from the Madison Circuit Court The Honorable Thomas Newman,
Jr., Judge The Honorable Carl E. VanDorn, Special Judge Trial
Court Cause No. 48C03-1503-PC-2, 48D03-0709-FC-267
Appellant pro se Kyle Pavan Elwood, Indiana
Attorneys for Appellee Gregory F. Zoeller Attorney General of
Indiana James B. Martin Deputy Attorney General Indianapolis,
Kyle Pavan appeals from the denial of his petition for
post-conviction relief (PCR). On appeal, he asserts that the
post-conviction court erred in rejecting his claim of
ineffective assistance of trial counsel.
& Procedural History
On September 28, 2007, the State charged
twenty-three-year-old Pavan with class C felony incest for
engaging in consensual sexual intercourse with his
thirty-four-year-old biological aunt "[o]n or about
various and diverse times between November 1, 2006 and
January 31, 2007." Appellant's Appendix at
19. Pavan ultimately pled guilty and was sentenced to six
years, with two years executed on work release and the
remainder suspended to probation. On March 3, 2014,
Pavan's probation was revoked. On the same date, he filed
his pro se petition for post-conviction relief (PCR), in
which he raised a single issue-whether his trial counsel was
ineffective for failing to argue that his prosecution for
incest was barred by the applicable statute of limitations.
At a hearing On October 19, 2015, Pavan and the State argued
their respective positions with regard to the applicable
statute of limitations. Specifically, Pavan argued that
pursuant to Ind. Code § 35-41-4-2(e), prosecution for
the crime of incest is barred unless commenced before the
date the alleged victim reaches thirty-one years of age.
According to Pavan, his prosecution for incest was barred
because his aunt was thirty-four years of age at the time the
charges were filed. The State responded that I.C. §
35-41-4-2(e) was inapplicable and that the charges were filed
within the general five-year statute of limitations
applicable to class C felonies. Pavan and the State agreed
that the facts were not in dispute and that Pavan's claim
presented a pure question of statutory interpretation.
The parties subsequently submitted proposed findings of fact
and conclusions of law. Pavan's proposed findings
addressed not only the issue raised in his PCR petition and
at the October 19 hearing, but also a number of additional
issues that Pavan had not previously presented to the
post-conviction court. On November 16, 2015, the
post-conviction court issued its order denying Pavan's
PCR petition. The order addressed only Pavan's claim that
his trial counsel was ineffective for failing to raise the
statute-of-limitations defense before the trial court.
Specifically, the post-conviction court concluded that that
the five-year statute of limitations for class C felonies
applied and that the charges were filed well within that
limitations period. Accordingly, the post-conviction court
concluded that trial counsel was not ineffective for failing
to argue at trial that the statute of limitations had expired
because any such argument was without merit. Pavan now
In a post-conviction proceeding, the petitioner bears the
burden of establishing grounds for relief by a preponderance
of the evidence. Bethea v. State, 983 N.E.2d 1134,
1138 (Ind. 2013). "When appealing the denial of
post-conviction relief, the petitioner stands in the position
of one appealing from a negative judgment." Id.
(quoting Fisher v. State, 810 N.E.2d 674, 679 (Ind.
2004)). In order to prevail, the petitioner must demonstrate
that the evidence as a whole leads unerringly and
unmistakably to a conclusion opposite the post-conviction
court's conclusion. Id. Although we do not defer
to a post-conviction court's legal conclusions, we will
reverse its findings and judgment only upon a showing of
clear error, i.e., "that which leaves us with a definite
and firm conviction that a mistake has been made."
Id. (quoting Ben-Yisrayl v. State, 729
N.E.2d 102, 106 (Ind. 2000)).
As an initial matter, we note that Pavan raises a number of
issues in his appellate brief that he did not raise in his
PCR petition or otherwise properly present to the
post-conviction court. It is well settled that issues not
raised in a PCR petition may not be raised for the first time
on appeal. McKnight v. State, 1 N.E.3d 193, 202 n.3
(Ind.Ct.App. 2013). Pavan's pro se status does not excuse
his failure to properly preserve these issues for appeal.
See Smith v. State, 38 N.E.3d 218, 220 (Ind.Ct.App.
2015) (explaining that pro se litigants are held to the same
standard as trained counsel and are required to follow
procedural rules). Accordingly, these ...