Court of Appeals of Indiana | Memorandum Decision 18A-CR-673 | May 16, 2019 Page 1 of 13

MEMORANDUM DECISION

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.

APPELLANT PRO SE

Michael A. Kemp

New Castle, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Ian McLean

Supervising Deputy Attorney 

General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Michael A. Kemp,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

May 16, 2019

Court of Appeals Case No.

18A-CR-673

Appeal from the Delaware Circuit 

Court

The Honorable Marianne L. 

Vorhees, Judge

The Honorable Steven R. 

Caldemeyer, Judge

Trial Court Cause No.

18C01-9708-CF-42

Najam, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-673 | May 16, 2019 Page 2 of 13

Statement of the Case

[1] In this belated appeal, Michael A. Kemp appeals his conviction and sentence 

for child molesting, as a Class A felony, following a guilty plea. Kemp raises 

two issues for our review, which we revise and restate as follows:

1. Whether the trial court erred when it entered judgment of 

conviction for child molesting, as a Class A felony,

because the factual basis for Kemp’s plea only supported a 

conviction for child molesting, as a Class C felony.

2. Whether the trial court abused its discretion when it 

sentenced Kemp.

[2] We affirm. 

Facts and Procedural History

[3] In mid-1997, police officers with the Muncie Police Department were called to 

investigate allegations that Kemp had molested children. During the course of 

the investigation, Kemp voluntarily gave a statement to officers in which he 

admitted to having molested three children: T.E., who was nine years old; 

B.E., who was seven years old; and D.E., who was four years old. Kemp 

molested the children on multiple occasions between the dates of October 1, 

1995, and December 31, 1995. 

[4] The State charged Kemp with two counts of child molesting, as Class A 

felonies, and one count of child molesting, as a Class C felony. During a 

hearing on October 2, 1997, Kemp pleaded guilty to one count of child 
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molesting, as a Class A felony. In exchange, the State agreed to dismiss the 

other two counts. Prior to accepting his plea, the court advised Kemp of the 

rights that he was waiving by pleading guilty. Specifically, the court told 

Kemp: “You understand that you won’t have an appeal because there won’t be 

anything to appeal. You won’t have a trial, and there’s where appeals come 

from.” Tr. Vol. II at 8. Kemp’s counsel then proceeded to solicit a factual basis 

for Kemp’s guilty plea. In particular, Kemp admitted that he had engaged in 

oral sex with T.E. The trial court accepted Kemp’s guilty plea and entered 

judgment of conviction for child molesting, as a Class A felony. 

[5] The trial court held a sentencing hearing on October 30. During the hearing, 

the trial court stated as follows:

He did time, for the record, for a Theft conviction prior, moved 

to Indianapolis, paroled until June of ’90. . . . ’93 in November 

was arrested on two (2) counts of Child Molesting in Marion 

County. He spent seven and a half (7 1⁄2) months in jail. He was 

released in June when the charges were dismissed. . . . He was in 

a position of trust as a babysitter for these three (3) victims. The 

defendant admitted to numerous acts of molesting the victims 

and stated that he’s molested [B.E.] three (3) times, [D.E.] six 

times, and [T.E.] fifteen (15) to twenty (20) times. . . . So there 

are certainly aggravating circumstances. . . . All I know is that 

the aggravating circumstances are considerable: you have a 

lengthy history of criminal and delinquent activity; the 

seriousness of the prior crimes. . . . Prior attempts of 

rehabilitation through probation and parole have failed. 

Imposition of a reduced sentence would depreciate the 

seriousness of the crime. . . . The crime required the Defendant 

to confront the victims; the ages of the victims were four (4), 

seven (7), and nine (9).
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Id. at 26-28. The court did not identify any mitigators but found that “the 

aggravating circumstances most definitely and considerably outweigh any 

mitigating circumstances.” Id. at 28. Accordingly, the court sentenced Kemp 

to the maximum sentence of fifty years in the Department of Correction. 

[6] On February 19, 2015, Kemp filed a petition for post-conviction relief. In that 

petition, Kemp asserted that the evidence presented at his guilty plea hearing

did not establish a factual basis for the trial court to accept his guilty plea and 

that he did not voluntarily plead guilty. Kemp later amended his petition to 

additionally assert that the trial court had abused its discretion when it 

sentenced him.1

[7] Following a hearing,

2

the post-conviction court entered findings of fact and 

conclusions of law in which the court denied Kemp’s petition for postconviction relief. Specifically, the post-conviction court found that, “[i]n 

reviewing the statute in effect when Kemp entered his guilty plea, . . . the crime 

is a Class A felony if the defendant is over 21 years old when he commits the 

offense. The offense can involve deviate sexual conduct . . . .” Appellant’s 

App. Vol. IV at 35. Accordingly, the post-conviction court found that Kemp’s 

admissions satisfied the elements of child molesting, as a Class A felony, and 

 

1

 The State moved to dismiss the added issue raised in Kemp’s amended petition for post-conviction relief. 

The post-conviction court initially granted the State’s motion but, following Kemp’s motion to correct error 

in which Kemp cited to the portion of the guilty plea hearing during which the trial court informed him that 

he could not file an appeal if he pleaded guilty, the post-conviction court reversed its decision and allowed 

Kemp to include the alleged sentencing errors in his amended petition for post-conviction relief. 

2

 Kemp has not provided a copy of the transcript of the hearing on his petition for post-conviction relief. 
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that there was “clear and convincing” evidence to demonstrate that Kemp had 

committed the crime to which he had pleaded guilty. Id. at 36. The postconviction court also found that Kemp had failed to meet his burden of proof 

regarding whether he had voluntarily pleaded guilty. 

[8] In regard to the alleged sentencing errors, the post-conviction court found that 

“Kemp should have addressed these issues in a timely filed direct appeal, and 

he did not do so.” Id. at 37. However, the post-conviction court concluded that 

“Kemp should be given the opportunity to file and present a proper Petition 

pursuant to Post-Conviction Rule 2, Section 1.” Id. The post-conviction court

then denied Kemp’s petition for post-conviction relief but directed Kemp to file 

a petition for a belated appeal on the sentencing issue. On March 16, Kemp 

attempted to appeal the post-conviction court’s denial of his petition for postconviction relief by filing a notice of appeal with this Court. However, after 

“nothing had been done in furtherance of this appeal,” this Court dismissed 

Kemp’s appeal with prejudice. Appellee’s App. Vol. II at 12. On January 4, 

2018, Kemp filed his petition for permission to file a belated notice of appeal,

which the post-conviction court granted. This appeal ensued. 

Discussion and Decision

Issue One: Factual Basis for Guilty Plea
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[9] Kemp first contends that the trial court erred when it accepted his guilty plea 

and entered judgment of conviction for child molesting, as a Class A felony.

3

 

Specifically, Kemp contends that, pursuant to the statute in effect at the time he 

committed the offense, the factual basis to which he admitted only

demonstrated that he had committed child molesting, as a Class C felony. 

[10] However, we cannot address Kemp’s claim that the incorrect statute was 

applied or that he only pleaded guilty to a Class C felony because his claim on 

this issue cannot be raised by means of a belated appeal and, thus, is not 

properly before us. In order to file a belated appeal, the defendant must be an 

“eligible defendant.” Ind. Post-Conviction Rule 2(a). An “eligible defendant” 

is “a defendant who, but for the defendant’s failure to do so timely, would have 

the right to challenge on direct appeal a conviction or sentence after a trial or 

plea of guilty[.]” P-C.R. 2. Accordingly, in order for Kemp to be able to bring 

 

3

 The parties dispute whether the doctrine of res judicata bars Kemp from raising this issue on appeal due to 

the fact that this Court dismissed his appeal from the post-conviction court’s denial of his petition with 

prejudice, in which he asserted that the evidence presented at his guilty plea hearing did not establish a 

factual basis for the trial court to accept his guilty plea. However, it is unclear from the record on appeal

whether Kemp raised to the post-conviction court the specific issue of whether the trial court had applied the

wrong statute when it convicted him. In his petition for post-conviction relief, Kemp asserts that the facts to 

which he admitted did not support an elevation to a Class A felony because “factual evidence” established “a 

professional medical standing [sic] that all victims were not molested.” Id. at 122. In essence, Kemp appears 

to have asserted to the post-conviction court only that the evidence did not support his conviction for child 

molesting, as a Class A felony. Nowhere in his petition did he assert that the trial court had applied the 

wrong statute when it convicted him. Further, Kemp did not provide a transcript of the hearing on his 

petition for post-conviction relief, so we are unable to determine whether Kemp raised that as an argument to 

the post-conviction court. Accordingly, while Kemp asserted to the post-conviction court that the factual 

basis did not support his guilty plea to the Class A felony, we are unable to ascertain whether he raised that 

issue not only due to a lack of sufficient evidence but also because the trial court had applied the wrong 

statute. Accordingly, we are unable to determine whether the doctrine of res judicata bars Kemp from raising 

the issue of whether the trial court applied the wrong statute. 
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a belated appeal challenging his conviction following a guilty plea, he would 

have to have had the right to challenge his conviction on direct appeal. 

[11] It is well settled that “a person who pleads guilty cannot challenge the propriety 

of the resulting conviction on direct appeal.” Rogers v. State, 958 N.E.2d 4, 7 

(Ind. Ct. App. 2011). Because Kemp did not have the right to challenge his 

guilty plea on direct appeal, he is not eligible to bring a belated appeal under 

Post-Conviction Rule 2 to challenge the propriety of his guilty plea. Therefore, 

Kemp’s claim challenging his guilty plea is not properly before us, and we 

decline to address it. 

Issue Two: Sentencing

[12] Kemp next asserts that the trial court abused its discretion when it sentenced 

him, which issue is properly before us.

4 We initially note that twenty years and 

numerous changes to our criminal law have passed since Kemp’s conviction 

and sentence. Accordingly, we will review the case law in effect at the time 

Kemp committed the offenses and was sentenced. 

[13] We review a trial court’s sentencing decisions for an abuse of discretion, 

including the trial court’s decision to increase or decrease the presumptive 

 

4

 While Kemp cannot challenge his guilty plea through a belated appeal, it is well settled that a belated direct 

appeal is a proper means to challenge the merits of a sentencing decision. See Walton v State, 866 N.E.2d 820, 

821 (Ind. Ct. App. 2007). 
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sentence because of aggravating or mitigating circumstances.5 See Trowbridge v. 

State, 717 N.E.2d 138, 149 (Ind. 1999). 

To deviate from the statutorily proscribed presumptive sentence, 

the trial court must “(1) identify all of the significant mitigating 

and aggravating circumstances, (2) state the specific reason why 

each circumstance is considered to be mitigating or aggravating, 

and (3) articulate the court’s evaluation and balancing of the 

circumstances to determine if the mitigating circumstances offset 

the aggravating ones.”

Id. (quoting Carter v. State, 711 N.E.2d 835, 838 (Ind. 1999)). Here, Kemp 

contends that the trial court abused its discretion when it found certain 

aggravating factors and when it failed to identify a mitigating factor.

Aggravators

Age of Victim

[14] Kemp contends that the trial court abused its discretion when it considered the 

age of the victim as an aggravator because the age of the victim “constitutes an 

element of the crime.” Appellant’s Br. at 10. It is well settled that “[a] fact 

 

5

 Kemp briefly asserts that the trial court’s use of two aggravators—the victim’s age and the use of a prior, 

uncharged act—was improper under Blakeley v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.E.2d 403 

(2004). In that case, the Supreme Court held that, in order “to comply with the Sixth Amendment, juries, 

not judges, must find beyond a reasonable doubt ‘any fact that increases the penalty for a crime beyond the 

prescribed statutory maximum.’” Gutermuth v. State, 868 N.E.2d 427, 431 (Ind. 2007) (quoting Blakeley, 542 

U.S. at 301). However, the Supreme Court decided Blakeley after the trial court had sentenced Kemp. And, 

while the Indiana Supreme Court held that Blakeley is to be applied retroactively to all cases on direct review 

at the time Blakeley was announced, it also held that “Blakeley is not retroactive for Post-Conviction Rule 2 

belated appeals.” Id. at 432. Because Kemp was sentenced before Blakeley was decided, and because Kemp 

has filed a belated appeal pursuant to Post-Conviction Rule 2, the Supreme Court’s holding in Blakeley does 

not apply. 
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which comprises a material element of a crime may not also constitute an 

aggravating circumstance to support an enhanced sentence.” Stewart v. State, 

531 N.E.2d 1146, 1150 (Ind. 1988). However, while a material element of a 

crime may not constitute an aggravating factor, “the particularized individual 

circumstances of the criminal act may constitute a separate aggravating factor.” 

Ector v. State, 639 N.E.2d 1014, 1015 (Ind. 1994). 

[15] Here, Kemp was convicted of child molesting, as a Class A felony. At the time 

he committed the offense, the statute defined child molesting as performing or 

submitting to deviate sexual conduct with a child under fourteen years of age. 

See I.C. § 35-42-4-3(a) (1995). Kemp admitted that T.E. was only nine years old 

when he engaged in oral sex with her. That particular fact goes beyond the 

material element needed to establish that Kemp committed child molesting. 

Put another way, Kemp’s conduct could have satisfied the statutory element of 

the crime without T.E. being as young as she was. As such, the trial court did 

not rely on the element of the offense but, rather, on the particularized facts of 

the crime when it found the victim’s age to be an aggravator. We therefore 

cannot say that the trial court abused its discretion when it identified the 

victim’s age as an aggravating circumstance.

Prior, Dismissed Charge

[16] Kemp next contends that the trial court abused its discretion when it identified 

as an aggravating factor a past crime for which Kemp was charged but not 

convicted. We first note that, while the trial court mentioned the fact that 

Kemp had previously been charged with child molesting, the trial court did not 
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rely on that as an aggravating factor. Indeed, when the trial court identified the 

aggravators, it found as follows:

All I know is that the aggravating circumstances are 

considerable: you have a lengthy history of criminal and 

delinquent activity; the seriousness of the prior crimes. . . . Prior 

attempts of rehabilitation through probation and parole have 

failed. Imposition of a reduced sentence would depreciate the 

seriousness of the crime. . . . The crime required the Defendant to 

confront the victims; the ages of the victims were four (4), seven 

(7), and nine (9).

Tr. Vol. II at 27-28. Accordingly, trial court did not specifically identify a prior, 

dismissed act as an aggravating circumstance but, rather, identified Kemp’s 

entire criminal history as an aggravating factor, which Kemp does not dispute 

contains prior convictions in addition to the dismissed charge.

[17] But even if the trial court had identified the prior, dismissed charge as an 

aggravating circumstance, “the Indiana Supreme Court has explicitly held that 

it is proper for a trial court to use such evidence in determining a sentence.” 

Durham v. State, 510 N.E.2d 202, 205 (Ind. Ct. App. 1987) (citing Kelly v State, 

452 N.E.2d 907, 912 (Ind. 1983)). Accordingly, even if the trial court had 

identified that aggravating factor, we could not say that the trial court abused its 

discretion. 

Criminal History

[18] Kemp also asserts that the trial court abused its discretion when it identified his 

criminal history as an aggravating factor. It is well settled that it is proper for a 
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trial court to consider a criminal history to be an aggravating factor. See Smith 

v. State, 675 N.E.2d 693, 698 (Ind. 1996). Kemp does not dispute the fact that 

a criminal history can be an aggravating factor. However, he asserts that the 

trial court abused its discretion when it considered his criminal history to be an 

aggravating factor because “all of [his] prior convictions were over 10 years 

prior to this current offense.” Appellant’s Br. at 13. 

[19] The “chronological remoteness of a defendant’s prior criminal history should be 

taken into account.” Buchanan v. State, 767 N.E.2d 967, 972 (Ind. 2002). 

“However, ‘we will not say that remoteness in time, to whatever degree, 

renders a prior conviction irrelevant.’” Id. (quoting Harris v. State, 396 N.E.2d 

674, 677 (Ind. 1979)). “The remoteness of a prior criminal history does not 

preclude the trial court from considering it as an aggravating circumstance.” Id. 

(citing Bowling v. State, 493 N.E.2d 783, 787 (Ind. 1986). Indeed, it is within 

“the ambit of its discretion” for a trial court to find the remoteness to not affect 

the consideration of the criminal history as an aggravator. Id. Here, most of 

Kemp’s prior convictions occurred between 1981 and 1985, ten years or more 

prior to the instant offense. However, notwithstanding their remoteness, the 

trial court was not precluded form considering Kemp’s criminal history as an 

aggravating circumstance. We therefore cannot say that the trial court abused 

its discretion when it considered Kemp’s criminal history to be an aggravator. 

Mitigators

[20] Finally, Kemp contends that the trial court abused its discretion when it failed 

to identify his guilty plea as a mitigating factor. “While a guilty plea is not 
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enough to prove remorse, it can show an acceptance of responsibility for one’s 

actions.” Sensback v. State, 720 N.E.2d 1160, 1164 (Ind. 1999). “Certainly, the 

plea saves court time and spares the victim’s family the trauma of trial.” Id. 

“Where the state reaps a substantial benefit from the defendant’s act of pleading 

guilty, the defendant deserves to have a substantial benefit returned.” On 

appeal, Kemp specifically contends that the trial court abused its discretion 

when it failed to identify his guilty plea as a mitigating factor because he had 

not received any “substantial benefit” for his plea. Appellant’s Br. at 13. 

[21] However, we agree with the State that Kemp received a substantial benefit in 

exchange for pleading guilty. Indeed, in exchange for his plea, the State agreed 

to dismiss one count of child molestation, as a Class A felony, and one count of 

child molestation, as a Class C felony, which charges carried a combined 

maximum possible, additional sentence of 58 years. See I.C. §§ 35-50-2-4, -6 

(1995). And the facts to which Kemp admitted to the police officers would 

have supported those additional counts. Accordingly, Kemp received a 

substantial benefit in exchange for his guilty plea. We therefore cannot say that 

the trial court abused its discretion when it did not identify Kemp’s guilty plea 

as a mitigating factor. See Sensback, 720 N.E.2d at 1165. 

[22] In sum, Kemp’s contention regarding his guilty plea is not properly before this 

court, and we decline to consider Kemp’s assertion on that issue. And the trial 
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court did not abuse its discretion when it sentenced Kemp.6 We affirm Kemp’s 

sentence. 

[23] Affirmed. 

Baker, J., and Robb, J., concur.

 

6

 For the first time in his reply brief, Kemp cites Indiana Appellate Rule 7(B) and asks this Court to review 

his sentence. However, because he raised this issue for the first time in his reply brief, it is waived. See 

Monroe Guar. Ins. Co. v. Magwerks Corp., 829 N.E.2d 968, 977 (Ind. 2005).