Kincaid v. State, 837 N.E.2d 1008 (Ind. 2005). · Go Syfert
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Kincaid v. State, 837 N.E.2d 1008 (Ind. 2005). Cases Citing This Book View Copy Cite
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cited 2× by 2 distinct cases, 2014–2023 · …a claim is not normally available for review on appeal unless first made at trial. at p. 1010 ✓
cited 2× by 2 distinct cases, 2007–2023 · 2 courts · …without insisting that the claim first be presented to the trial judge. at p. 1010 ✓
58 citation events (58 in the last 25 years) across 2 distinct courts.
Strongest positive: CHINS: A P v. Indiana Department of Child Services (indctapp, 2025-07-03)
Treatment trajectory · 2005 → 2026 · click a year to view as-of
2005 2015 2026
Top citers, strongest first. 20 distinct citers. How cited ↗
discussed Cited as authority (rule) CHINS: A P v. Indiana Department of Child Services
Ind. Ct. App. · 2025 · confidence medium
We liken the appeal of the dispositional requirements to an appeal of probation Court of Appeals of Indiana | Opinion 24A-JC-2557 | July 3, 2025 Page 10 of 17 conditions or a criminal sentence, “which we may review ‘without insisting that the claim first be presented to the trial judge.’” Piercefield v. State, 877 N.E.2d 1213, 1218 (Ind. Ct App. 2007) (quoting Kincaid v. State, 837 N.E.2d 1008, 1010 (Ind. 2005).
discussed Cited as authority (rule) Christopher D. Delgado v. State of Indiana
Ind. Ct. App. · 2024 · confidence medium
The Piercefield court concluded that an appeal of a probation condition is similar “to an appeal of a sentence, which we may review ‘without insisting that the claim first be presented to the trial judge,’” 877 N.E.2d at 1218 (quoting Kincaid v. State, 837 N.E.2d 1008, 1010 (Ind. 2005)), and further concluded that a defendant’s “signature on the probation terms does not serve as a waiver to challenge any terms on appeal,” id. [40] Like the panels in Meunier-Short and Bratcher, we agree with the logical reasoning of Piercefield and conclude that Delgado did not waive appellate rev…
cited Cited as authority (rule) Joseph Albert Oberhansley v. State of Indiana
Ind. · 2023 · confidence medium
It is an essential principle of appellate procedure that “a claim is not normally available for review on appeal unless first made at trial.” Kincaid v. State, 837 N.E.2d 1008, 1010 (Ind. 2005).
discussed Cited as authority (rule) Cynthia Bell v. State of Indiana (2×)
Ind. · 2016 · confidence medium
Discussion Before addressing whether the trial court abused its discretion in ordering restitution, we note as a threshold matter that Bell has not waived her ability to challenge the restitution order due to her failure to object to the order at the time it was entered. “[A]n order of restitution is as much a part of a criminal sentence as a fine or other penalty.” Miller v. State, 502 N.E.2d 92, 95 (Ind. 1986). “[T]his Court and the Court of Appeals review many claims of sentencing error (improper consideration of an aggravating circumstance, failure to consider a proper mitigating cir…
discussed Cited as authority (rule) Johnathan L. Bean v. State of Indiana (mem. dec.)
Ind. Ct. App. · 2016 · confidence medium
In so holding, we analogized “the appeal of [a] probation condition to Court of Appeals of Indiana | Memorandum Decision 30A01-1603-CR-641 | September 16, 2016 Page 4 of 9 an appeal of a sentence, which we may review ‘without insisting that the claim first be presented to the trial judge.’” Id. at 1218 (quoting Kincaid v. State, 837 N.E.2d 1008, 1010 (Ind. 2005)); accord Bratcher v. State, 999 N.E.2d 864, 873-74 (Ind. Ct. App. 2013), trans. denied.
discussed Cited as authority (rule) Mason W. Meunier-Short v. State of Indiana
Ind. Ct. App. · 2016 · confidence medium
In so holding, we analogized “the appeal of [a] probation condition to an appeal' of a sentence, which we may review “without insisting that the claim first be presented to the trial judge.’ ” Id. at 1218 (quoting Kincaid v. State, 837 N.E.2d 1008, 1010 (Ind.2005)); accord Bratcher v. State, 999 N.E.2d 864, 873-74 (Ind.Ct.App.2013), trans. denied.
discussed Cited as authority (rule) David Bleeke v. Bruce Lemmon, in his capacity as Commissioner of the Indiana Department of Correction Thor R. Miller, as Chairman of the Indiana Parole Board
Ind. · 2014 · confidence medium
But he did not present this claim to the trial court in either his complaint or his motion for summary judgment, and “a claim is not normally available for review on appeal unless first made at trial.” Kincaid v. State, 837 N.E.2d 1008, 1010 (Ind. 2005).
discussed Cited as authority (rule) Bleeke v. Lemmon
Ind. · 2014 · confidence medium
But he did not present this claim to the trial court in either his complaint or his motion for summary judgment, and "a claim is not normally available for review on appeal unless first made at trial.” Kincaid v. State, 837 N.E.2d 1008, 1010 (Ind.2005).
cited Cited as authority (rule) Anthony Scott Bratcher v. State of Indiana
Ind. Ct. App. · 2013 · confidence medium
Piercefield, 877 N.E.2d at 1218 (quoting Kincaid v. State, 837 N.E.2d 1008, 1010 (Ind.2005)).
discussed Cited as authority (rule) Gregory Foster v. State of Indiana
Ind. Ct. App. · 2012 · confidence medium
Likewise, we also note that it was not until November 9, 2005, that our supreme court specifically clarified in Kincaid v. State, 837 N.E.2d 1008, 1010 (Ind. 2005), that any appellant who filed his or her initial brief prior to Smylie and failed to raise a Blakely claim, but nonetheless challenged his or her sentence in some form, could raise a Blakely claim by way of amendment, petition for rehearing, or petition for transfer.
examined Cited as authority (rule) Kendall v. State (6×) also: Cited "see"
Ind. Ct. App. · 2008 · confidence medium
(The keys here are that (1) some sentencing claim must have been raised in the appellant's initial brief on direct appeal and (2) the appellant must have added a Blakely claim by amendment, on petition for rehearing, or on petition to transfer.) Kincaid v. State, 837 N.E.2d 1008, 1010 (Ind.2005) (internal citations and footnote omitted).
discussed Cited as authority (rule) Piercefield v. State
Ind. Ct. App. · 2007 · confidence medium
Instead, we liken the appeal of this probation condition to an appeal of a sentence, which we may review “without insisting that the claim first be presented to the trial judge.” Kincaid v. State, 837 N.E.2d 1008, 1010 (Ind.2005).
discussed Cited as authority (rule) Duncan v. State
Ind. · 2006 · confidence medium
Kincaid v. State, 837 N.E.2d 1008, 1010 (Ind.2005), explained that "[wJhile it is, of course, true that a claim is not normally available for review on appeal unless first made at trial, this Court and the Court of Appeals review many claims of sentencing error without insisting that the claim first be presented to the trial judge." We held that appellants filing a direct appeal after Smylie "must raise a particular sentencing claim in his or her initial brief on direct appeal in order to receive review on the merits." Id.
discussed Cited as authority (rule) Garland v. State
Ind. Ct. App. · 2006 · confidence medium
However, as Garland correctly notes, the State misses the more recent decisions from our supreme court in Mitchell v. State, 844 N.E.2d 88, 91 (Ind.2006), Kincaid v. State, 837 N.E.2d 1008, 1010 (Ind.2005), and Smylie v. State, 823 N.E.2d 679, 689-90 (Ind.2005), in which the court held that "the defendant need only raise a particular sentencing claim in his or her initial brief on direct appeal in order to receive review on the merits."" Mitchell, 844 N.E.2d at 91 .
discussed Cited as authority (rule) Mitchell v. State
Ind. · 2006 · confidence medium
We hold that Mitchell is entitled to raise the Blakely claim despite not having raised an objection at trial, and review its merits. 2 *91 Mitchell Can Raise Blakely Claim We recently noted that both this "Court and the Court of Appeals [review] many claims of sentencing error ... without insisting that the claim first be presented to the trial judge." Kincaid v. State, 837 N.E.2d 1008, 1010 (Ind.2005).
cited Cited as authority (rule) Whaley v. State
Ind. Ct. App. · 2006 · confidence medium
The Indiana Supreme Court recently rejected this argument in Kincaid v. State, 837 N.E.2d 1008, 1010 (Ind.2005). 11 .
cited Cited "see" Donald Thomas v. State of Indiana (mem. dec.)
Ind. Ct. App. · 2020 · signal: see · confidence high
See Kincaid, 837 N.E.2d at 1010 .
discussed Cited "see" Richard L. Boswell, Jr. v. State of Indiana (mem. dec.)
Ind. Ct. App. · 2016 · signal: see · confidence high
See Kincaid Court of Appeals of Indiana | Memorandum Decision 84A04-1505-CR-472 | September 14, 2016 Page 18 of 21 v. State, 837 N.E.2d 1008 (Ind. 2005) (holding that for cases in which appellant’s initial brief was filed after date of decision in Smylie v. State, 823 N.E.2d 679 (Ind. 2005), a specific Blakely claim must be made in appellant’s 6 initial brief on direct appeal for it to be reviewed on merits).
cited Cited "see" Larry Warren v. State of Indiana
Ind. Ct. App. · 2013 · signal: see · confidence high
See Kincaid v. State, 837 N.E.2d 1008, 1010 (Ind. 2005).
discussed Cited "see" Reed v. State
Ind. · 2006 · signal: see · confidence high
See Kincaid v. State, 837 N.E.2d 1008, 1010 (Ind.2005) (observing that "this Court and the Court of Appeals review many claims of sentencing error ... without insisting that the claim first be presented to the trial judge").
Retrieving the full opinion text from the archive…
Joseph KINCAID, Appellant (Defendant Below),
v.
STATE of Indiana, Appellee (Plaintiff Below)
20S04-0511-CR-611.
Indiana Supreme Court.
Nov 29, 2005.
837 N.E.2d 1008
2005 Ind. LEXIS 1080
2005 WL 3163541
Kenneth R. Martin, Goshen, for Appellant. > |, Steve Carter, Attorney General of Indiana, Michael Gene Worden, Deputy Attorney General, Indianapolis, for Appel-lee.
Sullivan, Shepard, Dickson, Boehm, Rucker.
Cited by 31 opinions  |  Published
SULLIVAN, Justice.

Joseph Kincaid was convicted of two counts of battery, both Class B felonies, for fracturing the skull of and causing other serious injuries to his infant son. He was sentenced to 20 years in prison, the maximum sentence. [1] Kincaid v. State, 831 N.E.2d 288, slip op. at 6 (Ind.Ct.App., June 21, 2005). His appeal raised multiple issues, including a claim that his sentence violated Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), a case decided by the Supreme Court two weeks before Kineaid's sentencing hearing. Kincaid, slip op. at 19-21. [2][*1010] The Court of Appeals held Kincaid's Blakely claim forfeited on appeal because Kincaid did not raise a Blakely objection at the sentencing hearing and thus did not preserve the issue for appeal. Id. at 21.

While it is, of course, true that a claim is not normally available for review on appeal unless first made at trial, this Court and the Court of Appeals review many claims of sentencing error (improper consideration of an aggravating cireum-stance, failure to consider a proper mitigating circumstance, inaccurate weighing of aggravating and mitigating circumstances, etc.) without insisting that the claim first be presented to the trial judge. On the other hand, an appellant in a criminal case must raise a particular sentencing claim in his or her initial brief on direct appeal in order to receive review on the merits.

'Kincaid raised a Blakely claim in his initial appellate brief and so met this requirement.

Although not directly applicable to this case, we observe that, for Blakely claims, we have relaxed the rule that a particular sentencing claim must be raised in an appellant's initial brief on direct appeal in order to receive review on the merits. Smylie v. State, 823 N.E.2d 679, 689-90 (Ind.2005). For cases in which the appellant's initial brief on direct appeal was filed prior to the date of the Smylie decision (March 9, 2005), an appellant who had contested his or her sentence in some respect in the appellant's initial brief on direct appeal is entitled to review on the merits of a subsequently-raised Blakely claim. (The keys here are that (1) some sentencing claim must have been raised in the appellant's initial brief on direct appeal [3] and (2) the appellant must have added a Blakely claim by amendment, on petition for rehearing, or on petition to transfer.) For cases in which the appellant's initial brief was filed after the date of the Smylie decision, a specific Blakely claim must be made in the appellant's initial brief on direct appeal for it to be reviewed on the merits.

As already noted, Kincaid's initial brief was filed after the date of the Blakely decision and, as required for it to be reviewed on the merits, a specific Blakely claim was made in his initial brief on direct appeal. We grant transfer, summarily affirm the decision of the Court of Appeals as to the issues discussed in Footnote 2, and remand this case to the Court of Appeals for consideration of and ruling on Kincaid's sentencing claims. See Footnote 2.

SHEPARD, C.J., and DICKSON, BOEHM, and RUCKER, JJ., concur.
1

. The trial court's sentencing order imposed concurrent sentences of 20 years on each count and "order[ed] that the convictions ... merge." Appellant's App. at 411. We infer that the trial court meant by this to enter judgment of conviction on both counts and sentence Kincaid to 20 years on each count, the two sentences to be served concurrently.

2

. The Court of Appeals rejected Kincaid's contentions that there had been insufficient evidence presented at trial to sustain his convictions and that the trial court had been wrong to refuse him permission to demonstrate how the child's injuries occurred. We summarily affirm the Court of Appeals as to these issues. Ind. Appellate Rule 58(A). Kin-caid also contended that the trial court considered improper or gave improper weight to aggravating circumstances, that the trial court failed to give proper weight to a mitigating circumstance, and that the sentence imposed was in-appropriate in light of the nature of the offense and the character of the[*1010] offender. We direct the Court of Appeals to reconsider these issues on remand in connection with the Blakely claim.

3

. See Aguilar v. State, 827 N.E.2d 31 (Ind.2005) (stating that the Blakely claim was not available because appellant failed to make any challenge to the sentence until after the Court of Appeals had issued a ruling on the merits); Nesbitt v. State, 827 N.E.2d 33 (Ind.2005) (stating that the Blakely claim was not available because appellant failed to make any ' challenge to the sentence whatsoever).