establish the mitigating factors are both significant and

clearly supported by the record. Anglemyer, 868 N.E.2d at 493. Here, Johnson

failed to present evidence on any of these factors, and in fact, argued to the trial

court that schizophrenia and depression had little to no bearing on these crimes.

At the sentencing hearing, Johnson’s counsel stated “I don’t think she’s going

Court of Appeals of Indiana | Memorandum Decision 45A03-1606-CR-1478 | February 13, 2017 Page 4 of 7 to be . . . blaming [her crime] on any of . . . the diagnosed mental illnesses,” and

that “she appears to be doing well and no longer suffering from serious

complications . . . .” Transcript at 6. Therefore, the trial court’s sentencing

decision is not clearly against the logic and effect of the facts and circumstances

before the court.

[7] We likewise disagree the trial court abused its discretion in declining to find

Johnson’s lack of parental supervision or family environment as a child to be a

mitigating circumstance. As Johnson acknowledges, our supreme court has

held evidence of a difficult childhood is entitled to little, if any, mitigating

weight. Ritchie v. State, 875 N.E.2d 706, 725 (Ind. 2007). Again, it is Johnson’s

burden to establish a mitigating factor and prove it is significant. Anglemyer,

868 N.E.2d at 493. Johnson was twenty-three years old at sentencing, and the

trial court was within its discretion to conclude her difficult childhood and lack

of parental supervision had little relevance to her current criminal conduct.

II. Inappropriate Sentence [8] Johnson also argues her sentence is inappropriate in light of the nature of the

offense and her character. Indiana Rule of Appellate Procedure 7(B) provides

that we “may revise a sentence authorized by statute 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.” Under this

rule, the burden is on the defendant to persuade the appellate court his or her

sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).

Court of Appeals of Indiana | Memorandum Decision 45A03-1606-CR-1478 | February 13, 2017 Page 5 of 7 Relief is available if, after due consideration of the trial court’s sentencing

decision, this court, in its independent judgment, finds the sentence is

inappropriate in light of the nature of the offense and the character of the

offender. See Hines v. State, 30 N.E.3d 1216, 1225 (Ind. 2015). Sentencing is

principally a discretionary function in which the trial court’s judgment should

receive considerable deference. Id. “Whether we regard a sentence as

appropriate at the end of the day 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.” Id. (citation omitted).

[9] First, we consider the nature of Johnson’s offense. When reviewing the nature

of the offense, a relevant factor is whether there is anything more or less

egregious about the offense which distinguishes it from a “typical” offense

accounted for by the advisory sentence set by the legislature. Wells v. State, 2

N.E.3d 123, 131 (Ind. Ct. App. 2014), trans. denied. The sentencing range for a

Level 5 felony is one to six years, with the advisory sentence being three years.

Ind. Code § 35-50-2-6(b). Here, Johnson stole clothing and jewelry while her

confederate mercilessly punched Chang in the face, causing her substantial

injury to her head, body, and nose. However, as Johnson did not participate in

the battery upon Chang, we do not think the nature of this offense is overtly

better or worse than the “typical” robbery offense.

[10] Next, we consider Johnson’s character. When considering the character of the

offender, one relevant factor is the defendant’s criminal history. Wells, 2

N.E.3d at 131. In 2012, Johnson was convicted of robbery and theft, for which

Court of Appeals of Indiana | Memorandum Decision 45A03-1606-CR-1478 | February 13, 2017 Page 6 of 7 she received a three-year sentence. Although her criminal history is not

lengthy, her recidivism exhibits a disregard for the law and a failure to reform

despite a lenient measure previously extended to her. Further, we note a lack of

remorse by Johnson. At the sentencing hearing, Johnson attempted to justify

her actions by pointing to a need to make a living for herself. The transcript is

void of any form of apology to the victim or indication Johnson is genuinely

sorry for her actions. Given Johnson’s criminal history, coupled with her lack

of remorse and failure to reform her criminal behavior, we conclude a five-year

sentence is not inappropriate.

Conclusion [11] The trial court did not abuse its discretion in failing to find certain mitigating

circumstances and Johnson’s sentence is not inappropriate given the nature of

the offense and the character of the offender. Therefore, we affirm Johnson’s

sentence.

[12] Affirmed.

Kirsch, J., and Barnes, J., concur.

Court of Appeals of Indiana | Memorandum Decision 45A03-1606-CR-1478 | February 13, 2017 Page 7 of 7