Curtis J. Porter, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2026)

MEMORANDUM DECISION

[1] Following a successful petition for post-conviction relief, Curtis J. Porter (“Porter”) was resentenced for Class A felony child molesting ¹ and a habitual offender enhancement.² Porter received an aggregate sentence of sixty years executed, which he now challenges as inappropriate. We affirm.

Facts and Procedural History

[2] In December 2010, the State charged Porter with two counts of Class A felony child molesting and one count of Class C felony child molesting. The matter progressed to a jury trial. In a prior direct appeal, this court recited the pertinent facts in an unpublished memorandum decision, writing as follows:

On November 2, 2010, Porter met Shalonda Montgomery (Mother) at a friend's house. Mother and Porter are cousins and Porter is a couple of years older. That evening, Porter, his girlfriend, and Mother left in Porter's vehicle. On their way to Mother's home, police stopped them and both Mother and Porter's girlfriend were arrested.

Mother's two children, daughter, T.M., age twelve, and son, D.S., age fifteen, were at her home. Porter visited their home later in the evening and told T.M. that the police “have your momma.” (Transcript p. 148). T.M. had not seen Porter for some time but had known him for a couple of years. Porter told T.M. to come with him to find Mother and he told D.S. to remain at home. T.M. and Porter traveled to a nearby abandoned house and observed a police paddy wagon but did not see Mother. Porter and T.M. returned to Mother's home.

Approximately twenty minutes later, Porter told T.M. to come with him to look for Mother again. As before, Porter told D.S. to remain at the home, but this time asked for and took his cell phone. T.M. took her cell phone with her, and both she and Porter got into Mother's car. They traveled to a parking lot next to the house and parked. Porter took T.M.’s cell phone and laid on top of her. T.M. tried to push him off but was unsuccessful. Porter pulled T.M.’s pants down to her ankles and inserted his finger in her vagina. Porter then performed oral sex on her. T.M. cried and struggled during the event, which lasted for approximately twenty minutes. Porter took her home afterward.

On November 3, 2010, Mother returned home around 5:00 or 5:30 a.m. She found T.M. asleep on the couch and Porter sitting on the stairs. Later that morning, Mother left for work and T.M. went to school. At school, T.M. saw the school nurse and informed her what Porter had done. The school nurse called Mother who called the police. Mother returned home and saw Porter. Porter tried to ask what was wrong but Mother was crying. He ran out of the house and down an alley. T.M. was taken to Riley Hospital for an examination and was interviewed by police. T.M. refused a vaginal swab because it hurt and told police that Porter had put his finger in her vagina. Police examined Mother's automobile but found no bodily fluids. Porter was later apprehended.

Porter v. State, No. 49A05-1204-CR-191, 2013 WL 865466, at *1 (Ind. Ct. App. Mar. 8, 2013) (mem.), trans. denied.

[3] A bifurcated jury trial was held in February 2012. The jury found Porter not guilty of one count of Class A felony child molesting but guilty of the remaining counts—i.e., Class A felony child molesting and Class C felony child molesting. The jury also determined that Porter was a habitual offender. The trial court sentenced Porter on only the Class A felony, imposing forty years executed in the Indiana Department of Correction (“the DOC”) with five of those years suspended to probation.³ The court also imposed thirty years for the habitual offender enhancement, resulting in an aggregate sentence of seventy years.

[4] Porter pursued a direct appeal. One appellate argument raised was that the seventy-year sentence was inappropriate under Appellate Rule 7(B). The appeal was unsuccessful, and Porter later petitioned for post-conviction relief. Among Porter's claims was that he received ineffective assistance of trial counsel due to misinformation about the effect of a particular plea deal the State offered. The plea deal would have capped Porter's aggregate sentence at a total of sixty years. Porter prevailed in establishing ineffective assistance of trial counsel in connection with that plea deal. On May 9, 2025, the post-conviction court granted Porter relief, ordering that Porter “be resentenced on [the] Class A felony plus a Habitual Offender finding with a cap of 60 years.” Appellant's App. Vol. II p. 68. The court scheduled a sentencing hearing and ordered that the trial court “refer to the original PSI in fashioning the new sentence” unless Porter sought a new PSI. Id. The sentencing hearing was held in June 2025.

[5] At the sentencing hearing, the parties agreed that, under the applicable statutes, Porter faced a minimum aggregate sentence of fifty years and that, under the post-conviction order, he faced a maximum aggregate sentence of sixty years. The hearing included testimony from Porter's older sister about his traumatic childhood. The parties referred to the original PSI as well as a conduct report from the DOC. There was also an exhibit reflecting that Porter completed programs and obtained certifications while he was incarcerated in the DOC.

[6] Porter made a statement in allocution. He apologized to his family for “the financial burdens that [the family] had to have incurred since [he had been] locked up.” Tr. Vol. 2 p. 25. He also “apologize[d] to the Courts.” Id. Porter expressed remorse for causing pain to others, stating: “I understand as a man like the hurt that I have caused people. And the pain I have caused people. Not just my family or not just, you know victims. People.” Id. at 26. Porter said: “[A]s I've been in prison, I've been able to grow through programs.” Id. Porter pointed out that he completed his GED and completed programming related to job training. He acknowledged having “write-ups in [the] DOC,” id., but argued that he ultimately “d[id not] have a lot of write-ups,” id. at 27.

[7] The State sought an aggregate sentence of sixty years. The State referred to Porter's statement in allocution, asserting that Porter apologized to his family and the court “but there's nothing that suggests that he feels bad about the impact that he's had on the victim or on the victim's family.” Id. at 28. The State argued that Porter took advantage of a position of trust in molesting T.M. It also emphasized that Porter had a substantial criminal history. Porter—who was thirty-seven at the time of the initial sentencing hearing—had been adjudicated a delinquent child on six occasions, and he committed felony and misdemeanor offenses as an adult. As an adult in 1994, Porter was convicted of Class B felony burglary with a deadly weapon, and his probation was later revoked in that case. In 1995, 1997, and again in 2005, Porter was convicted of Class A misdemeanor resisting law enforcement. In 1997, Porter was convicted of Class D felony battery resulting in bodily injury, and his probation was revoked in that case as well. In 2005, Porter was convicted of Class D felony criminal recklessness while armed with a deadly weapon. His probation was later revoked. In 2009, Porter was convicted of Class A misdemeanor battery resulting in bodily injury, and his probation was again revoked. Porter scored in the moderate-low risk category to commit another sex offense while scoring in the high-risk category overall to reoffend.

[8] Porter asked the trial court to impose a fifty-five-year sentence where five years would be suspended. Counsel acknowledged that Porter had a criminal history and that he “ha[d] some write-ups in the DOC” while incarcerated for the present case. Id. at 24. However, counsel argued that “overall his DOC conduct ha[d] not been bad.” Id. Counsel pointed out that Porter “doesn't have any prior sex offenses.” Id. at 23. Counsel also argued that Porter had a difficult childhood but has “a very supportive family.” Id. at 24. As to Porter's statement in allocution, counsel said: “As far as my client not expressing remorse for the offense, he does still have a right to maintain his innocence.” Id. at 30.

[9] In pronouncing Porter's sentence, the trial court noted that Porter's criminal history was an aggravator. It also agreed with the State “about the position of trust that [Porter] took advantage of” in that “[T.M.’s] mother was going to jail and [Porter] w[as] the one who took control of her.” Id. at 31. The trial court found that Porter's childhood was “one mitigator,” but observed that “the likelihood to reoffend is there.” Id. The court ultimately determined that the case was “in the advisory zone” such that, “with [Porter's] criminal history” and “the taking advantage of the trust,” it was imposing the advisory sentence of thirty years on the Class A felony with a thirty-year enhancement, resulting in an aggregate sentence of sixty years in the DOC. Id. Porter now appeals.

Discussion and Decision

[10] Porter seeks appellate revision of his sentence, claiming the trial court imposed an inappropriate sentence. Under Appellate Rule 7(B), we “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.” “Reviewing courts ‘must consider’ ” both the nature of the offense and the character of the offender, but “the defendant need not ‘necessarily prove’ that the sentence is inappropriate on both counts.” Lane v. State, 232 N.E.3d 119, 126 (Ind. 2024) (emphasis removed) (quoting Connor v. State, 58 N.E.3d 215, 219 (Ind. Ct. App. 2016)). Rather, the nature of the offense and the character of the offender are separate inquiries that we balance in deciding whether a sentence is inappropriate. Id.

[11] Our review under Appellate Rule 7(B) focuses on “the forest—the aggregate sentence—rather than the trees—consecutive or concurrent, number of counts, or length of the sentence on any individual count.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). Our goal is to determine whether the sentence is inappropriate, not whether some other sentence would be more appropriate. Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012). In conducting our review, we defer to the trial court's sentencing decision. Id. “Such deference should prevail unless overcome by compelling evidence portraying in a positive light the nature of the offense (such as accompanied by restraint, regard, and lack of brutality) and the defendant's character (such as substantial virtuous traits or persistent examples of good character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015). In the end, “[t]he burden is on the defendant to persuade the appellate court that his sentence is inappropriate.” Conley, 972 N.E.2d at 876.

[12] “[T]he advisory sentence is the starting point the legislature has selected as an appropriate sentence for the crime committed.” Dean v. State, 222 N.E.3d 976, 990 (Ind. Ct. App. 2023), trans. denied. Here, Porter committed Class A felony child molesting and was found to be a habitual offender. The sentencing range for the Class A felony is twenty to fifty years, with an advisory sentence of thirty years. Ind. Code § 35-50-2-4(a). The habitual offender enhancement statute provides that the court “shall sentence a person found to be a habitual offender to an additional fixed term that is not less than the advisory sentence for the underlying offense nor more than three (3) times the advisory sentence for the underlying offense.” I.C. § 35-50-2-8(h) (2005). But the enhancement is capped so that “the additional sentence may not exceed thirty (30) years.” Id.

[13] For the Class A felony, the trial court imposed the advisory sentence of thirty years. Because the advisory sentence was thirty years, the court was obligated to impose an additional fixed term of no less than thirty years for the sentence enhancement. Here, the trial court imposed thirty years, which was the minimum allowed under the statute.⁴ This resulted in an aggregate sentence of sixty years in the DOC. “A defendant who receives an advisory sentence has a particularly heavy burden to prove it inappropriate under Appellate Rule 7(B).” Kincaid v. State, 171 N.E.3d 1036, 1042 (Ind. Ct. App. 2021), trans. denied.

[14] On appeal, Porter asks us to revise his sentence to the minimum of fifty years, claiming the offense “was an isolated incident, involved minimal planning, and was of short duration.” Appellant's Br. p. 12. Porter notes that he “didn't use a weapon” and asserts that “T.M. did not have a particularly close relationship with [him].” Id. Porter also argues that he used his time productively in the DOC, “his prior offenses are not like the current offense,” and a risk-assessment tool did not place him at a high risk of committing another sex offense. Id.

[15] “The nature of the offense is found in the details and circumstances of the commission of the offense and the defendant's participation.” Zavala v. State, 138 N.E.3d 291, 301 (Ind. Ct. App. 2019) (quoting Perry v. State, 78 N.E.3d 1, 13 (Ind. Ct. App. 2017)), trans. denied. In this case, Porter deliberately separated T.H. from her older brother during a stressful situation—while her mother was being arrested—and then he molested her. There is nothing compelling about the nature of the offense that warrants downward revision of Porter's sentence.

[16] Next, “[t]he character of the offender is found in what we learn of his life and conduct.” Merriweather v. State, 151 N.E.3d 1281, 1286 (Ind. Ct. App. 2020). “Included in that assessment is a review of an offender's criminal history.” Id. Moreover, in this case, Porter was resentenced following his successful petition for post-conviction relief. Under the circumstances, Porter was entitled to present evidence of his good behavior following the original sentencing date. See Ousley v. State, 807 N.E.2d 758, 761 (Ind. Ct. App. 2004). Thus, we may consider this type of evidence in our review under Appellate Rule 7(B). Cf. id.

[17] Although Porter faced challenges in his childhood, he had opportunities to reform his conduct through several contacts with the juvenile justice system. Porter continued to violate the law, amassing a substantial criminal history by the time he committed the instant offense. Further, his probation was revoked on previous occasions, reflecting an ongoing disregard for the court's authority. Although Porter has taken positive steps in the DOC, evidenced in certifications and achievements, the record ultimately reveals nothing compelling about his character that warrants disturbing the sentence imposed by the trial court.

[18] We, therefore, conclude that Porter did not meet his burden of persuading us that the trial court imposed an inappropriate sentence.

[19] Affirmed.

FOOTNOTES

1.   Ind. Code § 35-42-4-3 (2007).

2.   I.C. § 35-50-2-8 (2005).

3.   The record is unclear whether a judgment of conviction was entered as to Count III in 2012, nonetheless the sentencing order from the 2025 resentencing reflects that a conviction under Count III was “merged” into Count II. See Appellant's App. Vol. II p. 86. The proper procedure is to vacate the judgment of conviction under Count III. See, e.g., Perry v. State, 258 N.E.3d 1028, 1033 (Ind. Ct. App. 2025) (“When two convictions cannot stand under double jeopardy principles, the proper remedy is to vacate one conviction, rather than merge convictions.”), trans. denied.

4.   Given that the trial court imposed thirty years on the Class A felony, the thirty-year enhancement was also the maximum possible enhancement because Porter faced a maximum aggregate sentence of sixty years.

Foley, Judge.

Tavitas, C.J., and Weissmann, J., concur