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FOR PUBLICATION

ATTORNEYS FOR APPELLANT: SUSAN K. CARPENTER Public Defender of Indiana ANNE-MARIE ALWARD Special Assistant to the State Public Defender Indianapolis, Indiana

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana KARL M. SCHARNBERG Deputy Attorney General Indianapolis, Indiana

FILED
of the supreme court, court of appeals and tax court

Nov 15 2010, 9:54 am

IN THE COURT OF APPEALS OF INDIANA
DONALD G. KISTLER, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

CLERK

No. 35A04-1004-PC-245

APPEAL FROM THE HUNTINGTON CIRCUIT COURT The Honorable Thomas M. Hakes, Judge Cause No. 35C01-0705-PC-1

November 15, 2010

OPINION - FOR PUBLICATION
BROWN, Judge

Donald Kistler appeals the post-conviction court's denial of his petition for postconviction relief. Kistler raises two issues, which we revise and consolidate as whether the post-conviction court erred in denying Kistler's petition for relief. We affirm. The relevant facts as discussed in Kistler's direct appeal follow: Sometime in late 2003, Kistler was visiting the home of a friend who had two daughters. The older daughter, N.M., was less than fourteen years old at the time. Kistler went into N.M.'s room, where N.M. was playing with dolls, and closed the door. Kistler sat down beside N.M. and, through her clothing, fondled her chest and vagina. He then instructed N.M. not to tell anyone what had happened. Early in the morning on March 16, 2005, Kistler was again visiting the same friend's house. He went in where N.M.'s younger sister, C.M., was lying down. Kistler lay down and got under the blanket that was covering ten-year-old C.M. Once under the blanket, Kistler placed his hand inside C.M.'s pajama bottoms and underwear and fondled her buttocks and vagina. He also inserted his finger into her anus. Both N.M. and C.M. had previously been molested by their biological father, a fact that was known to Kistler. Kistler v. State, No. 35A02-0602-CR-132, slip op. at 2-3 (Ind. Ct. App. Nov. 28, 2006), trans. denied. On March 29, 2005, the State charged Kistler with child molesting as a class A felony and child molesting as a class C felony. Id. at 3. The State also alleged that Kistler was an habitual offender. Id. The information for the habitual offender charge alleged that Kistler had accumulated at least two prior unrelated convictions: (1) operating a vehicle while a habitual traffic violator as a class D felony; and (2) operating while intoxicated as a class D felony. On November 1, 2005, Kistler and the State entered into a plea agreement whereby Kistler agreed to plead guilty to child molesting as 2

a class B felony and child molesting as a class C felony and in exchange the State agreed to dismiss the habitual offender allegation and to reduce the class A felony count to a class B felony. Id. Pursuant to the agreement, sentencing was left to the trial court's discretion. Id. The court found the following aggravating factors: (1) there were multiple victims of the crimes; (2) Kistler had a prior criminal history of great length including two prior unrelated felony convictions and five unrelated misdemeanor convictions, "two of which had victim impact." Sentencing Hearing Transcript at 50. The court noted that Kistler "was aware of

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