Alexander Isaiah Garcia-Johnson v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Feb 05 2020, 7:51 am

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 Brian A. Karle Curtis T. Hill, Jr. Ball Eggleston, PC Attorney General of Indiana Lafayette, Indiana Josiah Swinney Deputy Attorney General

Matthew J. Goldsmith Certified Legal Intern Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Alexander Isaiah Garcia- February 5, 2020 Johnson, Court of Appeals Case No. Appellant-Defendant, 19A-CR-1213 Appeal from the Tippecanoe v. Superior Court The Honorable Steven P. Meyer, State of Indiana, Judge Appellee-Plaintiff. Trial Court Cause No. 79D02-1811-F4-45

Friedlander, Senior Judge. Court of Appeals of Indiana | Memorandum Decision 19A-CR-1213 | February 5, 2020 Page 1 of 8

[1] Alexander Garcia-Johnson appeals his sentence for his conviction of possession 1 of a firearm by a serious violent felon, a Level 4 felony.

[2] The sole issue presented on appeal is whether Garcia-Johnson’s sentence is

inappropriate. [3] On November 18, 2018 at approximately 4:30 a.m., officers were dispatched to

a residence for a report of a shooting. When they arrived, they spoke with a

female who reported being awakened and entering her living room to see a

male she knew as “Alex” with a handgun. Based on the description, officers

determined that “Alex” was Garcia-Johnson. They spoke with Garcia-Johnson

who acknowledged that he had been present at the residence and in possession

of a firearm. [4] Based upon this incident and a prior conviction of Level 4 felony burglary,

Garcia-Johnson was charged with unlawful possession of a firearm by a serious

violent felon as a Level 4 felony. Garcia-Johnson pleaded guilty as charged,

and the court sentenced him to eight years. This appeal ensued. [5] Indiana Appellate Rule 7(B) provides that we may revise a sentence authorized

by statute if, after due consideration of the trial court’s decision, we determine

that the sentence is inappropriate in light of the nature of the offense and the

character of the offender. Thompson v. State, 5 N.E.3d 383 (Ind. Ct. App. 2014).

1 Ind. Code § 35-47-4-5 (2018).

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1213 | February 5, 2020 Page 2 of 8

However, “we must and should exercise deference to a trial court’s sentencing

decision, both because Rule 7(B) requires us to give ‘due consideration’ to that

decision and because we understand and recognize the unique perspective a

trial court brings to its sentencing decisions.” Stewart v. State, 866 N.E.2d 858,

866 (Ind. Ct. App. 2007). The principal role of appellate review under Rule

7(B) is to attempt to leaven the outliers, not to achieve a perceived “correct”

result in each case. Garner v. State, 7 N.E.3d 1012 (Ind. Ct. App. 2014). The

defendant bears the burden of persuading the appellate court that his or her

sentence is inappropriate. Childress v. State, 848 N.E.2d 1073 (Ind. 2006). [6] To assess whether the sentence is inappropriate, we look first to the statutory

range established for the level of the offense. The advisory sentence for a Level

4 felony is six years, with a minimum sentence of two years and a maximum of

twelve. Ind. Code § 35-50-2-5.5 (2014). Garcia-Johnson’s sentence of eight

years is only modestly above the advisory and well below the maximum. [7] Next, we look to the nature of the offense and the character of the offender.

With regard to the nature of the offense, the sparse facts indicate that a female

awoke at 4:30 in the morning to find Garcia-Johnson in her residence with a

handgun. There is also a brief mention, without further explanation or details,

that this crime resulted in a death. [8] As for the character of the offender, Garcia-Johnson emphasizes his guilty plea,

family support, mental health, and age. A guilty plea does not automatically

amount to a significant mitigating factor. Powell v. State, 895 N.E.2d 1259 (Ind.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1213 | February 5, 2020 Page 3 of 8

Ct. App. 2008), trans. denied. For instance, a guilty plea does not rise to the

level of significant mitigation where the defendant has received a substantial

benefit from the plea or where the evidence against him is such that the decision

to plead guilty is merely a pragmatic one. Id. Here, Garcia-Johnson’s plea was

pragmatic because he admitted his guilt to the police. Further, the plea

agreement called for his admission to pending probation violations in exchange

for which the State agreed to recommend no additional sanctions. In light of

these circumstances, Garcia-Johnson’s plea was not necessarily deserving of

significant mitigating effect, yet the trial court considered the plea as such. [9] Garcia-Johnson claims that his good character is demonstrated by his strong

family support. Despite questioning Garcia-Johnson’s failure to take advantage

of that support in the past to avoid his current situation, the trial court

recognized his family support as a mitigator. [10] Garcia-Johnson also contends that his mental health issues and intellectual

impairments warrant a reduced sentence; yet, there is nothing in the record

indicating that his mental health issues were responsible for his decision-making

process on the day of this offense. See Corralez v. State, 815 N.E.2d 1023 (Ind.

Ct. App. 2004) (stating that there must be nexus between defendant’s mental

health and crime in question in order for mental history to be considered

mitigating factor). Nevertheless, the trial court recognized Garcia-Johnson’s

mental health issues as a mitigating circumstance.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1213 | February 5, 2020 Page 4 of 8 [11] The finding of mitigating circumstances is not mandatory but is within the

discretion of the trial court. Page v. State, 878 N.E.2d 404 (Ind. Ct. App. 2007),

trans. denied. Further, the court is not obligated to give the same weight to a

proffered mitigating factor as does the defendant. Id. Garcia-Johnson presents

this Court with the same mitigating factors he argued to the trial court. The

trial court found these factors to be mitigating, and Garcia-Johnson presents no

additional information to this Court to support a result different from that

reached by the trial court. [12] Garcia-Johnson additionally suggests that his age (twenty-one) justifies a

reduced sentence. “‘Age is neither a statutory nor a per se mitigating factor.’”

Bostick v. State, 804 N.E.2d 218, 225 (Ind. Ct. App. 2004) (quoting Monegan v.

State, 756 N.E.2d 499, 504 (Ind. 2001)). Further, twenty-one years old is past

the age that our courts have afforded special consideration. See, e.g., Corcoran v.

State, 774 N.E.2d 495, 500 (Ind. 2002) (holding that age of defendant, twenty-

two, was “well past the age of sixteen where the law requires special

treatment”); Monegan, 756 N.E.2d 499 (holding that trial court did not err in

failing to give significant weight to the age of an almost eighteen-year-old

defendant); Ketcham v. State, 780 N.E.2d 1171 (Ind. Ct. App. 2003) (holding

that failure to give mitigating weight to defendant’s age, twenty, at the time of

the crime was not error), trans. denied. Garcia-Johnson reasons that he is young

and still capable of rehabilitation. We need only review his criminal history,

however, to see that he has squandered numerous opportunities for

rehabilitation and conclude otherwise.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1213 | February 5, 2020 Page 5 of 8 [13] We observe that Garcia-Johnson’s criminal history is not insignificant, and

even a minor criminal history is a poor reflection of a defendant’s character.

Moss v. State, 13 N.E.3d 440 (Ind. Ct. App. 2014), trans. denied. When

considering Garcia-Johnson’s history at sentencing, the trial court characterized

it as having “ramped up in the last two years” and stated that “since 2016, we

have one, two, three, four, five, six criminal contacts in a very short period of

time.” Tr. Vol. 2, p. 43. [14] Garcia-Johnson’s documented criminal history began as a juvenile in 2014 with

two incidents that were not adjudicated. As an adult, Garcia-Johnson was

convicted of misdemeanor possession of marijuana in 2016. During the

pendency of the case, he violated the terms of his pre-trial release, causing the

State to file two separate motions to revoke his bond. Upon being convicted,

he was sentenced to community corrections, but that program subsequently

filed a petition for him to execute his sentence in custody due to a violation. [15] Also in 2016, Garcia-Johnson was convicted of felony burglary, causing the

enhancement of the current charge. For his burglary conviction, he was

sentenced to the DOC but was permitted to serve his sentence in community

corrections. That program later filed a motion to commit him to the DOC due

to a violation. In addition, once Garcia-Johnson was released on probation, at

least two petitions to revoke were filed, and twice he failed to appear.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1213 | February 5, 2020 Page 6 of 8 [16] In 2018, Garcia-Johnson was convicted of misdemeanor possession of

paraphernalia and given a suspended sentence. Once again, a petition to

revoke his probation was filed. [17] In 2019, Garcia-Johnson was convicted of felony possession of marijuana.

During the pendency of the case, the State filed a motion to revoke his bond for

a violation of the terms of his pre-trial release. [18] Furthermore, Garcia-Johnson was on probation in two different cases and on

bond in a third case when he committed the present offense. A defendant’s

commission of an offense while on probation is a “substantial consideration” in

our assessment of his character. Rich v. State, 890 N.E.2d 44, 54 (Ind. Ct. App.

2008), trans. denied. [19] As his criminal history demonstrates, Garcia-Johnson has been offered several

chances to pull himself together and live a law-abiding life and has chosen

instead to continue to disobey the laws of society. The court aptly summarized

this notion in its remarks at sentencing: “So you’re just on this collision course

that you can’t seem to break, even with the help that the Court has offered and

given you in these various cases through probation, through community

corrections. It’s not working.” Tr. Vol. 2, p. 43. [20] Considering both the nature of the offense and the character of the offender and

giving due consideration to the trial court’s sentencing decision, we are unable

to conclude that Garcia-Johnson’s sentence is inappropriate.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1213 | February 5, 2020 Page 7 of 8 [21] Judgment affirmed.

Bradford, C.J., and Riley, J., concur.

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