MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                            FILED
this Memorandum Decision shall not be                                     Jul 03 2018, 10:55 am
regarded as precedent or cited before any                                         CLERK
court except for the purpose of establishing                                  Indiana Supreme Court
                                                                                 Court of Appeals
the defense of res judicata, collateral                                            and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Jane Ann Noblitt                                          Curtis T. Hill, Jr.
Columbus, Indiana                                         Attorney General of Indiana

                                                          Lyubov Gore
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Brandon A. Kincheloe,                                     July 3, 2018
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          18A-CR-235
        v.                                                Appeal from the Bartholomew
                                                          Superior Court
State of Indiana,                                         The Honorable James D. Worton,
Appellee-Plaintiff.                                       Judge
                                                          Trial Court Cause Nos.
                                                          03D01-1702-F6-721
                                                          03D01-1707-F4-3834



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-235 | July 3, 2018                           Page 1 of 6
                                        Statement of the Case
[1]   Brandon Kincheloe appeals his five-year aggregate sentence between two cause

      numbers, in which he was convicted of three criminal offenses. Kincheloe

      raises a single issue for our review, namely, whether his aggregate sentence is

      inappropriate in light of the nature of the offenses and his character. We affirm.


                                  Facts and Procedural History
[2]   On January 21, 2017, Kincheloe, while on parole for a prior stalking

      conviction, entered a Wal-Mart store in Columbus with a nearly empty Wal-

      Mart bag. Kincheloe then placed several items inside the bag and left the store

      without paying for the items. A few minutes later, Kincheloe again entered the

      store with the Wal-Mart bag. He then attempted to return one of the stolen

      items at the customer service counter, but a loss prevention officer stopped him.

      Kincheloe showed the officer his ID and left the building ostensibly to retrieve

      the other stolen merchandise. However, Kincheloe instead fled from the

      premises in his vehicle. The loss prevention officer contacted local police and

      identified Kincheloe and his vehicle to them; officers then went to Kincheloe’s

      residence, observed the stolen merchandise, and arrested Kincheloe. The State

      charged Kincheloe with theft, as a Level 6 felony, in cause number 03D01-

      1702-F6-721 (“Cause 721”) and had his parole revoked.


[3]   In July, just five days after he had completed his sentence for the parole

      revocation, Kincheloe broke into the residence of Mary Snyder, Susan Young,

      and Ashley Shuffitt. Kincheloe damaged their door when he broke into the


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-235 | July 3, 2018   Page 2 of 6
      residence. As he was attempting to escape with a television, DVD player, and

      bicycle, Snyder, Young, and Shuffitt observed Kincheloe and confronted him.

      In the ensuing altercation, Kincheloe “pushed [Young] to the ground,” which

      left her with “an abrasion on her left elbow and a small laceration on her left

      shin.” Appellant’s App. Vol. 2 at 29. In cause number 03D01-1707-F4-3834

      (“Cause 3834”), the State charged Kincheloe with burglary, as a Level 4 felony;

      theft, as a Level 6 felony; and battery, as a Class A misdemeanor.


[4]   Thereafter, Kincheloe pleaded guilty, pursuant to a plea agreement, to theft, as

      a Level 6 felony, in Cause 721; residential entry, as a Level 6 felony, in Cause

      3834; and battery, as a Class A misdemeanor, in Cause 3834. In exchange for

      his plea agreement, the State agreed to dismiss the remaining charges and to not

      file charges relating to yet another allegation of theft. After a sentencing

      hearing, the court accepted the plea agreement and sentenced Kincheloe to an

      aggregate term of five years executed on the three convictions. In sentencing

      him, the court stated:


              The Court finds no mitigating circumstances. The Court finds
              the following aggravating circumstances:


              1.    The defendant has a history of criminal or delinquent
              behavior.


              2.     The defendant has been placed on probation multiple
              times and has had multiple petitions to revoke probation filed
              against [him].




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-235 | July 3, 2018   Page 3 of 6
              3.     The defendant has had opportunity for treatment outside
              of a penal facility and has been unsuccessful.


              4.    The defendant was on parole at the time of this offense [in
              Cause 721].


      Appellant’s App. Vol. 2 at 60. This appeal ensued.


                                     Discussion and Decision
[5]   Kincheloe asserts that his sentence is inappropriate in light of the nature of the

      offenses and his character. As we have explained:


              Indiana Appellate Rule 7(B) permits an Indiana appellate court
              to “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.” We assess the trial court’s
              recognition or nonrecognition of aggravators and mitigators as an
              initial guide to determining whether the sentence imposed was
              inappropriate. Gibson v. State, 856 N.E.2d 142, 147 (Ind. Ct.
              App. 2006). The principal role of appellate review is to “leaven
              the outliers.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.
              2008). A defendant must persuade the appellate court that his or
              her sentence has met the inappropriateness standard of review.
              Roush v. State, 875 N.E.2d 801, 812 (Ind. Ct. App. 2007).


      Robinson v. State, 61 N.E.3d 1226, 1228 (Ind. Ct. App. 2016).


[6]   Here, Kincheloe appears to assert that his aggregate sentence of five years

      executed is inappropriate in light of the nature of the offenses because they are

      “a direct result of his long-standing drinking and drug problem,” and that he

      similarly just “makes poor and impulsive choices.” Appellant’s Br. at 12. He
      Court of Appeals of Indiana | Memorandum Decision 18A-CR-235 | July 3, 2018   Page 4 of 6
      asserts that his sentence is inappropriate in light of his character because he

      assumed responsibility by pleading guilty; he is an admitted drug abuser and

      alcoholic; he is attempting to obtain employment and rehabilitation; and he is

      remorseful.


[7]   However, we cannot say that Kincheloe’s sentence is inappropriate. Regarding

      the nature of the offenses, Kincheloe committed the theft in Cause 721 while on

      parole and committed the offenses in Cause 3834 just five days after completing

      his sentence following the revocation of his parole. During the commission of

      the first theft, he feigned retrieving the property he had stolen in order to flee

      from the scene, despite having just shown his ID to a loss prevention officer.

      During the commission of the offenses in Cause 3834, he injured a person and

      damaged her residential property.


[8]   Regarding his character, Kincheloe has had extensive contacts with the justice

      system. He has three prior felony convictions, two prior misdemeanor

      convictions, and multiple probation or parole violations. He also received a

      significant benefit from his guilty plea when the State agreed to dismiss, reduce,

      and not file charges in exchange for his plea. And we are in no position to

      second-guess the trial court’s disregard of Kincheloe’s alleged remorse. We

      cannot say that Kincheloe’s aggregate sentence of five years executed is

      inappropriate, and we affirm his sentence.


[9]   Affirmed.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-235 | July 3, 2018   Page 5 of 6
Robb, J., and Altice, J., concur.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-235 | July 3, 2018   Page 6 of 6
