MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                        FILED
regarded as precedent or cited before any                               Sep 05 2018, 8:53 am
court except for the purpose of establishing
                                                                             CLERK
the defense of res judicata, collateral                                  Indiana Supreme Court
                                                                            Court of Appeals
estoppel, or the law of the case.                                             and Tax Court




APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
Kenneth McBride                                          Curtis T. Hill, Jr.
Bunker Hill, Indiana                                     Attorney General of Indiana
                                                         Ellen H. Meilaender
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Kenneth McBride,                                         September 5, 2018
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         49A05-1705-CR-1050
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Kurt Eisgruber,
Appellee-Respondent                                      Judge
                                                         Trial Court Cause No.
                                                         49G01-1410-PC-48689



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A05-1705-CR-1050 | September 5, 2018         Page 1 of 6
[1]   Kenneth McBride appeals the trial court’s denial of his motion to correct

      erroneous sentence. Finding no error, we affirm.


                                                     Facts
[2]   The underlying facts, as described by this Court in McBride’s direct appeal, are

      as follows:


              On March 7, 2012, around 4:30 p.m., Officer Ryan Irwin of the
              Indianapolis Metropolitan Police Department (IMPD) responded
              to the dispatch of a robbery in progress at the Oriental Market
              (Market), a grocery store on Lafayette Road owned by Bay Le
              Zhu (Zhu) and her husband. Officer Irwin arrived within one
              minute and found that the employees, two of whom had obvious
              injuries, and Zhu’s six-year-old son Brian were locked inside the
              Market. Irwin also found a twelve gauge shotgun lying on the
              ground next to the market.


              It was later established that Zhu, Brian, Zhu’s nephew Yixiu
              Chen (Yixiu), Kia Wong (Wong) and his wife, Cai Nong Chen
              (Cai), were all at the market when McBride and two other men,
              each armed and wearing dark clothing, gloves, and masks,
              entered the Market through a back door and locked the door
              behind them. The men confined everyone in the kitchen, striking
              several of the victims with their guns and binding their hands and
              legs with duct tape. After the men demanded money, Zhu gave
              them $1200 that she had in her pocket and was escorted out of
              the kitchen to the cash register, where they took additional
              money. When Van Duong, a regular customer, came by, he
              noticed that the door was locked even though the lights were on
              and the “open” sign was displayed. Suspicious, Duong peered
              through the Market window and observed masked men but none
              of the store employees. When he looked again, he saw Zhu
              taking money from the register, and she gave him a sign to call
              for help.
      Court of Appeals of Indiana | Memorandum Decision 49A05-1705-CR-1050 | September 5, 2018   Page 2 of 6
        McBride and the other men escaped in Wong’s vehicle, taking
        with them Wong’s cell phone, Yixius’s cell phone and many of
        his keys including his house and the Market keys, Zhu’s purse
        and keys, the $1200 that Zhu had on her, and the money from
        the cash register. Duong got a good look at McBride and
        provided the license plate number of the getaway vehicle to the
        911 dispatcher. He also reported that the vehicle had traveled
        south on Lafayette Road. Officers located the vehicle after a
        citizen reported seeing someone flee from the vehicle.


        At around 5:00 p.m., McBride and his co-defendant, Adrian
        Jackson, were apprehended. They were found crouched down
        between a wood deck area and a garage, wearing dark clothing
        and shoes matching those worn by the robbers. Around and
        under the deck where McBride and Jackson were apprehended,
        the officers recovered several pieces of dark clothing, including a
        stocking cap mask, three dark gloves, the distinctive jacket worn
        by one of the men during the robbery with a Bic lighter in it that
        matched McBride’s DNA, multiple cell phones, a set of keys, and
        a small purse, all of which were items taken from the victims
        during the robbery. Additionally, a piece of foreign currency and
        a rifle with Jackson’s DNA were recovered. Officers also found
        $622 on McBride and $1106 on Jackson.


        Jackson and McBride were arrested and taken to the police
        station and Zhu, Cai, Wong, and Duong were brought over for a
        show-up identification. All but Wong identified either one or
        both men as the robbers with seventy to one hundred percent
        certainty. Duong positively identified both men, stating that
        Jackson was the driver and McBride was the front seat passenger
        in the getaway vehicle.


McBride v. State, 992 N.E.2d 912, 914-15 (Ind. Ct. App. 2013) (footnote

omitted).


Court of Appeals of Indiana | Memorandum Decision 49A05-1705-CR-1050 | September 5, 2018   Page 3 of 6
[3]   On March 9, 2012, the State charged McBride with two counts of Class B

      felony criminal confinement, three counts of Class B felony robbery, and three

      counts of Class C felony battery. A jury trial took place from September 17-19,

      2012. On September 19, 2012, the State dismissed one of the Class C felony

      battery charges. The jury found McBride guilty on all other charges. On

      October 5, 2012, a sentencing hearing took place, during which the trial court

      merged one count of the criminal confinement conviction into the other and

      merged the battery convictions into two counts of the robbery convictions. The

      trial court sentenced McBride to six years executed for the criminal

      confinement conviction and eight years executed for each of the three robbery

      convictions, with all sentences to run consecutively, for an aggregate sentence

      of thirty years. Id. at 916.


[4]   On direct appeal, McBride argued in relevant part that the trial court erred by

      imposing consecutive sentences. This Court held that the trial court did not err

      by imposing consecutive sentences because the sentences were based on the

      aggravating factors that McBride had committed the crimes against multiple

      victims and in the presence of a six-year-old, which were valid aggravating

      factors that could be used to impose consecutive sentences. Id. at 919-20.


[5]   On February 12, 2016, McBride filed an amended petition for post-conviction

      relief, which the post-conviction court denied on December 6, 2016. On

      January 13, 2017, McBride filed a motion to correct erroneous sentence,

      arguing that the trial court erred by imposing consecutive sentences when it did



      Court of Appeals of Indiana | Memorandum Decision 49A05-1705-CR-1050 | September 5, 2018   Page 4 of 6
      not base his sentence on any aggravators. The trial court denied the motion on

      January 17, 2017. McBride now appeals.


                                   Discussion and Decision
[6]   McBride’s sole argument on appeal is that the trial court erred by denying his

      motion to correct erroneous sentence. We will reverse a trial court’s ruling on a

      motion to correct sentence only if the ruling is against the logic and effect of the

      facts and circumstances before it. Woodcox v. State, 30 N.E.3d 748, 750 (Ind. Ct.

      App. 2015). While we defer to the trial court’s factual determinations, we

      review legal conclusions de novo. Id.


[7]   Initially, we note that McBride’s claims are barred as a matter of res judicata.

      As a general rule, when this Court decides an issue on direct appeal, the

      doctrine of res judicata applies, thereby precluding its review in post-conviction

      proceedings. State v. Holmes, 728 N.E.2d 164, 168 (Ind. 2000). The doctrine of

      res judicata prevents the repetitious litigation of that which is essentially the

      same dispute. Id. This Court upheld the validity of McBride’s sentence on

      direct appeal, specifically holding that the trial court had relied on valid

      aggravating factors to support the consecutive sentences. McBride, 992 N.E.2d

      at 919-21. Because McBride already litigated on direct appeal the validity of his

      consecutive sentences, he may not attempt to litigate that issue for a second

      time through his motion to correct erroneous sentence.


[8]   The matter of res judicata notwithstanding, we find no merit in McBride’s

      argument. He first alleges that his consecutive sentences were unlawful because

      Court of Appeals of Indiana | Memorandum Decision 49A05-1705-CR-1050 | September 5, 2018   Page 5 of 6
       the trial court did not find any aggravating factors to support imposing

       consecutive sentences. A trial court is required to state its reasoning and to find

       at least one aggravating factor to impose consecutive sentences. Id. at 919.

       Here, the trial court’s oral and written sentencing statements clearly show that it

       found and relied upon several aggravating factors to support the consecutive

       sentences, including the nature and circumstances of the crimes, the existence

       of multiple victims, and the young age of one of the victims. Appellant’s App.

       p. 30-32.


[9]    McBride also argues that the trial court erred by imposing consecutive

       sentences for his three convictions of Class B felony robbery because the crimes

       arose out of a single episode of criminal conduct.1 But at the time of the

       offenses, Class B felony robbery was a “crime of violence,” and the limit on

       consecutive sentences for single episodes of criminal conduct did not apply to

       crimes of violence. Ind. Code § 35-50-1-2(a)(12), -(c) (2012). Therefore,

       McBride’s sentences were not subject to statutory limits on sentences for single

       episodes of criminal conduct. McBride’s argument is unavailing.


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


       May, J., and Robb, J., concur.




       1
        This argument should have been raised in McBride’s direct appeal and is now untimely. Nevertheless, we
       will briefly address it.

       Court of Appeals of Indiana | Memorandum Decision 49A05-1705-CR-1050 | September 5, 2018      Page 6 of 6
