MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this
                                                                      FILED
Memorandum Decision shall not be regarded as                     May 10 2017, 9:30 am
precedent or cited before any court except for the
                                                                      CLERK
purpose of establishing the defense of res judicata,              Indiana Supreme Court
                                                                     Court of Appeals
collateral estoppel, or the law of the case.                           and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Carlos I. Carrillo                                       Curtis T. Hill, Jr.
Greenwood, Indiana                                       Attorney General of Indiana
                                                         Lyubov Gore
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Harold E. Kerkhove,                                     May 10, 2017

Appellant-Defendant,                                    Court of Appeals Cause No.
                                                        79A02-1607-CR-1695
        v.                                              Appeal from the Tippecanoe
                                                        Superior Court
State of Indiana,                                       The Honorable Sean M. Persin,
                                                        Judge
Appellee-Plaintiff.
                                                        Cause Nos. 79D05-1511-F6-531,
                                                        79D05-1601-F6-90, & 79D05-1603-
                                                        F6-217




Riley, Judge.




Court of Appeals of Indiana | Memorandum Opinion 79A02-1607-CR-1695 | May 10, 2017        Page 1 of 15
                               STATEMENT OF THE CASE
[1]   Appellant-Defendant, Harold Kerkhove (Kerkhove), appeals his conviction and

      sentence for domestic battery and invasion of privacy, both Class A

      misdemeanors; and two Counts of invasion of privacy, Level 6 felonies.


[2]   We affirm but remand with instructions to correct a sentencing error.


                                                  ISSUES
[3]   Kerkhove presents four issues on appeal, which we restate as follows:


      (1) Whether Kerkhove can challenge the factual basis supporting his guilty plea

      on direct appeal;


      (2) Whether the trial court abused its discretion in sentencing Kerkhove;


      (3) Whether Kerkhove’s sentence is appropriate based on the nature of the

      offenses and his character; and


      (4) Whether we should remand this case for correction of a sentencing error.


                      FACTS AND PROCEDURAL HISTORY
[4]   On November 6, 2015, Kerkhove and his then-wife, Misty Kerkhove (Misty),

      who were residing in Tippecanoe County, Indiana, had a domestic dispute and

      the police were called. A ten-day no-contact order was issued against

      Kerkhove. On November 14, 2015, shortly before the expiration of the no-

      contact order, Kerkhove went to his house believing that Misty had moved out;

      however, Misty was present and the two began arguing. In the process,

      Court of Appeals of Indiana | Memorandum Opinion 79A02-1607-CR-1695 | May 10, 2017   Page 2 of 15
      Kerkhove hit Misty with his fist and strangled her. On November 17, 2015, the

      State filed an Information under cause number 79D05-1511-F6-00531 (F6-531),

      charging Kerkhove with Count I, strangulation, a Level 6 felony; Count II,

      domestic battery, a Class A misdemeanor; and Count III, invasion of privacy, a

      Class A misdemeanor. A ten-day no-contact order was again put in place.


[5]   On January 27, 2016, Misty came home from work and found Kerkhove sitting

      in her bedroom watching television and drinking alcohol. At the time, there

      was a no-contact order against Kerkhove. Misty instructed Kerkhove to leave

      but he refused. Misty called the police for assistance. Based on the violation of

      the no-contact order, the police arrested Kerkhove. On January 28, 2016, the

      State filed an Information under cause number 79D05-1601-F6-00090 (F6-90),

      charging Kerkhove with invasion of privacy, a Level 6 felony. While in jail,

      Kerkhove made additional contacts with Misty, and on January 31, 2016, the

      State filed a new Level 6 felony invasion of privacy charge under cause number

      79D05-1602-F6-0135 (F6-135).


[6]   On March 7, 2016, Misty reported another no-contact violation by Kerkhove to

      the police. In her report, Misty alleged that while Kerkhove was in jail, he

      called her eighteen times. Also, Misty showed the officers several envelopes

      containing letters from Kerkhove, with the first letter received on January 30,

      2016, and the last on March 2, 2016. On March 8, 2016, the State filed an

      Information under cause number 79D05-1603-F6-00217 (F6-217), charging

      Kerkhove with invasion of privacy, a Level 6 felony.



      Court of Appeals of Indiana | Memorandum Opinion 79A02-1607-CR-1695 | May 10, 2017   Page 3 of 15
[7]   On April 6, 2016, the trial court held a guilty plea hearing. Pursuant to a

      written plea agreement, Kerkhove pled guilty to the domestic battery and

      invasion of privacy offense under cause F6-531. Also, Kerkhove pled guilty to

      two Counts of invasion of privacy offenses under cause numbers F6-90 and F6-

      217. In exchange for his plea, the State dismissed the strangulation charge

      under cause number F6-135 and the invasion of privacy charge under cause

      number F6-135. In addition, Kerkhove agreed not to contact or threaten Misty.

      At the close of the guilty plea hearing, the trial court took Kerkhove’s plea

      under advisement and set the sentencing hearing for May 2, 2016. Shortly after

      the guilty plea hearing, Kerkhove communicated with Misty on several

      occasions and he also threatened her.


[8]   Based on Kerkhove’s subsequent contact violation on May 2, 2016, Kerkhove’s

      sentencing hearing was converted to a pretrial hearing. On June 30, 2016, the

      trial court held a Change of Plea hearing based on the contact violations. At

      the start of the hearing, the State indicated that it would not pursue additional

      charges against Kerkhove for his ensuing threats and communications with

      Misty. Thereafter, the trial court questioned Kerkhove as follows:

              [TRIAL COURT]: At this time are you asking the court to accept all
              the terms of this agreement?


              [KERKHOVE]: Yes, sir.


              [TRIAL COURT]: Is anyone forcing you to plead guilty here today?


              [KERKHOVE]: No.

      Court of Appeals of Indiana | Memorandum Opinion 79A02-1607-CR-1695 | May 10, 2017   Page 4 of 15
        [TRIAL COURT]: Alright, then as to [C]ount two, domestic battery
        as [] [C]lass A misdemeanor, [and] invasion of privacy in [C]ount
        three as a [C]lass A misdemeanor in F6-531. And as to [C]ount one
        invasion of privacy as a Level [6] felony in F6-90. And as to [C]ount
        one invasion of privacy as a [L]evel [6] felony in F6-217, how do you
        plead at this time?


        [KERKHOVE]: Guilty.


(Guilty Plea & Sentencing Tr. pp. 58-70). In establishing the factual basis for

Kerkhove’s pleaded offenses, the following exchange occurred:

        [STATE]: Okay. I’d like to direct your attention to cause number []
        F6-531, specifically [] November [14, 2015]. Were you present in
        Tippecanoe County Indiana on that particular day?


        [KERKHOVE]: Yes, ma’am.


        [STATE]: And while you were in Tippecanoe County Indiana on that
        particular day, did you have an encounter [with] Misty []?


        [KERKHOVE]: Yes.


        [STATE]: And at that point in time, what was your relationship to
        Misty []?


        [KERKHOVE]: My wife.


        [STATE]: She was your wife. And on that day[,] did you touch her in
        a rude, insolent, or angry way?


        [KERKHOVE]: Yes.


        [STATE]: In a way that would have caused some injury?
Court of Appeals of Indiana | Memorandum Opinion 79A02-1607-CR-1695 | May 10, 2017   Page 5 of 15
        [KERKHOVE]: Yes.


        [STATE]: Injury meaning if someone touched you the same way it
        would have caused some pain?


        [KERKHOVE]: Yes.


        ***


        [STATE]: I’d also like to direct your attention in that same cause
        number []. Kerkhove to [C]ount three, invasion of privacy. Again on
        that same day and time did you have contact either verbal or telephone
        or by a note with [Misty]?


        [KERKHOVE]: Yes.


        [STATE]: And had you previously–had this court previously entered
        an [ex-parte] protective order which prohibited you from having any
        sort of contact with her?


        [KERKHOVE]: Yes.


        [STATE]: And so, by contacting her after the issuance of that order
        that was a violation of it.


        [KERKHOVE]: Correct.


        ***


        [STATE]: . . . Okay. And then as to cause number [] F6-90, []
        Kerkhove I’d like to direct your attention to the date of January [27,
        2016]. Were you present in Tippecanoe County Indiana on that
        particular day?



Court of Appeals of Indiana | Memorandum Opinion 79A02-1607-CR-1695 | May 10, 2017   Page 6 of 15
        [KERKHOVE]: Yes, ma’am.


        [STATE]: While you were in Tippecanoe County on that day, did
        you violate a no contact order?


        [KERKHOVE]: Yes, ma’am.


        ***


        [STATE]: And who was that contact with on January [27th]?


        [KERKHOVE]: At the time my wife, Misty [].


        [STATE]: . . . and how did you contact her?


        [KERKHOVE]: She . . . actually come to my place of residence. So I
        did [] – misplace on the no contact but I was the one who broke it.


        [STATE]: Okay.


        [KERKHOVE]: Because I did not leave when I supposed to when she
        come in.


        ***


        [STATE]: And then I would like to direct your attention to [] F6-217.
        Specifically, the date spanning January [13, 2016] to March [7, 2016].
        Were you present in Tippecanoe County for that period of time?


        [KERKHOVE]: Yes, ma’am.




Court of Appeals of Indiana | Memorandum Opinion 79A02-1607-CR-1695 | May 10, 2017   Page 7 of 15
              [STATE]: And Tippecanoe County is in the State of Indiana. And
              while you were in Tippecanoe County Indiana for that period of time,
              was there an [ex-parte] protective order in place for Misty Kerkhove?


              [KERKHOVE]: Yes.


              [STATE]: And did you violate that [ex-parte] protective order?


              [KERKHOVE]: Yes.


              [STATE]: And how did you violate it?


              [KERKHOVE]: By mail.


              [STATE]: By writing her a letter?


              [KERKHOVE]: And calling her.


      (Guilty Plea & Sentencing Tr. pp. 70-74).


[9]   At the close of the hearing, the trial court accepted Kerkhove’s guilty plea and

      proceeded to sentence him. In sentencing Kerkhove, the trial court identified

      the following aggravating circumstances: criminal history; fourteen probation

      violations; risk of recidivism; and the nature of the crimes committed. As for

      mitigating factors, the trial court identified Kerkhove’s guilty plea and

      acknowledged that he had completed academic and occupational certificates

      while in jail. However, the trial court concluded that the aggravators “far

      outweigh[ed] the mitigating circumstances.” (Guilty Plea & Sentencing Tr. p.

      75). Pursuant to the plea agreement, the trial court sentenced Kerkhove as


      Court of Appeals of Indiana | Memorandum Opinion 79A02-1607-CR-1695 | May 10, 2017   Page 8 of 15
       follows: in F6-531, concurrent executed sentences of 365 days each for the

       Class A misdemeanors; in F6-90, 730 days with 180 days executed and 545

       days suspended for the Level 6 felony; and in F6-217, a suspended sentence of

       730 days. Kerkhove’s sentences in all three causes were to run consecutive, and

       his aggregate executed sentence was 545 days.


[10]   Kerkhove now appeals. Additional facts will be provided as necessary.


                               DISCUSSION AND DECISION
                                                I. Factual Basis

[11]   Kerkhove first argues that there was insufficient evidence to support the factual

       basis for his guilty pleas. As the State points out, Kerkhove is precluded from

       raising this challenge. It is well-settled that a person who pleads guilty cannot

       challenge his convictions by means of direct appeal. Robey v. State, 7 N.E.3d

       371, 383 (Ind. Ct. App. 2014) (citing Kling v. State, 837 N.E.2d 502, 504 (Ind.

       2005)), trans. denied. “One consequence of pleading guilty is restriction of the

       ability to challenge the conviction on direct appeal.” Tumulty v. State, 666

       N.E.2d 394, 395 (Ind. 1996). Instead, post-conviction relief is the proper

       vehicle for pursuing this type of claim. See id. at 396 (rejecting a defendant’s

       challenge to the factual basis supporting his guilty plea to an habitual offender

       enhancement on direct appeal). Because Kerkhove may not challenge his

       convictions and the factual basis supporting his guilty pleas on direct appeal, we

       do not reach the merits of the claim.




       Court of Appeals of Indiana | Memorandum Opinion 79A02-1607-CR-1695 | May 10, 2017   Page 9 of 15
                                                 II. Sentencing

[12]   Next, Kerkhove contends that the trial court abused its discretion for failing to

       consider his mental illness as a mitigating factor during sentencing. In

       Anglemyer v. State, 868 N.E.2d 482 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218,

       our supreme court outlined a new framework for sentencing review. Within

       this new framework, “[t]he relative weight or value assignable to [the trial

       court’s] reasons properly found or those which should have been found is not

       subject to review for abuse [of discretion].” Id. at 491. “An allegation that the

       trial court failed to identify or find a mitigating factor requires the defendant to

       establish that the mitigating evidence is both significant and clearly supported

       by the record.” Id. at 493. “If the trial court does not find the existence of a

       mitigating factor after it has been argued by counsel, the trial court is not

       obligated to explain why it has found that the factor does not exist.” Id.

       (citation omitted). The Anglemyer court rejected the defendant’s claim that the

       trial court overlooked his mental illness as a mitigating factor, concluding that

       the trial court simply did not find it to be a significant factor influencing its

       sentencing decision. Id.


[13]   Post-Anglemyer, a proper inquiry is whether Kerkhove’s mental disability was a

       significant mitigating factor supported by the record. “[F]or a defendant’s

       mental history to provide a basis for establishing a mitigating factor, there must

       be a nexus between the defendant’s mental health and the crime in question.”

       Steinberg v. State, 941 N.E.2d 515, 534 (Ind. Ct. App. 2011) (citation omitted),

       trans. denied. The State argues and we agree that Kerkhove has failed to

       Court of Appeals of Indiana | Memorandum Opinion 79A02-1607-CR-1695 | May 10, 2017   Page 10 of 15
       demonstrate such a nexus. Most of the evidence regarding Kerkhove’s mental

       health was documented in the PSI, which noted that Kerkhove had seizures his

       entire life; had been diagnosed with Bipolar Disorder in November 2015, and

       for which he was prescribed Depakote and Dilanta; and finally, he had an

       attempted suicide in 2011. At his sentencing hearing, Kerkhove did not present

       independent evidence regarding his mental health, only that he was taking

       medication and desired a mental health evaluation. Since no evidence was

       presented to show a nexus between his mental illness and the crimes

       committed, we find no abuse of discretion in the trial court’s sentencing

       decision.


                                         III. Inappropriate Sentence


[14]   In addition, Kerkhove claims that his sentence is inappropriate under Indiana

       Appellate Rule 7(B). Appellate Rule 7(B) provides that we may revise a

       sentence authorized by statute if, after due consideration of the trial court’s

       decision, we find that the sentence is inappropriate in light of the nature of the

       offenses and the character of the offender. When considering whether a

       sentence is inappropriate, we need not be “extremely” deferential to a trial

       court’s sentencing decision. Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct.

       App. 2007). Still, we must give due consideration to that decision. Id. We also

       understand and recognize the unique perspective a trial court brings to its

       sentencing decisions. Id. Under this rule, the burden is on the defendant to

       persuade the appellate court that his or her sentence is inappropriate. Childress

       v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). “Ultimately the length of the

       Court of Appeals of Indiana | Memorandum Opinion 79A02-1607-CR-1695 | May 10, 2017   Page 11 of 15
       aggregate sentence and how it is to be served are the issues that matter.”

       Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008). Whether we regard a

       sentence as appropriate at the end of the day turns on our sense of the

       culpability of the defendant, the severity of the crime, the damage done to

       others, and a myriad of other considerations that come to light in a given case.

       Id.


[15]   The advisory sentence is the starting point the legislature has selected as an

       appropriate sentence for the crime committed. Abbott v. State, 961 N.E.2d 1016,

       1019 (Ind. 2012). Kerkhove was convicted of two Class A misdemeanors and

       two Level 6 felonies. Pursuant to Indiana Code section 35-50-3-2, for his Class

       A misdemeanors, Kerkhove faced a sentence of up to one year. For his Level 6

       felonies, Kerkhove faced a sentencing range of six months to two and one-half

       years, with the advisory sentence being one year. See I.C. § 35-50-2-7. Here,

       pursuant to Kerkhove’s plea agreement, in F6-531, the trial court sentenced

       Kerkhove to concurrent executed sentences of 365 days with regards to his

       Class A misdemeanors. In one of his Level 6 felonies, the trial court sentenced

       Kerkhove to 730 days, with 180 days executed and 550 days suspended. In the

       other Level 6 felony, the trial court sentenced Kerkhove to a suspended term of

       730 days and placed him on probation. Kerkhove’s aggregate executed

       sentence was 545 days.


[16]   As for the nature of Kerkhove’s offenses, the record shows that following a

       domestic dispute in November 2015, the police were called to Kerkhove’s and

       Misty’s home, and a ten-day no-contact order was issued against Kerkhove.

       Court of Appeals of Indiana | Memorandum Opinion 79A02-1607-CR-1695 | May 10, 2017   Page 12 of 15
       Prior to the expiration of that ten-day no-contact order, Kerkhove went to his

       house and Misty was present. In the process, a fight ensued and Kerkhove

       ended up strangling and hitting Misty with his fist. The State filed a domestic

       battery charge and an invasion of privacy charge against Kerkhove. Once

       again, a no-contact order was issued. In early January 2016, Kerkhove violated

       an existing no-contact order by being present in Misty’s home. The State added

       a second invasion of privacy charge against Kerkhove. Shortly thereafter, on

       January 31, 2016, Kerkhove contacted Misty and that fact prompted the State

       to add another invasion of privacy charge, and Kerkhove was subsequently

       arrested. Even while in custody, Kerkhove made additional contacts with

       Misty between March and May 2016.


[17]   As to Kerkhove’s character, the record shows that he has an extensive criminal

       history. Kerkhove’s criminal record dates back to 2002, and it includes twenty

       prior arrests and fourteen probation violations. Most importantly, in 2001,

       Kerkhove was convicted of similar offenses—invasion of privacy and

       intimidation against a woman he had a child with. To the extent that Kerkhove

       links his unreformed criminal character with his purported mental health issues,

       we find that his argument does not aid his claim on appeal. As noted, there is

       little to no evidence, other than Kerkhove’s own assertions, that he even has

       mental health issues. Despite his numerous prior contacts with the criminal

       justice system, Kerkhove has not reformed his criminal behavior. Kerkhove

       also claims that prior to the instant offenses, he had led a law-abiding life for a

       period of at least five years. Despite his claim, Kerkhove had no choice but to


       Court of Appeals of Indiana | Memorandum Opinion 79A02-1607-CR-1695 | May 10, 2017   Page 13 of 15
       be law-abiding citizen at the time since he had been incarcerated for seven years

       in the Department of Correction for a stalking offense. In light of the foregoing,

       we cannot say that a 545 days aggregate sentence is inappropriate in light of the

       nature of the offenses and the character of the offender.


                                             IV. Sentencing Error

[18]   Lastly, Kerkhove contends that it is necessary to remand this case for correction

       of the sentencing order. With respect to a sentencing error, “it is in the best

       interests of all parties that sentencing errors be immediately discovered and

       corrected.” Robinson v. State, 805 N.E.2d 783 (Ind. 2004). In general, such

       errors are most appropriately presented in a motion to correct error or in a

       direct appeal from the sentencing judgment. Id.


[19]   As noted, the trial court sentenced Kerkhove pursuant to the plea agreement

       which capped his maximum sentence to 545 days. In its oral sentencing

       statement, the trial court sentenced Kerkhove as follows: in F6-531, concurrent

       executed sentences of 365 days for each of the Class A misdemeanors; in F6-90,

       730 days, with 180 days executed and 545 days suspended for the Level 6

       felony; and in F6-217, a suspended term of 730 days for the other Level 6

       felony. The written sentencing statement tracked the language of the oral

       sentencing statement; however, the Abstract of Judgment in F6-90 stated

       something different—i.e., 180 days executed and 550 days suspended.


[20]   On appeal, Kerkhove argues that since his total sentence in F6-90 was 730 days,

       the trial court should have suspended 550 days instead of 545 days. Based on


       Court of Appeals of Indiana | Memorandum Opinion 79A02-1607-CR-1695 | May 10, 2017   Page 14 of 15
       the error, Kerkhove requests a remand of this cause to the trial court. As noted,

       pursuant to the plea agreement, Kerkhove’s maximum permissible sentence for

       all his pleaded offenses was 545 days. Here, the trial court’s oral and written

       sentencing statement ordered Kerkhove to serve an executed consecutive

       sentence of 545 days—i.e., 365 days in #F-531, and in 180 days in #F6-90.

       Here, we find that the trial court’s statement that 545 days were suspended in

       F6-90 was a clerical error and it should have been 550 days, therefore leaving

       180 days executed sentence in that cause. Based on that error, we remand to

       the trial court for amendment of the sentencing order so as to reflect that

       Kerkhove’s suspended sentence in F6-90 is 550 days instead of 545 days.


                                            CONCLUSION
[21]   Based on the foregoing, we conclude that Kerkhove cannot challenge his

       conviction following a guilty plea on direct appeal; the trial court did not abuse

       its discretion in sentencing Kerkhove; Kerkhove’s sentence is appropriate based

       on his character and the nature of the offenses; and finally, in light of the

       sentencing error, we remand to the trial court for correction.


[22]   Affirmed but remanded with instructions.


[23]   Crone, J. and Altice, J. concur




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