Court of Appeals of Indiana | Memorandum Decision 79A04-1704-CR-862 | November 14, 2017 Page 1 of 9

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

Brian A. Karle

Ball Eggleston, PC

Lafayette, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General

Matthew B. MacKenzie

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Martin L. Johnson,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff

November 14, 2017

Court of Appeals Case No.

79A04-1704-CR-862

Appeal from the Tippecanoe 

Superior Court

The Honorable Steven P. Meyer, 

Judge

Trial Court Cause No.

79D02-1606-F5-94

Crone, Judge.
Court of Appeals of Indiana | Memorandum Decision 79A04-1704-CR-862 | November 14, 2017 Page 2 of 9

Case Summary

[1] In a bifurcated proceeding, a jury convicted Martin L. Johnson of level 6 felony 

residential entry, class A misdemeanor carrying a handgun without a license, 

and class B misdemeanor criminal mischief, all stemming from an incident in 

which he dented one apartment door with his handgun and then forced his way 

into a different apartment where a mother and her baby were present. Based on 

the same underlying facts, the trial court then convicted Johnson of level 5 

felony carrying a handgun without a license with a prior felony conviction and 

level 4 felony unlawful possession of a firearm by a serious violent felon 

(“SVF”). The trial court entered judgment of conviction on all counts except 

the class A misdemeanor handgun conviction, which it merged with his level 5 

felony handgun conviction, and imposed an aggregate eight-year sentence. 

[2] Johnson appeals, claiming that the trial court’s entry of judgment of conviction 

for both the level 4 and level 5 felony firearm possession offenses violates 

double jeopardy principles. He also challenges the appropriateness of his 

sentence. The State concedes the double jeopardy violation, and we remand 

with instructions to vacate Johnson’s level 5 felony conviction. We also

conclude that Johnson has failed to meet his burden of establishing that his

aggregate sentence is inappropriate under Indiana Appellate Rule 7(B). 

Therefore, we affirm his sentence.
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Facts and Procedural History

[3] One evening in June 2016, Lafayette Police Department Sergeant Adam 

Mellady was patrolling a Lafayette apartment complex when he observed 

Johnson shouting and banging on the exterior door of one of the apartments 

with a handgun. A neighbor, Taronda Flowers, heard the commotion and 

looked out her door. Shortly thereafter, Sergeant Mellady approached Johnson 

in his police vehicle and ordered him to stop. Johnson disregarded the order, 

shoved the handgun in the back of his waistband, and began running. With 

Sergeant Mellady in pursuit, Johnson forced his way into Flowers’s apartment, 

where she and her one-year-old baby were present. Flowers began screaming,

“[G]et out of my house,” and “[G]et that gun out of my house.” Tr. Vol. 2 at 

89. Johnson ran into Flowers’s kitchen and discarded the handgun in her 

wastebasket. Immediately thereafter, officers apprehended and arrested 

Johnson and collected the handgun. 

[4] The State charged Johnson with level 6 felony residential entry, class A 

misdemeanor carrying a handgun without a license, level 5 felony carrying a 

handgun with a prior felony conviction (cocaine possession), class B 

misdemeanor criminal mischief, and level 4 felony unlawful possession of a 

firearm by an SVF (with SVF status based on a conviction for conspiracy to 

commit murder). The proceedings were bifurcated, and a jury found Johnson 

guilty as charged on the counts of residential entry, misdemeanor carrying a 

handgun without a license, and criminal mischief. The remaining counts were 

tried before the court, which found Johnson guilty as charged.
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[5] At sentencing, the trial court entered judgment of conviction on all counts 

except the class A misdemeanor conviction, which it merged with the level 5 

felony conviction due to double jeopardy concerns. The court sentenced 

Johnson to concurrent terms of eight years for the level 4 felony SVF 

conviction, five years for the level 5 felony handgun conviction, two years for 

the level 6 felony residential entry conviction, and 180 days for the criminal 

mischief conviction. Of the aggregate eight-year term, the court ordered six 

years executed, with two of those years in community corrections, and two 

years suspended to probation. 

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

Discussion and Decision

Section 1 – The trial court violated double jeopardy principles

by entering judgment of conviction on two firearm possession 

counts stemming from the same act. 

[7] Johnson asserts, and the State properly concedes, that the trial court violated 

double jeopardy principles when it entered judgment on both his level 4 and 

level 5 felony firearm possession convictions. See Guyton v. State, 771 N.E.2d 

1141, 1143 (Ind. 2002) (double jeopardy includes “[c]onviction and punishment 

for a crime which consists of the very same act as another crime for which the 

defendant has been convicted and punished.”) (quoting Richardson v. State, 717 

N.E.2d 32, 56 (Ind. 1999) (Sullivan, J., concurring))). As such, we remand with 

instructions to vacate Johnson’s conviction for level 5 felony carrying a 

handgun without a license with a previous felony conviction. See West v. State, 
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22 N.E.3d 872, 875 (Ind. Ct. App. 2014) (remedy for double jeopardy violation 

is vacatur of lesser offense), trans. denied (2015). On remand, the trial court 

should also amend its sentencing order to state that the sentence for the 

criminal mischief conviction is 180 days instead of five years. 

Section 2 – Johnson has failed to meet his burden of 

establishing that his eight-year sentence is inappropriate in 

light of the nature of the offenses and his character.

[8] Johnson also asks that we review and revise his sentence pursuant to Indiana 

Appellate Rule 7(B), which states that we “may revise a sentence authorized by 

statute if, after due consideration of the trial court’s decision, [this] Court finds 

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

character of the offender.” When a defendant requests appellate review and 

revision of his sentence, we have the power to affirm or reduce the sentence. 

Akard v. State, 937 N.E.2d 811, 813 (Ind. 2010). In conducting our review, we 

may consider all aspects of the penal consequences imposed by the trial court in 

sentencing, i.e., whether it consists of executed time, probation, suspension, 

home detention, or placement in community corrections, and whether the 

sentences run concurrently or consecutively. Davidson v. State, 926 N.E.2d 

1023, 1025 (Ind. 2010). We do not look to see whether the defendant’s 

sentence is appropriate or if another sentence might be more appropriate; rather, 

the test is whether the sentence is “inappropriate.” Fonner v. State, 876 N.E.2d 

340, 344 (Ind. Ct. App. 2007). A defendant bears the burden of persuading this 
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Court that his sentence meets the inappropriateness standard. Anglemyer v. 

State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218.

[9] In considering the nature of Johnson’s offenses, “the advisory sentence is the 

starting point the Legislature has selected as an appropriate sentence.” Id. at 

494. When determining the appropriateness of a sentence that deviates from an 

advisory sentence, we consider whether there is anything more or less egregious 

about the offense as committed by the defendant that “makes it different from 

the typical offense accounted for by the legislature when it set the advisory 

sentence.” Holloway v. State, 950 N.E.2d 803, 807 (Ind. Ct. App. 2011). 

[10] Having ordered that the trial court vacate Johnson’s level 5 felony handgun 

conviction, we note that his aggregate eight-year sentence now comprises one 

level 4 felony, for which the sentencing range is two to twelve years with a sixyear advisory term, Ind. Code § 35-50-2-5.5; one level 6 felony, which carries a 

sentencing range of six months to two and one-half years with a one-year 

advisory term, Ind. Code § 35-50-2-7; and one class B misdemeanor, which 

carries a sentence of not more than 180 days. Ind. Code § 35-50-3-3. 

[11] Johnson characterizes his offenses as neither more nor less egregious than the 

typical offense in each category and thus undeserving of a sentence above the 

advisory for each count. While he may be correct regarding the nature of his

misdemeanor criminal mischief offense, we find his most serious offenses to be

more egregious than the typical offenses as defined by the legislature. Unlawful 

possession of a firearm by an SVF is a status offense that requires Johnson’s 
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knowing or intentional possession of a firearm coupled with his status as an 

SVF, here, for his prior conviction for conspiracy to commit murder. Ind. Code 

§§ 35-47-4-5(a)(1)(B), -5(b)(1), -5(c). Police did not merely find Johnson in

possession of a firearm at his home, hidden in his vehicle, or under some other 

set of comparatively benign circumstances. Rather, they found him using it to 

damage property and then carrying it during a confrontational home invasion. 

This conduct also implicates the nature of his residential entry offense as 

atypical and egregious. Indiana Code Section 35-43-2-1.5 defines residential 

entry as knowingly or intentionally breaking and entering the dwelling of 

another person. This was not a typical break-in to steal some cash or baubles. 

Instead, Johnson, armed with a handgun, forced his way into Flowers’s home, 

placing her in fear for her life and the life of her baby. In the context of 

Johnson’s request for a reduced sentence, we simply do not find the nature of 

his offenses to merit a shorter term. 

[12] Similarly, Johnson’s character does not merit a shorter sentence. We conduct 

our review of his character by engaging in a broad consideration of his qualities. 

Aslinger v. State, 2 N.E.3d 84, 95 (Ind. Ct. App. 2014), clarified on other grounds on 

reh’g, 11 N.E.3d 571. Based on our review of the record, we agree with the trial 

court’s assessment that the thirty-five-year-old Johnson has demonstrated “a 

pattern of complete disregard for the law since [he was] a young teenager.” Tr. 

Vol. 2 at 200. His lengthy criminal record includes more than twenty 

misdemeanor convictions for a variety of offenses such as battery, marijuana 

possession, resisting law enforcement, and failure to stop after an accident, with 
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repeated convictions for domestic battery and criminal trespass and numerous 

convictions for driving without a license and driving while suspended. Even 

more significant are his felony convictions for conspiracy to commit murder,

cocaine possession, home invasion, and driving while suspended. He also has 

demonstrated a failure to respond positively to more lenient sentencing options. 

He has been the subject of several probation revocation proceedings, and his 

probation was twice terminated unsuccessfully. Additionally, the presentence 

investigation report indicates that he has not conducted himself well when 

sentenced to community corrections in the past. See Appellant’s App. Vol. 2 at 

164 (“Tippecanoe County Community Corrections reported [Johnson] was 

classified as a Habitual Rule Violator.”). To the extent that he characterizes his 

criminal behavior and probation failures as old news, we note that he was on 

probation for a felony drug conviction at the time he committed the current 

offenses. We acknowledge that he participated in programs to better himself

while in jail, but we also note that the trial court built some leniency into his 

current sentence by executing only six years, with two of those years in 

community corrections, and granting him two years of probation despite his 

record of probation failures. 

[13] Simply put, Johnson has failed to demonstrate that his sentence is inappropriate 

in light of the nature of the offenses and his character. Accordingly, we affirm 

his sentence. 
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[14] Affirmed and remanded.

Vaidik, C.J., and Mathias, J., concur.