Kenneth Allen Welches v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: June 30, 2020
• Docket: 19A-PC-2361
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jun 30 2020, 8:34 am

court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case.

APPELLANT, PRO SE ATTORNEYS FOR APPELLEE Kenneth Allen Welches Curtis T. Hill, Jr. New Castle, Indiana Attorney General of Indiana Tyler G. Banks Supervising Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Kenneth Allen Welches, June 30, 2020 Appellant-Petitioner, Court of Appeals Case No. 19A-PC-2361 v. Appeal from the St. Joseph Superior Court State of Indiana, The Honorable Elizabeth C. Appellee-Respondent. Hurley, Judge Trial Court Cause No. 71D08-1709-PC-35

Pyle, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-PC-2361 | June 30, 2020 Page 1 of 5 Statement of the Case

[1] Kenneth Welches (“Welches”), pro se, appeals the post-conviction court’s

denial of his petition for post-conviction relief. In his post-conviction petition,

Welches argued that the trial court abused its discretion when it excluded

evidence and that the State and trial court made improper comments regarding

the burden of proof during voir dire. Concluding that Welches’ arguments on

appeal are waived because the issues were known and available, but not raised

on direct appeal, we affirm the post-conviction court’s judgment.

[2] We affirm.

Issue

Whether Welches’ post-conviction free-standing claims are waived.

Facts

[3] In January 2013, the State charged Welches with two counts of Class C felony

child molesting, based on the molestation of his granddaughter. In October

2015, a jury found Welches guilty as charged. At the ensuing sentencing

hearing, the trial court imposed two consecutive eight (8) year sentences.

Thereafter, on direct appeal, Welches presented three issues: (1) whether the

trial court abused its discretion when it denied Welches’ motion to have a

seated juror switched to an alternate juror position; (2) whether the trial court

abused its discretion in admitting into evidence two photographs of the victim;

Court of Appeals of Indiana | Memorandum Decision 19A-PC-2361 | June 30, 2020 Page 2 of 5 and (3) whether there was sufficient evidence to support his conviction. Welches

v. State, No. 71A05-1512-CR-2249, slip op. at 1 (Ind. Ct. App. Sept. 13, 2016).

This Court affirmed Welches’ convictions.

[4] In September 2017, Welches filed a pro se petition for post-conviction relief,

which was amended in February 2018 and again in June 2018. In his amended

petition, Welches argued that he was denied: (1) effective assistance of counsel,

claiming that his trial counsel “failed to investigate the Petitioner’s defense and

present evidence that supported that defense at trial[;]” and (2) a fair trial before

a fair and unbiased judge and jury, claiming that the State and trial court

“embellished” the definition of beyond a reasonable doubt. (App. Vol. 2 at 59,

69). At the ensuing evidentiary hearing, the post-conviction court informed

Welches that his sole witness, who had served as his trial and appellate

attorney, was unavailable. The trial court suggested, and Welches agreed, that

instead of rescheduling the evidentiary hearing, that Welches forego the hearing

and proceed by affidavit.

[5] In December 2018, Welches filed an affidavit in support of his petition.

Thereafter, the State submitted proposed findings of fact and conclusions of

law. In August 2019, the post-conviction court issued its findings of fact and

conclusions thereon denying Welches’ petition for post-conviction relief.

Welches now appeals.

Decision

Court of Appeals of Indiana | Memorandum Decision 19A-PC-2361 | June 30, 2020 Page 3 of 5 [6] Initially, we note that Welches proceeds pro se. It is well-settled that pro se

litigants are held to the same legal standards as licensed attorneys. Evans v.

State, 809 N.E.2d 338, 344 (Ind. Ct. App. 2004), trans. denied. Thus, pro se

litigants are bound to follow the established rules of procedure and must be

prepared to accept the consequences of their failure to do so. Id. We now turn

to the merits of Welches’ argument that the post-conviction court erred in

denying his petition.

[7] Post-conviction proceedings do not grant a petitioner a “super-appeal” but are

limited to those issues available under the Indiana Post-Conviction Rules.

Timberlake v. State, 753 N.E.2d 591, 597 (Ind. 2001) (citing Ind. Post-Conviction

Rule 1(1)). “If an issue was known and available, but not raised on direct

appeal, it is waived.” Id.

[8] Here, Welches raises two issues that are not properly before our Court in a post-

conviction proceeding. Welches argues that the trial court abused its discretion

by excluding evidence and that the State and trial court made improper

comments regarding the burden of proof made during voir dire. These claims,

however, were available, but not raised on direct appeal. Accordingly, we will

not address these arguments as freestanding claims. See Conner v. State, 829

N.E.2d 21, 26 (Ind. 2005) (holding that the petitioner’s post-conviction claim

“of trial court bias was not raised at trial or in [the petitioner’s] earlier appeal,

and [was] therefore procedurally defaulted”). As such, Welches’ claims are

barred by waiver. The post-conviction court did not err in denying Welches’

petition.

Court of Appeals of Indiana | Memorandum Decision 19A-PC-2361 | June 30, 2020 Page 4 of 5 [9] Affirmed.

Bradford, C.J., and Baker, J., concur.

Court of Appeals of Indiana | Memorandum Decision 19A-PC-2361 | June 30, 2020 Page 5 of 5