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Pavan v. State

Court of Appeals of Indiana

November 17, 2016

Kyle Pavan, Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff.

         Appeal 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, Indiana

          Altice, Judge.

         Case Summary

         [¶1] 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.

         [¶2] We affirm.

         Facts & Procedural History

         [¶3] 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two years executed on work release and the remainder suspended to probation.[1] On March 3, 2014, Pavan's probation was revoked.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.

         [¶4] 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.

         [¶5] 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 appeals.

         Discussion & Decision

         [¶6] 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)).

         [¶7] 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 ...


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