MEMORANDUM DECISION
Jul 07 2015, 8:45 am
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 ATTORNEYS FOR APPELLEE
Kristin A. Mulholland Gregory F. Zoeller
Appellate Public Defender Attorney General of Indiana
Crown Point, Indiana
Lyubov Gore
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
John Wesley Kimbrough, Jr., July 7, 2015
Appellant-Defendant, Court of Appeals Case No.
45A03-1501-CR-18
v. Appeal from the Lake Superior
Court
The Honorable Diane Ross Boswell,
State of Indiana, Judge
Appellee-Plaintiff Lower Court Cause No. 45G03-
1402-FA-9
Bradford, Judge.
Case Summary
[1] In November of 2014, Appellant-Defendant John Wesley Kimbrough, Jr. pled
guilty to Class B felony aggravated battery after he cut and/or stabbed a friend
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five times with a knife. In exchange for Kimbrough’s guilty plea, Appellee-
Plaintiff the State of Indiana (the “State”) agreed to dismiss numerous charges
against Kimbrough, including a charge of Class A felony attempted murder.
The trial court subsequently accepted Kimbrough’s guilty plea and sentenced
Kimbrough to a term of seventeen years of incarceration.
[2] On appeal, Kimbrough contends that his seventeen-year sentence is
inappropriate. We disagree. Accordingly, we affirm the judgment of the trial
court.
Facts and Procedural History
[3] The stipulated factual basis entered into by the parties provides as follows: on
February 18, 2014, Kimbrough and the victim were present at a residence
located in Gary. At some point, Kimbrough and the victim became engaged in
a verbal altercation in an upstairs bedroom. After this altercation, Kimbrough
went to the kitchen area and retrieved a knife. Kimbrough “then cut and/or
stabbed” the victim five times with the knife. Appellant’s App. p. 21.
The five (5) wounds to [the victim] were as follows: 1) a cut to her
upper left cheek, 2) a penetrating wound to her lower left cheek below
her left ear, 3) a penetrating wound to her left maxilla, 4) a penetrating
wound to her right shoulder, and 5) a penetrating wound to her left
breast.
Appellant’s App. p. 21. The victim’s injuries were serious enough that she
needed to be taken to Methodist Northlake Hospital before being transferred to
Indiana University Health Methodist Hospital in Indianapolis for further
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treatment. The injuries sustained by the victim at the hands of Kimbrough
“created a substantial risk of death and caused serious permanent
disfigurement” to the victim. Appellant’s App. p. 22.
[4] On February 20, 2014, the State charged Kimbrough with Class A felony
attempted murder, Class B felony aggravated battery, Class C felony battery by
means of a deadly weapon, and Class C felony battery resulting in serious
bodily injury. On November 7, 2014, Kimbrough entered into a plea agreement
with the State. Pursuant to the terms of this plea agreement, Kimbrough agreed
to plead guilty to Class B felony aggravated battery and the State agreed to
dismiss all remaining charges, including the Class A attempted murder charge.
Sentencing was left to the discretion of the trial court. On December 12, 2014,
the trial court accepted the plea agreement and sentenced Kimbrough to a
seventeen-year term. This appeal follows.
Discussion and Decision
[5] Kimbrough contends that his seventeen-year sentence is inappropriate in light
of the nature of his offense and his character. Indiana Appellate Rule 7(B)
provides that “The Court may revise a sentence authorized by statute if, after
due consideration of the trial court’s decision, the Court finds that the sentence
is inappropriate in light of the nature of the offense and the character of the
offender.” In analyzing such claims, we “‘concentrate less on comparing the
facts of [the case at issue] to others, whether real or hypothetical, and more on
focusing on the nature, extent, and depravity of the offense for which the
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defendant is being sentenced, and what it reveals about the defendant’s
character.’” Paul v. State, 888 N.E.2d 818, 825 (Ind. Ct. App. 2008) (quoting
Brown v. State, 760 N.E.2d 243, 247 (Ind. Ct. App. 2002), trans. denied). The
defendant bears the burden of persuading us that his sentence is inappropriate.
Sanchez v. State, 891 N.E.2d 174, 176 (Ind. Ct. App. 2008).
[6] With respect to the nature of Kimbrough’s offense, the record demonstrates that
Kimbrough attacked a good friend with a knife, cutting or stabbing her five
times. The victim suffered serious injuries as a result of Kimbrough’s attack,
including “1) a cut to her upper left cheek, 2) a penetrating wound to her lower
left cheek below her left ear, 3) a penetrating wound to her left maxilla, 4) a
penetrating wound to her right shoulder, and 5) a penetrating wound to her left
breast.” Appellant’s App. p. 21. The victim testified during the sentencing
hearing that she was not expecting the attack and was defenseless at the time it
occurred. Specifically, the victim testified that she “was surprised about the
incident of how it happened or whatever because there was no really -- no
reason, and [she] and [Kimbrough] were good friends.” Tr. p. 21. She further
testified that she suffered lasting physical injuries and mental issues as a result
of the attack. In describing her injuries, the victim testified:
My face, I have a problem with my salvatory (sic) where my mouth
fills up with saliva and my jaw dislocates and pops back in place.
I’m having problems hearing now. Mentally, I just -- I don’t know. I
have sleepless nights. I guess because he’s so close -- he was so close
to me, and I don’t understand that.
I don’t hang with many people but I used to hang with him. And I
guess I just don’t understand.
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Tr. pp. 21-22. In sum, Kimbrough committed a heinous, violent attack against
a good friend, and, as a result of his actions, his now former friend suffers from
ongoing physical and mental issues.
[7] With regard to the nature of his character, Kimbrough asserts that his
seventeen-year sentence is inappropriate because he acted out of character when
he attacked the victim. In support of this assertion, Kimbrough points to the
victim’s testimony at sentencing that she was surprised by his actions because
she and Kimbrough had been good friends and that the attack appeared to
occur without reason. Kimbrough also points to his counsel’s opinion that
once he was taking medication for his alleged mental illness and diabetes, he
was cooperative and polite.
[8] Upon review, we disagree with Kimbrough’s assertion that he acted out of
character when he committed the underlying criminal offense. Kimbrough
acknowledges that he has a criminal record, but claims that his criminal record
should not be given much weight because it contains only one prior conviction
from 1992. What Kimbrough does not mention, however, is that this one prior
conviction was for Class A felony manslaughter for the intentional killing of his
then-wife. Further, while Kimbrough did demonstrate remorse and accept
responsibility for his actions by pleading guilty, his decision to do so could
easily be considered to be a tactical decision as the State agreed to dismiss three
other serious charges in exchange for Kimbrough’s plea. Again, the dismissed
charges were charges for Class A felony attempted murder, Class C felony
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battery committed by means of a deadly weapon, and Class C felony battery
resulting in serious bodily harm.
[9] In light of the facts surrounding the nature of Kimbrough’s offense and his
character, we conclude that Kimbrough has failed to meet his burden of
persuading us that his aggregate seventeen-year sentence is inappropriate.
[10] The judgment of the trial court is affirmed.
Vaidik, C.J., and Kirsch, J, concur.
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