MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Dec 21 2016, 6:19 am
regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE William A. Goebel Gregory F. Zoeller Justin L. Froedge Attorney General of Indiana Goebel Law Office Crawfordsville, Indiana George P. Sherman Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Timothy Newman, December 21, 2016 Appellant-Petitioner, Court of Appeals Case No. 12A02-1601-PC-83 v. Appeal from the Clinton Circuit Court State of Indiana, The Honorable Appellee-Respondent. Randy G. Hainlen, Senior Judge Trial Court Cause No. 12C01-1012-PC-270
Kirsch, Judge.
[1] After the post-conviction court denied Timothy Newman’s (“Newman”)
petition for post-conviction relief, he appeals and claims that his trial counsel
Court of Appeals of Indiana | Memorandum Decision 12A02-1601-PC-83 | December 21, 2016 Page 1 of 7 was ineffective. We consolidate his issues and restate as: whether the post-
conviction court properly denied Newman’s petition for post-conviction relief.
[2] We affirm.
Facts and Procedural History [3] In 2005, the State charged Newman with five counts of child molesting for
conduct that he engaged in over the course of approximately nine months with
his two step-daughters. In 2006, following a jury trial, Newman was convicted
of three counts of Class A felony child molesting and two counts of Class C
felony child molesting. PCR App. at 62. On June 26, 2006, the trial court
sentenced Newman to consecutive terms of thirty years each for the Class A
felonies and four years each for the Class C felonies. Id. at 59-61. Newman
filed a direct appeal and raised the following issues: (1) whether the evidence
supported his convictions; (2) whether the trial court abused its discretion when
it allowed the victims’ grandmother to testify as a rebuttal witness; (3) whether
Newman received ineffective assistance of trial counsel; and (4) whether his
sentence was inappropriate. Newman v. State, No. 12A05-0608-CR-421 at *1
(Ind. Ct. App. June 12, 2007), trans. denied. This Court affirmed his convictions
and sentence by Memorandum Decision. Id. at *11.
[4] In 2010, Newman filed a petition for post-conviction relief (“PCR”), asserting
that, for a number of reasons, his trial counsel and his appellate counsel were
Court of Appeals of Indiana | Memorandum Decision 12A02-1601-PC-83 | December 21, 2016 Page 2 of 7 ineffective.1 PCR. App. at 39-40, 44-45. In August 2012, the trial court held an
evidentiary hearing at which Newman and his trial counsel, Bradley Mohler
(“Mohler”), testified. In December 2015,2 the post-conviction court issued
Findings of Fact and Conclusions of Law Denying Post-Conviction Relief
(“Order”). PCR App. at 6-14. The post-conviction court’s Order included the
following:
24. The effectiveness of trial counsel was litigated on direct appeal. As a result, the doctrines of res judicata and waiver prevent litigating it again through PCR.
If a claim of ineffective assistance of counsel has been litigated on direct appeal, it is not available in post- conviction proceedings[.] . . . If a claim of ineffective assistance of trial counsel is presented upon direct appeal, all specific allegations fitting within that category that are not presented on direct appeal are waived.
Consequently the itemization of facts claimed to support a view that Mohler’s performance fell below acceptable standards are waived and may not be raised in this PCR even if different than those enumerated on direct appeal.
1 We note that, while Newman raised the issue of ineffectiveness of appellate counsel in his petition for post- conviction relief, PCR App. at 39, and the post-conviction court determined that Newman was not entitled to relief on that issue, id. at 12-13, Newman does not challenge that decision in his appeal. Thus, the issue is not before us. 2 We note the extended length of time that the matter was pending. The CCS indicates that following the August 2012 hearing on Newman’s post-conviction petition and extending into mid-2015, there were ongoing discovery disputes, hearings/conferences, and continuances. PCR App. at 2-4. In June 2015, the parties submitted proposed Findings of Fact and Conclusions of Law, and the post-conviction court’s ruling was issued thereafter, in December 2015.
Court of Appeals of Indiana | Memorandum Decision 12A02-1601-PC-83 | December 21, 2016 Page 3 of 7 Id. at 14 (internal case citations omitted). Newman now appeals.
Discussion and Decision [5] Defendants who have exhausted the direct appeal process may challenge the
correctness of their convictions and sentence by filing a post-conviction petition.
Ind. Post-Conviction Rule 1(1); Craig v. State, 804 N.E.2d 170, 172 (Ind. Ct.
App. 2004). Post-conviction proceedings do not afford the petitioner an
opportunity for a super appeal, but rather, 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 (2002). As a general rule, if an issue was known and available,
but not presented upon direct appeal, it is waived. Craig, 804 N.E.2d at 172. If
it was presented upon direct appeal, but decided adversely, it is res judicata. Id.
The petitioner for post-conviction relief bears the burden of establishing
grounds for relief by a preponderance of the evidence. P-C.R. 1(5).
[6] When a petitioner appeals a denial of post-conviction relief, he appeals a
negative judgment. Fisher v. State, 878 N.E.2d 457, 463 (Ind. Ct. App. 2007),
trans. denied. The petitioner must establish that the evidence as a whole
unmistakably and unerringly leads to a conclusion contrary to that of the post-
conviction court. Id. We will disturb a post-conviction court’s decision as
being contrary to law only where 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.
Court of Appeals of Indiana | Memorandum Decision 12A02-1601-PC-83 | December 21, 2016 Page 4 of 7 denied. 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.
[7] Here, Newman claims that the post-conviction court erred in denying his
petition for post-conviction relief, arguing that he received ineffective assistance
of trial counsel. Specifically, he contends that his trial counsel was ineffective
for failing to (1) move for a mistrial based on a violation of the separation of
witnesses order; (2) request a mistrial after it was learned that a juror knew a
State’s witness; (3) request a change of venue and/or change of judge based on
bias in the community against Newman; and (4) object to the victims’ mother’s
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Dec 21 2016, 6:19 am
regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE William A. Goebel Gregory F. Zoeller Justin L. Froedge Attorney General of Indiana Goebel Law Office Crawfordsville, Indiana George P. Sherman Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Timothy Newman, December 21, 2016 Appellant-Petitioner, Court of Appeals Case No. 12A02-1601-PC-83 v. Appeal from the Clinton Circuit Court State of Indiana, The Honorable Appellee-Respondent. Randy G. Hainlen, Senior Judge Trial Court Cause No. 12C01-1012-PC-270
Kirsch, Judge.
[1] After the post-conviction court denied Timothy Newman’s (“Newman”)
petition for post-conviction relief, he appeals and claims that his trial counsel
Court of Appeals of Indiana | Memorandum Decision 12A02-1601-PC-83 | December 21, 2016 Page 1 of 7 was ineffective. We consolidate his issues and restate as: whether the post-
conviction court properly denied Newman’s petition for post-conviction relief.
[2] We affirm.
Facts and Procedural History [3] In 2005, the State charged Newman with five counts of child molesting for
conduct that he engaged in over the course of approximately nine months with
his two step-daughters. In 2006, following a jury trial, Newman was convicted
of three counts of Class A felony child molesting and two counts of Class C
felony child molesting. PCR App. at 62. On June 26, 2006, the trial court
sentenced Newman to consecutive terms of thirty years each for the Class A
felonies and four years each for the Class C felonies. Id. at 59-61. Newman
filed a direct appeal and raised the following issues: (1) whether the evidence
supported his convictions; (2) whether the trial court abused its discretion when
it allowed the victims’ grandmother to testify as a rebuttal witness; (3) whether
Newman received ineffective assistance of trial counsel; and (4) whether his
sentence was inappropriate. Newman v. State, No. 12A05-0608-CR-421 at *1
(Ind. Ct. App. June 12, 2007), trans. denied. This Court affirmed his convictions
and sentence by Memorandum Decision. Id. at *11.
[4] In 2010, Newman filed a petition for post-conviction relief (“PCR”), asserting
that, for a number of reasons, his trial counsel and his appellate counsel were
Court of Appeals of Indiana | Memorandum Decision 12A02-1601-PC-83 | December 21, 2016 Page 2 of 7 ineffective.1 PCR. App. at 39-40, 44-45. In August 2012, the trial court held an
evidentiary hearing at which Newman and his trial counsel, Bradley Mohler
(“Mohler”), testified. In December 2015,2 the post-conviction court issued
Findings of Fact and Conclusions of Law Denying Post-Conviction Relief
(“Order”). PCR App. at 6-14. The post-conviction court’s Order included the
following:
24. The effectiveness of trial counsel was litigated on direct appeal. As a result, the doctrines of res judicata and waiver prevent litigating it again through PCR.
If a claim of ineffective assistance of counsel has been litigated on direct appeal, it is not available in post- conviction proceedings[.] . . . If a claim of ineffective assistance of trial counsel is presented upon direct appeal, all specific allegations fitting within that category that are not presented on direct appeal are waived.
Consequently the itemization of facts claimed to support a view that Mohler’s performance fell below acceptable standards are waived and may not be raised in this PCR even if different than those enumerated on direct appeal.
1 We note that, while Newman raised the issue of ineffectiveness of appellate counsel in his petition for post- conviction relief, PCR App. at 39, and the post-conviction court determined that Newman was not entitled to relief on that issue, id. at 12-13, Newman does not challenge that decision in his appeal. Thus, the issue is not before us. 2 We note the extended length of time that the matter was pending. The CCS indicates that following the August 2012 hearing on Newman’s post-conviction petition and extending into mid-2015, there were ongoing discovery disputes, hearings/conferences, and continuances. PCR App. at 2-4. In June 2015, the parties submitted proposed Findings of Fact and Conclusions of Law, and the post-conviction court’s ruling was issued thereafter, in December 2015.
Court of Appeals of Indiana | Memorandum Decision 12A02-1601-PC-83 | December 21, 2016 Page 3 of 7 Id. at 14 (internal case citations omitted). Newman now appeals.
Discussion and Decision [5] Defendants who have exhausted the direct appeal process may challenge the
correctness of their convictions and sentence by filing a post-conviction petition.
Ind. Post-Conviction Rule 1(1); Craig v. State, 804 N.E.2d 170, 172 (Ind. Ct.
App. 2004). Post-conviction proceedings do not afford the petitioner an
opportunity for a super appeal, but rather, 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 (2002). As a general rule, if an issue was known and available,
but not presented upon direct appeal, it is waived. Craig, 804 N.E.2d at 172. If
it was presented upon direct appeal, but decided adversely, it is res judicata. Id.
The petitioner for post-conviction relief bears the burden of establishing
grounds for relief by a preponderance of the evidence. P-C.R. 1(5).
[6] When a petitioner appeals a denial of post-conviction relief, he appeals a
negative judgment. Fisher v. State, 878 N.E.2d 457, 463 (Ind. Ct. App. 2007),
trans. denied. The petitioner must establish that the evidence as a whole
unmistakably and unerringly leads to a conclusion contrary to that of the post-
conviction court. Id. We will disturb a post-conviction court’s decision as
being contrary to law only where 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.
Court of Appeals of Indiana | Memorandum Decision 12A02-1601-PC-83 | December 21, 2016 Page 4 of 7 denied. 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.
[7] Here, Newman claims that the post-conviction court erred in denying his
petition for post-conviction relief, arguing that he received ineffective assistance
of trial counsel. Specifically, he contends that his trial counsel was ineffective
for failing to (1) move for a mistrial based on a violation of the separation of
witnesses order; (2) request a mistrial after it was learned that a juror knew a
State’s witness; (3) request a change of venue and/or change of judge based on
bias in the community against Newman; and (4) object to the victims’ mother’s
testimony on the basis that she was biased against Newman or cross-examine
her regarding inconsistencies in her testimony. See Appellant’s Br. at 7-13. The
State maintains that Newman has forfeited his post-conviction ineffective
assistance of trial counsel claims because he already raised the issue of
ineffective assistance of trial counsel on direct appeal. We agree.
[8] In Woods v. State, 701 N.E.2d 1208 (Ind. 1998), cert. denied, 528 U.S. 861 (1999),
our Supreme Court held that claims of ineffective assistance of counsel could be
litigated in post-conviction proceedings if, but only if, not litigated on direct
appeal.3 See also Landis v. State, 749 N.E.2d 1130, 1133 (Ind. 2001) (“[I]f a claim
of ineffective assistance of counsel has been litigated on direct appeal, it is not
3 “Prior to Woods, there was debate over whether a claim of ineffective assistance of counsel was or was not waived if not raised on direct appeal.” Landis v. State, 749 N.E.2d 1130, 1132 (Ind. 2001).
Court of Appeals of Indiana | Memorandum Decision 12A02-1601-PC-83 | December 21, 2016 Page 5 of 7 available in post-conviction proceedings[.]”). We recognize that, on direct
appeal, Newman asserted that his trial counsel was ineffective for reasons
different than those that he now raises in his post-conviction appeal.4 However,
the assertion of different allegations of trial counsel error does not save
Newman’s post-conviction claims. Once a defendant chooses to raise a claim
of ineffective assistance of trial counsel, he or she “must raise all issues relating
to that claim, whether record-based or otherwise.” Ben-Yisrayl, 738 N.E.2d at
259 (citing Woods, 701 N.E.2d at 1220). The directive from the Woods decision
was that a defendant “must decide the forum for adjudication of the issue –
direct appeal or collateral review[,]” and “[t]he specific contentions supporting
the claim . . . may not be divided between the two proceedings.” 5 Woods, 701
N.E.2d at 1220; see also Craig, 804 N.E.2d at 173 (“[I]f a defendant presents a
claim of ineffectiveness upon direct appeal, he is foreclosed from subsequently
relitigating that claim, even if based upon different grounds.”) Accordingly,
here, the post-conviction court did not err when it concluded that Newman was
foreclosed from litigating his post-conviction claim of ineffective assistance of
trial counsel and denied his petition for post-conviction relief.
4 On direct appeal, Newman had claimed that trial counsel was ineffective: (1) in his cross-examination of the victims by failing to address alleged inconsistencies between deposition and trial testimony; (2) for failing to object to a juror’s presence as an alternate juror during deliberations; and (3) for failing to mention the lack of physical evidence to the jury. Newman v. State, No. 12A05-0608-CR-421 at *9 (Ind. Ct. App. June 12, 2007), trans. denied. 5 The Woods Court observed that, “[a]s a practical matter, this rule will likely deter all but the most confident appellants from asserting any claim of ineffectiveness on direct appeal.” Woods v. State, 701 N.E.2d 1208, 1220 (Ind. 1998).
Court of Appeals of Indiana | Memorandum Decision 12A02-1601-PC-83 | December 21, 2016 Page 6 of 7 [9] Affirmed.
May, J., and Crone, J., concur
Court of Appeals of Indiana | Memorandum Decision 12A02-1601-PC-83 | December 21, 2016 Page 7 of 7