Court of Appeals of Indiana | Memorandum Decision 20A-CR-1489 | December 29, 2020 Page 1 of 12

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT

A. David Hutson

Hutson Legal

Jeffersonville, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Tina L. Mann

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Brandon Lawrence Johnson,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

December 29, 2020

Court of Appeals Case No.

20A-CR-1489

Appeal from the Orange Circuit 

Court

The Honorable Steven L. Owen, 

Judge

Trial Court Cause No.

59C01-1602-F4-160

Mathias, Judge.

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

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

2020.

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 
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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, 
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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. 

State, 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. 
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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 
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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. 

State, 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 

therefrom. 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 
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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 

sureties;

(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

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 
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[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 

required.”).

[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 

3.2(a)(1).

2 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 1095–96.
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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. 

Conclusion

[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.