MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be Jan 11 2016, 6:05 am
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.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Stephen T. Owens Gregory F. Zoeller
Public Defender of Indiana Attorney General of Indiana
Katherine Province Ellen H. Meilaender
Deputy Public Defender Deputy Attorney General
Indianapolis, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
John W. Kimbrough, III, January 11, 2016
Appellant-Defendant, Court of Appeals Case No.
45A05-1506-PC-687
v. Appeal from the Lake Superior
Court
State of Indiana, The Honorable Samuel L. Cappas,
Appellee-Plaintiff Judge
The Honorable Natalie Bokota,
Magistrate
Trial Court Cause No.
45G04-1312-PC-15
Baker, Judge.
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[1] John Kimbrough, III, appeals the denial of his petition for post-conviction
relief, arguing that the post-conviction court erroneously determined that
Kimbrough did not receive ineffective assistance of appellate counsel. Finding
no error, we affirm.
Facts
Underlying Facts
[2] In January 2009, Kimbrough began dating A.D. (Mother), who introduced
Kimbrough to her three children: J.L., a daughter born in 2003; A.D., a
daughter born in 2004; and A.D.L., a son who had cerebral palsy. The couple
and the children did many things together as a family, and Kimbrough
continued to have a relationship with the children even after his romantic
relationship with Mother ended in the spring of 2010. In October 2010, Mother
noticed that J.L. and A.D. were acting as though they were scared and were
hiding something. Eventually, the children told Mother that Kimbrough had
touched them inappropriately on multiple occasions. The children revealed
that Kimbrough had placed his penis on or in their genitalia and anal areas, had
licked and touched their genitalia, and had coerced the children into
masturbating him. The molestations occurred on multiple occasions over a
time period spanning nearly two years.
[3] On November 5, 2010, the State charged Kimbrough with four counts of class
A felony child molestation and two counts of class C felony child molestation.
On May 5, 2011, a jury found Kimbrough guilty as charged. Due to double
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jeopardy concerns, the trial court entered judgments of conviction only on the
four class A felony convictions. On May 3, 2011, the trial court imposed forty-
year sentences on each of those four convictions; the court ran the sentences on
Counts I and II concurrently, ran the sentences on Counts III and IV
concurrently, but ran those two sets of sentences consecutively, resulting in an
aggregate sentence of eighty years imprisonment.
Direct Appeal: Court of Appeals
[4] Kimbrough appealed to this Court, raising the following arguments: (1) there
was insufficient evidence to support the convictions; (2) the trial court erred in
giving one of the jury instructions; and (3) the trial court abused its discretion
when sentencing Kimbrough by failing to give sufficient weight to his lack of a
prior criminal history. Kimbrough v. State, No. 45A04-1106-CR-328 (Ind. Ct.
App. Mar. 21, 2012), vacated by Kimbrough v. State, 979 N.E.2d 625 (Ind. 2012).
After dispensing with the first two arguments, this Court turned to the
sentencing argument. The Court found that the trial court had not abused its
discretion because it had found Kimbrough’s lack of a prior criminal history to
be a mitigating circumstance. The Court went on, however, to hold as follows:
Focusing on the appropriateness of the sentence and not the weight
given to individual aggravating or mitigating factors, we find that
the trial court abused its discretion. While we acknowledge the
existence of the aggravating circumstances, an aggregate sentence
of eighty years for a defendant with no criminal history is clearly
against the logic and effect of the facts and circumstances before
the trial court. Given the existence of this substantial mitigating
factor, a sentence of twenty years on Counts I and II, with a
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consecutive sentence of twenty years for Counts I and IV, for an
aggregate sentence of forty years is supported by the evidence.
We reverse the trial court's sentencing order and remand to the
trial court to enter an order imposing the sentence outlined
above.
Id. at *5 (emphasis added).
[5] Judge Mathias dissented in part from the majority opinion. First, he noted that
because the trial court did not abuse its discretion in sentencing Kimbrough,
appellate review is limited to Indiana Appellate Rule 7(B). Judge Mathias
concluded that “[b]ecause Kimbrough advances no argument under Appellate
Rule 7(B) concerning the nature of the offense or his character, I would not
reach the issue of the appropriateness of his sentence.” Id. at *6. Next, Judge
Mathias engaged in a Rule 7(B) analysis and concluded that even if we were to
consider the aggregate eighty-year sentence in light of the nature of the offenses
and Kimbrough’s character, the sentence is not inappropriate. Id. He therefore
parted ways with the majority’s decision to revise Kimbrough’s sentence
downward. Id.
Direct Appeal: Our Supreme Court
[6] Kimbrough sought, and our Supreme Court granted, transfer. It summarily
affirmed this Court’s decision on the first two issues and then addressed
sentencing. Kimbrough, 979 N.E.2d at 628. First, the Kimbrough Court held
that the trial court had not abused its discretion because it had, in fact,
considered the lack of criminal history to be a mitigator. Our Supreme Court
emphasized that a trial court cannot be said to have abused its discretion in the
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way in which it weighs aggravators and mitigators. Id. at 629. Next, the
Kimbrough Court turned to this Court’s “appropriateness” analysis:
This brings us to the Court of Appeals’ declaration that it was
“focusing on the appropriateness of the sentence.” Although not
cited by the majority, this language implicates Indiana Appellate
Rule (7)(B) which provides “[t]he 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.” Even though a trial court may have acted within its
lawful discretion in determining a sentence, Article 7, Sections 4
and 6 of the Indiana Constitution “authorize [ ] independent
appellate review and revision of a sentence imposed by the trial
court.” Buchanan, 767 N.E.2d at 972. This appellate authority is
implemented through Rule (7)(B). First, we agree with Judge
Mathias who in dissent noted “a request for sentence revision
under Appellate Rule (7)(B) is not truly a claim of sentencing
error. Rather, it is a request for [the] court to exercise its
constitutional authority to revise a lawfully entered sentence.”
Kimbrough, No. 45A04–1106–CR–328, slip op. at 14 n.3 (citation
omitted). Further, and importantly, in his brief before the Court
of Appeals Kimbrough did not seek sentencing revision, did not
cite to or rely upon Appellate Rule (7)(B) and thus said nothing
about the nature of the offenses or his character. As we have
declared “a defendant must persuade the appellate court that his
or her sentence has met this inappropriateness standard of
review.” Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).
Here Kimbrough made no attempt to do so. “When a defendant
requests appellate review and revision of a criminal sentence
pursuant to authority derived from Article 7, Sections 4 or 6 of
the Indiana Constitution ... the reviewing court is presented with
the issue of whether to affirm, reduce, or increase the sentence.”
McCullough v. State, 900 N.E.2d 745, 750 (Ind. 2009) (emphasis
added). Kimbrough made no such request and therefore there
was no issue in this regard to be considered by a reviewing court.
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In summary, because the trial court correctly entered its
sentencing statement in compliance with the dictates of
Anglemyer and because the “appropriateness” of a sentence has
no bearing on whether a sentence is erroneous, the trial court did
not abuse its discretion in imposing Kimbrough’s sentence.
Further, Kimbrough did not seek review and revision of his
sentence under Indiana Appellate Rule (7)(B).
Id. at 629-30 (internal citations omitted). Finally, our Supreme Court “note[d]
in passing that in his dissent Judge Mathias also observed that Kimbrough
advanced no argument under Appellate Rule 7(B) and thus he would not have
reached the issue of the appropriateness of Kimbrough’s sentence. Nonetheless,
Judge Mathias undertook a thorough analysis of the nature of Kimbrough’s
offenses and his character and concluded that Kimbrough’s sentence was not
inappropriate.” Id. at 630 n.1.
Post-Conviction Relief
[7] On December 17, 2013, Kimbrough filed a pro se petition for post-conviction
relief, and on September 29, 2014, he filed an amended petition by counsel.
Kimbrough’s sole argument is that he received the ineffective assistance of
appellate counsel based on counsel’s failure to include a Rule 7(B) argument in
his direct appeal. Following an evidentiary hearing, the post-conviction court
denied Kimbrough’s petition on May 29, 2015. In relevant part, the post-
conviction court found and concluded as follows:
7. . . . The Appellate Judges who comprised the majority on
direct appeal did not undertake an App. R. 7(B) analysis of
Kimbrough’s sentence. They did not assess the nature of
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the offense or the character of the offender, but Judge
Mathias did in his dissenting opinion. Therefore, the only
appellate judge who undertook an App. R. 7(B) analysis
determined that the sentence was not inappropriate. We
conclude from this that if Appellate Counsel had raised a
claim under App. R. 7(B), a majority of the reviewing
judges would reach the same conclusion Judge Mathias
reached and hold that the sentence was not inappropriate.
***
9. We conclude that Kimbrough was not prejudiced by
Appellate Counsel’s failure to raise a 7(B) claim on direct
appeal because to have done so would not have gained
Kimbrough a revised sentence.
Appellant’s App. p. 80-81. Kimbrough now appeals.
Discussion and Decision
I. Standard of Review
[8] The general rules regarding the review of a ruling on a petition for post-
conviction relief are well established:
“The petitioner in a post-conviction proceeding bears the burden
of establishing grounds for relief by a preponderance of the
evidence.” Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004).
“When appealing from the denial of post-conviction relief, the
petitioner stands in the position of one appealing from a negative
judgment.” Id. To prevail on appeal from the denial of post-
conviction relief, a petitioner must show that the evidence as a
whole leads unerringly and unmistakably to a conclusion
opposite that reached by the post-conviction court. Weatherford v.
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State, 619 N.E.2d 915, 917 (Ind. 1993). Further, the post-
conviction court in this case made findings of fact and
conclusions of law in accordance with Indiana Post–Conviction
Rule 1(6). Although we do not defer to the post-conviction
court’s legal conclusions, “[a] post-conviction court’s findings
and judgment will be reversed only upon a showing of clear
error—that which leaves us with a definite and firm conviction
that a mistake has been made.” Ben–Yisrayl v. State, 729 N.E.2d
102, 106 (Ind. 2000) (quotation omitted).
Hollowell v. State, 19 N.E.3d 263, 268-69 (Ind. 2014).
[9] Kimbrough’s sole argument on appeal is that the post-conviction court
erroneously determined that he did not receive the ineffective assistance of
appellate counsel. To establish ineffective assistance of appellate counsel, the
petitioner must show that (1) appellate counsel was deficient in his or her
performance, and (2) the deficiency resulted in prejudice. Id. at 269. Failure to
satisfy either prong will cause the claim to fail. Henley v. State, 881 N.E.2d 639,
644 (Ind. 2008). To satisfy the second prong, the defendant must show a
reasonable probability that, but for counsel’s errors, the result of the proceeding
would have been different. Id.
II. Assistance of Appellate Counsel
[10] Kimbrough argues that his appellate counsel’s failure to challenge his sentence
on Rule 7(B) grounds resulted in prejudice. In making this argument, he relies
on this Court’s opinion that was ultimately overturned. Kimbrough reasons
that because this Court revised his sentence downward on 7(B) grounds, and
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our Supreme Court overturned that decision only because the argument was not
raised, that he was necessarily prejudiced by its omission. We cannot agree.
[11] Initially, we note that this Court did not have the benefit of argument or
analysis on the Rule 7(B) issue from the State. We now have the benefit of that
argument and analysis, and as explored below, are persuaded that this Court
would have reached a different result had the issue been fully briefed.
Furthermore, we echo the reasoning of the post-conviction court, which
emphasized that the Kimbrough majority did not engage in any sort of Rule 7(B)
analysis. Instead, only Judge Mathias did so, and—as emphasized by our
Supreme Court—he “undertook a thorough analysis of the nature of
Kimbrough’s offenses and his character and concluded that Kimbrough’s
sentence was not inappropriate.” Kimbrough, 979 N.E.2d at 630.
[12] Following in Judge Mathias’s footsteps, and with the benefit of full briefing on
the issue, we now consider whether Kimbrough’s sentence was inappropriate.
Indiana Appellate Rule 7(B) provides that this Court may revise a sentence if it
is inappropriate in light of the nature of the offense and the character of the
offender. We must “conduct [this] review with substantial deference and give
‘due consideration’ to the trial court’s decision—since the ‘principal role of
[our] review is to attempt to leaven the outliers,’ and not to achieve a perceived
‘correct’ sentence . . . .” Knapp v. State, 9 N.E.3d 1274, 1292 (Ind. 2014)
(quoting Chambers v. State, 989 N.E.2d 1257, 1259 (Ind. 2013)) (internal
citations omitted).
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[13] Kimbrough was convicted of four class A felonies. For each conviction, he
faced a term of twenty to fifty years, with an advisory term of thirty years. Ind.
Code § 35-50-2-4.1 The trial court imposed a term of forty years imprisonment
for each conviction—ten greater than the advisory term but ten less than the
maximum. It ran two of the terms consecutively, as has been found appropriate
when there are multiple victims. See Serino v. State, 798 N.E.2d 852, 857 (Ind.
2003) (holding that “when the perpetrator commits the same offense against
two victims, enhanced and consecutive sentences seem necessary to vindicate
the fact that there were separate harms and separate acts against more than one
person”).
[14] As for the nature of the offenses, Kimbrough repeatedly molested two very
young victims—seven-year-old J.L. and five-year-old A.D. The molestations
occurred on multiple occasions and over a time period spanning nearly two
years. Kimbrough continued to molest A.D. after she asked him to stop and he
instructed her not to tell anyone. Moreover, in molesting the girls, Kimbrough
violated a position of significant trust. The couple and the children did many
things together as a family, and he routinely drove the girls to school and
helped them with their homework. Finally, at sentencing, Kimbrough
expressed no remorse for his actions, instead casting himself as the victim and
blaming the girls’ parents for his involvement in the girls’ lives.
1
We apply the version of the sentencing statutes in place at the time Kimbrough committed the offenses.
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[15] As for Kimbrough’s character, we certainly note his lack of a prior criminal
history, as did the trial court. As noted by Judge Mathias, however,
“Kimbrough’s abuse of his position of trust with respect to J.L. and A.D.
reflects very negatively on his character.” Kimbrough, No. 45A04-1106-CR-328,
*9. Furthermore, at the time of sentencing in this matter, there was an active
warrant for Kimbrough’s arrest for failure to appear on a driving while
suspended charge, and he was also facing charges of class B felony criminal
confinement, class C felony intimidation, class D felony criminal confinement,
and class D felony residential entry. Kimbrough had also violated the terms of
his pretrial release granted by another court in a separate case. We hasten to
emphasize that Kimbrough was only in his mid-twenties. It is therefore
apparent that, while he had no prior convictions, he had not been leading a law-
abiding life since becoming an adult a few short years before the molestations.
[16] Given this evidence concerning Kimbrough’s character, combined with the
evidence regarding the nature of the offenses—including the presence of
multiple victims, their young ages, the ongoing nature of his crimes, and his
abuse of a position of trust—we are persuaded that if the Kimbrough majority
had engaged in a full Rule 7(B) analysis with the benefit of argument and
analysis from the State, it would not have found Kimbrough’s sentence
inappropriate. In other words, Kimbrough has not established that there is a
reasonable probability that, if appellate counsel had made a Rule 7(B)
challenge, the result of the proceeding would have been different. Therefore, he
has failed to establish prejudice as a result of the omission of this argument in
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his direct appeal. The post-conviction court did not err by denying
Kimbrough’s petition for post-conviction relief.
[17] The judgment of the post-conviction court is affirmed.
Bradford, J., and Pyle, J., concur.
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