Tomecko T. Johnson, Sr., Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2024)

MEMORANDUM DECISION

Statement of the Case

[1] Tomecko Johnson, Sr., pled guilty to voluntary manslaughter for the shooting death of Terrance Turner. Johnson's plea agreement capped his sentence at 25 years of incarceration but otherwise left sentencing to the trial court's discretion. The trial court sentenced Johnson to 25 years of incarceration with 2 years suspended to community corrections. Johnson now appeals and raises two issues for our review:

1. Whether the trial court abused its discretion in identifying an aggravating factor; and

2. Whether Johnson's sentence is inappropriate under Indiana Appellate Rule 7(B).

[2] We affirm.

Facts and Procedural History

[3] On July 8, 2020, Johnson encountered Turner and Lanorra Hudson, Turner's girlfriend, as they were walking their two dogs on Montana Street in Gary, Indiana. Johnson was upset with Turner and Hudson for allowing their dogs “to use an empty field for exercise and bathroom.” Appellant's App. Vol. II at 99. After making threats to shoot one of the dogs, Johnson got into a physical altercation with Hudson, during which he pulled out his .22 caliber handgun and shot one of the dogs. Johnson emptied “the rest of his magazine clip” into Turner as Turner tried to protect Hudson. Id. In total, Johnson fired ten bullets, with three hitting Turner—one in the neck, one in the spine, and one in the abdomen. Turner died immediately from his injuries.

[4] The State charged Johnson with murder,¹ voluntary manslaughter as a Level 2 felony,² unlawful possession of a firearm by a serious violent felon as a Level 4 felony,³ and battery by means of a deadly weapon as a Level 5 felony ⁴ . The State also alleged that Johnson used a firearm in the commission of his offenses ⁵ and was a habitual offender ⁶ . In early March 2024, Johnson pled guilty to voluntary manslaughter as a Level 2 felony in exchange for dismissal of all other charges and enhancements. Pursuant to the plea agreement, the parties agreed to “a sentencing cap of twenty[-]five (25) years in the Department of Correction” but otherwise left sentencing to the trial court's discretion. Appellant's App. Vol. II at 97.

[5] After a sentencing hearing, the trial court found two mitigating circumstances: (1) Johnson “admitted his guilt by way of a plea agreement, thus saving the Court and tax payers of this county the time and expense of a trial”; and (2) Johnson “has expressed sincere remorse for his crime[,] which the Court believes to be genuine.” Appellant's App. Vol. II at 148. The trial court found three aggravating circumstances:

1. The harm, injury, loss, or damage suffered by the victim of the offense was:

a. Significant; and

b. Greater than the elements necessary to prove the commission of the offense.

2. The defendant has Three (3) misdemeanor and Eight (8) felony convictions.

3. The Court finds the nature and circumstances of the crime to be a significant aggravating factor in that: it is gruesome in the execution, heinous overall and shocks the conscious of any reasonable person. Further, the reason for the shooting shows a callous indifference to human life especially since the victim was shot in the back and the dog was shot to[o].

Id. at 149. The trial court determined that the aggravating circumstances outweighed the mitigating circumstances and sentenced Johnson to 25 years executed at the Indiana Department of Correction (“DOC”), with 2 of those years suspended to community corrections. This appeal ensued.

Discussion and Decision

1. Any Error in Identifying the Harm or Injury to Turner as an Aggravating Factor Was Harmless

[6] Johnson contends that the trial court erred in identifying the harm or injury to Turner as an aggravating circumstance. We review a trial court's sentencing decision for an abuse of discretion. Owen v. State, 210 N.E.3d 256, 2690 (Ind. 2023) (quoting Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), as amended (July 10, 2007), decision clarified on reh'g, 875 N.E.2d 218 (Ind. 2007)), reh'g denied (Aug. 17, 2023). “An abuse of discretion occurs if the 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. (quoting Anglemyer, 868 N.E.2d at 490). “A court does not abuse its discretion if the record supports its reasons for imposing a sentence and those reasons are proper as a matter of law.” Id. (citing Anglemyer, 868 N.E.2d at 490–91).

[7] Johnson contends that the trial court erred in considering as an aggravator the harm or injury to Turner because he claims that the harm or injury Turner suffered was not greater than the elements necessary to prove he committed voluntary manslaughter. We observe that Johnson challenges only one of the three aggravating circumstances the trial court identified. “[W]hen a defendant challenges some, but not all, of the aggravating circumstances found by the trial court, we will not remand for resentencing if we can say with confidence the trial court would have imposed the same sentence had it not considered the purportedly erroneous aggravators.” Owen, 210 N.E.3d at 269–70 (citing McDonald v. State, 868 N.E.2d 1111, 1114 (Ind. 2007)).

[8] Here, the trial court identified two other aggravating circumstances that Johnson does not challenge: (1) his significant criminal history and (2) the nature and circumstances of the offense. Given the significance the trial court placed on the aggravating factor of the nature and circumstances of Johnson's offense and because the trial court determined that the aggravating factors outweighed the mitigating factors, we believe the trial court would have imposed the same sentence even if it had only considered the two unchallenged aggravating circumstances. Accordingly, even if the trial court erroneously identified the harm and injury to Turner as an aggravating circumstance, any error was harmless because the unchallenged aggravating factors support the sentence the trial court imposed.

2. Johnson's Sentence Is Not Inappropriate Under Appellate Rule 7(B)

[9] Johnson argues his sentence is inappropriate under Appellate Rule 7(B) and should be revised. The Indiana Constitution authorizes us to independently review and revise a trial court's sentencing decision. Russell v. State, 234 N.E.3d 829, 855–56 (Ind. 2024) (citing Ind. Const. art. 7, §§ 4, 6; Jackson v. State, 145 N.E.3d 783, 784 (Ind. 2020)). That authority is implemented through Appellate Rule 7(B), which permits us to revise a sentence if, after due consideration of the trial court's decision, we find that the sentence is “inappropriate in light of the nature of the offense and the character of the offender.” Id. (quoting Faith v. State, 131 N.E.3d 158, 159 (Ind. 2019)). Our role under this rule “is primarily to ‘leaven the outliers’ and identify ‘guiding principles’ for sentencers, rather than to achieve the ‘perceived “correct” result’ in each case.” Lane v. State, 232 N.E.3d 119, 122 (Ind. 2024) (quoting Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008)). As such, “we rely on our ‘collective judgment as to the balance’ of all the relevant considerations involved, which include ‘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.’ ” Id. at 122 (quoting Cardwell, 895 N.E.2d at 1224, 1226).

[10] Because we give “considerable deference” to a trial court's sentencing decision, Lane, 232 N.E.3d at 122 (quoting Cardwell, 895 N.E.2d at 1222), a defendant requesting revision under Appellate Rule 7(B) must present “compelling evidence portraying in a positive light the nature of the offense and the defendant's character,” id. (internal quotation marks omitted) (quoting Oberhansley v. State, 208 N.E.3d 1261, 1267 (Ind. 2023)). In reviewing the defendant's sentence, “we are not limited to the mitigators and aggravators found by the trial court,” Brown v. State, 10 N.E.3d 1, 4 (Ind. 2014), and we “focus on the forest—the aggregate sentence—rather than the trees—consecutive or concurrent, number of counts, or length of the sentence on any individual count,” Lane, 232 N.E.3d at 122 (quoting Cardwell, 895 N.E.2d at 1225). Similarly, a defendant “need not ‘necessarily prove’ that the sentence is inappropriate on both counts” so long as “one of the prongs weighs heavily in favor” of revising the defendant's sentence. Id. at 126–27 (quoting Connor v. State, 58 N.E.3d 215, 219 (Ind. Ct. App. 2016)) (emphasis in original). Nonetheless, “to the extent the evidence on one prong militates against relief, a claim based on the other prong must be all the stronger to justify relief.” Id. at 127 (citing Connor, 58 N.E.3d at 220).

[11] When considering the nature of the offense, we start with the advisory sentence. Brown, 10 N.E.3d at 4 (citing Anglemyer v, 868 N.E.2d at 494). Here, Johnson pled guilty to and was sentenced on a Level 2 felony. “A person who commits a Level 2 felony shall be imprisoned for a fixed term of between ten (10) and thirty (30) years, with the advisory sentence being seventeen and one-half (17 1/212) years.” I.C. § 35-50-2-4.5 (emphasis added). On his Level 2 felony conviction, the trial court sentenced Johnson to 25 years executed at the DOC, with 2 of those years suspended to community corrections.

[12] Where, as here, the trial court deviated from the advisory sentence, one factor we consider is “whether there is anything more or less egregious about the offense committed by the defendant that makes it different from the ‘typical’ offense accounted for by the legislature when it set the advisory sentence.” T.A.D.W. v. State, 51 N.E.3d 1205, 1211 (Ind. Ct. App. 2016) (quoting Holloway v. State, 950 N.E.2d 803, 806–07 (Ind. Ct. App. 2011)), as amended (May 26, 2023). We also consider whether the offense was “accompanied by restraint, regard, and lack of brutality.” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015).

[13] Johnson got into a physical altercation with Hudson and then shot one of Turner's dogs and Turner himself all because Johnson did not like that Turner and Hudson allowed their dogs to use an open field. As the trial court stated in its sentencing order, “the reason for the shooting shows a callous indifference to human life.” Appellant's App. Vol. II at 149. Furthermore, Johnson fired all ten bullets in the magazine of his handgun. Of the three bullets Johnson fired that hit Turner, one of them hit Turner in the back. We agree with the trial court that Johnson's crime was “gruesome in execution” and “heinous.” Id.

[14] In considering the character of the offender, “we engage in a broad consideration of a defendant's qualities,” T.A.D.W., 51 N.E.3d at 1211 (citing Aslinger v. State, 2 N.E.3d 84, 95 (Ind. Ct. App. 2014), clarified on other grounds on reh'g), including whether the defendant has “substantial virtuous traits or persistent examples of good character,” Stephenson, 29 N.E.3d at 122.

[15] Johnson pled guilty and was remorseful for his crime. However, Johnson has an extensive criminal history dating back to 1994 and has failed to take advantage of opportunities to rehabilitate himself. Johnson has numerous criminal convictions, including two felony convictions for carrying a handgun without a license, one felony conviction for resisting law enforcement, and several felony convictions for possessing controlled substances or illicit drugs. In at least one of his misdemeanor cases and three of his felony cases, Johnson received the benefit of probation, but he violated the terms of his probation every time.

[16] Based on the serious nature of Johnson's offense and his history of criminal or otherwise deviant behavior, we cannot say that Johnson has produced compelling evidence demonstrating that the nature of his offense or his character renders his sentence inappropriate. See Lane, 232 N.E.3d 119.

Conclusion

[17] In sum, even if the trial court erred in identifying the harm and injury to Turner as an aggravating factor, any error was harmless, and Johnson's sentence is not inappropriate under Appellate Rule 7(B). We therefore affirm the trial court on all issues raised.

[18] Affirmed.

FOOTNOTES

1.   Ind. Code § 35-42-1-1(1).

2.   Id. § 35-47-4-5(c).

3.   Id. § 35-47-2-1.

4.   Id. § 35-42-2-1(c)(1), (g)(2).

5.   Id. § 35-50-2-11(d).

6.   Id. § 35-50-2-8.

Felix, Judge.

Judges Pyle and Weissmann concur. Pyle, J., and Weissmann, J., concur.