MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Oct 21 2016, 8:50 am regarded as precedent or cited before any court except for the purpose of establishing CLERK Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Cara Schaefer Wieneke Gregory F. Zoeller Special Assistant to the Attorney General of Indiana State Public Defender Wieneke Law Office, LLC Jesse R. Drum Brooklyn, Indiana Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Kyle Willhite, October 21, 2016 Appellant-Petitioner, Court of Appeals Case No. 90A02-1603-PC-581 v. Appeal from the Wells Circuit Court State of Indiana, The Honorable Thomas M. Hakes, Appellee-Respondent. Special Judge Trial Court Cause No. 90C01-1407-PC-2
Bradford, Judge.
Case Summary
Court of Appeals of Indiana | Memorandum Decision 90A02-1603-PC-581 | October 21, 2016 Page 1 of 25 [1] In March of 2007, S.M. reported that Appellant-Petitioner Kyle Willhite had
sexually molested her during the summer of either 2001 or 2002, when she was
nine or ten years old. S.M. claimed that the abuse had occurred at Willhite’s
home while she was being babysat by Willhite’s sister.
[2] On April 23, 2007, Appellee-Respondent the State of Indiana (“the State”) filed
a petition alleging that Willhite was a juvenile delinquent for committing what
would have been Class B felony child molesting if committed by an adult.
Evidence indicated that Willhite was fourteen years old when he committed the
alleged misconduct. Willhite and the State entered into an agreement under the
terms of which Willhite agreed to consent to waiver of the matter to adult court
in exchange for the State agreeing to reduce the charge to a Class C felony.
Once in adult court, Willhite would enter into a written disposition of the
charges and the State would argue that the executed portion of Willhite’s
sentence should be capped at four years. The juvenile court accepted the
parties’ agreement and transferred the case to adult court.
[3] Pursuant to the terms of the parties’ agreement, the State charged Willhite with
Class C felony child molesting in the adult court, Willhite pled guilty to the
Class C felony child molesting charge, and the State agreed that the executed
portion of Willhite’s sentence should be capped at four years. Willhite,
however, subsequently failed to appear for the guilty plea hearing, after which a
warrant was issued for his arrest. He was eventually arrested, at which time he
again agreed to plead guilty. However, just before sentencing, Willhite filed a
motion to dismiss the Class C felony charge, claiming that it was physically
Court of Appeals of Indiana | Memorandum Decision 90A02-1603-PC-581 | October 21, 2016 Page 2 of 25 impossible that he could have committed the charged acts during the summer of
2002. Willhite also claimed that he could not be prosecuted for Class C felony
child molesting because prosecution was barred by the applicable five-year
statute of limitations. The trial court denied Willhite’s motion to dismiss and
set the matter for sentencing. Again, before sentencing, Willhite filed a pro-se
motion to withdraw his guilty plea, claiming that the matter should never have
been waived to adult court and that he was coerced into pleading guilty by
advice received from his counsel. The trial court denied Willhite’s motion and
sentenced him to a term of four years with all but two years and fifteen days
suspended to probation.
[4] Willhite subsequently sought post-conviction relief. Following an evidentiary
hearing, the post-conviction court denied Willhite’s petition for post-conviction
relief (“PCR petition”). Willhite appealed, contending that (1) the juvenile
court erred in waiving the underlying matter to adult court, (2) he suffered
ineffective assistance from both his juvenile and trial counsel, and (3) the post-
conviction court abused its discretion in excluding certain evidence. We affirm.
Facts and Procedural History [5] Willhite was born on March 18, 1988, and was fourteen years old during the
summer of 2002. S.M. was ten years old during the summer of 2002. S.M. was
in fourth grade during the 2001-2002 school year. For about half of the 2001-
2002 school year and part of the following summer, Willhite’s sister babysat
S.M. at Willhite’s home in Bluffton.
Court of Appeals of Indiana | Memorandum Decision 90A02-1603-PC-581 | October 21, 2016 Page 3 of 25 [6] On March 13, 2007, fifteen-year-old S.M. reported to Officer Steven Cale that
Willhite had touched her vagina with his fingers and his mouth on more than
one occasion during the summer of 2002. S.M. indicated that the incidents
occurred while she was at Willhite’s home being babysat by Willhite’s sister
and that the incidents ended when Willhite’s family moved to Montpelier.
Later that same day, Officer Cale interviewed nineteen-year-old Willhite.
During this interview, Willhite indicated that he had “dated” S.M. when he
was “about fourteen years old” and that he had touched her vagina with his
fingers and mouth. Appellant’s App. Vol. 3, p. 68. Willhite also signed a
statement in which he admitted that he had molested S.M. when he was
fourteen years old and she was ten years old.
[7] On April 23, 2007, the State filed a petition alleging that Willhite was a
delinquent child for committing what would have been Class B felony child
molesting if committed by an adult. On November 25, 2008, when Willhite
was twenty years old, the State filed a motion requesting the juvenile court to
waive jurisdiction of the matter. After investigating the allegations levied
against Willhite, his juvenile counsel determined that, in light of Willhite’s age,
juvenile record, and the fact that Willhite had signed a statement under oath
admitting that he was fourteen years old when he committed the alleged
misconduct, “there was a strong probability” that the juvenile court judge
would grant the State’s request. PCR Tr. p. 6. After discussing these matters
with Willhite, juvenile counsel engaged the State in negotiations in an attempt
to limit Willhite’s potential exposure to incarceration. Juvenile counsel
Court of Appeals of Indiana | Memorandum Decision 90A02-1603-PC-581 | October 21, 2016 Page 4 of 25 indicated that he engaged in this approach because he believed this approach
would benefit Willhite. As a result of these negotiations, the parties entered
into an agreement, the terms of which provided that Willhite would agree to the
waiver of the matter to adult court and would enter into a written disposition of
the adult charges. The terms of the agreement further stated that in exchange,
the State would (1) charge Willhite in adult court with the reduced charge of
Class C felony child molesting, (2) argue that the executed portion of Willhite’s
sentence should be capped at four years, (3) allow Willhite to turn himself in
once charges were filed, and (4) request that his bond be set at $5000.
[8] On August 12, 2009, when Willhite was twenty-one years old, the juvenile
court conducted a hearing on the State’s motion. During this hearing, the
following exchange took place:
[Juvenile Counsel]: Yes, Your Honor, but I believe we’ve reached an agreement [ ] where Mr. Willhite would be agreeing to the waiver and we have an agreement with the State regarding a number of other items, I don’t know if the Court wishes to hear the entire agreement, but the fact is that it is a waiver into adult Court. [Deputy Prosecutor]: There will be a subsequent written disposition as to the adult charges and that was offered in exchange for a waiver today. [Juvenile Court]: Mr. Willhite, are you agreeing to be waived to adult Court in this matter? Mr. Willhite: Yeah. [Juvenile Court]: Just for the record why don’t we recite the agreement so that I can ask Mr. Willhite some questions about that. [Deputy Prosecutor]: The eventual charges will be a C felony. There will be a cap of a maximum of 4 years executed to Court of Appeals of Indiana | Memorandum Decision 90A02-1603-PC-581 | October 21, 2016 Page 5 of 25 the [Department of Correction]. Both sides are free to argue with respect to sentencing, he would have a bond of $5,000 and it was agreed that he can turn himself in to the jail or to the officer as circumstances dictate as soon as the charges are filed. We anticipate they will be filed before the end of the week. [Juvenile Court]: Mr. Willhite, is that the agreement that’s been reached between you and the State of Indiana? Mr. Willhite: Yeah. [Juvenile Court]: And that’s based upon that agreement you’re agreeing to be waived to adult Court is that correct? Mr. Willhite: So I am still be [sic] charged for an [sic] adult Court? **** [Juvenile Counsel]: You’re agreeing to be charged in adult Court for what [the deputy prosecutor] just recited, the waiver agreement is that you’ll be having charges filed as a C felony, that there’s going to be an agreement that there would be a cap of four years on any sentence with both sides to be able to argue as to the sentence. That you’re being allowed to leave today on the basis that you agree to turn yourself in once charges are filed and that a bond level will be of $5,000. Mr. Willhite: Yeah. [Juvenile Counsel]: Is that what has been agreed to? Mr. Willite: Yes, sir. [Juvenile Court]: Very well then the Court will order Mr. Willhite to be waived to adult Court and once the charges are filed bond will be set at $5,000 and you’ll be given an opportunity to turn yourself in either to the jail or to the officer.
Petitioner’s Ex. 8, pp. 3-4.
[9] The next day, on August 13, 2009, the State charged Willhite in the trial court
with Class C felony child molesting. On November 30, 2009, Willhite entered
a plea of guilty, pursuant to a plea agreement which he had entered into with
Court of Appeals of Indiana | Memorandum Decision 90A02-1603-PC-581 | October 21, 2016 Page 6 of 25 the State. Pursuant to the terms of this plea agreement, the State again agreed
that the executed portion of Willhite’s sentence would be capped at four years.
Willhite, however, failed to appear for the March 29, 2010 guilty plea hearing.
After Willhite failed to appear, the trial court issued a warrant for Willhite’s
arrest.
[10] On August 17, 2012, when Willhite was twenty-four years old, Willhite entered
an open plea of guilty. In pleading guilty, Willhite admitted that during the
summer of 2002, when he was fourteen years old, he performed oral sex on
S.M. with the intent to arouse his sexual desire. The trial court found that the
factual basis supported Willhite’s guilty plea, accepted the plea, and entered a
judgment of conviction.
[11] Following the trial court’s acceptance of his guilty plea but before sentencing,
Willhite filed a motion to dismiss the pending criminal charge, arguing that the
charge was barred by the applicable five-year statute of limitations. In filing this
motion, Willhite maintained that it would have been physically impossible for
him to commit the charged offense during the summer 2002 because his family
had been subjected to an order of eviction from their Bluffton home that was
entered on May 9, 2002. The trial court held a hearing on Willhite’s motion on
January 11, 2013, during which it admitted the eviction order into evidence.
The trial court denied Willhite’s motion to dismiss on March 8, 2013.
[12] On March 22, 2013, Willhite filed a pro-se motion to dismiss his guilty plea. In
seeking to have his guilty plea dismissed, Willhite argued that he had been
Court of Appeals of Indiana | Memorandum Decision 90A02-1603-PC-581 | October 21, 2016 Page 7 of 25 coerced into pleading guilty, that there are a number of unanswered questions
relating to the applicable statute of limitations, and that he never should have
been waived to adult court. The trial court conducted a sentencing hearing on
April 16, 2013, during which it denied Willhite’s motion to dismiss his guilty
plea and sentenced him to a term of four years, with all but two years and
fifteen days suspended to probation.
[13] Following sentencing, Willhite filed a direct appeal. Willhite, however,
subsequently requested dismissal of the direct appeal and initiated the instant
post-conviction proceedings. Willhite filed his PCR petition on July 29, 2014.
In seeking post-conviction relief, Willhite contended that both his juvenile and
trial counsel provided ineffective assistance. The post-conviction court
conducted an evidentiary hearing on Willhite’s petition on December 18, 2015.
On February 11, 2016, the post-conviction court issued an order denying
Willhite’s petition. This appeal follows.
Discussion and Decision [14] Post-conviction procedures do not afford the petitioner with a super-appeal.
Williams v. State, 706 N.E.2d 149, 153 (Ind. 1999). Instead, they create a
narrow remedy for subsequent collateral challenges to convictions, challenges
which must be based on grounds enumerated in the post-conviction rules. Id.
A petitioner who has been denied post-conviction relief appeals from a negative
judgment and as a result, faces a rigorous standard of review on appeal. Dewitt
Court of Appeals of Indiana | Memorandum Decision 90A02-1603-PC-581 | October 21, 2016 Page 8 of 25 v. State, 755 N.E.2d 167, 169 (Ind. 2001); Colliar v. State, 715 N.E.2d 940, 942
(Ind. Ct. App. 1999), trans. denied.
[15] Post-conviction proceedings are civil in nature. Stevens v. State, 770 N.E.2d 739,
745 (Ind. 2002). Therefore, in order to prevail, a petitioner must establish his
claims by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5);
Stevens, 770 N.E.2d at 745. When appealing from the denial of a PCR petition,
a petitioner must convince this court that the evidence, taken as a whole, “leads
unmistakably to a conclusion opposite that reached by the post-conviction
court.” Stevens, 770 N.E.2d at 745. “It is only where the evidence is without
conflict and leads to but one conclusion, and the post-conviction court has
reached the opposite conclusion, that its decision will be disturbed as contrary
to law.” Godby v. State, 809 N.E.2d 480, 482 (Ind. Ct. App. 2004), trans. denied.
The post-conviction court is the sole judge of the weight of the evidence and the
credibility of the witnesses. Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004).
We therefore accept the post-conviction court’s findings of fact unless they are
clearly erroneous but give no deference to its conclusions of law. Id.
[16] In seeking post-conviction relief, Willhite contends that the juvenile court erred
in waiving the underlying matter to adult court. Willhite also contends that
both his juvenile and trial court counsel provided ineffective assistance and that
the post-conviction court abused its discretion in excluding certain evidence.
For its part, the State contends that the juvenile court did not err in waiving the
underlying matter to adult court, Willhite did not receive ineffective assistance
Court of Appeals of Indiana | Memorandum Decision 90A02-1603-PC-581 | October 21, 2016 Page 9 of 25 from either his juvenile or trial counsel, and that any potential error in
excluding the challenged evidence was, at most, harmless.
I. Jurisdictional Questions [17] Willhite contends that he should not have been waived to adult court because
the adult court, i.e. the trial court, did not have subject matter jurisdiction over
his case. While Willhite presents this contention as a challenge to whether the
trial court had subject matter jurisdiction over the underlying criminal
proceedings, Willhite’s challenge is more accurately labeled as a challenge to
the propriety of the juvenile court order waiving Willhite to adult court.
[18] Juvenile courts generally have exclusive original jurisdiction over juvenile
delinquency proceedings. Ind. Code § 31-30-1-1 (2003). However, juvenile
courts may, under certain circumstances, waive this jurisdiction. “Waiver of
jurisdiction refers to an order of the juvenile court that waives the case to a
court that would have jurisdiction had the act been committed by an adult.”
Ind. Code § 31-30-3-1 (1997). With regard to waiver of juvenile court
jurisdiction, Indiana Code section 31-30-3-2 (1997) provides as follows:
Upon motion of the prosecuting attorney and after full investigation and hearing, the juvenile court may waive jurisdiction if it finds that: (1) the child is charged with an act: (A) that is heinous or aggravated, with greater weight given to acts against the person than to acts against property; or
Court of Appeals of Indiana | Memorandum Decision 90A02-1603-PC-581 | October 21, 2016 Page 10 of 25 (B) that is a part of a repetitive pattern of delinquent acts, even though less serious; (2) the child was at least fourteen (14) years of age when the act charged was allegedly committed; (3) there is probable cause to believe that the child committed the act; (4) the child is beyond rehabilitation under the juvenile justice system; and (5) it is in the best interests of the safety and welfare of the community that the child stand trial as an adult.
A challenge to the waiver of a juvenile matter to adult court may be challenged
on direct appeal following a final determination of the criminal prosecution
which was authorized by said waiver. State ex rel. Snellgrove v. Porter Circuit and
Juvenile Courts, 270 Ind. 431, 433-34, 386 N.E.2d 680, 680-81 (1979).
[19] “Juvenile proceedings, unlike criminal proceedings, are civil in nature and the
burden is on the State to establish by a preponderance of the evidence that
juvenile jurisdiction should be waived.” Phelps v. State, 969 N.E.2d 1009, 1016
(Ind. Ct. App. 2012) (citing K.M. v. State, 804 N.E.2d 305, 308 (Ind. Ct. App.
2004), trans. denied). “We review the juvenile court’s decision to waive its
jurisdiction for an abuse of discretion.” Id. (citing K.M., 804 N.E.2d at 308).
“The juvenile court is entitled to give the evidence before it whatever weight it
deems appropriate.” Phelps, 969 N.E.2d at 1016 (citing K.M., 804 N.E.2d at
308). Further,
[w]hen reviewing a claim [challenging] the sufficiency of a waiver order, we will not weigh the evidence or judge the Court of Appeals of Indiana | Memorandum Decision 90A02-1603-PC-581 | October 21, 2016 Page 11 of 25 credibility of witnesses. We look only to the evidence most favorable to the [S]tate and reasonable inferences to be drawn therefrom, considering both the waiver hearing and the findings of fact given by the court. Goad v. State (1987), Ind., 516 N.E.2d 26, 27; Smith v. State (1984), Ind., 459 N.E.2d 355, 360; McDowell v. State (1983), Ind., 456 N.E.2d 713, 715. Furthermore, the waiver order and record must allow a meaningful review which is not based on assumptions about the state of mind of the judge. Cartwright v. State (1976), 168 Ind. App. 517, 344 N.E.2d 83, 87.
Thomas v. State, 562 N.E.2d 43, 45-46 (Ind. Ct. App. 1990).
[20] In arguing that the juvenile court erred in waiving its jurisdiction, Willhite
challenges the sufficiency of the juvenile court’s waiver order. In making this
challenge, Willhite relies on this court’s opinion in Duvall v. State, 170 Ind. App.
473, 477, 353 N.E.2d 478, 481 (1976), in which we concluded as follows:
Although the exclusive jurisdiction of the Juvenile Court inures to the benefit of the juvenile, it is nevertheless the court’s jurisdiction. Thus, a ‘stipulation’ or consent to waiver of juvenile jurisdiction does not relieve the Juvenile Court from its duty to independently and conscientiously determine the appropriateness of waiver.
However, the Indiana Supreme Court has since held that
The absence from the waiver order of the particular facts justifying waiver does not necessarily invalidate the waiver. This Court has recognized that the specific facts need not be recited in the order if the record contains sufficient facts for the court to find that waiver is appropriate. Daniel v. State (1991), Ind., 582 N.E.2d 364, 368; [Gerrick v. State, 451 N.E.2d 327, 330 (Ind.
Court of Appeals of Indiana | Memorandum Decision 90A02-1603-PC-581 | October 21, 2016 Page 12 of 25 1983)]. See also [Thomas, 562 N.E.2d at 45] (pre-printed waiver order is valid if the record from the hearing supports the waiver).
Vance v. State, 640 N.E.2d 51, 57 (Ind. 1994).
[21] In Thomas, we reviewed the sufficiency of a waiver order, concluding that
“although reciting statutory standards, [the waiver order] is supported by a
record which demonstrates that the court made a conscientious determination
that the case should not be handled in the juvenile system.” 562 N.E.2d at 46.
In reaching this conclusion, we stated that the record showed that the juvenile
court contemplated evidence that Thomas was charged with murder and felony
murder, that probable cause existed, and that she was fourteen years old when
the crime was committed. Id. As such, we found that the record demonstrated
that Thomas’s “due process rights were accorded during the waiver hearing.”
Id.
[22] Similarly, in the instant matter, the juvenile court’s order does not include
explicit findings with regard to each of the required factors. However, the
record is clear that the juvenile court conducted a hearing that was somewhat
akin to a guilty plea hearing during which the parties presented the terms of
their agreement and the juvenile court questioned Willhite about his
understanding of the terms and whether he agreed to have the matter waived to
adult court. During this hearing, the parties established that (1) Willhite was
alleged to have committed what would be Class B felony child molesting, (2) he
had agreed to be waived to adult court in exchange for the State agreeing to
charge him with a Class C felony child molesting, and (3) the parties agreed Court of Appeals of Indiana | Memorandum Decision 90A02-1603-PC-581 | October 21, 2016 Page 13 of 25 that the criminal charges would result in written disposition after which any
executed sentence would be capped at four years. The court record also
included information by which the court could determine that Willhite, who
was twenty-one years old at the time of the waiver hearing, was fourteen years
old when he committed the alleged offense. Further, we believe that it is
reasonable to infer that the juvenile court determined that the molestation of a
child, such to warrant a Class B felony charge if committed by an adult, was
heinous.1
[23] Like in Thomas, we conclude that although the juvenile court’s waiver order did
not expressly state the court’s findings, the record showed that the juvenile
court considered each of the necessary factors before waiving the matter to
adult court.2 As such, given the information available to the juvenile court
1 In addition, while it is unclear whether the juvenile court record included information about Willhite’s criminal history, it is not unreasonable to assume that the juvenile court record would have included this information. This information would have shown that after committing the underlying molestation but before the waiver hearing, Willhite had been charged with Class C felony child molesting in Blackford County. Willhite’s criminal history would also have indicated that he had been adjudicated delinquent for being truant and committing what would have been theft if committed by an adult and convicted of possession of marijuana and operating a vehicle while intoxicated in a manner that endangers a person. The subsequent molestation charge would, at least potentially, indicate that Willhite had been alleged to have engaged in an unrelated act of sexual misconduct and his entire criminal history would, at least potentially, indicate that Willhite had engaged in a pattern of delinquent behavior.
2 We are also unconvinced by Willhite’s claim that the juvenile court could not have gleaned the necessary information from the waiver hearing simply because it was short. As we stated above, the juvenile court could find all necessary information from review of its record together with the information provided during the waiver hearing.
Court of Appeals of Indiana | Memorandum Decision 90A02-1603-PC-581 | October 21, 2016 Page 14 of 25 coupled with Willhite’s express statement that he agreed to have the matter
waived to adult court, we conclude that the juvenile court did not err in waiving
its jurisdiction over the underlying matter.
[24] Having concluded that the juvenile court did not err in waiving its jurisdiction
over the underlying matter, we also conclude that there is no question that the
trial court, i.e. the Wells Circuit Court, had jurisdiction over the Class C felony
charge that was brought in adult court. A court has subject matter jurisdiction
over a matter if the court has “jurisdiction over the general class of actions to
which a particular case belongs.” K.S. v. State, 849 N.E.2d 538, 542 (Ind. 2006).
Relevant statutory authority provides that all circuit courts have “original and
concurrent jurisdiction in all civil cases and in all criminal cases.” Ind. Code
section 33-28-1-2. Thus, in light of the above-quoted statutory authority, we
conclude that the trial court had subject matter jurisdiction over the underlying
criminal proceedings.
II. Ineffective Assistance of Counsel [25] Willhite also contends that both his juvenile and trial counsel provided
ineffective assistance. The right to effective counsel is rooted in the Sixth
Amendment to the United States Constitution. Taylor v. State, 840 N.E.2d 324,
331 (Ind. 2006). “‘The Sixth Amendment recognizes the right to the assistance
of counsel because it envisions counsel’s playing a role that is critical to the
ability of the adversarial system to produce just results.’” Id. (quoting Strickland
v. Washington, 466 U.S. 668, 685 (1984)). “The benchmark for judging any
Court of Appeals of Indiana | Memorandum Decision 90A02-1603-PC-581 | October 21, 2016 Page 15 of 25 claim of ineffectiveness must be whether counsel’s conduct so undermined the
proper function of the adversarial process that the trial court cannot be relied on
as having produced a just result.” Strickland, 466 U.S. at 686. The United
States Supreme Court has held that the two-part test set forth in Strickland
applies to challenges to guilty pleas based on alleged ineffective assistance of
counsel. Hill v. Lockhart, 474 U.S. 52, 57-58 (1985).
[26] A successful claim for ineffective assistance of counsel must satisfy two
components. Reed v. State, 866 N.E.2d 767, 769 (Ind. 2007). Under the first
prong, the petitioner must establish that counsel’s performance was deficient by
demonstrating that counsel’s representation “fell below an objective standard of
reasonableness, committing errors so serious that the defendant did not have
the ‘counsel’ guaranteed by the Sixth Amendment.” Id. We recognize that
even the finest, most experienced criminal defense attorneys may not agree on
the ideal strategy or most effective way to represent a client, and therefore,
under this prong, we will assume that counsel performed adequately and defer
to counsel’s strategic and tactical decisions. Smith v. State, 765 N.E.2d 578, 585
(Ind. 2002). Isolated mistakes, poor strategy, inexperience, and instances of
bad judgment do not necessarily render representation ineffective. Id.
[27] Under the second prong, the petitioner must show that the deficient
performance resulted in prejudice. Reed, 866 N.E.2d at 769. Again, a petitioner
may show prejudice by demonstrating that there is “a reasonable probability
(i.e. a probability sufficient to undermine confidence in the outcome) that, but
for counsel’s errors, the result of the proceeding would have been different.” Id.
Court of Appeals of Indiana | Memorandum Decision 90A02-1603-PC-581 | October 21, 2016 Page 16 of 25 A petitioner’s failure to satisfy either prong will cause the ineffective assistance
of counsel claim to fail. See Williams, 706 N.E.2d at 154. Stated differently,
“[a]lthough the two parts of the Strickland test are separate inquires, a claim
may be disposed of on either prong.” Grinstead v. State, 845 N.E.2d 1027, 1031
(Ind. 2006) (citing Williams, 706 N.E.2d at 154).
A. Juvenile Counsel [28] Willhite argues that his juvenile counsel provided him with ineffective
assistance by failing to complete an adequate investigation into whether he was
thirteen or fourteen years old when he committed the alleged misconduct.
Specifically, Willhite claims that juvenile counsel’s failure to complete an
adequate investigation erroneously led juvenile counsel to believe that waiver
was a forgone conclusion and, as a result, juvenile counsel erroneously
“induced” and “coerced” Willhite to agree to the waiver and to subsequently
plead guilty. Appellant’s Br. p. 21. For its part, the State argues that juvenile
counsel did not provide Willhite with ineffective assistance as juvenile counsel’s
investigation was adequate.
[29] During the post-conviction hearing, Willhite’s post-conviction counsel
questioned juvenile counsel regarding the investigation conducted by juvenile
counsel, engaging juvenile counsel in the following exchange:
Q. And do you remember the work that you did or the investigation that you did on the case? A. I remember it better now because I do have my notes.… Q. And you’ve had a chance to review that?
Court of Appeals of Indiana | Memorandum Decision 90A02-1603-PC-581 | October 21, 2016 Page 17 of 25 A. That’s correct. Q. What do you remember with respect to any investigation you might have done? A. I would have filed discovery as far as the juvenile case itself. I believe I met with Mr. Willhite on several occasions and also telephone conference. I would have questioned the Probation Officer and also the police officer. I don’t think I did any formal discovery in way of deposition or anything of that fashion. Q. Do you remember reviewing the police report? A. Absolutely. Q. Do you remember if you talked to Detective Cale? A. I did. Q. Do you remember reading that the Detective had taken an audio tape statement of the victim? A. I don’t remember that. Q. Would you have reviewed or do you recall reviewing that statement? A. I did not have a copy of the audio statement in my file. Normally, if I would have reviewed that it would have been at the Prosecutor’s Office. I did that frequently. I can’t tell you that I remember specifically doing it in this case. Q. Did you meet with Mr. Willhite to discuss the allegation? A. I did. Q. Do you remember the nature of that conversation? A. It was more than once. The first time I met with him I believe he told me he thought he was 13. The police report from the victim thought or at least what she said was it would have been the summer of 2002 and Mr. Willhite would have turned 14 in March of 2002. We went at a later date also went through and I saw in my notes where he thought that they had left Bluffton in May of 2002. Again, that didn’t place him outside of prior to March of 2002 or March 18th, which is his birthday. There was also a written statement that I believe Office Cale had written out for Mr. Willhite where under oath he said he was 14 and the victim was 10. That posed some additional problems for me as
Court of Appeals of Indiana | Memorandum Decision 90A02-1603-PC-581 | October 21, 2016 Page 18 of 25 far as giving further advice to Mr. Willhite as to going forward on a waiver issue.
PCR Tr. pp. 4-5. Juvenile counsel also indicated that he explained to Willhite
the risk of going forward to the waiver hearing and the possible criminal
sanctions that he could face if waived to adult court.
[30] On cross examination, the Deputy Prosecutor engaged juvenile counsel in the
following exchange with regard to juvenile counsel’s review of the victim’s
recorded statement:
Q. With respect to the audio taped interview, you say you did not have a copy of it in your file? Is that correct? A. When Mr. Johnson from the Endris firm brought that file over the date we had our deposition there was no audio tape in the file. Q. Do any of your notes reflect ever having that in your file? A. I would have to go over my notes with a fine tooth comb but I don’t believe so. Q. How long had you been a public defender by this time? A. Okay, I started as a public defender I think in 1990, so 2007, that would have been 17 years. Q. And was it your habit in the regular course to review all materials provided to you or made available to you by the Prosecutor’s Office? A. Well, I always filed a Motion for Discovery so that right was protected and yes, if there was something to review, I would review it. Q. And if they weren’t made physically available to you because of the nature of the information but would have been made available to you to review at the Prosecutor’s Office was it your normal procedure and habit to do that? A. Absolutely and I’ll expand a little bit on that. About this time there was a lot more DVDs and things like that coming Court of Appeals of Indiana | Memorandum Decision 90A02-1603-PC-581 | October 21, 2016 Page 19 of 25 forward and so in this case there wasn’t a video tape but many [types] of programming on one computer not jiving with another computer I’d go to the Prosecutor’s Office and watch it or listen to it on a Prosecutor’s computer. Q: Do you believe that is what you did in this case? A. I don’t have any direct recollection of that, [Deputy Prosecutor]. I would expect that, yes, that’s what I would have done. Q. Based on your habit and normal course of conduct? A. That’s correct.
PCR Tr. pp. 7-8.
[31] Juvenile counsel’s additional testimony indicates that even if he did not review
S.M.’s recorded statement, her grandmother’s death certificate, 3 or the eviction
notice, he was nonetheless aware that there was some question as to whether
Willhite was thirteen or fourteen when he committed the alleged misconduct.
Juvenile counsel acknowledged, however, that despite Willhite claiming that he
“thought” he was thirteen, Willhite’s own sworn statement to Detective Cale
indicated that he was fourteen at the time he committed the alleged
misconduct. Juvenile counsel further acknowledged that this sworn statement
would have been problematic if he were to attempt to argue that waiver was
inappropriate because of Willhite’s age at the time he committed the alleged
misconduct. Further, neither the recorded statement, death certificate, nor
eviction notice would have directly contradicted Willhite’s own sworn
3 S.M.’s grandmother’s death certificate was relevant because S.M. indicated that the molestation occurred after her grandmother passed away.
Court of Appeals of Indiana | Memorandum Decision 90A02-1603-PC-581 | October 21, 2016 Page 20 of 25 statement that he was fourteen when he committed the alleged misconduct.
Thus, given the victim’s statement contained in the police report together with
Willhite’s sworn statement that he was fourteen when he committed the alleged
misconduct, the record does not support Willhite’s claim that review of the
recorded statement, death certificate, or eviction notice would have enabled
juvenile counsel to successfully challenge the State’s waiver motion. We
therefore conclude that Willhite has failed to establish that he was prejudiced by
juvenile counsel’s alleged failure to fully investigate the matter.
[32] Furthermore, recognizing that Willhite’s sworn statement would have made it
difficult to convince the juvenile court that Willhite was not old enough to be
waived to adult court, juvenile counsel made the tactical decision to enter into
negotiations with the State in an attempt to limit the potential criminal penalties
to which Willhite would be exposed once in adult court. Given the information
available to juvenile counsel, we cannot say that this approach was
unreasonable. We will therefore defer to juvenile counsel’s strategic and
tactical decisions in this regard. See Smith, 765 N.E.2d at 585. Willhite has
failed to establish that he received ineffective assistance from his juvenile
counsel.
B. Trial Counsel [33] Willhite also claims that his trial counsel provided him with ineffective
assistance. In making this claim, Willhite acknowledges that trial counsel filed
a motion to dismiss the matter, but argues that trial counsel was ineffective for
basing the arguments contained in this motion on a claim that prosecution was Court of Appeals of Indiana | Memorandum Decision 90A02-1603-PC-581 | October 21, 2016 Page 21 of 25 barred by the applicable statute of limitations rather than jurisdictional grounds.
As is discussed above, the juvenile court did not err in waiving its jurisdiction
and the trial court had subject matter jurisdiction over the criminal proceedings.
As such, any challenge on jurisdictional grounds would have been fruitless and
without merit. Willhite, therefore, has failed to establish that he received
ineffective assistance from his trial counsel as he failed to prove either that his
trial counsel provided deficient representation or that the alleged deficient
performance resulted in prejudice.
III. Admission of Evidence [34] Willhite last contends that the post-conviction court abused its discretion in
excluding certain evidence. “The Indiana Rules of Procedure for Post-
Conviction Remedies provide in relevant part that ‘[t]he court may receive
affidavits, depositions, oral testimony, or other evidence.’” Conner v. State, 711
N.E.2d 1238, 1258 (Ind. 1999) (quoting Ind. Post-Conviction Rule 1(5)).
Because the admission or exclusion of evidence is within the post-conviction
court’s sound discretion, a reviewing court defers to the post-conviction court
and will not disturb its ruling on review unless the trial court abused its
discretion. Id. (citing Roche v. State, 690 N.E.2d 1115, 1134 (Ind. 1997)). We
will find that a post-conviction court has abused its discretion if its decision is
against the logic and effect of the facts and circumstances before it. Pannell v.
State, 36 N.E.3d 477, 486 (Ind. Ct. App. 2015), trans. denied.
Court of Appeals of Indiana | Memorandum Decision 90A02-1603-PC-581 | October 21, 2016 Page 22 of 25 [35] Willhite argues that the post-conviction court abused its discretion by excluding
three proffered exhibits, i.e. the eviction order, a copy of the audiotaped
statement S.M. gave to Detective Cale, and a certified copy of S.M.’s
grandmother’s death certificate, from evidence. The State objected to the
admission of each of the exhibits on relevancy grounds. In arguing on appeal
that the challenged exhibits were relevant, Willhite claims that “[a]ll three
exhibits were relevant because they provided proof that Willhite had a strong
defense to waiver to adult court. In fact, the exhibits showed that Willhite was
not eligible for waiver to adult court, based on his age at the time that the sex
acts took place.” Appellant’s Br. p. 17.
[36] The record demonstrates that Willhite proffered the exhibits in support of his
claim that the juvenile court erred in waiving its jurisdiction over the underlying
matter and that his juvenile court counsel failed to adequately investigate and
present a defense to the State’s request to waive the matter to adult court. As is
discussed above, our review of the record demonstrates that the juvenile court
did not err in waiving its jurisdiction over the underlying matter and Willhite’s
juvenile counsel did not provide ineffective assistance. Review of the record
also indicates that while the post-conviction court excluded the documents, it
appears that the post-conviction court considered the facts contained therein.
The contents of the proffered exhibits were discussed by the parties and
witnesses during the evidentiary hearing in connection to Willhite’s post-
conviction claims.
Court of Appeals of Indiana | Memorandum Decision 90A02-1603-PC-581 | October 21, 2016 Page 23 of 25 [37] In addition, the post-conviction court took judicial notice of all related court
records, including the court records of the juvenile and trial court. The eviction
notice had been entered into the record below and it appears that the facts
contained in the eviction notice, the recorded statement, and the death
certificate were discussed by the parties below. Further, even if the post-
conviction court did not consider the facts contained in these documents, the
exclusion of these documents was harmless because neither the recorded
statement, death certificate, nor eviction notice would have directly
contradicted either Willhite’s own sworn statement that he was fourteen when
he committed the alleged misconduct or the victim’s statement indicating that
the alleged misconduct occurred when she was ten years old and Willhite was
fourteen years old.
[38] Willhite has failed to show how admission of the actual exhibits, the contents of
which were not at issue, would have bolstered either his claim that the juvenile
court erred in waiving the underlying matter to adult court or that he received
ineffective assistance from his juvenile counsel. As such, we conclude that the
exclusion of these exhibits was, at most, harmless. We further conclude,
therefore, that the post-conviction court did not abuse its discretion in this
regard.
Conclusion [39] In sum, we conclude that (1) the juvenile court did not err in waiving the
underlying matter to adult court, (2) Willhite did not receive ineffective
Court of Appeals of Indiana | Memorandum Decision 90A02-1603-PC-581 | October 21, 2016 Page 24 of 25 assistance from either juvenile or trial counsel, and (3) the post-conviction court
did not abuse its discretion in excluding certain evidence from the evidentiary
hearing.
[40] The judgment of the post-conviction court is affirmed.
Pyle, J., and Altice, J., concur.
Court of Appeals of Indiana | Memorandum Decision 90A02-1603-PC-581 | October 21, 2016 Page 25 of 25