MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                           Jan 11 2016, 6:05 am
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.


ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Stephen T. Owens                                         Gregory F. Zoeller
Public Defender of Indiana                               Attorney General of Indiana
Katherine Province                                       Ellen H. Meilaender
Deputy Public Defender                                   Deputy Attorney General
Indianapolis, Indiana                                    Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

John W. Kimbrough, III,                                  January 11, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         45A05-1506-PC-687
        v.                                               Appeal from the Lake Superior
                                                         Court
State of Indiana,                                        The Honorable Samuel L. Cappas,
Appellee-Plaintiff                                       Judge
                                                         The Honorable Natalie Bokota,
                                                         Magistrate
                                                         Trial Court Cause No.
                                                         45G04-1312-PC-15



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 45A05-1506-PC-687 | January 11, 2016        Page 1 of 12
[1]   John Kimbrough, III, appeals the denial of his petition for post-conviction

      relief, arguing that the post-conviction court erroneously determined that

      Kimbrough did not receive ineffective assistance of appellate counsel. Finding

      no error, we affirm.


                                                     Facts
                                              Underlying Facts

[2]   In January 2009, Kimbrough began dating A.D. (Mother), who introduced

      Kimbrough to her three children: J.L., a daughter born in 2003; A.D., a

      daughter born in 2004; and A.D.L., a son who had cerebral palsy. The couple

      and the children did many things together as a family, and Kimbrough

      continued to have a relationship with the children even after his romantic

      relationship with Mother ended in the spring of 2010. In October 2010, Mother

      noticed that J.L. and A.D. were acting as though they were scared and were

      hiding something. Eventually, the children told Mother that Kimbrough had

      touched them inappropriately on multiple occasions. The children revealed

      that Kimbrough had placed his penis on or in their genitalia and anal areas, had

      licked and touched their genitalia, and had coerced the children into

      masturbating him. The molestations occurred on multiple occasions over a

      time period spanning nearly two years.


[3]   On November 5, 2010, the State charged Kimbrough with four counts of class

      A felony child molestation and two counts of class C felony child molestation.

      On May 5, 2011, a jury found Kimbrough guilty as charged. Due to double


      Court of Appeals of Indiana | Memorandum Decision 45A05-1506-PC-687 | January 11, 2016   Page 2 of 12
      jeopardy concerns, the trial court entered judgments of conviction only on the

      four class A felony convictions. On May 3, 2011, the trial court imposed forty-

      year sentences on each of those four convictions; the court ran the sentences on

      Counts I and II concurrently, ran the sentences on Counts III and IV

      concurrently, but ran those two sets of sentences consecutively, resulting in an

      aggregate sentence of eighty years imprisonment.


                                    Direct Appeal: Court of Appeals

[4]   Kimbrough appealed to this Court, raising the following arguments: (1) there

      was insufficient evidence to support the convictions; (2) the trial court erred in

      giving one of the jury instructions; and (3) the trial court abused its discretion

      when sentencing Kimbrough by failing to give sufficient weight to his lack of a

      prior criminal history. Kimbrough v. State, No. 45A04-1106-CR-328 (Ind. Ct.

      App. Mar. 21, 2012), vacated by Kimbrough v. State, 979 N.E.2d 625 (Ind. 2012).

      After dispensing with the first two arguments, this Court turned to the

      sentencing argument. The Court found that the trial court had not abused its

      discretion because it had found Kimbrough’s lack of a prior criminal history to

      be a mitigating circumstance. The Court went on, however, to hold as follows:


              Focusing on the appropriateness of the sentence and not the weight
              given to individual aggravating or mitigating factors, we find that
              the trial court abused its discretion. While we acknowledge the
              existence of the aggravating circumstances, an aggregate sentence
              of eighty years for a defendant with no criminal history is clearly
              against the logic and effect of the facts and circumstances before
              the trial court. Given the existence of this substantial mitigating
              factor, a sentence of twenty years on Counts I and II, with a

      Court of Appeals of Indiana | Memorandum Decision 45A05-1506-PC-687 | January 11, 2016   Page 3 of 12
              consecutive sentence of twenty years for Counts I and IV, for an
              aggregate sentence of forty years is supported by the evidence.
              We reverse the trial court's sentencing order and remand to the
              trial court to enter an order imposing the sentence outlined
              above.


      Id. at *5 (emphasis added).


[5]   Judge Mathias dissented in part from the majority opinion. First, he noted that

      because the trial court did not abuse its discretion in sentencing Kimbrough,

      appellate review is limited to Indiana Appellate Rule 7(B). Judge Mathias

      concluded that “[b]ecause Kimbrough advances no argument under Appellate

      Rule 7(B) concerning the nature of the offense or his character, I would not

      reach the issue of the appropriateness of his sentence.” Id. at *6. Next, Judge

      Mathias engaged in a Rule 7(B) analysis and concluded that even if we were to

      consider the aggregate eighty-year sentence in light of the nature of the offenses

      and Kimbrough’s character, the sentence is not inappropriate. Id. He therefore

      parted ways with the majority’s decision to revise Kimbrough’s sentence

      downward. Id.


                                  Direct Appeal: Our Supreme Court

[6]   Kimbrough sought, and our Supreme Court granted, transfer. It summarily

      affirmed this Court’s decision on the first two issues and then addressed

      sentencing. Kimbrough, 979 N.E.2d at 628. First, the Kimbrough Court held

      that the trial court had not abused its discretion because it had, in fact,

      considered the lack of criminal history to be a mitigator. Our Supreme Court

      emphasized that a trial court cannot be said to have abused its discretion in the
      Court of Appeals of Indiana | Memorandum Decision 45A05-1506-PC-687 | January 11, 2016   Page 4 of 12
way in which it weighs aggravators and mitigators. Id. at 629. Next, the

Kimbrough Court turned to this Court’s “appropriateness” analysis:


        This brings us to the Court of Appeals’ declaration that it was
        “focusing on the appropriateness of the sentence.” Although not
        cited by the majority, this language implicates Indiana Appellate
        Rule (7)(B) which provides “[t]he 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.” Even though a trial court may have acted within its
        lawful discretion in determining a sentence, Article 7, Sections 4
        and 6 of the Indiana Constitution “authorize [ ] independent
        appellate review and revision of a sentence imposed by the trial
        court.” Buchanan, 767 N.E.2d at 972. This appellate authority is
        implemented through Rule (7)(B). First, we agree with Judge
        Mathias who in dissent noted “a request for sentence revision
        under Appellate Rule (7)(B) is not truly a claim of sentencing
        error. Rather, it is a request for [the] court to exercise its
        constitutional authority to revise a lawfully entered sentence.”
        Kimbrough, No. 45A04–1106–CR–328, slip op. at 14 n.3 (citation
        omitted). Further, and importantly, in his brief before the Court
        of Appeals Kimbrough did not seek sentencing revision, did not
        cite to or rely upon Appellate Rule (7)(B) and thus said nothing
        about the nature of the offenses or his character. As we have
        declared “a defendant must persuade the appellate court that his
        or her sentence has met this inappropriateness standard of
        review.” Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).
        Here Kimbrough made no attempt to do so. “When a defendant
        requests appellate review and revision of a criminal sentence
        pursuant to authority derived from Article 7, Sections 4 or 6 of
        the Indiana Constitution ... the reviewing court is presented with
        the issue of whether to affirm, reduce, or increase the sentence.”
        McCullough v. State, 900 N.E.2d 745, 750 (Ind. 2009) (emphasis
        added). Kimbrough made no such request and therefore there
        was no issue in this regard to be considered by a reviewing court.

Court of Appeals of Indiana | Memorandum Decision 45A05-1506-PC-687 | January 11, 2016   Page 5 of 12
              In summary, because the trial court correctly entered its
              sentencing statement in compliance with the dictates of
              Anglemyer and because the “appropriateness” of a sentence has
              no bearing on whether a sentence is erroneous, the trial court did
              not abuse its discretion in imposing Kimbrough’s sentence.
              Further, Kimbrough did not seek review and revision of his
              sentence under Indiana Appellate Rule (7)(B).


      Id. at 629-30 (internal citations omitted). Finally, our Supreme Court “note[d]

      in passing that in his dissent Judge Mathias also observed that Kimbrough

      advanced no argument under Appellate Rule 7(B) and thus he would not have

      reached the issue of the appropriateness of Kimbrough’s sentence. Nonetheless,

      Judge Mathias undertook a thorough analysis of the nature of Kimbrough’s

      offenses and his character and concluded that Kimbrough’s sentence was not

      inappropriate.” Id. at 630 n.1.


                                           Post-Conviction Relief

[7]   On December 17, 2013, Kimbrough filed a pro se petition for post-conviction

      relief, and on September 29, 2014, he filed an amended petition by counsel.

      Kimbrough’s sole argument is that he received the ineffective assistance of

      appellate counsel based on counsel’s failure to include a Rule 7(B) argument in

      his direct appeal. Following an evidentiary hearing, the post-conviction court

      denied Kimbrough’s petition on May 29, 2015. In relevant part, the post-

      conviction court found and concluded as follows:

              7.       . . . The Appellate Judges who comprised the majority on
                       direct appeal did not undertake an App. R. 7(B) analysis of
                       Kimbrough’s sentence. They did not assess the nature of

      Court of Appeals of Indiana | Memorandum Decision 45A05-1506-PC-687 | January 11, 2016   Page 6 of 12
                       the offense or the character of the offender, but Judge
                       Mathias did in his dissenting opinion. Therefore, the only
                       appellate judge who undertook an App. R. 7(B) analysis
                       determined that the sentence was not inappropriate. We
                       conclude from this that if Appellate Counsel had raised a
                       claim under App. R. 7(B), a majority of the reviewing
                       judges would reach the same conclusion Judge Mathias
                       reached and hold that the sentence was not inappropriate.


                                                       ***


              9.       We conclude that Kimbrough was not prejudiced by
                       Appellate Counsel’s failure to raise a 7(B) claim on direct
                       appeal because to have done so would not have gained
                       Kimbrough a revised sentence.


      Appellant’s App. p. 80-81. Kimbrough now appeals.


                                   Discussion and Decision
                                     I. Standard of Review
[8]   The general rules regarding the review of a ruling on a petition for post-

      conviction relief are well established:

              “The petitioner in a post-conviction proceeding bears the burden
              of establishing grounds for relief by a preponderance of the
              evidence.” Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004).
              “When appealing from the denial of post-conviction relief, the
              petitioner stands in the position of one appealing from a negative
              judgment.” Id. To prevail on appeal from the denial of post-
              conviction relief, a petitioner must show that the evidence as a
              whole leads unerringly and unmistakably to a conclusion
              opposite that reached by the post-conviction court. Weatherford v.

      Court of Appeals of Indiana | Memorandum Decision 45A05-1506-PC-687 | January 11, 2016   Page 7 of 12
               State, 619 N.E.2d 915, 917 (Ind. 1993). Further, the post-
               conviction court in this case made findings of fact and
               conclusions of law in accordance with Indiana Post–Conviction
               Rule 1(6). Although we do not defer to the post-conviction
               court’s legal conclusions, “[a] post-conviction court’s findings
               and judgment will be reversed only upon a showing of clear
               error—that which leaves us with a definite and firm conviction
               that a mistake has been made.” Ben–Yisrayl v. State, 729 N.E.2d
               102, 106 (Ind. 2000) (quotation omitted).


       Hollowell v. State, 19 N.E.3d 263, 268-69 (Ind. 2014).


[9]    Kimbrough’s sole argument on appeal is that the post-conviction court

       erroneously determined that he did not receive the ineffective assistance of

       appellate counsel. To establish ineffective assistance of appellate counsel, the

       petitioner must show that (1) appellate counsel was deficient in his or her

       performance, and (2) the deficiency resulted in prejudice. Id. at 269. Failure to

       satisfy either prong will cause the claim to fail. Henley v. State, 881 N.E.2d 639,

       644 (Ind. 2008). To satisfy the second prong, the defendant must show a

       reasonable probability that, but for counsel’s errors, the result of the proceeding

       would have been different. Id.


                          II. Assistance of Appellate Counsel
[10]   Kimbrough argues that his appellate counsel’s failure to challenge his sentence

       on Rule 7(B) grounds resulted in prejudice. In making this argument, he relies

       on this Court’s opinion that was ultimately overturned. Kimbrough reasons

       that because this Court revised his sentence downward on 7(B) grounds, and



       Court of Appeals of Indiana | Memorandum Decision 45A05-1506-PC-687 | January 11, 2016   Page 8 of 12
       our Supreme Court overturned that decision only because the argument was not

       raised, that he was necessarily prejudiced by its omission. We cannot agree.


[11]   Initially, we note that this Court did not have the benefit of argument or

       analysis on the Rule 7(B) issue from the State. We now have the benefit of that

       argument and analysis, and as explored below, are persuaded that this Court

       would have reached a different result had the issue been fully briefed.

       Furthermore, we echo the reasoning of the post-conviction court, which

       emphasized that the Kimbrough majority did not engage in any sort of Rule 7(B)

       analysis. Instead, only Judge Mathias did so, and—as emphasized by our

       Supreme Court—he “undertook a thorough analysis of the nature of

       Kimbrough’s offenses and his character and concluded that Kimbrough’s

       sentence was not inappropriate.” Kimbrough, 979 N.E.2d at 630.


[12]   Following in Judge Mathias’s footsteps, and with the benefit of full briefing on

       the issue, we now consider whether Kimbrough’s sentence was inappropriate.

       Indiana Appellate Rule 7(B) provides that this Court may revise a sentence if it

       is inappropriate in light of the nature of the offense and the character of the

       offender. We must “conduct [this] review with substantial deference and give

       ‘due consideration’ to the trial court’s decision—since the ‘principal role of

       [our] review is to attempt to leaven the outliers,’ and not to achieve a perceived

       ‘correct’ sentence . . . .” Knapp v. State, 9 N.E.3d 1274, 1292 (Ind. 2014)

       (quoting Chambers v. State, 989 N.E.2d 1257, 1259 (Ind. 2013)) (internal

       citations omitted).



       Court of Appeals of Indiana | Memorandum Decision 45A05-1506-PC-687 | January 11, 2016   Page 9 of 12
[13]   Kimbrough was convicted of four class A felonies. For each conviction, he

       faced a term of twenty to fifty years, with an advisory term of thirty years. Ind.

       Code § 35-50-2-4.1 The trial court imposed a term of forty years imprisonment

       for each conviction—ten greater than the advisory term but ten less than the

       maximum. It ran two of the terms consecutively, as has been found appropriate

       when there are multiple victims. See Serino v. State, 798 N.E.2d 852, 857 (Ind.

       2003) (holding that “when the perpetrator commits the same offense against

       two victims, enhanced and consecutive sentences seem necessary to vindicate

       the fact that there were separate harms and separate acts against more than one

       person”).


[14]   As for the nature of the offenses, Kimbrough repeatedly molested two very

       young victims—seven-year-old J.L. and five-year-old A.D. The molestations

       occurred on multiple occasions and over a time period spanning nearly two

       years. Kimbrough continued to molest A.D. after she asked him to stop and he

       instructed her not to tell anyone. Moreover, in molesting the girls, Kimbrough

       violated a position of significant trust. The couple and the children did many

       things together as a family, and he routinely drove the girls to school and

       helped them with their homework. Finally, at sentencing, Kimbrough

       expressed no remorse for his actions, instead casting himself as the victim and

       blaming the girls’ parents for his involvement in the girls’ lives.




       1
           We apply the version of the sentencing statutes in place at the time Kimbrough committed the offenses.


       Court of Appeals of Indiana | Memorandum Decision 45A05-1506-PC-687 | January 11, 2016           Page 10 of 12
[15]   As for Kimbrough’s character, we certainly note his lack of a prior criminal

       history, as did the trial court. As noted by Judge Mathias, however,

       “Kimbrough’s abuse of his position of trust with respect to J.L. and A.D.

       reflects very negatively on his character.” Kimbrough, No. 45A04-1106-CR-328,

       *9. Furthermore, at the time of sentencing in this matter, there was an active

       warrant for Kimbrough’s arrest for failure to appear on a driving while

       suspended charge, and he was also facing charges of class B felony criminal

       confinement, class C felony intimidation, class D felony criminal confinement,

       and class D felony residential entry. Kimbrough had also violated the terms of

       his pretrial release granted by another court in a separate case. We hasten to

       emphasize that Kimbrough was only in his mid-twenties. It is therefore

       apparent that, while he had no prior convictions, he had not been leading a law-

       abiding life since becoming an adult a few short years before the molestations.


[16]   Given this evidence concerning Kimbrough’s character, combined with the

       evidence regarding the nature of the offenses—including the presence of

       multiple victims, their young ages, the ongoing nature of his crimes, and his

       abuse of a position of trust—we are persuaded that if the Kimbrough majority

       had engaged in a full Rule 7(B) analysis with the benefit of argument and

       analysis from the State, it would not have found Kimbrough’s sentence

       inappropriate. In other words, Kimbrough has not established that there is a

       reasonable probability that, if appellate counsel had made a Rule 7(B)

       challenge, the result of the proceeding would have been different. Therefore, he

       has failed to establish prejudice as a result of the omission of this argument in


       Court of Appeals of Indiana | Memorandum Decision 45A05-1506-PC-687 | January 11, 2016   Page 11 of 12
       his direct appeal. The post-conviction court did not err by denying

       Kimbrough’s petition for post-conviction relief.


[17]   The judgment of the post-conviction court is affirmed.


       Bradford, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 45A05-1506-PC-687 | January 11, 2016   Page 12 of 12
