      MEMORANDUM DECISION
                                                                      Jul 07 2015, 8:45 am
      Pursuant to Ind. Appellate Rule 65(D), this
      Memorandum Decision shall not be 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.



      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Kristin A. Mulholland                                     Gregory F. Zoeller
      Appellate Public Defender                                 Attorney General of Indiana
      Crown Point, Indiana
                                                                Lyubov Gore
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      John Wesley Kimbrough, Jr.,                               July 7, 2015

      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                45A03-1501-CR-18
              v.                                                Appeal from the Lake Superior
                                                                Court
                                                                The Honorable Diane Ross Boswell,
      State of Indiana,                                         Judge
      Appellee-Plaintiff                                        Lower Court Cause No. 45G03-
                                                                1402-FA-9




      Bradford, Judge.



                                            Case Summary
[1]   In November of 2014, Appellant-Defendant John Wesley Kimbrough, Jr. pled

      guilty to Class B felony aggravated battery after he cut and/or stabbed a friend

      Court of Appeals of Indiana | Memorandum Decision 45A03-1501-CR-18 | July 7, 2015       Page 1 of 6
      five times with a knife. In exchange for Kimbrough’s guilty plea, Appellee-

      Plaintiff the State of Indiana (the “State”) agreed to dismiss numerous charges

      against Kimbrough, including a charge of Class A felony attempted murder.

      The trial court subsequently accepted Kimbrough’s guilty plea and sentenced

      Kimbrough to a term of seventeen years of incarceration.


[2]   On appeal, Kimbrough contends that his seventeen-year sentence is

      inappropriate. We disagree. Accordingly, we affirm the judgment of the trial

      court.



                            Facts and Procedural History
[3]   The stipulated factual basis entered into by the parties provides as follows: on

      February 18, 2014, Kimbrough and the victim were present at a residence

      located in Gary. At some point, Kimbrough and the victim became engaged in

      a verbal altercation in an upstairs bedroom. After this altercation, Kimbrough

      went to the kitchen area and retrieved a knife. Kimbrough “then cut and/or

      stabbed” the victim five times with the knife. Appellant’s App. p. 21.

               The five (5) wounds to [the victim] were as follows: 1) a cut to her
               upper left cheek, 2) a penetrating wound to her lower left cheek below
               her left ear, 3) a penetrating wound to her left maxilla, 4) a penetrating
               wound to her right shoulder, and 5) a penetrating wound to her left
               breast.


      Appellant’s App. p. 21. The victim’s injuries were serious enough that she

      needed to be taken to Methodist Northlake Hospital before being transferred to

      Indiana University Health Methodist Hospital in Indianapolis for further
      Court of Appeals of Indiana | Memorandum Decision 45A03-1501-CR-18 | July 7, 2015     Page 2 of 6
      treatment. The injuries sustained by the victim at the hands of Kimbrough

      “created a substantial risk of death and caused serious permanent

      disfigurement” to the victim. Appellant’s App. p. 22.

[4]   On February 20, 2014, the State charged Kimbrough with Class A felony

      attempted murder, Class B felony aggravated battery, Class C felony battery by

      means of a deadly weapon, and Class C felony battery resulting in serious

      bodily injury. On November 7, 2014, Kimbrough entered into a plea agreement

      with the State. Pursuant to the terms of this plea agreement, Kimbrough agreed

      to plead guilty to Class B felony aggravated battery and the State agreed to

      dismiss all remaining charges, including the Class A attempted murder charge.

      Sentencing was left to the discretion of the trial court. On December 12, 2014,

      the trial court accepted the plea agreement and sentenced Kimbrough to a

      seventeen-year term. This appeal follows.



                                 Discussion and Decision
[5]   Kimbrough contends that his seventeen-year sentence is inappropriate in light

      of the nature of his offense and his character. Indiana Appellate Rule 7(B)

      provides that “The 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.” In analyzing such claims, we “‘concentrate less on comparing the

      facts of [the case at issue] to others, whether real or hypothetical, and more on

      focusing on the nature, extent, and depravity of the offense for which the

      Court of Appeals of Indiana | Memorandum Decision 45A03-1501-CR-18 | July 7, 2015   Page 3 of 6
      defendant is being sentenced, and what it reveals about the defendant’s

      character.’” Paul v. State, 888 N.E.2d 818, 825 (Ind. Ct. App. 2008) (quoting

      Brown v. State, 760 N.E.2d 243, 247 (Ind. Ct. App. 2002), trans. denied). The

      defendant bears the burden of persuading us that his sentence is inappropriate.

      Sanchez v. State, 891 N.E.2d 174, 176 (Ind. Ct. App. 2008).


[6]   With respect to the nature of Kimbrough’s offense, the record demonstrates that

      Kimbrough attacked a good friend with a knife, cutting or stabbing her five

      times. The victim suffered serious injuries as a result of Kimbrough’s attack,

      including “1) a cut to her upper left cheek, 2) a penetrating wound to her lower

      left cheek below her left ear, 3) a penetrating wound to her left maxilla, 4) a

      penetrating wound to her right shoulder, and 5) a penetrating wound to her left

      breast.” Appellant’s App. p. 21. The victim testified during the sentencing

      hearing that she was not expecting the attack and was defenseless at the time it

      occurred. Specifically, the victim testified that she “was surprised about the

      incident of how it happened or whatever because there was no really -- no

      reason, and [she] and [Kimbrough] were good friends.” Tr. p. 21. She further

      testified that she suffered lasting physical injuries and mental issues as a result

      of the attack. In describing her injuries, the victim testified:

              My face, I have a problem with my salvatory (sic) where my mouth
              fills up with saliva and my jaw dislocates and pops back in place.
              I’m having problems hearing now. Mentally, I just -- I don’t know. I
              have sleepless nights. I guess because he’s so close -- he was so close
              to me, and I don’t understand that.
              I don’t hang with many people but I used to hang with him. And I
              guess I just don’t understand.

      Court of Appeals of Indiana | Memorandum Decision 45A03-1501-CR-18 | July 7, 2015   Page 4 of 6
      Tr. pp. 21-22. In sum, Kimbrough committed a heinous, violent attack against

      a good friend, and, as a result of his actions, his now former friend suffers from

      ongoing physical and mental issues.


[7]   With regard to the nature of his character, Kimbrough asserts that his

      seventeen-year sentence is inappropriate because he acted out of character when

      he attacked the victim. In support of this assertion, Kimbrough points to the

      victim’s testimony at sentencing that she was surprised by his actions because

      she and Kimbrough had been good friends and that the attack appeared to

      occur without reason. Kimbrough also points to his counsel’s opinion that

      once he was taking medication for his alleged mental illness and diabetes, he

      was cooperative and polite.


[8]   Upon review, we disagree with Kimbrough’s assertion that he acted out of

      character when he committed the underlying criminal offense. Kimbrough

      acknowledges that he has a criminal record, but claims that his criminal record

      should not be given much weight because it contains only one prior conviction

      from 1992. What Kimbrough does not mention, however, is that this one prior

      conviction was for Class A felony manslaughter for the intentional killing of his

      then-wife. Further, while Kimbrough did demonstrate remorse and accept

      responsibility for his actions by pleading guilty, his decision to do so could

      easily be considered to be a tactical decision as the State agreed to dismiss three

      other serious charges in exchange for Kimbrough’s plea. Again, the dismissed

      charges were charges for Class A felony attempted murder, Class C felony


      Court of Appeals of Indiana | Memorandum Decision 45A03-1501-CR-18 | July 7, 2015   Page 5 of 6
       battery committed by means of a deadly weapon, and Class C felony battery

       resulting in serious bodily harm.


[9]    In light of the facts surrounding the nature of Kimbrough’s offense and his

       character, we conclude that Kimbrough has failed to meet his burden of

       persuading us that his aggregate seventeen-year sentence is inappropriate.


[10]   The judgment of the trial court is affirmed.


       Vaidik, C.J., and Kirsch, J, concur.




       Court of Appeals of Indiana | Memorandum Decision 45A03-1501-CR-18 | July 7, 2015   Page 6 of 6
