Kurt James Kemp, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2026)

MEMORANDUM DECISION

Case Summary

[1] Kurt James Kemp appeals the denial of his petition for post-conviction relief, arguing the court erred by (1) failing to hold an evidentiary hearing, (2) failing to make the requisite findings, and (3) concluding he did not receive ineffective assistance of counsel. We affirm.

Facts and Procedural History

[2] In July through October 2016, Kemp posted comments on a pornographic website, specifically on threads containing photographs of children under the age of eighteen with exposed genitals or breasts. Around this time, without his wife's knowledge or consent, Kemp took five photographs of her with her buttocks or genital area exposed and posted these photographs on the same website. In October 2016, Kemp was arrested and his electronic devices were seized. The State charged Kemp with seven counts of Level 5 felony child exploitation, twenty-nine counts of Level 6 felony possession of child pornography, and five counts of Level 6 felony voyeurism. Kemp later pled guilty as charged pursuant to a plea agreement, and the trial court sentenced him to eleven years in the Indiana Department of Correction. Kemp appealed, arguing his plea was not knowing and voluntary, and we affirmed. See Kemp v. State, 2018 WL 504878 (Ind. Ct. App. Jan. 23, 2018), trans. denied.

[3] In March 2025, Kemp filed a pro se motion for post-conviction relief, arguing in part that trial counsel was ineffective. In July, the State filed a motion to submit the case by affidavit under Indiana Post-Conviction Rule 1(9)(b), which the trial court granted over Kemp's objection. Following both parties’ submissions, the trial court issued an order denying Kemp's petition for post-conviction relief. Kemp now appeals.

Discussion and Decision

[4] The petitioner in a post-conviction proceeding must prove the grounds for relief by a preponderance of the evidence. Henley v. State, 881 N.E.2d 639, 643 (Ind. 2008). Kemp is appealing a negative judgment; therefore, he must show the evidence as a whole leads unerringly and unmistakably to a conclusion opposite that reached by the post-conviction court. Id. at 643-44. Although we do not defer to the post-conviction court's legal conclusions, “a post-conviction court's findings and judgment will be reversed only upon a showing of clear error—that which leaves us with a definite and firm conviction that a mistake has been made.” State v. Damron, 915 N.E.2d 189, 191 (Ind. Ct. App. 2009), reh'g denied, trans. denied.

I. Evidentiary Hearing

[5] Kemp argues the post-conviction court erred when it declined to hold an evidentiary hearing on his petition. The post-conviction court heard Kemp's petition on the merits but without an evidentiary hearing pursuant to Indiana Post-Conviction Rule 1(9)(b), which provides in part:

In the event petitioner elects to proceed pro se, the court at its discretion may order the cause submitted upon affidavit. It need not order the personal presence of the petitioner unless his presence is required for a full and fair determination of the issues raised at an evidentiary hearing.

This subsection “clearly and plainly provides that when a petitioner proceeds pro se, the [post-conviction] court has the discretion to order the cause submitted upon affidavit.” Smith v. State, 822 N.E.2d 193, 201 (Ind. Ct. App. 2005), trans. denied. Likewise, the decision whether to hold an evidentiary hearing for a full and fair determination of the issues raised by a post-conviction petitioner is “best left to the [post-conviction] court's discretion.” Id. Therefore, we review the post-conviction court's decision to forgo an evidentiary hearing when affidavits have been submitted under Rule 1(9)(b) for an abuse of discretion. Id. A post-conviction court exceeds its discretion “only where the decision is clearly against the logic and effect of the facts and circumstances.” Russell v. State, 234 N.E.3d 829, 858 (Ind. 2024) (quotation omitted).

[6] Kemp argues Rule 1(9)(b) “permits submission by affidavit only when no disputed material facts require credibility determinations.” Appellant's Br. p. 8. None of the authority he cites supports this assertion. Rather, our caselaw indicates it is Kemp's burden to demonstrate how he would have benefitted from an evidentiary hearing, such as identifying evidence he wished to present that he could not present through affidavit. Smith, 822 N.E.2d at 201. He has not done so. Kemp's argument, which consists of only two sentences, merely asserts that the “conflicting affidavits create[d] material disputes” of fact and thus a hearing was required. Appellant's Br. p. 8. Such “general assertions” are insufficient to meet this burden. Smith, 822 N.E.2d at 201. Because Kemp has failed to show how an evidentiary hearing would have aided him, we cannot say the post-conviction court abused its discretion in ordering the parties to proceed by affidavit and without an evidentiary hearing.

II. Findings of Fact

[7] Kemp also argues the post-conviction court failed to make the requisite findings under Post-Conviction Rule 1(6), which provides in part that the court “shall make specific findings of fact, and conclusions of law on all issues presented, whether or not a hearing is held.” Specifically, Kemp argues the post-conviction court failed to enter findings regarding trial counsel's alleged failure to obtain a forensic examination of the electronic devices seized by law enforcement. This is incorrect. The post-conviction court found trial counsel's “decisions regarding discovery, forensic testing, expert consultation, and pretrial motions were matters of reasonable professional judgment.” Appellant's App. Vol. II p. 77. This is a sufficient finding to comply with Rule 1(6).

III. Ineffective Assistance of Counsel

[8] Finally, Kemp contends the post-conviction court erred in finding his trial counsel was not ineffective. To prevail on a claim of ineffective assistance of counsel, he must show both that counsel's performance fell below an objective standard of reasonableness and that the deficient performance prejudiced him. Coleman v. State, 694 N.E.2d 269, 272 (Ind. 1998) (citing Strickland v. Washington, 466 U.S. 668 (1984)). There is a strong presumption counsel rendered adequate assistance. Id. “Evidence of isolated poor strategy, inexperience or bad tactics will not support a claim of ineffective assistance.” Id. at 273. “Counsel's performance is evaluated as a whole.” Lemond v. State, 878 N.E.2d 384, 391 (Ind. Ct. App. 2007), trans. denied. “The Strickland standard is not limited to the trial or appellate phases in criminal proceedings, but also applies when defendants allege ineffective assistance during the guilty plea phase.” Bobadilla v. State, 117 N.E.3d 1272, 1280 (Ind. 2019). In the context of a guilty plea, a defendant shows prejudice by demonstrating there is a “reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.” Id.

[9] Kemp alleges trial counsel was deficient in failing to obtain a digital forensics expert to examine the electronic devices seized. We first note Kemp alleges such an examination was “court-mandated,” but cites nothing in support, nor could we find any such mandate. Appellant's Br. p. 8. Notably, trial counsel stated in his affidavit that he chose not to engage a digital forensics expert because Kemp's defense theory was that his wife also used the devices and “set [Kemp] up” to “harm him and his relationship with his daughter.” Appellee's App. Vol. II p. 30. According to trial counsel, there was thus no need for a digital forensic analysis of the devices because the analysis would not have “advanced” Kemp's defense theory. Id. It is clear from this testimony that trial counsel's decision not to obtain a digital forensic analysis was a reasonable professional judgment rooted in trial strategy. See Hinesley v. State, 999 N.E.2d 975, 986 (Ind. Ct. App. 2013) (trial counsel's failure to obtain victim's medical report was not ineffective assistance where report's findings were not consistent with the defense's theory), trans. denied. Thus, Kemp has not shown trial counsel was deficient, and the post-conviction court did not err in concluding that counsel was not ineffective.

[10] Affirmed.

Scheele, Judge.

May, J., and Pyle, J., concur.