Timothy D. Kidd, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2026)

MEMORANDUM DECISION

Case Summary

[1] In November 2025, a jury found Timothy D. Kidd guilty of Level 5 felony possession of methamphetamine. Kidd then pled guilty to an enhancing circumstance based on a prior conviction, elevating his conviction to a Level 4 felony. Kidd appeals his conviction, alleging his prior conviction was not an enhancing circumstance because it was not substantially similar to the instant offense. He also alleges his sentence is inappropriate. Finding that Kidd cannot challenge his conviction on direct appeal and that his sentence is not inappropriate, we affirm.

Facts and Procedural History

[2] On the night of December 11, 2023, Switzerland County Sheriff's deputies were dispatched to Kidd's residence on a report of a domestic disturbance. While en route to the house, deputies learned that Kidd had an active arrest warrant.¹ Kidd exited the home when deputies arrived, and he was arrested. A deputy searched Kidd and recovered a plastic bag containing 5.74 grams of methamphetamine from Kidd's pants pocket.

[3] After being transported to the police station, Kidd consented to an interview. Kidd told an officer that he was holding the methamphetamine for another person. Kidd also provided the names of several other people in the area who allegedly sold or were involved with illegal drugs. Later, while he was in jail, Kidd stated in a phone call that he planned to sell the 5.74 grams of methamphetamine to “make some money[.]” Tr. Vol. II p. 92.

[4] The State charged Kidd with multiple counts of possession of methamphetamine and dealing in methamphetamine. After several amendments, Kidd's case proceeded to trial on the following charges: Level 2 and Level 3 felony dealing in methamphetamine and Level 4 and Level 5 felony possession of methamphetamine. A jury found Kidd guilty of one count of Level 5 felony possession of methamphetamine.

[5] The trial court and parties then discussed a second phase of the trial regarding the State's allegation that there was an enhancing circumstance based on Kidd's “prior conviction for dealing controlled substances” in Ohio in 2010, which would elevate his current conviction to a Level 4 felony. App. Vol. II p. 23. Kidd's attorney made a motion to deny the State's ability to go forward on the enhancement element. He argued the Ohio offense was not substantially similar because the Indiana charge required possession but “the Ohio statute does not require possession[.]” Tr. Vol. II p. 158. In other words, he argued the Ohio trafficking conviction required a person to knowingly “sell or offer to sell a controlled substance” but did not require possession. Id.

[6] The State argued that the Ohio conviction was substantially similar. It offered documents for the court's preliminary consideration, but the court did not admit those documents into evidence. After reviewing the statute, the trial court ultimately found the Ohio conviction was substantially similar and denied Kidd's motion.

[7] Kidd's attorney then said he wanted “to preserve this issue for an appeal[.]” Id. at 162. He elaborated, stating,

What I not [sic] want to do is enter into an admission to this and have waived my right to an appeal, I do not believe I am doing so because I made this argument and the court has made a ruling, and the [sic] moving forward from this point would be a factual issue not a legal issue[.]

Id. The trial court asked counsel if his client was trying to admit the facts and preserve the right to appeal the issue of substantial similarity, to which Kidd's counsel responded affirmatively. The State then said, “You[‘re] essentially try[ing] to plead without surrendering an [appeal] right[?]” Id. Kidd's counsel again said that he was trying to do so, and the State said it “would agree to that[.]” Id. Kidd then asserted he wanted to “enter an admission to the existence of the prior conviction as charged” but preserve his right to appeal the legal issue. Id.

[8] The trial court swore Kidd in for the purpose of admitting what was in the charging information. The court asked, “[You're] willing to admit to and plead guilty to the possession of methamphetamine as a Level 4 as long as you and your lawyer have to retain the right to appeal the court's ruling on that similarity issue is that correct?” Id. at 164. Kidd responded, “Yes your Honor[.]” Id. The court proceeded and asked, “So how do you plead then to the charge of methamphetamine as a Level 4 felony guilty or not guilty?” Id. Kidd said, “[G]uilty[.]” Id. Then the court asked, “[I]s it true that you also have a previous conviction[ ] in Clermont [C]ounty Ohio in approximately 2010 for trafficking is that a true statement?” Id. And Kidd responded, “Yes your Honor[.]” Id. The court accepted Kidd's guilty plea and entered judgment of conviction for Level 4 felony possession of methamphetamine.

[9] The probation department completed a presentence investigation (PSI) report, which revealed that Kidd had seven misdemeanor and ten felony convictions. Several of his convictions were substance-related, including misdemeanor drug abuse, felony aggravated trafficking in drugs, felony trafficking in heroin, and felony possession of heroin. Kidd had also previously violated probation and was on probation when he committed the instant offense. And he had pending charges in Indiana, Ohio, and Kentucky when he was arrested in this case.

[10] At sentencing, the court found several mitigating circumstances including that Kidd recently admitted he had a substance abuse problem, that he was engaging in treatment programs while in jail, and that his incarceration would place a hardship on his children. The trial court considered several aggravating circumstances, including that Kidd had an extensive criminal history and prior probation violations, that he was on probation and had pending charges when he was arrested in this case, and that he had methamphetamine in his house where his children resided. The court determined the aggravators outweighed the mitigators and sentenced Kidd to ten years executed in the Indiana Department of Correction. However, the court ordered that Kidd could petition to modify his sentence if he was successful in a “recovery while incarcerated” program. Tr. Vol. V p. 26. This appeal ensued.

Discussion and Decision

I. Enhancing Circumstances

[11] Kidd challenges whether the Ohio conviction that was asserted as an enhancing circumstance to elevate his conviction to a Level 4 felony was substantially similar to the instant offense. The State argues that Kidd may not challenge the validity of his conviction following his guilty plea. We agree with the State.

[12] Kidd pled guilty to Level 4 felony possession of methamphetamine in open court, without a written plea agreement. Contemporaneously, Kidd admitted he had a prior conviction from Ohio for trafficking. Kidd's admission to this enhancing circumstance is itself equivalent to a guilty plea. See Stanley v. State, 849 N.E.2d 626, 630 (Ind. Ct. App. 2006) (habitual offender status calls for an enhancement of a sentence, and a defendant's admission to being a habitual offender is the equivalent of a guilty plea); see also Lumbley v. State, 74 N.E.3d 234, 238 (Ind. Ct. App. 2017) (defendant could not challenge the factual basis for a firearm enhancement on direct appeal from a guilty plea), trans. denied.

[13] “One consequence of pleading guilty is restriction of the ability to challenge the conviction on direct appeal.” Tumulty v. State, 666 N.E.2d 394, 395 (Ind. 1996). A defendant may challenge on direct appeal the trial court's denial of a motion to withdraw the guilty plea or a trial court's sentencing decision.² Hoskins v. State, 143 N.E.3d 358, 360-61 (Ind. Ct. App. 2020). But a defendant's challenge to the validity of a guilty plea must be brought in a petition for post-conviction relief. Id. at 361.

[14] By admitting that he had a prior conviction for trafficking and pleading guilty to his possession conviction as a Level 4 felony, Kidd assented to all the elements of the enhanced charge, thereby relieving the State of the need to prove that his prior conviction was substantially similar. See Stanley, 849 N.E.2d at 630 (by admitting to being a habitual offender, a defendant assented to all elements of his habitual offender charge, “relieving the State of proving that the predicate offenses were unrelated”). Because Kidd's argument concerns the enhancement determination, not the sentence imposed upon that determination, it is not properly before us, and we cannot resolve it on its merits.³ We thus affirm his conviction.  ⁴

II. Inappropriate Sentence

[15] Kidd separately challenges his ten-year sentence as inappropriate. Indiana Appellate Rule 7(B) permits an 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 give “considerable deference” to the trial court's sentencing decision and attempt only to “leaven the outliers” rather than achieve the “perceived ‘correct’ result” in every case. Lane v. State, 232 N.E.3d 119, 122 (Ind. 2024) (quoting Cardwell v. State, 895 N.E.2d 1219, 1222, 1225 (Ind. 2008)).

Indiana Appellate Rule 7(B) is a rare avenue for appellate relief that is reserved for exceptional cases. Even with Rule 7(B), sentencing is principally a discretionary function in which the trial court's judgment should receive considerable deference. 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). Absent such a sufficiently compelling evidentiary basis, we will not override the decision of ․ the trial court.

Sorenson v. State, 133 N.E.3d 717, 728 (Ind. Ct. App. 2019) (citations, quotations, and brackets omitted), trans. denied.

[16] For his Level 4 felony conviction, Kidd faced between two and twelve years, with an advisory sentence of six years. Ind. Code § 35-50-2-5.5 (2014). Here, the court imposed an aggravated sentence of ten years, still two years less than the maximum Kidd could have received.

[17] As to the nature of the offense, Kidd points to evidence that he was cooperative with law enforcement during and after his arrest and that he did not exceed the statutory elements of the offense. It is true that Kidd possessed 5.74 grams of methamphetamine and that the statutory threshold was at least five but less than ten grams where an enhancing circumstance applies. See Ind. Code § 35-48-4-6.1(c) (2014). However, the trial court noted in sentencing that Kidd “was on active probation” at the time of this offense and that he had “methamphetamine ․ in a place where multiple children resided in the home[.]” Tr. Vol. V p. 25. The court also considered the nature of Kidd's enhancing circumstance in that Kidd was a “twice convicted drug dealer in the state of Ohio[.]” Id. Kidd has failed to provide evidence portraying any of these circumstances in a positive light.

[18] Regarding his character, Kidd asserts that he has minor children at home who rely upon him and that he was remorseful for his conduct. He also urges us to consider his engagement in substance abuse treatment while he was incarcerated and awaiting trial for the instant offense. While these characteristics are commendable, his history demonstrates that he has a persistent and unaddressed involvement with illegal drugs. Kidd told the trial court that his substance use started when he was ten years old and has since included abuse of marijuana, cocaine, crank, heroin, and methamphetamine. He has several prior drug-related convictions and had “never” admitted he had a problem with addiction until he was incarcerated for this offense. Id. at 12. Kidd's lengthy history of substance abuse and prior unwillingness to address the issue does not reflect positively on his character. See Vega v. State, 119 N.E.3d 193, 204 (Ind. Ct. App. 2019) (holding that a long history of substance use reflected poorly on a defendant's character).

[19] In addition, Kidd, who was forty-four at the time of sentencing, has an extensive criminal history, spanning over twenty-five years and consisting of seven misdemeanors and ten felonies. He was also on probation and had pending charges in Ohio, Kentucky, and Indiana when he committed the current offense. Kidd's history shows he has not been deterred by his prior convictions or incarcerations and reflects poorly on his character. See Horns v. State, 218 N.E.3d 591, 596 (Ind. Ct. App. 2023), trans. denied.

[20] Kidd has failed to present such compelling evidence to persuade us that his sentence is inappropriate under Appellate Rule 7(B). Thus, we affirm his sentence.

[21] Affirmed.

FOOTNOTES

1.   Pursuant to an order in limine, evidence regarding the alleged domestic disturbance and Kidd's active warrant was excluded from his trial for the instant offense.

2.   However, a defendant may waive his right to a direct appeal of a court's sentencing decision in some circumstances. For example, if the plea agreement provides that a defendant agrees to waive his right to appeal a sentence that is within the agreement's terms, he may not appeal a compliant sentence for being inappropriate under Indiana Appellate Rule 7(B). See Pratcher v. State, 273 N.E.3d 824 (Ind. 2026) (Rush, C.J., respecting denial of transfer) (Massa, Slaughter, Goff, and Molter, JJ., joining).

3.   Kidd does not address his attempt to preserve this issue for appeal in his brief, and he did not file a reply brief responding to the State's contention that he cannot challenge the validity of his plea on direct appeal. But, before the trial court, Kidd attempted to preserve his issue for appeal by arguing that it was a legal issue and not a factual one. His attempt to preserve the issue by characterizing it in this manner would not overcome the prohibition against challenging his conviction on direct appeal following a guilty plea. See, e.g., Alvey v. State, 911 N.E.2d 1248 (Ind. 2009) (holding “a defendant cannot challenge the trial court's ruling on a motion to suppress following a guilty plea, including [in] those cases where the defendant reserved the right in his or her plea agreement” to do so).

4.   We feel compelled to address the consequences of the advisement given to Kidd in this case. “Attorneys [ ] have a role in ensuring appeal-waiver provisions are clear and defendants are accurately advised.” Pratcher, 273 N.E.3d at 825. Given the stakes in preserving issues with finality and certainty, the State should draft appeal-waiver provisions unambiguously, and defense counsel should confirm the provisions are clear and that the client understands their rights. Id. “And counsel for both sides should respectfully intervene during a guilty plea hearing to correct any confusing or incorrect statements by a judge.” Id. The risks of circumventing this process and attempting to craft preservation provisions in open court are demonstrated here and result in unintended consequences. See also, e.g., Davis v. State, 217 N.E.3d 1229, 1236 (Ind. 2023) (Defendant waived right to appeal his sentence in written plea agreement, despite the trial judge's misstatements); Alvey, 911 N.E.3d 1248. As Chief Justice Rush recently stated, “[t]ogether, the bench and bar can ensure that defendants are properly advised so that plea agreements achieve their intended finality. Pratcher, 273 N.E.3d at 825. We remind the bench and bar to exercise caution to avoid this recurring problem.

Scheele, Judge.

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