Larry P. Johnson v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: February 18, 2019
• Docket: 18A-CR-2249
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Feb 18 2019, 7:02 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.

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE R. Patrick Magrath Curtis T. Hills, Jr. Matthew T. Bates Attorney General of Indiana Alcorn Sage Schwartz & Magrath, LLP Robert Austin Rowlett Madison, Indiana Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Larry P. Johnson, February 18, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-2249 v. Appeal from the Dearborn Superior Court State of Indiana, The Honorable Sally A. Appellee-Plaintiff. McLaughlin, Judge Trial Court Cause No. 15D02-1803-F6-80

Pyle, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2249 | February 18, 2019 Page 1 of 6 Statement of the Case [1] Larry P. Johnson (“Johnson”) appeals the two-year sentence imposed for his

Level 6 felony escape conviction,1 arguing that it is inappropriate. Concluding

that Johnson has failed to show that his sentence is inappropriate, we affirm his

sentence.

[2] We affirm.

Issue Whether Johnson’s sentence is inappropriate pursuant to Indiana Appellate Rule 7(B).

Facts [3] On February 27, 2018, after Johnson had been convicted of Class A

misdemeanor criminal trespass, the trial court imposed a one (1) year sentence

and suspended all of it to reporting probation, which included work release and

GPS monitoring.2 Less than two weeks later, on March 6, 2018, Johnson

removed his GPS monitoring device and threw it behind a dumpster.

1 IND. CODE § 35-44.1-3-4. 2 The same day, Johnson was also sentenced in two separate causes, and these sentences were ordered to be served consecutively to the above criminal trespass conviction. In one of these causes, he was convicted of Class A misdemeanor theft and Class A misdemeanor criminal trespass and was sentenced to concurrent one (1) year executed sentences for each conviction. In the other cause, he was convicted of Class A misdemeanor invasion of privacy and was sentenced to a one (1) year sentence suspended to probation.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2249 | February 18, 2019 Page 2 of 6 [4] Thereafter, the State charged Johnson with Level 6 felony escape. Johnson

entered into a plea agreement, pled guilty to the crime as charged, and agreed to

open sentencing. The trial court accepted Johnson’s plea and entered judgment

of conviction. When sentencing Johnson, the trial court found Johnson’s guilty

plea to be a mitigating circumstance. The trial court found Johnson’s criminal

history, which the trial court stated was “significant” and “quite extensive” and

included his violations of probation and community corrections, to be an

aggravating circumstance. (Tr. 17, 18). The trial court determined that

Johnson did “not appear to be someone who could be a candidate that could be

helped by probation[.]” (Tr. 18). The trial court imposed a two (2) year

sentence and stated that the “reason for the sentence is, again, [his] extensive

criminal history and history of probation violations and violations of

community corrections[.]” (Tr. 18). Johnson now appeals.

Decision [5] Johnson argues that his two-year sentence is inappropriate. We may revise a

sentence if it is inappropriate in light of the nature of the offense and the

character of the offender. Ind. Appellate Rule 7(B). The defendant has the

burden of persuading us that his sentence is inappropriate. Childress v. State, 848

N.E.2d 1073, 1080 (Ind. 2006). The principal role of a Rule 7(B) review

“should be to attempt 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 v.

State, 895 N.E.2d 1219, 1225 (Ind. 2008).

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2249 | February 18, 2019 Page 3 of 6 [6] When determining whether a sentence is inappropriate, we acknowledge that

the advisory sentence “is the starting point the Legislature has selected as an

appropriate sentence for the crime committed.” Childress, 848 N.E.2d at 1081.

Here, Johnson entered a guilty plea and was convicted of Level 6 felony escape.

A Level 6 felony has a sentencing range of six (6) months to two and one-half

(2½) years with an advisory sentence of one (1) year. I.C. § 35-50-2-7(b). The

trial court imposed a two-year sentence, which is less than the maximum

[7] The nature of Johnson’s offense involved him removing his GPS monitoring

device and throwing it behind a dumpster. He argues that his crime was not

“particularly heinous or extreme” and did not involve any “egregious

behavior.” (Johnson’s Br. 9). Johnson attempts to diminish the nature of his

offense by focusing on the method he used to remove the GPS monitor, stating

that he disassembled it instead of cutting it off. Johnson fails to grasp that he

was shown leniency by being placed on work release instead of being

incarcerated and that he showed extreme disregard of that leniency when, less

than two weeks after being placed on work release, he removed his device and

abandoned it.

[8] Turning to Johnson’s character, we note that the presentence investigation

report (“PSI”) shows that thirty-four-year-old Johnson has a criminal history

consisting of five juvenile adjudications and numerous adult convictions and

arrests in both Indiana and Ohio. Johnson received his first juvenile

adjudication for theft at age thirteen. His adult convictions include: (1) a 2008

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2249 | February 18, 2019 Page 4 of 6 felony breaking and entering conviction (Ohio); (2) a 2010 possessing criminal

tools conviction (Ohio); (3) a 2010 Class C felony possession of a controlled

substance within 1,000 feet of school property conviction (Indiana); (4) a 2010

Class C felony forgery conviction (Indiana); (5) a 2012 obstructing official

business conviction (Ohio); (6) a 2012 felony possession of heroin conviction

(Ohio); (7) a 2013 felonious assault conviction (Ohio); (8) a 2018 Class A

misdemeanor criminal trespass conviction (Indiana); (9) a 2018 Class A

misdemeanor theft conviction (Indiana); (10) an additional 2018 Class A

misdemeanor criminal trespass conviction (Indiana); and (11) a 2018 Class A

misdemeanor invasion of privacy conviction (Indiana). As noted by the trial

court, Johnson has also violated probation and community corrections. For

example, Johnson was sentenced to three years on probation in community

corrections for his 2008 felony breaking and entering conviction in Ohio, and

he violated that community corrections on five separate occasions and had his

probation terminated. He also violated his Ohio community correction

placement from his possession of heroin conviction in 2012. Johnson’s

character reveals a disregard for the law and the authority of the courts.

Johnson’s character is further revealed by his history of drug use. The PSI

indicates that Johnson started using drugs and alcohol at age seventeen and that

he had used methamphetamine on a daily basis prior to arrest in 2018.

[9] Johnson has not persuaded us that his two-year sentence for Level 6 felony

escape is inappropriate. Therefore, we affirm the sentence imposed by the trial

court.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2249 | February 18, 2019 Page 5 of 6 [10] Affirmed.

Najam, J., and Altice, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2249 | February 18, 2019 Page 6 of 6