MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                         FILED
regarded as precedent or cited before any
court except for the purpose of establishing                             May 16 2019, 6:55 am

the defense of res judicata, collateral                                       CLERK
                                                                          Indiana Supreme Court
estoppel, or the law of the case.                                            Court of Appeals
                                                                               and Tax Court




APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
Michael A. Kemp                                          Curtis T. Hill, Jr.
New Castle, Indiana                                      Attorney General of Indiana

                                                         Ian McLean
                                                         Supervising Deputy Attorney
                                                         General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Michael A. Kemp,                                         May 16, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-673
        v.                                               Appeal from the Delaware Circuit
                                                         Court
State of Indiana,                                        The Honorable Marianne L.
Appellee-Plaintiff.                                      Vorhees, Judge
                                                         The Honorable Steven R.
                                                         Caldemeyer, Judge
                                                         Trial Court Cause No.
                                                         18C01-9708-CF-42



Najam, Judge.



Court of Appeals of Indiana | Memorandum Decision 18A-CR-673 | May 16, 2019                       Page 1 of 13
                                       Statement of the Case
[1]   In this belated appeal, Michael A. Kemp appeals his conviction and sentence

      for child molesting, as a Class A felony, following a guilty plea. Kemp raises

      two issues for our review, which we revise and restate as follows:


              1.      Whether the trial court erred when it entered judgment of
                      conviction for child molesting, as a Class A felony,
                      because the factual basis for Kemp’s plea only supported a
                      conviction for child molesting, as a Class C felony.

              2.      Whether the trial court abused its discretion when it
                      sentenced Kemp.


[2]   We affirm.


                                 Facts and Procedural History
[3]   In mid-1997, police officers with the Muncie Police Department were called to

      investigate allegations that Kemp had molested children. During the course of

      the investigation, Kemp voluntarily gave a statement to officers in which he

      admitted to having molested three children: T.E., who was nine years old;

      B.E., who was seven years old; and D.E., who was four years old. Kemp

      molested the children on multiple occasions between the dates of October 1,

      1995, and December 31, 1995.


[4]   The State charged Kemp with two counts of child molesting, as Class A

      felonies, and one count of child molesting, as a Class C felony. During a

      hearing on October 2, 1997, Kemp pleaded guilty to one count of child


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-673 | May 16, 2019   Page 2 of 13
      molesting, as a Class A felony. In exchange, the State agreed to dismiss the

      other two counts. Prior to accepting his plea, the court advised Kemp of the

      rights that he was waiving by pleading guilty. Specifically, the court told

      Kemp: “You understand that you won’t have an appeal because there won’t be

      anything to appeal. You won’t have a trial, and there’s where appeals come

      from.” Tr. Vol. II at 8. Kemp’s counsel then proceeded to solicit a factual basis

      for Kemp’s guilty plea. In particular, Kemp admitted that he had engaged in

      oral sex with T.E. The trial court accepted Kemp’s guilty plea and entered

      judgment of conviction for child molesting, as a Class A felony.


[5]   The trial court held a sentencing hearing on October 30. During the hearing,

      the trial court stated as follows:


              He did time, for the record, for a Theft conviction prior, moved
              to Indianapolis, paroled until June of ’90. . . . ’93 in November
              was arrested on two (2) counts of Child Molesting in Marion
              County. He spent seven and a half (7 ½) months in jail. He was
              released in June when the charges were dismissed. . . . He was in
              a position of trust as a babysitter for these three (3) victims. The
              defendant admitted to numerous acts of molesting the victims
              and stated that he’s molested [B.E.] three (3) times, [D.E.] six
              times, and [T.E.] fifteen (15) to twenty (20) times. . . . So there
              are certainly aggravating circumstances. . . . All I know is that
              the aggravating circumstances are considerable: you have a
              lengthy history of criminal and delinquent activity; the
              seriousness of the prior crimes. . . . Prior attempts of
              rehabilitation through probation and parole have failed.
              Imposition of a reduced sentence would depreciate the
              seriousness of the crime. . . . The crime required the Defendant
              to confront the victims; the ages of the victims were four (4),
              seven (7), and nine (9).

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-673 | May 16, 2019   Page 3 of 13
      Id. at 26-28. The court did not identify any mitigators but found that “the

      aggravating circumstances most definitely and considerably outweigh any

      mitigating circumstances.” Id. at 28. Accordingly, the court sentenced Kemp

      to the maximum sentence of fifty years in the Department of Correction.


[6]   On February 19, 2015, Kemp filed a petition for post-conviction relief. In that

      petition, Kemp asserted that the evidence presented at his guilty plea hearing

      did not establish a factual basis for the trial court to accept his guilty plea and

      that he did not voluntarily plead guilty. Kemp later amended his petition to

      additionally assert that the trial court had abused its discretion when it

      sentenced him.1


[7]   Following a hearing,2 the post-conviction court entered findings of fact and

      conclusions of law in which the court denied Kemp’s petition for post-

      conviction relief. Specifically, the post-conviction court found that, “[i]n

      reviewing the statute in effect when Kemp entered his guilty plea, . . . the crime

      is a Class A felony if the defendant is over 21 years old when he commits the

      offense. The offense can involve deviate sexual conduct . . . .” Appellant’s

      App. Vol. IV at 35. Accordingly, the post-conviction court found that Kemp’s

      admissions satisfied the elements of child molesting, as a Class A felony, and



      1
        The State moved to dismiss the added issue raised in Kemp’s amended petition for post-conviction relief.
      The post-conviction court initially granted the State’s motion but, following Kemp’s motion to correct error
      in which Kemp cited to the portion of the guilty plea hearing during which the trial court informed him that
      he could not file an appeal if he pleaded guilty, the post-conviction court reversed its decision and allowed
      Kemp to include the alleged sentencing errors in his amended petition for post-conviction relief.
      2
          Kemp has not provided a copy of the transcript of the hearing on his petition for post-conviction relief.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-673 | May 16, 2019                          Page 4 of 13
      that there was “clear and convincing” evidence to demonstrate that Kemp had

      committed the crime to which he had pleaded guilty. Id. at 36. The post-

      conviction court also found that Kemp had failed to meet his burden of proof

      regarding whether he had voluntarily pleaded guilty.


[8]   In regard to the alleged sentencing errors, the post-conviction court found that

      “Kemp should have addressed these issues in a timely filed direct appeal, and

      he did not do so.” Id. at 37. However, the post-conviction court concluded that

      “Kemp should be given the opportunity to file and present a proper Petition

      pursuant to Post-Conviction Rule 2, Section 1.” Id. The post-conviction court

      then denied Kemp’s petition for post-conviction relief but directed Kemp to file

      a petition for a belated appeal on the sentencing issue. On March 16, Kemp

      attempted to appeal the post-conviction court’s denial of his petition for post-

      conviction relief by filing a notice of appeal with this Court. However, after

      “nothing had been done in furtherance of this appeal,” this Court dismissed

      Kemp’s appeal with prejudice. Appellee’s App. Vol. II at 12. On January 4,

      2018, Kemp filed his petition for permission to file a belated notice of appeal,

      which the post-conviction court granted. This appeal ensued.


                                     Discussion and Decision
                              Issue One: Factual Basis for Guilty Plea




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-673 | May 16, 2019   Page 5 of 13
[9]    Kemp first contends that the trial court erred when it accepted his guilty plea

       and entered judgment of conviction for child molesting, as a Class A felony.3

       Specifically, Kemp contends that, pursuant to the statute in effect at the time he

       committed the offense, the factual basis to which he admitted only

       demonstrated that he had committed child molesting, as a Class C felony.


[10]   However, we cannot address Kemp’s claim that the incorrect statute was

       applied or that he only pleaded guilty to a Class C felony because his claim on

       this issue cannot be raised by means of a belated appeal and, thus, is not

       properly before us. In order to file a belated appeal, the defendant must be an

       “eligible defendant.” Ind. Post-Conviction Rule 2(a). An “eligible defendant”

       is “a defendant who, but for the defendant’s failure to do so timely, would have

       the right to challenge on direct appeal a conviction or sentence after a trial or

       plea of guilty[.]” P-C.R. 2. Accordingly, in order for Kemp to be able to bring




       3
          The parties dispute whether the doctrine of res judicata bars Kemp from raising this issue on appeal due to
       the fact that this Court dismissed his appeal from the post-conviction court’s denial of his petition with
       prejudice, in which he asserted that the evidence presented at his guilty plea hearing did not establish a
       factual basis for the trial court to accept his guilty plea. However, it is unclear from the record on appeal
       whether Kemp raised to the post-conviction court the specific issue of whether the trial court had applied the
       wrong statute when it convicted him. In his petition for post-conviction relief, Kemp asserts that the facts to
       which he admitted did not support an elevation to a Class A felony because “factual evidence” established “a
       professional medical standing [sic] that all victims were not molested.” Id. at 122. In essence, Kemp appears
       to have asserted to the post-conviction court only that the evidence did not support his conviction for child
       molesting, as a Class A felony. Nowhere in his petition did he assert that the trial court had applied the
       wrong statute when it convicted him. Further, Kemp did not provide a transcript of the hearing on his
       petition for post-conviction relief, so we are unable to determine whether Kemp raised that as an argument to
       the post-conviction court. Accordingly, while Kemp asserted to the post-conviction court that the factual
       basis did not support his guilty plea to the Class A felony, we are unable to ascertain whether he raised that
       issue not only due to a lack of sufficient evidence but also because the trial court had applied the wrong
       statute. Accordingly, we are unable to determine whether the doctrine of res judicata bars Kemp from raising
       the issue of whether the trial court applied the wrong statute.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-673 | May 16, 2019                       Page 6 of 13
       a belated appeal challenging his conviction following a guilty plea, he would

       have to have had the right to challenge his conviction on direct appeal.


[11]   It is well settled that “a person who pleads guilty cannot challenge the propriety

       of the resulting conviction on direct appeal.” Rogers v. State, 958 N.E.2d 4, 7

       (Ind. Ct. App. 2011). Because Kemp did not have the right to challenge his

       guilty plea on direct appeal, he is not eligible to bring a belated appeal under

       Post-Conviction Rule 2 to challenge the propriety of his guilty plea. Therefore,

       Kemp’s claim challenging his guilty plea is not properly before us, and we

       decline to address it.


                                              Issue Two: Sentencing

[12]   Kemp next asserts that the trial court abused its discretion when it sentenced

       him, which issue is properly before us.4 We initially note that twenty years and

       numerous changes to our criminal law have passed since Kemp’s conviction

       and sentence. Accordingly, we will review the case law in effect at the time

       Kemp committed the offenses and was sentenced.


[13]   We review a trial court’s sentencing decisions for an abuse of discretion,

       including the trial court’s decision to increase or decrease the presumptive




       4
         While Kemp cannot challenge his guilty plea through a belated appeal, it is well settled that a belated direct
       appeal is a proper means to challenge the merits of a sentencing decision. See Walton v State, 866 N.E.2d 820,
       821 (Ind. Ct. App. 2007).

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-673 | May 16, 2019                        Page 7 of 13
       sentence because of aggravating or mitigating circumstances. 5 See Trowbridge v.

       State, 717 N.E.2d 138, 149 (Ind. 1999).


                To deviate from the statutorily proscribed presumptive sentence,
                the trial court must “(1) identify all of the significant mitigating
                and aggravating circumstances, (2) state the specific reason why
                each circumstance is considered to be mitigating or aggravating,
                and (3) articulate the court’s evaluation and balancing of the
                circumstances to determine if the mitigating circumstances offset
                the aggravating ones.”


       Id. (quoting Carter v. State, 711 N.E.2d 835, 838 (Ind. 1999)). Here, Kemp

       contends that the trial court abused its discretion when it found certain

       aggravating factors and when it failed to identify a mitigating factor.


                                                       Aggravators

                                                     Age of Victim

[14]   Kemp contends that the trial court abused its discretion when it considered the

       age of the victim as an aggravator because the age of the victim “constitutes an

       element of the crime.” Appellant’s Br. at 10. It is well settled that “[a] fact




       5
         Kemp briefly asserts that the trial court’s use of two aggravators—the victim’s age and the use of a prior,
       uncharged act—was improper under Blakeley v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.E.2d 403
       (2004). In that case, the Supreme Court held that, in order “to comply with the Sixth Amendment, juries,
       not judges, must find beyond a reasonable doubt ‘any fact that increases the penalty for a crime beyond the
       prescribed statutory maximum.’” Gutermuth v. State, 868 N.E.2d 427, 431 (Ind. 2007) (quoting Blakeley, 542
       U.S. at 301). However, the Supreme Court decided Blakeley after the trial court had sentenced Kemp. And,
       while the Indiana Supreme Court held that Blakeley is to be applied retroactively to all cases on direct review
       at the time Blakeley was announced, it also held that “Blakeley is not retroactive for Post-Conviction Rule 2
       belated appeals.” Id. at 432. Because Kemp was sentenced before Blakeley was decided, and because Kemp
       has filed a belated appeal pursuant to Post-Conviction Rule 2, the Supreme Court’s holding in Blakeley does
       not apply.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-673 | May 16, 2019                         Page 8 of 13
       which comprises a material element of a crime may not also constitute an

       aggravating circumstance to support an enhanced sentence.” Stewart v. State,

       531 N.E.2d 1146, 1150 (Ind. 1988). However, while a material element of a

       crime may not constitute an aggravating factor, “the particularized individual

       circumstances of the criminal act may constitute a separate aggravating factor.”

       Ector v. State, 639 N.E.2d 1014, 1015 (Ind. 1994).


[15]   Here, Kemp was convicted of child molesting, as a Class A felony. At the time

       he committed the offense, the statute defined child molesting as performing or

       submitting to deviate sexual conduct with a child under fourteen years of age.

       See I.C. § 35-42-4-3(a) (1995). Kemp admitted that T.E. was only nine years old

       when he engaged in oral sex with her. That particular fact goes beyond the

       material element needed to establish that Kemp committed child molesting.

       Put another way, Kemp’s conduct could have satisfied the statutory element of

       the crime without T.E. being as young as she was. As such, the trial court did

       not rely on the element of the offense but, rather, on the particularized facts of

       the crime when it found the victim’s age to be an aggravator. We therefore

       cannot say that the trial court abused its discretion when it identified the

       victim’s age as an aggravating circumstance.


                                          Prior, Dismissed Charge

[16]   Kemp next contends that the trial court abused its discretion when it identified

       as an aggravating factor a past crime for which Kemp was charged but not

       convicted. We first note that, while the trial court mentioned the fact that

       Kemp had previously been charged with child molesting, the trial court did not

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-673 | May 16, 2019   Page 9 of 13
       rely on that as an aggravating factor. Indeed, when the trial court identified the

       aggravators, it found as follows:


               All I know is that the aggravating circumstances are
               considerable: you have a lengthy history of criminal and
               delinquent activity; the seriousness of the prior crimes. . . . Prior
               attempts of rehabilitation through probation and parole have
               failed. Imposition of a reduced sentence would depreciate the
               seriousness of the crime. . . . The crime required the Defendant to
               confront the victims; the ages of the victims were four (4), seven
               (7), and nine (9).


       Tr. Vol. II at 27-28. Accordingly, trial court did not specifically identify a prior,

       dismissed act as an aggravating circumstance but, rather, identified Kemp’s

       entire criminal history as an aggravating factor, which Kemp does not dispute

       contains prior convictions in addition to the dismissed charge.


[17]   But even if the trial court had identified the prior, dismissed charge as an

       aggravating circumstance, “the Indiana Supreme Court has explicitly held that

       it is proper for a trial court to use such evidence in determining a sentence.”

       Durham v. State, 510 N.E.2d 202, 205 (Ind. Ct. App. 1987) (citing Kelly v State,

       452 N.E.2d 907, 912 (Ind. 1983)). Accordingly, even if the trial court had

       identified that aggravating factor, we could not say that the trial court abused its

       discretion.


                                               Criminal History

[18]   Kemp also asserts that the trial court abused its discretion when it identified his

       criminal history as an aggravating factor. It is well settled that it is proper for a


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-673 | May 16, 2019   Page 10 of 13
       trial court to consider a criminal history to be an aggravating factor. See Smith

       v. State, 675 N.E.2d 693, 698 (Ind. 1996). Kemp does not dispute the fact that

       a criminal history can be an aggravating factor. However, he asserts that the

       trial court abused its discretion when it considered his criminal history to be an

       aggravating factor because “all of [his] prior convictions were over 10 years

       prior to this current offense.” Appellant’s Br. at 13.


[19]   The “chronological remoteness of a defendant’s prior criminal history should be

       taken into account.” Buchanan v. State, 767 N.E.2d 967, 972 (Ind. 2002).

       “However, ‘we will not say that remoteness in time, to whatever degree,

       renders a prior conviction irrelevant.’” Id. (quoting Harris v. State, 396 N.E.2d

       674, 677 (Ind. 1979)). “The remoteness of a prior criminal history does not

       preclude the trial court from considering it as an aggravating circumstance.” Id.

       (citing Bowling v. State, 493 N.E.2d 783, 787 (Ind. 1986). Indeed, it is within

       “the ambit of its discretion” for a trial court to find the remoteness to not affect

       the consideration of the criminal history as an aggravator. Id. Here, most of

       Kemp’s prior convictions occurred between 1981 and 1985, ten years or more

       prior to the instant offense. However, notwithstanding their remoteness, the

       trial court was not precluded form considering Kemp’s criminal history as an

       aggravating circumstance. We therefore cannot say that the trial court abused

       its discretion when it considered Kemp’s criminal history to be an aggravator.


                                                   Mitigators

[20]   Finally, Kemp contends that the trial court abused its discretion when it failed

       to identify his guilty plea as a mitigating factor. “While a guilty plea is not
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-673 | May 16, 2019   Page 11 of 13
       enough to prove remorse, it can show an acceptance of responsibility for one’s

       actions.” Sensback v. State, 720 N.E.2d 1160, 1164 (Ind. 1999). “Certainly, the

       plea saves court time and spares the victim’s family the trauma of trial.” Id.

       “Where the state reaps a substantial benefit from the defendant’s act of pleading

       guilty, the defendant deserves to have a substantial benefit returned.” On

       appeal, Kemp specifically contends that the trial court abused its discretion

       when it failed to identify his guilty plea as a mitigating factor because he had

       not received any “substantial benefit” for his plea. Appellant’s Br. at 13.


[21]   However, we agree with the State that Kemp received a substantial benefit in

       exchange for pleading guilty. Indeed, in exchange for his plea, the State agreed

       to dismiss one count of child molestation, as a Class A felony, and one count of

       child molestation, as a Class C felony, which charges carried a combined

       maximum possible, additional sentence of 58 years. See I.C. §§ 35-50-2-4, -6

       (1995). And the facts to which Kemp admitted to the police officers would

       have supported those additional counts. Accordingly, Kemp received a

       substantial benefit in exchange for his guilty plea. We therefore cannot say that

       the trial court abused its discretion when it did not identify Kemp’s guilty plea

       as a mitigating factor. See Sensback, 720 N.E.2d at 1165.


[22]   In sum, Kemp’s contention regarding his guilty plea is not properly before this

       court, and we decline to consider Kemp’s assertion on that issue. And the trial




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-673 | May 16, 2019   Page 12 of 13
       court did not abuse its discretion when it sentenced Kemp. 6 We affirm Kemp’s

       sentence.


[23]   Affirmed.


       Baker, J., and Robb, J., concur.




       6
         For the first time in his reply brief, Kemp cites Indiana Appellate Rule 7(B) and asks this Court to review
       his sentence. However, because he raised this issue for the first time in his reply brief, it is waived. See
       Monroe Guar. Ins. Co. v. Magwerks Corp., 829 N.E.2d 968, 977 (Ind. 2005).

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-673 | May 16, 2019                       Page 13 of 13
