Lonnie Johnson v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: April 9, 2012
• Docket: 15A05-1109-CR-475
• Status: Unpublished

Opinion

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 Apr 09 2012, 8:39 am establishing the defense of res judicata, collateral estoppel, or the law of the case. CLERK of the supreme court, court of appeals and tax court

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

LEANNA WEISSMANN GREGORY F. ZOELLER Lawrenceburg, Indiana Attorney General of Indiana

KATHERINE MODESITT COOPER Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

LONNIE JOHNSON, ) ) Appellant-Defendant, ) ) vs. ) No. 15A05-1109-CR-475 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )

APPEAL FROM THE DEARBORN SUPERIOR COURT The Honorable Jonathan N. Cleary, Judge Cause No. 15C01-1006-FC-16

April 9, 2012

MEMORANDUM DECISION - NOT FOR PUBLICATION

BARTEAU, Senior Judge STATEMENT OF THE CASE

Lonnie Johnson appeals his eight-year sentence for Class C felony robbery. Ind.

Code § 35-42-5-1 (1984). We affirm.

ISSUE

Johnson presents one issue: whether his sentence is inappropriate.

FACTS AND PROCEDURAL HISTORY

On June 3, 2010, a man, later identified as Johnson, entered United Community

Bank in Lawrenceburg and asked customer service representative Whitney Slayback

about opening a savings account. Slayback gave Johnson a new account application and

told him about the bank’s checking promotion. Johnson spoke very softly, and his eyes

were bloodshot with a yellowish tint. He kept one of his hands out of view. When

Slayback asked him to fill out the application, he slipped a small piece of paper across the

counter. The note read, “This is a robbery, give me all the 50’s and 100’s and give back

the note.” Appellant’s App. p. 28. Slayback, scared that Johnson had a gun in the hand

she could not see, handed him an undetermined amount of money. As soon as Johnson

turned away from the counter, Slayback hit her alarm button, turned to her co-worker,

and stammered, “[H]e took my money.” Tr. p. 38. After Johnson left the bank, Slayback

locked the doors.

Detective Shane McHenry of the Dearborn County Sheriff’s Department and

Officer Nicholas Myers of the Lawrenceburg Police Department reviewed the bank’s

surveillance video, interviewed bank employees, and put out a bulletin about the robbery.

The next day, an officer from the Indiana Gaming Commission contacted Officer Myers

2 and said that a man matching the description of the robber had been at Hollywood Casino

in Lawrenceburg on the day of the robbery. After further investigation, Detective

McHenry and Officer Myers identified Johnson as the robber.

The State charged Johnson with Class C felony robbery. A warrant was issued

within twenty-four hours of the robbery, but Johnson was not located until October 2010

when he was found in San Diego, California. The State subsequently charged him with

being a habitual offender. Pursuant to a plea agreement, Johnson pleaded guilty to Class

C felony robbery, and in exchange the State agreed to dismiss the habitual offender

enhancement. The plea agreement provided for open sentencing.

At sentencing, the trial court found that the aggravators outweighed the mitigators

and imposed the maximum sentence of eight years executed. The court also ordered

Johnson to make restitution to United Community Bank in the amount of $7145.95.

Johnson now appeals.

DISCUSSION AND DECISION

Johnson contends that his eight-year executed sentence is inappropriate and asks

us to revise his sentence to eight years with two years suspended to probation. Although

a trial court may have acted within its lawful discretion in imposing a sentence, Article 7,

Sections 4 and 6 of the Indiana Constitution authorize independent appellate review and

revision of sentences through Indiana Appellate Rule 7(B), which provides that a court

“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.” Reid v. State, 876 N.E.2d 1114, 1116 (Ind.

3 2007) (citing Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007), clarified on reh’g,

875 N.E.2d 218 (2007)). The defendant has the burden of persuading us that his sentence

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

assessing whether a sentence is inappropriate, appellate courts may take into account

whether a portion of the sentence is ordered suspended or otherwise crafted using any of

the variety of sentencing tools available to the trial judge. Davidson v. State, 926 N.E.2d

1023, 1025 (Ind. 2010).

We first look to the statutory range established for the class of the offense.

Johnson pleaded guilty to a Class C felony. The statutory range for a Class C felony is

between two and eight years, with the advisory sentence being four years. Ind. Code §

35-50-2-6(a) (2005). The trial court sentenced Johnson to the maximum sentence of

eight years executed.

We next look to the nature of the offense and Johnson’s character. As to the

nature of the offense, Johnson entered United Community Bank and passed a note to

Slayback stating that he was robbing the bank and ordering her to give him money.

Johnson argues that he did not use a weapon during the commission of the offense.

While this may be true, he kept one hand out of Slayback’s view. Slayback testified at

sentencing, “I remember that I couldn’t find his other hand and praying that I wasn’t

about to see a gun pointed in my direction.” Tr. p. 38.

We acknowledge, as did the trial court, that Johnson was remorseful for his

conduct. Nevertheless, Johnson’s character shows a disregard for the law. The

presentence investigation report reveals that less than a week after the instant offense, a

4 warrant was issued for his arrest for a robbery in Miami County, Ohio. Johnson has been

convicted in Wayne County, Michigan, of larceny and at least six breaking and entering

offenses. At the time the presentence investigation report was prepared, two probation

violation allegations from 2002 and the Ohio robbery charge were pending against him.

Moreover, Johnson has had long-standing alcohol and drug abuse issues. Johnson, who

was fifty-five years old at the time of sentencing, began drinking when he was nineteen

and using cocaine when he was thirty-three. He admitted that he was a crack addict for

about eight years. He further admitted that he still uses cocaine “every now and then.”

Appellant’s App. p. 27. In addition, although Johnson was apparently struggling

financially at the time of the offense, we note that he managed to gamble at Hollywood

Casino on the day of the robbery. He is a “frequent patron” of that casino and has

sustained a lifetime loss of about $17,000 there. Id. at 29.

Johnson has failed to persuade us that his eight-year executed sentence is

inappropriate in light of the nature of the offense and his character.1

CONCLUSION

For the reasons stated, we affirm Johnson’s sentence.

Affirmed.

RILEY, J., and MATHIAS, J., concur.

1 Johnson asserts in his argument summary that the trial court abused its discretion by not suspending any of his sentence to probation; however, he fails to develop a corresponding argument. In any event, a trial court’s decision not to suspend a sentence is reviewable only for an abuse of discretion. Ables v. State, 848 N.E.2d 293, 296 (Ind. Ct. App. 2006). An abuse of discretion occurs if the decision is clearly against the logic and effect of the facts and circumstances. Id. Given that, by pleading guilty, Johnson avoided a habitual offender enhancement that could have added up to twelve years to his sentence, and given Johnson’s criminal history, including his noncompliance with probation, we cannot say that the trial court abused its discretion by not suspending any of his sentence to probation. 5