Brandon A. Kincheloe v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: July 3, 2018
• Docket: 18A-CR-235
• Status: Published

Opinion

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