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

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.
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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
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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].
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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
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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.
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Robb, J., and Altice, J., concur.
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