Court of Appeals of Indiana | Memorandum Decision | 20A05-1410-CR-512 | April 16, 2015 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

Scott King

Russell W. Brown, Jr.

Merrillville, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Karl M. Scharnberg

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Eric P. Johnson,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

April 16, 2015

Court of Appeals Case No.

20A05-1410-CR-512

Appeal from the Elkhart Circuit 

Court.

The Honorable Terry C. Shewmaker, 

Judge.

Cause No. 20C01-1308-FA-42

Riley, Judge.
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STATEMENT OF THE CASE

[1] Appellant-Defendant, Eric P. Johnson (Johnson), appeals his thirty-year 

sentence following his conviction of dealing in cocaine, a Class A felony, Ind. 

Code § 35-48-4-1(a)(2)(C),(b)(1) (2013).

[2] We affirm.

ISSUES

[3] Johnson raises two issues on appeal, which we restate as follows:

(1) Whether the trial court abused its discretion in sentencing Johnson; and

(2) Whether Johnson’s sentence is inappropriate in light of the nature of the 

offense and his character.

FACTS AND PROCEDURAL HISTORY

[4] On July 30, 2013, the Elkhart City Police Department obtained a warrant to 

search the apartment of Geraldine Jones (Jones) in the course of a narcotics 

investigation. Just prior to executing the search warrant, a police officer had 

observed that Johnson repeatedly walked back and forth from Jones’ apartment 

to a beige-colored Cadillac parked out front. Because Johnson’s behavior was 

indicative of street level narcotics sales, a warrant was obtained to search the

vehicle. In the vehicle’s center console, the officers discovered a clear plastic 

bag, which contained forty-five separate packages of cocaine having a total 

weight of 13.2 grams. Johnson subsequently admitted that the cocaine was his, 
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that he had been selling cocaine out of Jones’ home for approximately one and 

one-half months, and that he provided Jones with cocaine in exchange for 

allowing him to use her house for his dealing.

[5] On August 2, 2013, the State filed an Information, charging Johnson with one 

Count of dealing in cocaine, a Class A felony. Four days before his trial was set 

to begin, on June 26, 2014, Johnson pled guilty without the benefit of a plea 

agreement, and the trial court entered a judgment of conviction on the Class A 

felony. On October 2, 2014, the trial court held a sentencing hearing and 

sentenced Johnson to a term of thirty years, with twenty-three years executed in 

the Indiana Department of Correction (DOC) and seven years suspended to 

probation.

[6] Johnson now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

I. Abuse of Sentencing Discretion

[7] Johnson claims that the trial court abused its sentencing discretion. At the 

outset, we note that the trial court imposed the advisory sentence of thirty years 

for a Class A felony, of which seven years was suspended to probation. See I.C.

§ 35-50-2-4 (2013). For a Class A felony, the maximum and minimum 

sentences are fifty years and twenty years, respectively. See I.C. § 35-50-2-4 

(2013).

[8] A trial court is vested with broad discretion in matters of sentencing and may 

impose any sentence authorized by statute. Anglemyer v. State, 868 N.E.2d 482, 
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490, clarified on reh’g, 875 N.E.2d 218 (Ind. 2007). Our court reviews a trial 

court’s sentencing decision only for an abuse of discretion. Id. It is an abuse of 

discretion if the trial court’s decision is contrary to “the logic and effect of the 

facts and circumstances before the court or the reasonable, probable, and actual 

deductions to be drawn therefrom.” Williams v. State, 997 N.E.2d 1154, 1163 

(Ind. Ct. App. 2013). We will find an abuse of discretion if the trial court fails 

to enter a sentencing statement, enters a finding of aggravating and mitigating 

factors that are unsupported by the record, omits reasons that are clearly 

supported by the record and are advanced for consideration, or includes reasons 

that are improper as a matter of law. Gomillia v. State, 13 N.E.3d 846, 849 (Ind. 

2014).

[9] In its sentencing statement, the trial court identified the following aggravating 

circumstances: Johnson’s criminal history; the fact that Johnson compensated 

Jones with cocaine; Johnson’s history of marijuana use; and Johnson’s use of 

marijuana while released on bond in the instant case. The trial court also found 

a number of mitigating circumstances, including Johnson’s acceptance of 

responsibility for his criminal conduct; the abundant support of his family and 

friends; and his relatively young age—twenty-one years old at the commission 

of his crime. In weighing the aggravating and mitigating factors, the trial court 

concluded “that they are in balance.” (Appellant’s App. p. 34).
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A. Criminal History

[10] Johnson now contends that the trial court improperly considered his criminal 

history as an aggravating circumstance.1 Indiana’s sentencing statutes instruct 

the trial court that it may consider that a “person has a history of criminal or 

delinquent behavior” as an aggravating circumstance. I.C. § 35-38-1-7.1(a)(2).

Accordingly, in rendering its sentence, the trial court found that Johnson’s 

criminal record includes one juvenile gambling offense out of Cook County, 

Illinois, the disposition of which is unknown. As an adult, Johnson had a 

pending case in Marshall County, Indiana, for a Class C misdemeanor 

operating a vehicle without ever having been licensed. Pertaining to the Class 

C misdemeanor, the pre-sentence investigation (PSI) report indicates that 

Johnson failed to appear in court on four separate occasions and had an 

outstanding warrant. However, by the time of the sentencing hearing, Johnson 

stated that the bench warrant had been withdrawn. The PSI report also

references another Cook County case, under which Johnson was charged with 

obstructing identification, not wearing his seatbelt, driving without a license, 

and not having a valid registration; the disposition of this case is unknown.

 

1

 Although we will review Johnson’s claim to determine whether the trial court relied only upon proper 

aggravating circumstances, we must mention that because the trial court imposed the advisory—not an 

aggravated—sentence, our finding of an improper aggravator will not ultimately affect the propriety of the 

sentence. Johnson apparently suggests that if the trial court relied on improper aggravators, the presence of 

valid mitigating circumstances would warrant a lesser sentence. We disagree. As the trial court is under no 

obligation to weigh aggravating and mitigating circumstances, we cannot say that the mitigating 

circumstances would require imposing less than the advisory sentence. See Anglemyer, 868 N.E.2d at 491. 

Moreover, the fact that the trial court suspended seven years of Johnson’s sentence indicates that it accorded 

some weight to the mitigating circumstances that it identified, and we will not second-guess this decision.
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[11] Johnson now asserts that his juvenile referral, arrest record, and failures to 

appear do “not suffice as proof of a criminal history.” (Appellant’s Br. p. 6). 

Johnson relies on Tunstill v. State, 568 N.E.2d 539, 544 (Ind. 1991), where our 

supreme court held that the defendant’s three prior arrests did not qualify as 

“instances of criminal behavior establishing . . . a history” of criminal or 

delinquent activity. Specifically, the Tunstill Court stated,

In order to enhance a criminal sentence based, in whole or in part, on 

the defendant’s history of criminal activity, a sentencing court must 

find instances of specific criminal conduct shown by probative 

evidence to be attributable to the defendant. A bare record of arrest 

will not suffice to meet this standard.

Id. “The substance of the aggravator, ‘history of criminal activity,’ is the fact 

that the defendant committed the other crime, not that he was arrested for it.” 

Id. Thus, the record must reveal that the defendant was either convicted of or 

admitted guilt to another crime, or there must be other admissible evidence 

demonstrating that the defendant committed another offense. Id. Here, except 

to indicate that between the ages of fifteen and twenty-one, Johnson was

arrested on several occasions, the PSI report provides no information as to the 

disposition of those cases. As such, Johnson’s arrest record, by itself, is 

insufficient evidence of a criminal history. See Vermillion v. State, 978 N.E.2d 

459, 468 (Ind. Ct. App. 2012).

[12] Regardless, we find that any error in the trial court’s consideration of Johnson’s 

arrest record as evidence of his criminal history is harmless because a lengthy 

record of arrest “may reveal that a defendant has not been deterred even after 

having been subject to the police authority of the State.” Cotto v. State, 829 
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N.E.2d 520, 526 (Ind. 2005). Accordingly, Johnson’s arrest record may still be 

considered as an aggravator as part of the trial court’s assessment of his

character and the risk that he will reoffend. Vermillion, 978 N.E.2d at 468. 

Likewise, the fact that Johnson had a criminal charge pending at the time of 

sentencing could properly be considered as an aggravating circumstance based 

on his character and propensity for future criminal conduct. Tunstill, 568 

N.E.2d at 545. In fact, the trial court found that by failing to appear on a 

pending criminal matter in Marshall County, Johnson exhibited “contempt for 

the laws and court proceedings.” (Sent. Tr. p. 17). Therefore, we find no abuse 

of discretion.

[13] Nevertheless, Johnson argues that his juvenile referral for gambling and his 

pending case in Marshall County for driving without ever having been licensed 

are unrelated to the present crime of dealing cocaine and, therefore, are 

inappropriate bases for an aggravating factor. We disagree, instead finding that 

his argument concerns the weight, rather than validity, of the aggravating 

factor. Even if Johnson’s prior arrests are only marginally relevant to the 

present offense of dealing in cocaine, the trial court is under no obligation to 

assign any particular weight to any aggravating or mitigating factor, and we will 

not interfere with the trial court’s sentencing discretion by reweighing the 

various circumstances. See Kimbrough v. State, 979 N.E.2d 625, 628 (Ind. 2012).

B. Cocaine as Compensation

[14] Johnson also contends that there is no evidence to support the trial court’s 

finding as an aggravating circumstance that he compensated Jones with 
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cocaine. It is well established that the aggravating and mitigating circumstances 

enumerated in the sentencing statutes “do not limit the matters that the court 

may consider in determining the sentence.” I.C. § 35-38-1-7.1(c). Specifically, 

at the sentencing hearing, the trial court explained, “You paid your rent with 

cocaine, which the essence of dealing cocaine is transferring possession. It 

would appear you transferred possession. That makes you a dealer in cocaine.” 

(Sent. Tr. p. 13). According to Johnson,

It appears that the trial court was relying upon the probable cause 

affidavit in support of this finding; however, the probable cause 

affidavit was never admitted during the change of plea hearing or 

sentencing hearing. Nor was Mr. Johnson asked about the contents of 

the probable cause affidavit and whether the representations therein 

were accurate. Therefore, the probable cause affidavit is not part of 

the record that the trial court can rely upon in finding aggravating 

circumstances.

(Appellant’s Br. p. 8). Again, we disagree.

[15] When reviewing a sentencing decision, our court will “presume the trial [court] 

is aware of and knows the law, and considers only evidence properly before the 

judge in reaching a decision.” Malenchik v. State, 928 N.E.2d 564, 574 (Ind. 

2010). In this case, the trial court considered, in part, the information in the 

PSI report in determining the existence of aggravating and mitigating factors. 

Dillard v. State, 827 N.E.2d 570, 576 (Ind. Ct. App. 2005), trans. denied. The

purpose of a PSI investigation and report is “to provide information to the court 

for use at individualized sentencing.” Id. Prior to sentencing, the defendant 

must be afforded an opportunity to examine the PSI report and to challenge any 

inaccuracies. Id.
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[16] By statute, the PSI report must contain information concerning “the 

circumstances attending the commission of the offense.” I.C. § 35-38-1-9(b)(1). 

It may also include any other “matter that the probation officer conducting the 

investigation believes is relevant to the question of sentence.” I.C. § 35-38-1-

9(c). In the information related to the “Present Offense,” the PSI report stated

that “Johnson reported the crack cocaine belonged to him. He stated he had 

been selling crack cocaine from Ms. Jones’ home for a month and a half. He 

stated he compensated Ms. Jones with cocaine for allowing him to sell from her 

home.” (Appellant’s App. p. 53). At the start of the sentencing hearing, 

Johnson indicated that he had reviewed the PSI report, and with the exception 

of updating the status of his pending Marshall County case, agreed that the PSI 

report was accurate. By not raising any factual challenges to the PSI report, 

Johnson essentially admitted “to the accuracy of the facts contained therein.” 

Chupp v. State, 830 N.E.2d 119, 126 n.12 (Ind. Ct. App. 2005). Because the trial 

court is entitled to accept the PSI report and make a decision based “on the 

facts recited therein[,]” we find that the trial court did not abuse its discretion by 

considering Johnson’s use of cocaine as compensation to Jones as an 

aggravating circumstance. Butrum v. State, 469 N.E.2d 1174, 1178 (Ind. 1984).

II. Appropriateness of the Sentence

[17] Lastly, Johnson requests that our court exercise its authority to revise his 

sentence to a term of twenty years, with ten years executed in the DOC and ten 

years suspended to probation. As already noted, the trial court imposed the 

advisory sentence of thirty years, with seven years suspended to probation. The 
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advisory sentence “is the starting point the Legislature selected as an 

appropriate sentence for the crime committed.” Gomillia, 13 N.E.3d at 852 

(quoting Anglemyer, 868 N.E.2d at 494). Even though the trial court imposed a 

sentence that is permissible under Indiana’s sentencing statutes, we may revise 

the sentence if we “find[] that the sentence is inappropriate in light of the nature 

of the offense and the character of the offender.” Ind. Appellate Rule 7(B). 

Notwithstanding our power to review and revise sentences, we are mindful of 

the deference owed to the trial court based on its unique perspective in matters 

of sentencing. Williams, 997 N.E.2d at 1165.

[18] As our supreme court has explained, “‘reasonable minds may differ’ on the 

appropriateness of a sentence based 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.’” Parks v. State, 22 N.E.3d 552, 

555 (Ind. 2014) (quoting Buchanan v. State, 767 N.E.2d 967, 970 (Ind. 2002)). 

Thus, in an Appellate Rule 7(B) review, our role is to seek “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 v. State, 895 N.E.2d 1219, 1225 (Ind. 

2008). Johnson bears the burden of persuading this court that his sentence has 

satisfied the “inappropriateness standard of review.” Kimbrough, 979 N.E.2d at

630.

[19] Regarding the nature of the offense, Johnson posits that “[t]here are no facts in 

the record that would indicate the nature of the crime was anything more than 
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just a run of the mill dealing in cocaine.” (Appellant’s Br. p. 9). However, the 

record reveals that Johnson was found in possession of 13.2 grams of cocaine, 

packaged in forty-five individual bags. Possession of cocaine in an amount that 

exceeds three grams elevates the charge from a Class B felony to a Class A 

felony. I.C. § 35-48-4-1(b)(1) (2013). Johnson possessed more than four times 

the amount necessary to satisfy the enhancement. Furthermore, Johnson had 

been using Jones’ apartment to conduct his drug business, and he compensated 

her with cocaine. Although Johnson argues that “[t]here were no weapons or 

children present[,]” the State stated at the sentencing hearing that Johnson’s 

“run of the mill” operation was located less than 1,000 feet from a public park. 

(Appellant’s Br. p. 9). Finally, we are unpersuaded by Johnson’s assertion that 

he “took full responsibility for his actions.” (Appellant’s Br. p. 9). Nearly a full 

year passed between Johnson’s arrest and guilty plea, and he waited until four 

days prior to the trial before changing his plea.

[20] As to the character of the offender, the record establishes that Johnson has a 

tenth grade education; he lives with his mother; and even before his arrest, his 

employment history was sporadic at best. Johnson also has a young daughter, 

of whom he does not have custody, and is required to pay $55 per week in child 

support. Despite Johnson’s comments to law enforcement that he generates a 

$200 profit by selling an “eight ball” of cocaine, at the time of sentencing, 

Johnson was approximately $1,500 in arrears in his child support obligation. 

(Sent. Tr. p. 9). Moreover, Johnson has continually displayed his disregard for 

the court’s authority and the laws of this State. Not only did he fail to appear 
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on four separate occasions, he admittedly smoked marijuana while he was 

released on bond for a serious drug charge. Johnson attempted to justify his 

marijuana use based on the stress he experienced as a result of his criminal 

proceedings, but as the trial court aptly remarked, Johnson created his own 

stress; nobody forced him to sell cocaine and then “make the situation worse by 

doing another illegal act.” (Sent. Tr. p. 17). Rather than taking advantage of 

his youth and minimal criminal history to pursue an education or meaningful 

employment in order to provide a better life for his daughter, Johnson chose to 

pursue a criminal lifestyle. Under these circumstances, we cannot conclude 

that the advisory sentence was inappropriate.

CONCLUSION

[21] Based on the foregoing, we conclude that the trial court did not abuse its 

discretion because it found valid aggravating circumstances and imposed a 

sentence authorized by statute. We further conclude that Johnson’s sentence is 

appropriate in light of the nature of the offense and his character.

[22] Affirmed.

[23] Bailey, J. and Barnes, J. concur