Michael J. Johnson v. State of Indiana (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Aug 28 2019, 9:01 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Kimberly A. Jackson Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
Courtney L. Staton
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Michael J. Johnson, August 28, 2019
Appellant-Defendant, Court of Appeals Case No.
19A-CR-167
v. Appeal from the Noble Superior
Court
State of Indiana, The Honorable Robert E. Kirsch,
Appellee-Plaintiff. Judge
Trial Court Cause No.
57D01-1803-MR-1
Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-167 | August 28, 2019 Page 1 of 19
Case Summary
[1] Michael J. Johnson (“Johnson”) was convicted of two counts of Murder, a
felony,1 and one count of Attempted Murder, a Level 1 felony. 2 He was also
found to be a habitual offender.3 The court imposed an aggregate sentence of
170 years and ordered Johnson to pay restitution. Johnson now appeals. We
affirm Johnson’s convictions and the length of his sentence. However, because
we conclude insufficient evidence supports the amount of restitution, we reverse
the restitution order and remand for further proceedings on that limited issue.
Issues
[2] Johnson presents the following restated issues:
I. Whether the trial court abused its discretion when it ruled
on particular evidentiary matters, denying a motion to
strike testimony and overruling certain objections.
II. Whether sufficient evidence negates the existence of
sudden heat.
III. Whether sufficient evidence supports the determination
that Johnson is a habitual offender.
1
Ind. Code § 35-42-1-1.
2
I.C. § 35-42-1-1; 35-41-5-1.
3
I.C. § 35-50-2-8.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-167 | August 28, 2019 Page 2 of 19
III. Whether the aggregate sentence imposed is inappropriate.
IV. Whether sufficient evidence supports the amount Johnson
was ordered to pay in restitution.
Facts and Procedural History
[3] On March 5, 2018, Tiffani Cox (“Cox”) borrowed Johnson’s vehicle—a black
Chevy Impala—and drove from Fort Wayne to Ligonier, where she met with
Amberly Brown (“Brown”) and Justin Adams (“Adams”). The trio ran errands
together, after which they traveled to a Ligonier apartment rented to Amanda
Feldstein (“Feldstein”). Brown and Adams went into the apartment. Cox
drove back to Fort Wayne and returned the Impala to Johnson, who noticed a
purse was missing from the trunk. The purse had been a gift to Johnson’s
fiancée, Kyra Frost (“Frost”). Johnson became angry and threatened to “bust
loose” in the parking lot if Cox walked away. Tr. Vol. III at 120. Cox took this
to mean Johnson would get out the gun he usually carried. Johnson demanded
that Cox get in the Impala with him. Johnson and Cox drove to a gas station,
and Cox went inside. Frost drove to the gas station in a separate vehicle, then
went inside after Cox. Frost threatened to tell the police Cox stole the purse
unless Cox took them to the Ligonier apartment to retrieve the purse. Johnson,
Court of Appeals of Indiana | Memorandum Decision 19A-CR-167 | August 28, 2019 Page 3 of 19
Frost, and Cox then began driving to the apartment—thirty or so miles away—
with Cox and Frost in one vehicle and Johnson following in his Impala. 4
[4] Cox approached the apartment door, flanked by Johnson and Frost. After Cox
knocked, either Brown or Feldstein opened the door. Johnson and Frost then
rushed past Cox and entered the apartment. Johnson took three steps, pulled
out his gun, and held it “up in the air.” Id. at 133. He demanded the purse.
Around this time, Adams came out from an adjacent room. Upon seeing the
gun, Adams ran out the back door into a patio area enclosed by a railing. Frost
followed and tackled him. Adams—who at one point pleaded for his life—
managed to escape and leap over the railing. Adams was about seventeen feet
from the apartment when Johnson shot Adams in the back. The bullet passed
through Adams’s aorta, grazed his lung, then exited his chest. The wound was
fatal. After killing Adams, Johnson aimed his gun at Brown. At this point,
Feldstein entered the room and ducked by the laundry closet, covering her ears.
Johnson aimed the gun at Feldstein and fired a bullet into the back of her head.
Johnson then shot at Brown. At that point, Johnson yelled “let’s get the hell
out of here.” Id. at 34. Johnson, Frost, and Cox fled out the back door. They
jumped over the railing and took off in the two vehicles. Brown—who had not
been struck by the bullet—checked on Feldstein and called 9-1-1. Feldstein was
still breathing when Brown called 9-1-1, but eventually died from the wound.
4
We take judicial notice of the approximate distance from Fort Wayne to Ligonier. See Ind. Evidence Rule
201; see also Moore v. State, 153 N.E. 402, 403 (Ind. 1926).
Court of Appeals of Indiana | Memorandum Decision 19A-CR-167 | August 28, 2019 Page 4 of 19
[5] Brown described the Impala to law enforcement and provided a cellphone
number Cox had used that day. Law enforcement contacted the cellphone
carrier and obtained the location of the phone, which was north of U.S. 20 and
just west of LaGrange County. Hearing dispatches about the shooting and the
cellphone ping, Officer Nicolas J. Dubea (“Officer Dubea”) of the LaGrange
Police Department positioned his patrol vehicle so it faced U.S. 20. Shortly
thereafter, Officer Dubea saw a black Impala with one male occupant pass by.
The driver—Johnson—tried to obscure his face. This movement raised the
suspicions of Officer Dubea, who was not sure he had located the right Impala.
[6] Officer Dubea began following Johnson, who drove left of the center line on
two occasions. Officer Dubea activated his emergency lights to conduct a
traffic stop. Johnson initially braked but then drove off, reaching speeds in
excess of 110 m.p.h. Officer Dubea pursued Johnson across LaGrange County
and into Steuben County. After about twenty minutes, Johnson drove the
Impala across “stop sticks” law enforcement placed on the road. The devices
damaged the Impala. After the vehicle rolled into a yard, Johnson got out and
started running. Officer Dubea then deployed his K-9 partner, Jax. Johnson
looked back and yelled not to let the dog bite him, at which point Johnson lost
his balance and fell. Officer Dubea called off Jax and then arrested Johnson.
[7] Johnson waived his rights and spoke with law enforcement on March 7, 2019.
During that interview, Johnson admitted he was the shooter and claimed he
was high on methamphetamine at the time. Johnson said he acted in the heat
of the moment and indicated he was startled when Adams came into the room.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-167 | August 28, 2019 Page 5 of 19
[8] The State brought the following charges against Johnson: Count I—Murder
While Committing Robbery, a felony;5 Count II—Murder While Committing
Robbery, a felony; Count III—Attempted Murder, a Level 1 felony; Count
IV—Murder, a felony; and Count V—Murder, a felony. The State also sought
a sentencing enhancement, alleging Johnson was a habitual offender.
[9] A jury trial commenced in December 2018, at which Johnson did not dispute
he was the shooter. Johnson instead claimed he was less culpable because he
acted either recklessly or under sudden heat. Among the State’s witnesses was
Michael Biggs (“Biggs”), a crime scene investigator with the Indiana State
Police who testified he was not a firearms analyst. The State questioned Biggs
about the size of the apartment, at which point Biggs referred to handwritten
notes. Johnson asked to review those notes, which led to a hearing outside the
presence of the jury. At the hearing, Johnson elicited testimony that Biggs had
not given his field notes to the State. Biggs also testified the measurements in
those notes “were all included in a 3-D scanner document” that was provided
to the State. Tr. Vol. III at 78. The State asserted it had provided that other
document to the defense. Johnson moved to strike Biggs’s testimony, claiming
the defense had not received the notes. The court denied the motion, offering
instead to recess and give Johnson time to review the notes. Johnson declined.
He asked for a copy of the notes and said the defense was “ready to continue
on.” Id. at 86. During its examination of Biggs, the State asked about the
5
I.C. § 35-42-1-1.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-167 | August 28, 2019 Page 6 of 19
number of shots fired toward Adams and where the shooter was standing when
firing the fatal shot. Johnson objected to these lines of questioning, claiming a
lack of foundation. The court overruled the objections. Biggs testified only one
bullet and shell casing had been found outside. He opined Johnson fired at
least two shots at Adams, reasoning that the location of the recovered bullet
was “not consistent with the position from which” a bullet would have exited
Adams’s body. Id. at 61. Biggs also opined it was not possible to have fired the
fatal gunshot from a certain position inside of the apartment.
[10] The jury was instructed on the charged offenses, along with lesser offenses of
Voluntary Manslaughter and Reckless Homicide. At the conclusion of the guilt
phase, the jury found Johnson guilty as charged, and Johnson waived his right
to have a jury consider the alleged enhancement. The judge later determined
Johnson was a habitual offender. A sentencing hearing was held in early 2019,
at which the trial court merged each Murder While Committing Robbery count
with the corresponding Murder count, leaving two counts of Murder (Counts
IV and V) and one count of Attempted Murder (Count III). The trial court
sentenced Johnson to sixty years for each count of Murder, then applied a
fifteen-year enhancement to Count IV. As to the count of Attempted Murder,
the trial court imposed a sentence of thirty-five years. The trial court ordered
consecutive sentences, resulting in an aggregate sentence of 170 years in the
Indiana Department of Correction. The trial court also ordered Johnson to pay
$2,413.71 in restitution, a figure mentioned in a presentence investigation report
(“PSI”) and a sentencing memorandum from the State.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-167 | August 28, 2019 Page 7 of 19
[11] Johnson now appeals.
Discussion and Decision
Evidentiary Matters
Motion to Strike
[12] Johnson challenges the denial of his motion to strike, arguing the State ran
afoul of its discovery obligations by failing to timely disclose the handwritten
notes. Courts have “wide discretion in ruling on violations of a discovery
order,” and we will reverse only upon an abuse of discretion. Jenkins v. State,
627 N.E.2d 789, 799 (Ind. 1993). In general, excluding evidence as a discovery
sanction is proper only upon a showing “the State engaged in deliberate or
other reprehensible conduct that prevents the defendant from receiving a fair
trial.” Taylor v. State, 676 N.E.2d 1044, 1046 (Ind. 1997). Instead of excluding
evidence, “an order compelling disclosure and a continuance are generally the
appropriate remedies.” Stark v. State, 489 N.E.2d 43, 46 (Ind. 1986).
[13] The State disputes its discovery obligations extended to Biggs’s handwritten
notes. Nevertheless, assuming arguendo the notes fell within the State’s
discovery obligations, Johnson has failed to demonstrate the State engaged in
deliberate or reprehensible conduct that prejudiced him.
[14] At trial, it was undisputed the prosecution was unaware of the notes, which
Biggs had not provided. On appeal, Johnson argues Biggs was an employee of
the State and we should not condone his failure to turn over the notes.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-167 | August 28, 2019 Page 8 of 19
However, even assuming non-disclosure was in bad faith, Johnson fails to
demonstrate how the late disclosure prevented him from receiving a fair trial.
Indeed, Biggs testified his notes contained measurements he had taken of the
crime scene. Biggs took those measurements as a precaution, in case there was
a malfunction with a scanner used to take measurements. Biggs claimed his
report—which the defense did not dispute receiving—contained measurements
from the scanner that overlapped with his own. It is conceivable there were
differences between the report and the notes—and the court offered to recess so
Johnson could review the documents. However, Johnson declined. Moreover,
in cross-examining Biggs, Johnson did not identify information in the notes that
was not in the report. He has also failed to identify any discrepancy on appeal.
Further, assuming Johnson had no warning of Biggs’s opinion concerning the
number of shots, Johnson nevertheless ably engaged in cross-examination on
this issue—asking questions such as why the recovered bullet was deformed and
whether Adams’s spine could have changed the bullet trajectory. Ultimately,
we cannot say the court abused its discretion by declining to strike all of Biggs’s
testimony. See Beavers v. State, 465 N.E.2d 1388, 1390 (Ind. 1984) (observing
that granting a motion to strike is “a most severe sanction”). Indeed, Johnson
was not prevented from receiving a fair trial as a result of the late disclosure.
Foundation
[15] Johnson argues there was an insufficient foundation to admit Biggs’s opinion
that Johnson fired more than one shot at Adams. Johnson also challenges the
admission of Biggs’s opinion that it was not possible to fire the fatal shot at
Court of Appeals of Indiana | Memorandum Decision 19A-CR-167 | August 28, 2019 Page 9 of 19
Adams from a position inside the apartment, evidence that indicates Johnson
followed Adams outside. Both lines of testimony bore on Johnson’s claim of
sudden heat. We review evidentiary rulings for an abuse of discretion,
reversing “only when the decision is clearly against the logic and effect of the
facts and circumstances.” Shinnock v. State, 76 N.E.3d 841, 843 (Ind. 2017).
[16] Johnson claims—and the State does not dispute—the challenged testimony
could not be admitted under Evidence Rule 702, which pertains to expert
witnesses. The parties focus on whether this testimony was admissible under
Rule 701, which provides as follows: “If a witness is not testifying as an expert,
testimony in the form of an opinion is limited to one that is: (a) rationally based
on the witness’s perception; and (b) helpful to a clear understanding of the
witness’s testimony or to a determination of a fact in issue.” The Indiana
Supreme Court has explained that the term “perception” contemplates insight,
intuition, or knowledge gained by direct use of one’s senses, such as the sense of
sight. Kubsch v. State, 784 N.E.2d 905, 922 (Ind. 2003). Furthermore, witnesses
testifying under this rule “not only can testify about their observations, they can
also testify to opinions or inferences that are based solely on facts within their
own personal knowledge.” A.J.R. v. State, 3 N.E.3d 1000, 1003 (Ind. Ct. App.
2014) (quoting Hawkins v. State, 884 N.E.2d 939, 944 (Ind. Ct. App. 2008)).
[17] Johnson asserts the testimony was not helpful because “the record contains no
evidence that Biggs had any greater knowledge as to the ballistics issues on
which he testified than the jurors who heard such evidence.” Reply Br. at 11.
However, so long as the testimony was rationally based on Biggs’s perceptions,
Court of Appeals of Indiana | Memorandum Decision 19A-CR-167 | August 28, 2019 Page 10 of 19
we conclude the testimony—which related to the number of shots fired and the
location of the shooter—was helpful to determining relevant factual matters.
[18] Johnson also claims Biggs was not present at the shooting and so his opinions
could not be rationally based on his perceptions. We rejected a similar
argument in A.J.R.—where an officer familiar with a crime scene opined about
the direction of gunfire—and concluded the testimony was admissible under
Evidence Rule 701. 3 N.E.3d at 1004. Here, Biggs was familiar with the layout
of the crime scene, with knowledge about the locations of the victims and the
recovered bullets. He also observed the wounds. Evidence Rule 701 permits
Biggs to opine about matters rationally related to these kinds of perceptions,
including the number of gunshots and the location of the shooter. We are not
persuaded the court abused its discretion by admitting the testimony.6
Sudden Heat
[19] Murder is the knowing or intentional killing of another human. See I.C. § 35-
42-1-1. “The existence of sudden heat is a mitigating factor that reduces what
otherwise would be murder . . . to voluntary manslaughter.” I.C. § 35-42-1-3.
“Sudden heat exists when a defendant is ‘provoked by anger, rage, resentment,
or terror, to a degree sufficient to obscure the reason of an ordinary person,
6
Because the testimony was rationally based on Biggs’s perceptions, we disagree with Johnson’s assertion
that the testimony was merely speculative. Further, to the extent Johnson is challenging the basis for the
opinion about the number of shots, his arguments go to the weight of the evidence—not its admissibility.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-167 | August 28, 2019 Page 11 of 19
prevent deliberation and premeditation, and render the defendant incapable of
cool reflection.’” Brantley v. State, 91 N.E.3d 566, 572 (Ind. 2018) (quoting Isom
v. State, 31 N.E.3d 469, 486 (Ind. 2015), cert. denied). The State must prove
beyond a reasonable doubt the defendant committed the elements of Murder.
See I.C. 35-41-4-1; Brantley, 91 N.E.3d at 572. Where there is evidence of
sudden heat, the defendant may obtain a jury instruction on voluntary
manslaughter. Brantley, 91 N.E.3d at 572. At that point, the State “bears the
burden of negating the presence of sudden heat beyond a reasonable doubt.”
Evans v. State, 727 N.E.2d 1072, 1077 (Ind. 2000). The State meets this burden
“by rebutting the defendant’s evidence or affirmatively showing in its case-in-
chief that the defendant was not acting in sudden heat.” Id.
[20] Johnson challenges the sufficiency of evidence negating sudden heat. Upon a
sufficiency challenge, we do not reweigh evidence or judge witness credibility.
Brantley, 91 N.E.3d at 570. We view the evidence in a light most favorable to
the conviction, and will affirm if there is substantial probative evidence from
which a reasonable fact-finder could find the defendant guilty beyond a
reasonable doubt. Davis v. State, 743 N.E.2d 751, 753 (Ind. 2001).
[21] Johnson focuses on evidence favorable to him, asserting he was “in a drug-
fueled rage” and the events in the apartment were “chaotic.” Br. of Appellant
at 37. However, it is undisputed Johnson became angry about a purse. Even
after a relatively long drive afforded Johnson an opportunity to gather his
thoughts, he rushed into the apartment and brandished a gun. It was Johnson
who created a chaotic atmosphere. Moreover, even if Johnson was startled
Court of Appeals of Indiana | Memorandum Decision 19A-CR-167 | August 28, 2019 Page 12 of 19
when Adams emerged from a bedroom, there was evidence Johnson followed
Adams outside of the apartment. Enough time passed for Adams to plead for
his life and leap over a railing. There was evidence Johnson fired two shots at
Adams, shooting him in the back when Adams was a considerable distance
away and posed no threat to Johnson. Moreover, Johnson did not stop there.
He turned his attention to those inside the apartment, shooting a crouching
Feldstein in the back of her head, then firing the gun at Brown.
[22] We identify ample evidence from which a reasonable jury could determine,
beyond a reasonable doubt, that Johnson was not rendered incapable of cool
reflection when he committed Murder and Attempted Murder. Thus, the State
met its burden of negating sudden heat, and we discern no failure of proof.
Habitual Offender
[23] Johnson alleges insufficient evidence supports the habitual-offender sentence
enhancement. When a person has been convicted of Murder, this enhancement
is available if the State proves beyond a reasonable doubt the defendant has
been convicted of two prior unrelated felonies, at least one of which was not a
Level 6 felony or a Class D felony. I.C. § 35-50-2-8(b).
[24] To prove the existence of prior convictions beyond a reasonable doubt, the
State must introduce certified and authenticated records of the convictions. See
Dexter v. State, 959 N.E.2d 235, 238 (Ind. 2012). The State must also introduce
“additional supporting evidence . . . to prove the identity of the defendant.” Id.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-167 | August 28, 2019 Page 13 of 19
That evidence “may be circumstantial.” Schlomer v. State, 580 N.E.2d 950, 958
(Ind. 1991). “If the evidence yields logical and reasonable inferences from
which the finder of fact may determine beyond a reasonable doubt that it was a
defendant who was convicted of the prior felony, then a sufficient connection
has been shown.” Hernandez v. State, 716 N.E.2d 948, 953 (Ind. 1999).
[25] Here, the State introduced certified and authenticated records of convictions
from Cause No. 02D04-0409-FD-723 and Cause No. 02D04-0907-FB-127. The
records were for an offender named Michael J. Johnson and showed a Class B
felony conviction for Robbery in 2009 along with Class D felony convictions for
Auto Theft and Resisting Law Enforcement in 2005. The State also introduced
a packet of documents from the Indiana Department of Correction, drawn from
a certain record number related to a Michael Johnson. The packet refers to
both causes. It also contains two photographs showing the face of a man.
Below the photographs are the same record number and the name Michael
Johnson. The State also elicited testimony from a detective who compared a
photograph in the packet with Johnson’s in-court appearance. The detective
testified the photograph looked like Johnson, and that the photograph was a
way the detective identified Johnson in connection with the criminal record.
[26] Johnson points out the records do not show a birthdate or a Social Security
Number, and he claims there are height and weight discrepancies. Johnson
also asserts the State did not introduce other evidence that might have been
helpful, such as evidence of his prior addresses or “testimony indicating
Johnson’s fingerprints matched the fingerprints” contained in the packet. Br. of
Court of Appeals of Indiana | Memorandum Decision 19A-CR-167 | August 28, 2019 Page 14 of 19
Appellant at 43. However, in light of the identification of Johnson in the
photograph—and the connection between the photograph and the two certified
convictions—we conclude there is sufficient evidence from which a reasonable
fact-finder could determine, beyond a reasonable doubt, Johnson had the status
of a habitual offender. Cf. Schlomer, 580 N.E.2d at 958 (identifying sufficient
evidence of a prior conviction where a witness had filed a prior charge, “viewed
a photograph” of that prior offender, and “identified appellant in court”).
Inappropriate Sentence
[27] We have authority to revise a sentence that “is inappropriate in light of the
nature of the offense and the character of the offender.” Ind. Appellate Rule
7(B); see Ind. Const art. VII, § 6. Our role is to “leaven the outliers,” Cardwell v.
State, 895 N.E.2d 1219, 1225 (Ind. 2008), and we reserve appellate revision “for
exceptional cases.” Livingston v. State, 113 N.E.3d 611, 613 (Ind. 2018).
[28] Here, the court imposed an aggregate sentence length of 170 years—i.e., sixty
years for each Murder conviction, thirty-five years for Level 1 felony Attempted
Murder, and a fifteen-year enhancement—which is within the statutory range.
See I.C. § 35-50-2-3 (providing a sentencing range for Murder between forty-five
years and sixty-five years, with an advisory sentence of fifty-five years); I.C. §
35-50-2-4(b) (providing a sentencing range for a Level 1 felony between twenty
years and forty years with an advisory sentence of thirty years); I.C. § 35-50-2-8
(providing an enhancement range of six years to twenty years for a habitual
Court of Appeals of Indiana | Memorandum Decision 19A-CR-167 | August 28, 2019 Page 15 of 19
offender convicted of Murder); I.C. § 35-50-1-2 (authorizing consecutive
sentences for crimes of violence, including Murder and Attempted Murder).
[29] As to the nature of the offenses, Johnson murdered two people and attempted
to murder a third person after becoming angry about the location of a purse.
Johnson—previously convicted of a serious violent felony—committed the
offenses with a gun that was illegal for him to possess. Moreover, Johnson was
on parole when he used methamphetamine, armed himself, committed these
crimes, and evaded law enforcement during a dangerous, high-speed chase.
[30] The circumstances of the crimes and the flight thereafter—including leaving
Feldstein to die and running past Adams’s body—do not reflect well on
Johnson’s character. As to his character, we are not unmindful of evidence
Johnson had a difficult childhood, which included being exposed to violence,
drug use, and drug dealing. Moreover, Johnson cooperated with the police
after his eventual arrest. It also appears Johnson has struggled with substance
abuse—and his decision to consume methamphetamine might have played
some part in his conduct. The trial court took note of these potential mitigating
circumstances when selecting its sentence. We also note Johnson expressed
remorse, and there is evidence he has several mental-health diagnoses. Johnson
also points out he has a young child, has overcome academic hardships, and
has previously maintained employment.
[31] Nevertheless, Johnson—thirty-five years old when he committed the offenses—
has had many encounters with law enforcement, with opportunities to address
Court of Appeals of Indiana | Memorandum Decision 19A-CR-167 | August 28, 2019 Page 16 of 19
his mental health and his issues with substance abuse. By the time he
committed these offenses, Johnson had amassed six felony convictions,
including convictions of Burglary, Robbery, and Unlawful Possession of a
Firearm by a Serious Violent Felon. Moreover, Johnson has been afforded
leniency in the past, including receiving a sentence modification and the
opportunity to participate in a transition program. However, Johnson violated
the conditions of re-entry programming. He committed the instant offenses
even after receiving a twenty-year sentence for Robbery, serving time, and
having the opportunity to re-enter society through the privilege of parole.
[32] Johnson asks us to revise his sentence to an aggregate length of seventy years,
removing 100 years from the sentence imposed by the trial court. However,
after considering the nature of the offenses and the character of the offender, we
are not persuaded of exceptional circumstances that would warrant disturbing
the decision of the trial court. We conclude the sentence is not inappropriate.
Restitution
[33] A court may order restitution for damage “incurred as a result of the crime.”
I.C. § 35-50-5-3(a)(1). The amount of loss “is a factual matter” that “can be
determined only upon presentation of evidence.” Smith v. State, 471 N.E.2d
1245, 1248 (Ind. 1984), trans. denied. We review a restitution order for an abuse
of discretion, which occurs “if no evidence or reasonable inferences therefrom”
support the order. Archer v. State, 81 N.E.3d 212, 216 (Ind. 2017) (emphasis
removed) (quoting Little v. State, 839 N.E.2d 807, 809 (Ind. Ct. App. 2005)).
Court of Appeals of Indiana | Memorandum Decision 19A-CR-167 | August 28, 2019 Page 17 of 19
[34] Here, the trial court ordered Johnson to pay $2,413.71 for property damage.
The PSI cursorily mentions that figure under the Victim Impact section of the
form: “The Victim Impact Statement was sent to the victim(s) and/or personal
representative, however, a response has not been received. According to the
Prosecutor’s Office, Riverside Villa Apartments has requested $2,413.71 in
restitution.” App. Vol. II at 224. This figure also appears in a sentencing
memorandum the State filed, which notes “the State requests restitution in the
amount of two thousand four hundred thirteen dollars and seventy-one cents
($2,413.71[]) to the Riverside Villa Apartments, LP. (See Attached).” App.
Vol. III at 27. Although the sentencing memorandum purports to reference an
attachment, the document contained in the Appendix does not include an
attachment. Moreover, the State asserts on appeal that “the State’s Sentencing
Memorandum was filed without the attachment.” Br. of Appellee at 46 n.4.
[35] Johnson claims the amount of restitution is not supported by evidence, and the
State—apart from noting the figure is in the documents—does not argue the
merits. Instead, the State asserts Johnson waived this challenge by failing to
object to the restitution request or to the amount mentioned in the PSI.
However, as Johnson points out, an unsupported restitution order is a type of
sentencing error that a defendant may raise for the first time on appeal. See, e.g.,
Rich v. State, 890 N.E.2d 44, 48-49 (Ind. Ct. App. 2008), trans. denied.
[36] We conclude there is insufficient evidence supporting the amount of restitution,
and we therefore reverse the restitution order. Anticipating possible reversal,
the State asks that we remand for a new restitution hearing—a practice
Court of Appeals of Indiana | Memorandum Decision 19A-CR-167 | August 28, 2019 Page 18 of 19
endorsed by the Indiana Supreme Court. See Iltzsch v. State, 981 N.E.2d 55, 57
(Ind. 2013) (per curiam) (“[P]recedent supports remanding for additional
evidence when appropriate.”). Therefore, we remand solely for an evidentiary
hearing on the issue of restitution.
Conclusion
[37] We affirm the convictions and the sentences imposed thereon but remand for
an evidentiary hearing on the issue of restitution.
[38] Affirmed in part, reversed in part, and remanded.
Najam, J., and May, J., concur.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-167 | August 28, 2019 Page 19 of 19