Brandon Lawrence Johnson v. State of Indiana (mem. dec.)

      Pursuant to Ind. Appellate Rule 65(D),                                                  FILED
      this Memorandum Decision shall not be
      regarded as precedent or cited before any                                           Dec 29 2020, 9:18 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
      A. David Hutson                                         Curtis T. Hill, Jr.
      Hutson Legal                                            Attorney General of Indiana
      Jeffersonville, Indiana
                                                              Tina L. Mann
                                                              Deputy Attorney General
                                                              Indianapolis, Indiana

                                                IN THE

      Brandon Lawrence Johnson,                               December 29, 2020
      Appellant-Defendant,                                    Court of Appeals Case No.
              v.                                              Appeal from the Orange Circuit
      State of Indiana,                                       The Honorable Steven L. Owen,
      Appellee-Plaintiff.                                     Judge
                                                              Trial Court Cause No.

      Mathias, Judge.

[1]   Brandon Lawrence Johnson (“Johnson”) pleaded guilty in Orange Circuit

      Court to Level 4 felony dealing in methamphetamine. The trial court sentenced

      Court of Appeals of Indiana | Memorandum Decision 20A-CR-1489 | December 29, 2020              Page 1 of 12
      Johnson to twelve years executed in the Department of Correction. Johnson

      appeals and argues that his sentence is inappropriate in light of the nature of the

      offense and the character of the offender. Johnson also claims that the trial

      court erred when it withheld his public defender fees from the cash bond posted

      by his mother.

[2]   We affirm Johnson’s sentence, but reverse and remand for an evidentiary

      hearing on the bond issue.

                                 Facts and Procedural History
[3]   In January 2016, law enforcement officials executed a search warrant at a home

      Johnson shared with numerous individuals. Johnson was not present when the

      warrant was executed. On February 4, an informant revealed Johnson’s

      location to Indiana State Police Detective Shane Staggs. That same day,

      Detective Staggs learned that Johnson was driving from Paoli, Indiana to

      French Lick, Indiana in a white Oldsmobile. The detective sought assistance

      from the French Lick Police Department, and Officer Kenneth Qualkenbush

      observed a white Oldsmobile traveling on the highway.

[4]   The officer stopped the vehicle after witnessing a traffic violation. Johnson gave

      a false name to Officer Qualkenbush during the traffic stop. When Detective

      Staggs arrived at the scene, Johnson admitted his true identity. Because

      Johnson was on probation in Dubois County, the officers searched him and the

      vehicle. During the vehicle search, the officers found a digital scale, plastic

      baggies containing .001 gram of methamphetamine, and two hypodermic

      Court of Appeals of Indiana | Memorandum Decision 20A-CR-1489 | December 29, 2020   Page 2 of 12
      needles. Johnson was arrested, and subsequent to his arrest, he gave a statement

      to Detective Staggs. Johnson admitted that the items found during the search

      belonged to him. He also confessed to dealing methamphetamine and provided

      details of his dealing activities to the detective.

[5]   On February 8, 2016, Johnson was charged with Level 4 felony dealing in

      methamphetamine, Level 5 felony possession of methamphetamine, and Class

      B misdemeanor false informing. The State also alleged that Johnson was a

      habitual offender. Johnson was also denied bond because a petition to revoke

      his probation was pending in Dubois County. After the probation proceedings

      were resolved, a bond amount was established. Johnson was released on bond

      in September 2016 after his mother posted a $5,000 cash bond. But his bond

      was revoked one month later, after Johnson was arrested for a new offense.

[6]   On April 3, 2017, Johnson agreed to plead guilty to Level 4 felony dealing in

      methamphetamine in exchange for dismissal of the remaining charges and

      dismissal of two additional pending cases involving drug-related charges

      committed while Johnson was on bond. The plea agreement left sentencing to

      the trial court’s discretion.

[7]   Johnson’s sentencing hearing was held on May 1, 2017. At sentencing, Johnson

      claimed he engaged in dealing solely to support his own drug addiction. The

      trial court rejected Johnson’s claim after reviewing Johnson’s statement to

      Detective Staggs concerning the extent of his dealing activities. The trial court

      found three mitigating circumstances: Johnson’s guilty plea; his drug addiction;

      Court of Appeals of Indiana | Memorandum Decision 20A-CR-1489 | December 29, 2020   Page 3 of 12
       and that he suffers from mental illness. The court weighed these circumstances

       against the following aggravating circumstances: Johnson’s criminal history;

       that he was on probation when he committed this offense; that he committed

       additional offenses while he was released on bond; and the circumstances

       surrounding this offense. The court then ordered Johnson to serve twelve years

       executed in the Department of Correction.

[8]    Also, at the hearing, the court asked Johnson’s public defender to submit a bill

       for his pauper counsel fees. Johnson’s counsel submitted a bill totaling $3,126,

       and that amount plus $383 in court fees were deducted from the $5,000 cash

       bond. The remaining amount was eventually released to Johnson’s mother.

[9]    In 2018, Johnson requested permission to file a belated appeal, which the trial

       court denied on January 14, 2019. Our court affirmed the trial court’s denial of

       Johnson’s request. But our supreme court granted Johnson’s petition to transfer

       and found that Johnson did not knowingly and voluntarily waive his right to

       appeal his sentence. Johnson v. State, 

145 N.E.3d 785

, 787 (Ind. 2020) (per

       curiam). Therefore, our supreme court reversed the trial court’s order denying

       Johnson’s motion

, id., and he filed

his belated notice of appeal on August 13,


                                           I. Inappropriate Sentence

[10]   Johnson argues that his twelve-year sentence is inappropriate under Indiana

       Appellate Rule 7(B), which provides the standard by which we exercise our

       constitutional authority to review and revise sentences. Under this rule, we

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-1489 | December 29, 2020   Page 4 of 12
       modify a sentence when we find that “the sentence is inappropriate in light of

       the nature of the offense and the character of the offender.” App. R. 7(B).

       Making this determination “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.” Cardwell v. State, 

895 N.E.2d 1219

, 1224 (Ind. 2008). Yet, sentence modification under Rule 7(B) is reserved

       for “a rare and exceptional case.” Livingston v. State, 

113 N.E.3d 611

, 612 (Ind.

       2018) (per curiam).

[11]   When conducting this review, we generally defer to the sentence imposed by

       the trial court. Conley v. State, 

972 N.E.2d 864

, 876 (Ind. 2012). Indeed, our role

       is 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, 895 N.E.2d at 1225


       Thus, deference to the sentence imposed by the trial court will prevail unless the

       defendant produces compelling evidence portraying in a positive light the

       nature of the offense—such as showing restraint or a lack of brutality—and the

       defendant’s character—such as showing substantial virtuous traits or persistent

       examples of positive attributes. Robinson v. State, 

91 N.E.3d 574

, 577 (Ind.

       2018); Stephenson v. State, 

29 N.E.3d 111

, 122 (Ind. 2015).

[12]   The range of sentence that may be imposed for a Level 4 felony is two to twelve

       years. Ind. Code § 35-50-2-5.5. Here, the trial court ordered Johnson to serve a

       maximum twelve-year executed sentence. We have often said that maximum

       sentences should generally be reserved for the worst offenders and offenses. See,

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-1489 | December 29, 2020   Page 5 of 12
       e.g., Payton v. State, 

818 N.E.2d 493

, 498 (Ind. Ct. App. 2004), trans. denied. But

       determining which cases constitute “the worst of the worst” is a task we entrust

       to our trial courts—they “will know them when they see them.” Hamilton v.


955 N.E.2d 723

, 727 (Ind. 2011).

[13]   Concerning the nature of the offense, Johnson focuses on the small amount of

       methamphetamine found during the vehicle search and his self-serving claim

       that he was dealing to support his drug addiction. However, the record supports

       a reasonable inference that Johnson’s dealing activities were not minimal.

[14]   Johnson admitted that he drove to both Indianapolis and Louisville to obtain

       methamphetamine. For an unspecified period of time, he drove to Louisville

       every day to purchase at least one-half ounce of methamphetamine. Ex. Vol.,

       State’s Ex. 1. Two days before he was arrested in this case, Johnson drove to

       Indianapolis to purchase eight grams of methamphetamine.

Id. Johnson also sold

a gram of methamphetamine approximately twenty minutes before the

       traffic stop that led to his arrest.

Id. Although Johnson was

only convicted of

       one count of dealing in methamphetamine, by his own admission, he was

       engaged in activities related to dealing for many days, and he sold a significant

       amount of methamphetamine.

Id. [15]

  The character of the offender also supports the sentence imposed. Johnson’s

       criminal history dates back to 2003, and most of it involves drug-related

       charges. In addition to felony possession charges involving illegal substances

       and paraphernalia, he was convicted, in 2007, of dealing in methamphetamine.

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       His probation was revoked in several causes while serving sentences for his

       various convictions. In fact, Johnson was on probation when he committed

       dealing in this case.

[16]   Although Johnson accepted responsibility for his offenses, he also received a

       significant benefit for pleading guilty in this case. In exchange for his guilty

       plea, the State agreed to dismiss the possession and false informing charges and

       the habitual offender allegation in this case as well as charges in two separate

       cases filed while this case was pending. Those charges included possession of

       methamphetamine, possession of a controlled substance, possession of

       marijuana, unlawful possession or use of a legend drug, maintaining a common

       nuisance, and unlawful possession of a syringe. Johnson was out on bond in

       this case when he was arrested for the offenses charged in those two cases.

[17]   Johnson argues that the facts that he did not commit any new criminal offenses

       for eight years—after he was sentenced for the 2007 dealing conviction—and

       was sober for many years after that conviction reflect positively on his

       character. And Johnson alleged that his wife tried to kill him in 2013 by

       burning down his house, which caused the death of his best friend and dogs. As

       a result, Johnson suffers from anxiety and depression. Johnson argues that he

       relapsed and returned to illegal substance abuse to cope with these tragedies and

       the deaths of other family members and friends.

[18]   While Johnson was on probation for his 2015 possession of paraphernalia

       conviction in Dubois County, he was ordered to participate in a drug program.

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-1489 | December 29, 2020   Page 7 of 12
       Instead of taking advantage of that opportunity for rehabilitation, Johnson

       continued to use illegal substances and was dealing methamphetamine. Even

       being out on bond for the charges in this case did not deter Johnson from

       continuing to possess various illegal substances. Additionally, during the traffic

       stop that led to the charges in this case, Johnson lied about his identity. None of

       these facts reflect well on Johnson’s character.

[19]   Johnson may have led a law-abiding life for several years, and we are

       sympathetic to the tragedies that he has suffered. If another judge had been

       tasked with sentencing Johnson, he or she may have been more lenient after

       considering these circumstances. However, Johnson failed to take advantage of

       the opportunities available to him for rehabilitation. Instead, he began using

       illegal substances again and committed numerous drug-related offenses until he

       was incarcerated for the dealing-in-methamphetamine conviction in this case.

       For all of these reasons, we conclude that his sentence is not inappropriate in

       light of the nature of the offense and the character of the offender. Quite simply,

       this is not “a rare and exceptional case” warranting sentence modification

       under Rule 7(B). 

Livingston, 113 N.E.3d at 612


                                                     II. Bond

[20]   Johnson’s mother posted a $5,000 bond in this case. During Johnson’s

       sentencing hearing, the trial court ordered the public defender to submit a

       request for pauper counsel fees to the court. The court stated that it intended to

       withhold the fees from Johnson’s bond. Tr. pp. 57–58. The public defender

       submitted a bill in the amount of $3,126. These fees and other court costs were
       Court of Appeals of Indiana | Memorandum Decision 20A-CR-1489 | December 29, 2020   Page 8 of 12
       deducted from Johnson’s bond, and the remaining amount was eventually

       returned to his mother. Johnson argues that the trial court abused its discretion

       when it ordered the public defender fees to be withheld from the cash bond.

[21]   Sentencing decisions include decisions to impose fines, costs, and fees. Polk v.


88 N.E.3d 226

, 229 (Ind. Ct. App. 2017). We review a trial court’s

       sentencing decisions for an abuse of discretion. Coleman v. State, 

61 N.E.3d 390


       392 (Ind. Ct. App. 2016). An abuse of discretion occurs when a 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


Id. [22]

  Bail bonds are governed by statute. See Ind. Code ch. 35-33-8.

               When a clerk receives a criminal defendant’s bond, she holds it
               (among other reasons) to ensure the defendant’s appearance in
               court. . . . But a defendant may be entitled to recoup any
               remaining portion of the cash bond if the court alters or revokes
               bail, or when the criminal matter ends[].

       Garner v. Kempf, 

93 N.E.3d 1091

, 1095–96 (Ind. 2018) (internal citations and

       quotations omitted).

[23]   The bail bond statute in effect when Johnson posted his bond provided in

       relevant part:

               (a) A court may admit a defendant to bail and impose any of the
               following conditions to assure the defendant’s appearance at any
               stage of the legal proceedings, or, upon a showing of clear and

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-1489 | December 29, 2020   Page 9 of 12
         convincing evidence that the defendant poses a risk of physical
         danger to another person or the community, to assure the
         public’s physical safety:

                  (1) Require the defendant to:

                            (A) execute a bail bond with sufficient solvent

                            (B) deposit cash or securities in an amount equal to
                            the bail;

                            (C) execute a bond secured by real estate in the
                            county, where thirty-three hundredths (0.33) of the
                            true tax value less encumbrances is at least equal to
                            the amount of the bail;

                            (D) post a real estate bond; or

                            (E) perform any combination of the requirements
                            described in clauses (A) through (D).

                  If the court requires the defendant to deposit cash or cash
                  and another form of security as bail, the court may require
                  the defendant and each person who makes the deposit on behalf of
                  the defendant to execute an agreement that allows the court to
                  retain all or a part of the cash to pay publicly paid costs of
                  representation and fines, costs, fees, and restitution that the court
                  may order the defendant to pay if the defendant is convicted. The
                  defendant must also pay the fee required by subsection (d).

I.C. § 35-33-8-3.2(a)(1) (2016) (emphasis added).1

  The subsection that follows, 3.2(a)(2), offers an alternative: ten percent of the bail may be posted, but that
amount is subject to retention by the clerk of the court for the reimbursement of publicly paid costs of
representation by operation of law. Ind. Code § 35-33-8-3.2(a)(2) (requiring the defendant to execute an
agreement that allows the court to retain the cash or securities to pay costs and fees if the defendant is

Court of Appeals of Indiana | Memorandum Decision 20A-CR-1489 | December 29, 2020                   Page 10 of 12
[24]   Subsection 3.2(a)(1) gives the trial court discretion to require the defendant or

       person posting the bond on his or her behalf to execute an agreement to allow

       the court to retain all or part of the cash bond to pay publicly paid costs of

       representation. Here, the record fails to indicate whether such an agreement

       was executed. This is problematic for two reasons.

[25]   First, we cannot say whether Johnson’s mother agreed to “allow[] the court to

       retain . . . part of the cash to pay publicly paid costs of representation.” I.C. §

       35-33-8-3.2(a)(1). If she did not execute an agreement, the trial court should not

       have retained the cash bond to pay Johnson’s public defender’s fees. And

       second, Johnson notes that an indigency hearing was not held before the court

       ordered the costs of representation withheld from his cash bond. But whether

       such a hearing was required depends on whether Johnson’s mother executed a

       bail-bond agreement. Wright v. State, 

949 N.E.2d 411

, 416 (Ind. Ct. App. 2011)

       (“[W]hen a bail bond agreement is executed, [an indigency] hearing is not


[26]   The State suggests that we remand this case to determine whether Johnson’s

       mother executed the agreement permitted by subsection 3.2(a)(1) when she

       posted the cash bond on Johnson’s behalf.2 Because the existence of the

       convicted). Johnson’s mother posted the full amount of bail in a $5,000 cash bond pursuant to subsection
         Without citation to authority, the State suggests that if Johnson’s bond was revoked, his cash bond “could
       have been forfeited.” Appellee’s Br. at 17. There is no language in Indiana Code section 35-33-8-3.2 that
       would support his argument. Moreover, in Garner, our supreme court stated that a defendant may be entitled
       to recoup the remainder of his or her cash bond if the trial court revokes 

bail. 93 N.E.3d at 1095


       Court of Appeals of Indiana | Memorandum Decision 20A-CR-1489 | December 29, 2020              Page 11 of 12
       agreement determines the outcome of this issue, we agree that the best course is

       to remand for an evidentiary hearing to determine whether Johnson’s mother

       executed an agreement when she posted the cash bond in this case.

[27]   Johnson has not persuaded us that his twelve-year sentence is inappropriate in

       light of the nature of the offense and the character of the offender. However, we

       reverse the trial court’s order allowing Johnson’s bond to be used to pay his

       public defender’s fee and remand this case to the trial court for an evidentiary

       hearing concerning the bond issue raised in this appeal.

[28]   Affirmed in part, reversed in part, and remanded for proceedings consistent

       with this opinion.

       Altice, J., and Weissmann, J., concur.

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-1489 | December 29, 2020   Page 12 of 12

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