MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Sep 05 2018, 8:53 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
Kenneth McBride Curtis T. Hill, Jr.
Bunker Hill, Indiana Attorney General of Indiana
Ellen H. Meilaender
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Kenneth McBride, September 5, 2018
Appellant-Petitioner, Court of Appeals Case No.
49A05-1705-CR-1050
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Kurt Eisgruber,
Appellee-Respondent Judge
Trial Court Cause No.
49G01-1410-PC-48689
Baker, Judge.
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[1] Kenneth McBride appeals the trial court’s denial of his motion to correct
erroneous sentence. Finding no error, we affirm.
Facts
[2] The underlying facts, as described by this Court in McBride’s direct appeal, are
as follows:
On March 7, 2012, around 4:30 p.m., Officer Ryan Irwin of the
Indianapolis Metropolitan Police Department (IMPD) responded
to the dispatch of a robbery in progress at the Oriental Market
(Market), a grocery store on Lafayette Road owned by Bay Le
Zhu (Zhu) and her husband. Officer Irwin arrived within one
minute and found that the employees, two of whom had obvious
injuries, and Zhu’s six-year-old son Brian were locked inside the
Market. Irwin also found a twelve gauge shotgun lying on the
ground next to the market.
It was later established that Zhu, Brian, Zhu’s nephew Yixiu
Chen (Yixiu), Kia Wong (Wong) and his wife, Cai Nong Chen
(Cai), were all at the market when McBride and two other men,
each armed and wearing dark clothing, gloves, and masks,
entered the Market through a back door and locked the door
behind them. The men confined everyone in the kitchen, striking
several of the victims with their guns and binding their hands and
legs with duct tape. After the men demanded money, Zhu gave
them $1200 that she had in her pocket and was escorted out of
the kitchen to the cash register, where they took additional
money. When Van Duong, a regular customer, came by, he
noticed that the door was locked even though the lights were on
and the “open” sign was displayed. Suspicious, Duong peered
through the Market window and observed masked men but none
of the store employees. When he looked again, he saw Zhu
taking money from the register, and she gave him a sign to call
for help.
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McBride and the other men escaped in Wong’s vehicle, taking
with them Wong’s cell phone, Yixius’s cell phone and many of
his keys including his house and the Market keys, Zhu’s purse
and keys, the $1200 that Zhu had on her, and the money from
the cash register. Duong got a good look at McBride and
provided the license plate number of the getaway vehicle to the
911 dispatcher. He also reported that the vehicle had traveled
south on Lafayette Road. Officers located the vehicle after a
citizen reported seeing someone flee from the vehicle.
At around 5:00 p.m., McBride and his co-defendant, Adrian
Jackson, were apprehended. They were found crouched down
between a wood deck area and a garage, wearing dark clothing
and shoes matching those worn by the robbers. Around and
under the deck where McBride and Jackson were apprehended,
the officers recovered several pieces of dark clothing, including a
stocking cap mask, three dark gloves, the distinctive jacket worn
by one of the men during the robbery with a Bic lighter in it that
matched McBride’s DNA, multiple cell phones, a set of keys, and
a small purse, all of which were items taken from the victims
during the robbery. Additionally, a piece of foreign currency and
a rifle with Jackson’s DNA were recovered. Officers also found
$622 on McBride and $1106 on Jackson.
Jackson and McBride were arrested and taken to the police
station and Zhu, Cai, Wong, and Duong were brought over for a
show-up identification. All but Wong identified either one or
both men as the robbers with seventy to one hundred percent
certainty. Duong positively identified both men, stating that
Jackson was the driver and McBride was the front seat passenger
in the getaway vehicle.
McBride v. State, 992 N.E.2d 912, 914-15 (Ind. Ct. App. 2013) (footnote
omitted).
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[3] On March 9, 2012, the State charged McBride with two counts of Class B
felony criminal confinement, three counts of Class B felony robbery, and three
counts of Class C felony battery. A jury trial took place from September 17-19,
2012. On September 19, 2012, the State dismissed one of the Class C felony
battery charges. The jury found McBride guilty on all other charges. On
October 5, 2012, a sentencing hearing took place, during which the trial court
merged one count of the criminal confinement conviction into the other and
merged the battery convictions into two counts of the robbery convictions. The
trial court sentenced McBride to six years executed for the criminal
confinement conviction and eight years executed for each of the three robbery
convictions, with all sentences to run consecutively, for an aggregate sentence
of thirty years. Id. at 916.
[4] On direct appeal, McBride argued in relevant part that the trial court erred by
imposing consecutive sentences. This Court held that the trial court did not err
by imposing consecutive sentences because the sentences were based on the
aggravating factors that McBride had committed the crimes against multiple
victims and in the presence of a six-year-old, which were valid aggravating
factors that could be used to impose consecutive sentences. Id. at 919-20.
[5] On February 12, 2016, McBride filed an amended petition for post-conviction
relief, which the post-conviction court denied on December 6, 2016. On
January 13, 2017, McBride filed a motion to correct erroneous sentence,
arguing that the trial court erred by imposing consecutive sentences when it did
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not base his sentence on any aggravators. The trial court denied the motion on
January 17, 2017. McBride now appeals.
Discussion and Decision
[6] McBride’s sole argument on appeal is that the trial court erred by denying his
motion to correct erroneous sentence. We will reverse a trial court’s ruling on a
motion to correct sentence only if the ruling is against the logic and effect of the
facts and circumstances before it. Woodcox v. State, 30 N.E.3d 748, 750 (Ind. Ct.
App. 2015). While we defer to the trial court’s factual determinations, we
review legal conclusions de novo. Id.
[7] Initially, we note that McBride’s claims are barred as a matter of res judicata.
As a general rule, when this Court decides an issue on direct appeal, the
doctrine of res judicata applies, thereby precluding its review in post-conviction
proceedings. State v. Holmes, 728 N.E.2d 164, 168 (Ind. 2000). The doctrine of
res judicata prevents the repetitious litigation of that which is essentially the
same dispute. Id. This Court upheld the validity of McBride’s sentence on
direct appeal, specifically holding that the trial court had relied on valid
aggravating factors to support the consecutive sentences. McBride, 992 N.E.2d
at 919-21. Because McBride already litigated on direct appeal the validity of his
consecutive sentences, he may not attempt to litigate that issue for a second
time through his motion to correct erroneous sentence.
[8] The matter of res judicata notwithstanding, we find no merit in McBride’s
argument. He first alleges that his consecutive sentences were unlawful because
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the trial court did not find any aggravating factors to support imposing
consecutive sentences. A trial court is required to state its reasoning and to find
at least one aggravating factor to impose consecutive sentences. Id. at 919.
Here, the trial court’s oral and written sentencing statements clearly show that it
found and relied upon several aggravating factors to support the consecutive
sentences, including the nature and circumstances of the crimes, the existence
of multiple victims, and the young age of one of the victims. Appellant’s App.
p. 30-32.
[9] McBride also argues that the trial court erred by imposing consecutive
sentences for his three convictions of Class B felony robbery because the crimes
arose out of a single episode of criminal conduct.1 But at the time of the
offenses, Class B felony robbery was a “crime of violence,” and the limit on
consecutive sentences for single episodes of criminal conduct did not apply to
crimes of violence. Ind. Code § 35-50-1-2(a)(12), -(c) (2012). Therefore,
McBride’s sentences were not subject to statutory limits on sentences for single
episodes of criminal conduct. McBride’s argument is unavailing.
[10] The judgment of the trial court is affirmed.
May, J., and Robb, J., concur.
1
This argument should have been raised in McBride’s direct appeal and is now untimely. Nevertheless, we
will briefly address it.
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