Pursuant to Ind. Appellate Rule 65(D), this 

Memorandum Decision shall not be 

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

JOHN A. ENGLAND J.T. WHITEHEAD

Deputy Public Defender Deputy Attorney General

Indianapolis, Indiana Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

MICHAEL E. KIRK, )

)

Appellant-Defendant, )

)

vs. ) No. 49A04-1111-PC-609

)

STATE OF INDIANA, )

)

Appellee-Plaintiff. )

APPEAL FROM THE MARION SUPERIOR COURT

The Honorable Kurt M. Eisgruber, Judge

The Honorable Steven J. Rubick, Magistrate

Cause No. 49G01-0505-FA-78294

April 30, 2012

MEMORANDUM DECISION - NOT FOR PUBLICATION

CRONE, Judge
2

Case Summary

Michael Kirk was convicted of multiple sex offenses for acts that he committed 

against his stepdaughter over a period of many months preceding March 2005. Based on the 

sentencing statutes in effect at the time, the trial court weighed aggravating and mitigating 

factors, found them to balance out, and imposed the presumptive sentences on each count. 

However, the trial court also found that the sentence for one of the class A felony counts 

should run consecutive to another and imposed a total sentence of sixty years. 

On direct appeal, Kirk did not challenge his sentence, but instead challenged only the 

trial court’s decision to admit evidence of uncharged sex acts. After losing his appeal, he 

filed a petition for post-conviction relief (“PCR”), arguing that his appellate attorney 

provided ineffective assistance of counsel for failing to challenge his consecutive sentences. 

The post-conviction court denied his petition, and he now appeals. Finding that he has failed 

to establish that his appellate counsel performed deficiently and that he therefore was not 

denied his constitutional right to effective assistance of counsel, we affirm.

Facts and Procedural History

Another panel of this Court described the facts as follows in a memorandum decision 

on Kirk’s direct appeal: 

On May 11, 2005, Kirk was charged with three counts of [class A 

felony] child molestation and two counts of [class D felony] child solicitation 

stemming from abuse of his two stepdaughters, Ti.P. and Ta.P. At the start of 

the trial, Kirk asked that all mention of other uncharged bad acts not be 

admitted. This oral motion in limine was granted as to acts concerning drug 

abuse, physical abuse, and molestation of another girl, but was denied as to 

other acts dealing with the abuse of Ti.P. The court noted that the charges 

spanned a three-year period and that it is common in such cases of recurring 
3

abuse for a victim to speak in general terms about the abuse occurring during 

the time period, rather than limiting testimony to specific instances.

At trial, Ti.P. testified about four specific instances of molestation. 

Ti.P. testified in detail concerning each incident, but also made some 

statements concerning other, uncharged, molestation. Ta.P. testified 

concerning child solicitation and also testified that she witnessed one of the 

instances of molestation described by Ti.P.

Ti.P. testified that Kirk first molested her when she was eleven years 

old. She testified that Kirk came into her room when her mother was at work 

and her sister was not home and forced her to undress and engage in 

intercourse with him. Kirk told Ti.P. not to tell anyone because he had a gun 

and was not afraid to use it.

Ti.P. testified that on a different occasion, when she was still eleven 

years old, Kirk made her undress, put on a t-shirt, and come into his room. He 

then inserted his fingers and a hotdog into her vagina. During her testimony 

regarding this incident, she mentioned that this behavior occurred more than 

once, so it was difficult for her to remember the circumstances surrounding the 

first time that it happened. She mentioned that it happened at least three times, 

and believed that on this occasion, he also performed oral sex on her and had 

intercourse with her.

Ti.P. testified that on another occasion, Kirk had intercourse with her 

when they were lying in the living room. He made her wear shorts and get 

under a blanket with him. Ta.P. was also in the room at the time, and testified 

at trial about this incident. Ta.P. testified that when she was in third or fourth 

grade, she saw Ti.P. lying under a blanket with Kirk lying behind her and that 

Kirk had his leg over Ti.P. She said that they were “too close, and it didn't 

look right.” Transcript at 64.

Ti.P. also testified that on another occasion Kirk had intercourse with 

her in a bathroom. She said they had difficulty finding a position, and ended 

up lying on the floor. She said she took a shower afterwards and that Kirk 

pretended he was just using the bathroom while she was in the shower.

Ti.P. made several comments during the trial that indicated that these 

specific four instances were not the only times Kirk molested her. She stated 

that such instances happened “like every other day.” Id. at 123. She also 

testified that Kirk would make her sister and her sister's friend leave the house 

so that he could be alone with her. He would then make her undress, put on a 
4

t-shirt and come into his room. She said that she was used to this and she 

knew what she was supposed to do. When asked about some specific 

instances, she could not remember details, because “it was just the same usual 

thing.” Id. at 133.

At trial, the jury found Kirk guilty of each count of child molestation, 

guilty of one count of child solicitation, and not guilty of one count of child 

solicitation.[1]

Kirk v. State, No. 49A04-0605-CR-240, slip op. at 2-4 (Ind. Ct. App. April 16, 2007)

(footnote omitted). 

At sentencing on April 4, 2006, the trial court cited three aggravating factors: (1) 

Kirk’s position of trust; (2) the significant injury, loss, or damage suffered by Ti.P.; and (3) 

Kirk’s threats to harm Ti.P. if she told anyone. The court cited one mitigating factor, Kirk’s 

sparse criminal history, and stated that “the aggravating and mitigating factors balance each 

other out.” Appellant’s PCR App. at 121. Thereafter, the trial court imposed the 

presumptive thirty-year sentence for each of the three class A felony convictions and the 

presumptive one-and-a-half-year sentence for the class D felony conviction. All sentences 

were to run concurrent to Count I (class A felony child molesting) except for Count III (class 

A child molesting), which was to run consecutive to Count I, for an aggregate sixty-year 

term. The trial court reasoned “that this is a situation where the harm did not happen to 

[Ti.P.] just on a couple of occasions, it was numerous and throughout, and that warrants a 

consecutive sentence on Counts I and III.” Id. at 123. Neither Kirk’s trial counsel nor his 

appellate counsel challenged the trial court’s imposition of consecutive sentences.

 

1

 We note that the only count concerning an act that Kirk allegedly committed against Ta.P. resulted in 

a not guilty verdict. Thus, in this appeal, we address only Kirk’s acts against Ti.P.
5

In his direct appeal, Kirk raised just one issue: whether the trial court erred in 

allowing testimony regarding other uncharged acts of child molesting under Indiana 

Evidence Rule 404(b). In April 2007, another panel of this Court found that the testimony 

was inadmissible but that it was unlikely to have swayed the jury and therefore amounted to 

harmless error.

Kirk first challenged his consecutive sentences via a PCR petition. In the PCR

proceedings, he alleged that he received ineffective assistance of appellate counsel based on

counsel’s failure to argue on appeal that the trial court committed fundamental error in 

imposing a consecutive sentence. The post-conviction court held a hearing and took 

testimony from Kirk’s appellate counsel. Thereafter, the post-conviction court denied his 

PCR petition, and this appeal ensued. Additional facts will be provided as necessary.

Discussion and Decision

The petitioner in a post-conviction proceeding bears the burden of establishing 

grounds for relief by a preponderance of the evidence. Henley v. State, 881 N.E.2d 639, 643 

(Ind. 2008). When appealing a denial of his petition for post-conviction relief, the petitioner 

stands in the position of one appealing a negative judgment. Id. When reviewing the 

judgment of a post-conviction court, we consider only the evidence and reasonable inferences 

supporting the judgment. Hall v. State, 849 N.E.2d 466, 468 (Ind. 2006). We neither 

reweigh evidence nor judge witness credibility. Id. To prevail on appeal from the denial of 

his post-conviction petition, the petitioner must demonstrate that the evidence as a whole 

leads unerringly and unmistakably to a conclusion opposite that reached by the post-
6

conviction court. Henley, 881 N.E.2d at 643-44. Where, as here, the post-conviction court 

enters findings of fact and conclusions of law, we will reverse the findings and judgment 

“only upon a showing of clear error—that which leaves us with a definite and firm conviction

that a mistake has been made.” Id. at 644 (citation omitted).

Kirk contends that he was denied his right to effective assistance of counsel as 

guaranteed by the United States and Indiana Constitutions. A defendant must satisfy two 

components to prevail on an ineffective assistance claim. Smith v. State, 822 N.E.2d 193, 

202-03 (Ind. Ct. App. 2005), trans. denied. He must demonstrate both deficient performance 

and prejudice resulting from it. Strickland v. Washington, 466 U.S. 668, 687 (1984). 

Deficient performance is representation that fell below an objective standard of 

reasonableness, wherein counsel has “committ[ed] errors so serious that the defendant did 

not have the ‘counsel’ guaranteed by the Sixth Amendment.” Brown v. State, 880 N.E.2d 

1226, 1230 (Ind. Ct. App. 2008), trans. denied. We assess counsel’s performance based on 

facts that are known at the time and not through hindsight. Shanabarger v. State, 846 N.E.2d 

702, 709 (Ind. Ct. App. 2006), trans. denied. “[C]ounsel’s performance is presumed 

effective, and a defendant must offer strong and convincing evidence to overcome this 

presumption.” Ritchie v. State, 875 N.E.2d 706, 714 (Ind. 2007). “Counsel is afforded 

considerable discretion in choosing strategy and tactics, and these decisions are entitled to 

deferential review.” Stevens v. State, 770 N.E.2d 739, 746-47 (Ind. 2002), cert. denied

(2003). “Isolated mistakes, poor strategy, inexperience, and instances of bad judgment do 

not necessarily render representation ineffective.” Id. at 747. Prejudice occurs when a 
7

reasonable probability exists that “but for counsel’s errors the result of the proceeding would 

have been different.” Brown, 880 N.E.2d at 1230. We can dispose of claims upon failure of 

either component. Id. 

In this appeal, Kirk’s ineffective assistance claim concerns the performance of his 

appellate counsel. The standard of review for a claim of ineffective assistance of appellate 

counsel is identical to the standard for trial counsel. Lowery v. State, 640 N.E.2d 1031, 1048 

(Ind. 1994), cert. denied (1995). The petitioner must establish deficient performance by 

appellate counsel resulting in prejudice. Id. “Ineffective assistance of appellate counsel 

claims generally fall into three basic categories: (1) denial of access to an appeal, (2) waiver 

of issues, and (3) failure to present issues well.” Henley, 881 N.E.2d at 644. “[T]he decision 

of what issues to raise is one of the most important strategic decisions to be made by 

appellate counsel.” Reed v. State, 856 N.E.2d 1189, 1196 (Ind. 2006). For countless years, 

experienced advocates have “emphasized the importance of winnowing out weaker 

arguments on appeal and focusing on one central issue if possible, or at most a few key 

issues.” Bieghler v. State, 690 N.E.2d 188, 194 (Ind. 1997) (citation and quotation marks 

omitted), cert. denied (1998). Thus, when reviewing these types of claims, we should be 

particularly deferential to appellate counsel’s strategic decision to exclude certain issues in 

favor of other issues believed to be more likely to result in a reversal. Id. As a result, 

“[i]neffective assistance is very rarely found in cases where a defendant asserts that appellate 

counsel failed to raise an issue on direct appeal.” Reed, 856 N.E.2d at 1196. 
8

Here, Kirk asserts that his appellate counsel was ineffective for failing to raise as 

fundamental error on direct appeal the trial court’s decision to impose consecutive sentences.

We first observe that the claim need not have been presented as one of fundamental error. In 

Kincaid v. State, 837 N.E.2d 1008 (Ind. 2005), our supreme court explained that

[w]hile it is, of course, true that a claim is not normally available for review on 

appeal unless first made at trial, this Court and the Court of Appeals review 

many claims of sentencing error (improper consideration of an aggravating 

circumstance, failure to consider a proper mitigating circumstance, inaccurate 

weighing of aggravating and mitigating circumstances, etc.) without insisting 

that the claim first be presented to the trial judge. On the other hand, an 

appellant in a criminal case must raise a particular sentencing claim in his or 

her initial brief on direct appeal in order to receive review on the merits.

Id. at 1010. See also Reed v. State, 856 N.E.2d 1189, 1194 (Ind. 2006) (stating that counsel 

need not object at sentencing to preserve sentencing error for review on direct appeal).

We further observe that 

[t]o show that counsel was ineffective for failing to raise an issue on appeal 

thus resulting in waiver for collateral review, the defendant must overcome the 

strongest presumption of adequate assistance, and judicial scrutiny is highly 

deferential. Ben-Yisrayl v. State, 738 N.E.2d 253, 260-61 (Ind. 2000). To 

evaluate the performance prong when counsel waived issues upon appeal, we 

apply the following test: (1) whether the unraised issues are significant and 

obvious from the face of the record and (2) whether the unraised issues are 

“clearly stronger” than the raised issues. Timberlake v. State, 753 N.E.2d 591, 

605-06 (Ind. 2001).

Henley, 881 N.E.2d at 645 (quotation marks omitted).

On direct appeal, Kirk’s counsel raised one issue: that the trial court erred in allowing 

evidence of uncharged sex acts. Kirk claims that she also should have raised the consecutive 

sentencing issue. At the time of that appeal, the general rule concerning consecutive 

sentencing was, if the aggravating and mitigating factors are found to be in balance, then 
9

“there is no basis on which to impose consecutive terms.” Marcum v. State, 725 N.E.2d 852, 

864 (Ind. 2000). However, while Kirk’s direct appeal was pending, another panel of this 

Court held that where the trial court conducted its initial balancing and found the aggravators 

and mitigators to be equal in weight, it nonetheless could impose consecutive sentences 

based on an additional aggravator not previously cited in the initial weighing process. 

Gleaves v. State, 859 N.E.2d 766, 771 (Ind. Ct. App. 2007).

Here, in sentencing Kirk, the trial court identified three statutory aggravators: (1) his

position of trust—a stepfather living with and caring for his stepdaughter while her mother 

was at work; (2) the significant injury, loss, or damage suffered by Ti.P.; and (3) his threats 

to harm Ti.P. if she told anyone. The trial court found one mitigator, Kirk’s sparse criminal 

record, and then stated that he found the aggravators and mitigators to be in balance. 

However, in imposing consecutive sentences, the trial court emphasized the frequency and 

number of times Kirk molested Ti.P. (approximately every other day) over a long period of 

time (many months as opposed to days). 

Kirk alleges that it is obvious from the record that the trial court used the same 

aggravator to impose consecutive sentencing that it had already used in the balancing 

process. We disagree. The confusion between the two aggravators is attributable more to

the trial court’slengthy explanation rather than to any substantive equivalency between them:

[T]he Court finds under Indiana Code 35-38-1-7.1 that .... the aggravating 

factors in this case are as follows: that, first of all, [Kirk] was certainly in a 

position of trust when he committed this crime. The evidence throughout the 

jury trial was very clear that he was the stepfather of [Ti.P.], and that they 

resided together, and that he was there many times to be caring for the children 

when the mother was at work. So, he was most certainly in a position of trust 
10

with this little girl. Although she was 15 when she testified during the trial, 

the offenses occurred when she was 11 years of age. The second aggravating 

factor, which is one listed in the statute that the Court can consider is that the 

home [sic] injury loss or damage suffered by the victim of the offense was 

significant, and was greater than the elements necessary to prove the 

commission of the offense. The Court finds this as an aggravating factor 

because I was able to watch the young lady testify, and she told us that these—

he would have sex with her every other day, and it happened for a time period 

for about nine months. And he was only charged with three A felonies, and so 

that’s certainly greater than the elements, and has caused significant harm to 

her. That was apparent by her demeanor when she testified in court during the

jury trial. In addition, in the letter that she wrote to me, she tells me that he 

has caulded—caused her nightmares, stress, pain, and tears. She also 

indicates in the beginning of the letter, [Kirk] has caused a lot of pain and 

stress in my life. And if any one of his children was raped, he would want that 

person to spend of [sic] life in prison. So, she goes on and she tells about her 

pain, and it certainly is a great deal of pain for a child of that age to endure 

having a stepfather have sex with them every other day. The Court finds that 

the third aggravating factor is—which is also in—listed in the statute is that 

when a person threatens to harm a victim of an offense, or a witness if they tell 

anyone about the offense that that is an aggravating factor. And we heard 

lengthy testimony throughout the trial about the fact that he threatened her—

that he would kill her if she told anyone. And so that certainly is a—an 

aggravating offense. The only mitigator the Court can find is that—for a 

person of his age, which is 50 years of age—he does—he really has lead [sic] a 

fairly law-abiding life, and only has one conviction, and that’s for Possession 

of Cocaine back in 1992. It’s unable for the Court to determine whether that 

was a mil—misdemeanor, or a felony. It just indicates that he spent some time 

incarcerated in the State of Mississippi. And—and the Court has found these 

aggravating factors on Counts I, II, and III. The Court having found those 

aggravators and mitigator, I should include on those three counts, on Counts I, 

II, and III, the Court finds that the aggravating factors and mitigating factors 

balance each other out. And on Counts I, II, and III, Child Molest, as a Class 

A felony, the Court is going to impose a sentence of 30 years. The Court will 

not suspend any of that time .... On Count IV, which is Child Solicitation, 

which is a Class D felony .... [t]he Court will impose a sentence of one and a 

half years .... The Court is going to order that Counts I and III be served 

consecutively as the Court finds that this is a situation where the harm did not 

happen to [Ti.P.] just on a couple of occasions, it was numerous and 

throughout, and that warrants a consecutive sentence on Counts I and III. The 

Court will order then that Counts II and IV run concurrent with Counts I and 

III for a total sentence of 60 years executed.
11

Appellant’s App. at 214-19 (emphases added).

 When the trial court conducted its initial balancing, it relied on statutory factors, one 

of which was that the “harm, injury, loss, or damage suffered by the victim of an offense was 

... significant; and ... greater than the elements necessary to prove the commission of the 

offense.” Ind. Code § 35-38-1-7.1(a)(1) (2003). However, when evaluating whether Kirk’s 

sentences should be concurrent or consecutive, the trial court emphasized the continuity of 

Kirk’s conduct, i.e., the number of times that he molested Ti.P. While at first glance, these

two factors seem to overlap, they are distinct in that the former emphasizes the impact on the 

victim and the latter emphasizes the acts of the perpetrator. 

Finally, we note that at the PCR hearing, appellate counsel testified that she examined 

the trial court record, conferred with trial counsel, and made a strategic decision to pursue 

what she believed was a meritorious issue on direct appeal. PCR Tr. at 23-27. In that appeal, 

this Court agreed, finding error in the admission of the evidence of uncharged acts, albeit 

harmless. 

Based on the foregoing, we conclude that the trial court’s decision to impose

consecutive sentences was based on an independent aggravating factor. Thus, there was no 

sentencing error that was “obvious from the face of the record” or “clearly stronger” than the 

issue raised on direct appeal. Henley, 881 N.E.2d at 645. As such, Kirk’s appellate counsel 

did not provide ineffective assistance in electing not to challenge his sentence on direct 

appeal. Accordingly, we affirm the post-conviction court’s denial of his PCR petition. 

Affirmed.
12

VAIDIK, J., and BRADFORD, J., concur.