MICHAEL R. JENT, Appellant-Petitioner,
STATE OF INDIANA, Appellee-Respondent
These opinions are not precedents and cannot be cited or relied upon unless used when establishing res judicata or collateral estoppel or in actions between the same party. Indiana Rules of Appellate Procedure 65(D).
APPEAL FROM THE ALLEN SUPERIOR COURT. The Honorable John F. Surbeck, Jr., Judge. Cause No. 02D04-0807-PC-72.
MICHAEL R. JENT, APPELLANT, Pro se, Pendleton, Indiana.
ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER, Attorney General of Indiana, RYAN D. JOHANNINGSMEIER, Deputy Attorney General, Indianapolis, Indiana.
KIRSCH, Judge. FRIEDLANDER, J., and BAILEY, J., concur.
MEMORANDUM DECISION - NOT FOR PUBLICATION
Michael R. Jent (" Jent" ) appeals from the denial of his petition for post-conviction relief from his convictions of six counts of child molesting, each as a Class A felony, one count of child molesting as a Class C felony, and one count of criminal confinement as a Class C felony, contending that his trial and appellate counsel were ineffective and that the post-conviction court erred by not granting him a new trial on the basis of alleged newly discovered evidence.
FACTS AND PROCEDURAL HISTORY
The facts supporting Jent's convictions were set forth in our memorandum opinion affirming his convictions in his direct appeal as follows:
On August 29, 2004, eight-year-old S.H. and her younger brother were walking home from a friend's house. As they walked, Jent drove up and asked S.H. if she wanted to see a picture of Jent's lost dog. When S.H. approached the car, Jent pulled her in and drove away. Jent drove S.H. to a house and once inside, Jent took her to a bedroom and undressed her.
Jent then performed cunnilingus on S.H. After putting lotion on his penis, Jent put his penis into S.H.'s anus, and then had sexual intercourse with S.H. Jent also placed his fingers in S.H.'s anus and vagina. Finally, Jent had S.H. fellate him and when she began crying, Jent threatened to kill her if she did not remain quiet. Eventually, Jent " squirted [a clear liquid] onto [S.H.'s] butt and . . . vagina," tr . at 132, dressed her, and dropped her off near her home.
A neck swab taken that night from S.H. was determined to contain DNA that matched Jent's. S.H. also subsequently identified a house owned by Jent as the place she was taken. A search of the house yielded further evidence, including a lotion bottle with Jent's fingerprint on it, and an enema bottle exhibiting a mixture of DNA from which Jent and S.H. could not be excluded as possible donors. In addition, serological testing of a shirt recovered from the house yielded a presumptive positive test for blood and a confirmatory test for seminal fluid. Two samples from the shirt underwent DNA testing. " Sample 8A2" demonstrated the presence of a mixture with a major and a minor profile. Jent was confirmed to be the source of the major profile and S.H. could not be excluded as a contributor to the minor profile. " Sample 8A1" demonstrated the presence of a mixture from which Jent and an unknown individual could not be excluded as possible contributors. S.H., however, was excluded as a possible contributor.
The State charged Jent with six counts of Class A felony child molesting, Class C [felony] child molesting, Class C felony criminal confinement, and alleged that he was an habitual offender. The jury found Jent guilty on all six counts of Class A felony child molesting, Class C felony child molesting, Class C felony criminal confinement and determined he was an habitual offender. The trial court sentenced him to an aggregate sentence of 238 years of incarceration.
Jent v. State, No. 02A03-0510-CR-512, slip op. at 2-3 (Ind.Ct.App. July 24, 2006), trans. denied .
On July 10, 2008, Jent filed his petition for post-conviction relief, which he later amended on November 10, 2008, and again later on February 25, 2009. On April 4, 2012, the State filed a motion to require Jent to submit his case by affidavit. On August 8, 2012, Jent filed his affidavit in support of his petition and moved to file an amended petition for post-conviction relief. Jent's grounds for post-conviction relief were alleged newly discovered evidence and ineffectiveness of trial and appellate counsel. The post-conviction court denied Jent's petition for post-conviction relief on April 19, 2013. Jent now appeals.
DISCUSSION AND DECISION
Because Jent appeals from the trial court's denial of his petition for post-conviction relief, he appeals from a negative judgment. See Fisher v. State, 878 N.E.2d 457, 463 (Ind.Ct.App. 2007), trans. denied (appeal from denial of post-conviction relief is appeal from a negative judgment). A petition must establish that the evidence as a whole unmistakably and unerringly leads to a conclusion contrary to that of the post-conviction court. Id. Upon review, we will disturb a post-conviction court's decision as being contrary to law only where we find that the evidence is without conflict and leads to but one conclusion, and the post-conviction court has reached the opposite conclusion. Wright v. State, 881 N.E.2d 1018, 1022 (Ind.Ct.App. 2008), trans. denied . The post-conviction court is the sole judge of the weight of the evidence and the credibility of witnesses. Lindsey v. State, 888 N.E.2d 319, 322 (Ind.Ct.App. 2008), trans. denied . On review, we accept the post-conviction court's findings of fact unless they are clearly erroneous, and no deference is given to its conclusions of law. Fisher, 878 N.E.2d at 463.
Post-conviction proceedings do not afford a petitioner for post-conviction relief the opportunity for a super appeal, but instead, provide the opportunity to raise issues that were unknown or unavailable at the time of the original trial or the direct appeal. Ben-Yisrayl v. State, 738 N.E.2d 253, 258 (Ind. 2000), cert. denied, 534 U.S. 1164, 122 S.Ct. 1178, 152 L.Ed.2d 120 (2002); Wieland v. State, 848 N.E.2d 679, 681 (Ind.Ct.App. 2007), trans. denied, cert. denied, 549 U.S. 1038, 127 S.Ct. 595, 166 L.Ed.2d 442 (2006). Post-conviction proceedings do not substitute for a direct appeal and provide only a narrow remedy for subsequent collateral challenges to convictions. Ben-Yisrayl, 738 N.E.2d at 258. The petitioner for post-conviction relief bears the burden of proving the grounds raised by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5).
Jent argues that the post-conviction court erred by denying his request for a new trial on the basis of alleged newly discovered evidence. Jent contends that he discovered after trial that he had genital herpes at the time that he molested S.H. He asserts that if he was the perpetrator, S.H. would have contracted genital herpes from him. In support of his argument Jent designated a report from the Indiana Department of Child Services, which he claims shows that S.H. had not contracted any sexually transmitted disease.
The Indiana Supreme Court has enunciated nine criteria for admission of newly discovered evidence.
[N]ew evidence will mandate a new trial only when the defendant demonstrates that: (1) the evidence has been discovered since the trial; (2) it is material and relevant; (3) it is not cumulative; (4) it is not merely impeaching; (5) it is not privileged or incompetent; (6) due diligence was used to discover it in time for trial; (7) the evidence is worthy of credit; (8) it can be produced upon a retrial of the case; and (9) it will probably produce a different result at retrial.
Taylor v. State, 840 N.E.2d 324, 329-30 (Ind. 2006) (citing Carter v. State, 738 N.E.2d 665, 671 (Ind. 2000)) (brackets in original). On appeal, the denial of a petition predicated on newly discovered evidence is considered a discretionary ruling and is reviewed deferentially. Fox v. State, 568 N.E.2d 1006, 1007 (Ind. 1991) (citing Hammers v. State, 502 N.E.2d 1339 (Ind. 1987)). Accordingly, we analyze the nine factors " 'with care, as the basis for newly discovered evidence should be received with great caution and the alleged new evidence carefully scrutinized.'" Taylor, 840 N.E.2d at 330 (quoting Carter, 738 N.E.2d at 671). " The burden of showing that ...