MEMORANDUM DECISION
                                                                             FILED
Pursuant to Ind. Appellate Rule 65(D),                                  Jan 23 2018, 9:25 am
this Memorandum Decision shall not be                                        CLERK
regarded as precedent or cited before any                                Indiana Supreme Court
                                                                            Court of Appeals
court except for the purpose of establishing                                  and Tax Court


the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Darren Bedwell                                           Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana

                                                         Lee M. Stoy, Jr.
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Kurt J. Kemp,                                            January 23, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         90A05-1707-CR-1622
        v.                                               Appeal from the Wells Circuit
                                                         Court
State of Indiana,                                        The Honorable Kenton W.
Appellee-Plaintiff                                       Kiracofe, Judge
                                                         Trial Court Cause No.
                                                         90C01-1610-F5-43



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 90A05-1707-CR-1622 | January 23, 2018          Page 1 of 8
                                             Case Summary
[1]   Kurt J. Kemp appeals the trial court’s denial of his motion to withdraw his

      guilty plea, arguing that withdrawal of his guilty plea is necessary to avoid a

      manifest injustice. Because he did not present the issues that he raises on

      appeal to the trial court, we find them waived and therefore affirm.


                                 Facts and Procedural History
[2]   In July through October 2016, Kemp posted seven different comments using the

      username Naughtyhusband2013 on the pornographic website

      cumonprintedpics.com. Appellant’s Confidential App. Vol. 2 at 23-29, 79. He

      posted these comments on a specific thread titled “cuties to cum on[,]” which

      contained twenty-nine different photographs of children under the age of

      eighteen with exposed genitals or breasts. Id. at 30-58, 79.


[3]   Between January 1, 2014, and July 30, 2016, without his wife’s knowledge or

      consent, Kemp took five photographs of her with her buttocks or genital area

      exposed and posted these photographs on cumonprintedpics.com. Id. at 59-63,

      83.


[4]   In October 2016, the State charged Kemp with seven counts of level 5 felony

      child exploitation, twenty-nine counts of level 6 felony possession of child

      pornography, and five counts of level 6 felony voyeurism. Id. at 23-63. In

      February 2017, Kemp and the State entered into a plea agreement, in which

      Kemp agreed to plead guilty to all forty-one counts. The plea agreement

      provided that the sentences imposed on the child exploitation counts be

      Court of Appeals of Indiana | Memorandum Decision 90A05-1707-CR-1622 | January 23, 2018   Page 2 of 8
      concurrent with each other, the sentences imposed on the possession of child

      pornography counts be concurrent with each other, and the sentences imposed

      on the voyeurism counts be concurrent to each other. The plea agreement left

      to the trial court’s discretion the length of the sentences and whether the three

      groups of concurrent sentences would be consecutive to or concurrent with one

      another. Id. at 134-35.1 The trial court held a guilty plea hearing, and Kemp

      pled guilty pursuant to the plea agreement. The trial court accepted Kemp’s

      guilty plea and scheduled a sentencing hearing.


[5]   In April 2017, Kemp sent a letter to the trial court asking to withdraw his guilty

      plea and fire his appointed counsel Jeremy Nix. Appellant’s Confidential App.

      Vol. 3 at 54-58. In his letter, Kemp alleged that Nix misinformed him and

      pressured him to accept the plea agreement. Specifically, Kemp alleged that

      Nix told him that he had deposed Kemp’s daughter and that her testimony

      would not support his defense when in fact Nix had not deposed her and she

      could provide an alibi as to some of the times the comments were allegedly

      posted to the website. Id. at 54-55. Kemp also alleged that Nix told him that

      Kemp’s parents did not support him when in fact Kemp’s mother did not

      believe that he had committed the crimes. Id. In addition, Kemp alleged that

      Nix never allowed him to see any discovery or evidence, and Nix pushed him

      to take the plea deal by telling him that he could face 120 years in prison if he

      went to trial and lost. Id. at 58.


      1
       The State incorrectly states that the plea agreement specified that the concurrent sentences in each category
      would be consecutive to each other.

      Court of Appeals of Indiana | Memorandum Decision 90A05-1707-CR-1622 | January 23, 2018            Page 3 of 8
[6]   Nix filed a motion to withdraw his appearance. Following a hearing, the trial

      court granted Nix’s motion to withdraw. Before he withdrew, Nix filed a

      verified motion to withdraw guilty plea that incorporated Kemp’s letter

      regarding the reasons for withdrawing his plea. The trial court appointed

      attorney Larry Mock to represent Kemp.


[7]   In June 2017, the trial court held a hearing on Kemp’s motion to withdraw his

      guilty plea. Kemp appeared in person and with attorney Mock. Kemp testified

      consistent with his earlier letter to the court that Nix had misinformed him and

      pressured him to plead guilty and that he would not have pled guilty if it were

      not for the way Nix had advised him. Tr. Vol. 2 at 46. Kemp testified that Nix

      told him that he had deposed Kemp’s daughter and that her testimony would be

      harmful, but Nix had not deposed her and her testimony could have helped

      Kemp. Id. at 47-48. Kemp testified that Nix led him to believe that Nix had

      talked to Kemp’s parents even though Nix had not. Id. at 49-50. Kemp also

      testified that Nix never gave him any discovery information. Id. at 50. Kemp

      admitted that Nix’s advisement regarding the penalties he faced was true but

      that it was “very intimidating.” Id. at 46-47.


[8]   Nix also testified, and his testimony largely contradicted Kemp’s. Nix testified

      that he did not tell Kemp that he deposed his daughter. Id. at 69. Nix testified

      that he spoke to Kemp’s daughter on the telephone and concluded that her

      testimony would not help Kemp and that is what he explained to Kemp. Id. at

      70. Nix also testified that Kemp did not give him authorization to talk to

      Kemp’s parents and that he did not speak to Kemp’s parents. Id. at 72-73. Nix

      Court of Appeals of Indiana | Memorandum Decision 90A05-1707-CR-1622 | January 23, 2018   Page 4 of 8
       testified that he informed Kemp that the police reports contained information

       that his parents were concerned with his sexual proclivities. Id. Nix testified

       that he met with Kemp several times, had Kemp’s discovery every time they

       met, and advised Kemp that it was available for viewing. Id. at 75. Nix

       testified that he had accurately advised Kemp of the potential penalties he faced

       if he opted to go to trial and was convicted of all charges. Id. at 74-75. The trial

       court found Nix’s recollection of events credible, concluded that Kemp failed to

       carry his burden to establish fair and just reasons for withdrawal of his plea or

       that it was necessary to correct a manifest injustice, and denied Kemp’s motion.

       Id. at 85-88.


[9]    The trial court held a sentencing hearing and imposed concurrent sentences of

       six years for the child exploitation convictions, concurrent sentences of two and

       a half years for the possession of child pornography convictions, and concurrent

       sentences of two and a half years for the voyeurism convictions. The trial court

       ordered that the three groups of concurrent sentences be served consecutively,

       for an aggregate term of eleven years. This appeal ensued.


                                      Discussion and Decision
[10]   Kemp appeals the denial of his motion to withdraw guilty plea. Motions for

       withdrawal of guilty plea are governed by Indiana Code Section 35-35-1-4(b),

       which provides,


               After entry of a plea of guilty … but before imposition of
               sentence, the court may allow the defendant by motion to
               withdraw his plea of guilty … for any fair and just reason unless

       Court of Appeals of Indiana | Memorandum Decision 90A05-1707-CR-1622 | January 23, 2018   Page 5 of 8
               the state has been substantially prejudiced by reliance upon the
               defendant’s plea. …. The ruling of the court on the motion shall
               be reviewable for an abuse of discretion. However, the court
               shall allow the defendant to withdraw his plea of guilty …
               whenever the defendant proves that withdrawal of plea is
               necessary to correct a manifest injustice.


[11]   A manifest injustice for purposes of Section 35-35-1-4 occurs when


               (1) the convicted person was denied the effective assistance of
               counsel;


               (2) the plea was not entered or ratified by the convicted person;


               (3) the plea was not knowingly and voluntarily made;


               (4) the prosecuting attorney failed to abide by the terms of a plea
               agreement; or


               (5) the plea and judgment of conviction are void or voidable for
               any other reason.


       Ind. Code § 35-35-1-4(c).


[12]   Here, Kemp argues that the withdrawal of his guilty plea is necessary because it

       would be manifestly unjust to allow his seven convictions of child exploitation

       to stand. Kemp was charged pursuant to Indiana Code Section 35-42-4-4(b)(2),

       which provides that a person who “knowingly or intentionally disseminates,

       exhibits to another person, offers to disseminate or exhibit to another person, or

       sends or brings into Indiana for dissemination or exhibition matter that depicts

       or describes sexual conduct by a child under eighteen (18) years of age”
       Court of Appeals of Indiana | Memorandum Decision 90A05-1707-CR-1622 | January 23, 2018   Page 6 of 8
       commits child exploitation, a level 5 felony. Kemp asserts that his conduct in

       posting messages on a child pornography thread does not satisfy the statutory

       definition of child exploitation under Section 35-42-4-4(b)(2). Alternatively, he

       asserts that Section 35-42-4-4(b)(2) is constitutionally overbroad as applied to

       his conduct.


[13]   Kemp did not present either of these arguments to the trial court, and therefore

       an adequate factual record has not been developed for us to engage in a

       thorough analysis of his arguments. We conclude that Kemp has waived

       appellate review of these issues. See Johnson v. State, 879 N.E.2d 649, 654 (Ind.

       Ct. App. 2008) (“Generally, a challenge to the constitutionality of a criminal

       statute must be raised by a motion to dismiss prior to trial, and the failure to do

       so waives the issue on appeal.”); Craig v. State, 883 N.E.2d 218, 220 (Ind. Ct.

       App. 2008) (concluding that State was precluded from challenging defendant’s

       motion to withdraw plea on the basis that defendant failed to verify motion

       because State had not presented argument to trial court); see also Griffin v. State,

       16 N.E.3d 997, 1006 (Ind. Ct. App. 2014) (“The rule of waiver in part protects

       the integrity of the trial court; it cannot be found to have erred as to an issue or

       argument that it never had an opportunity to consider.”) (quoting Showalter v.

       Town of Thorntown, 902 N.E.2d 338, 342 (Ind. Ct. App. 2009), trans. denied)




       Court of Appeals of Indiana | Memorandum Decision 90A05-1707-CR-1622 | January 23, 2018   Page 7 of 8
       (emphasis omitted).2 Accordingly, we affirm the denial of Kemp’s motion to

       withdraw guilty plea.


[14]   Affirmed.


       Robb, J., and Bradford, J., concur.




       2
         Although this Court has occasionally exercised its discretion to decide a constitutional claim raised for the
       first time on appeal, we decline to consider a claim that a criminal statute is unconstitutional as applied in the
       absence of an adversarial factfinding hearing. See Layman v. State, 42 N.E.3d 972, 976 (Ind. 2015)
       (recognizing that appellate court may exercise its discretion to review constitutional claim even though issue
       was waived but declining to consider constitutional claim because “the very breadth and scope of Appellants’
       claims demand[ed] further development on an evidence-based trial record.”).

       Court of Appeals of Indiana | Memorandum Decision 90A05-1707-CR-1622 | January 23, 2018               Page 8 of 8
