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«ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Cara Schaefer Wieneke Gregory F. Zoeller Special Assistant to the Attorney General of Indiana State ...»

-- [ Page 1 ] --

MEMORANDUM DECISION

FILED

Pursuant to Ind. Appellate Rule 65(D),

this Memorandum Decision shall not be Oct 21 2016, 8:50 am

regarded as precedent or cited before any

CLERK

court except for the purpose of establishing 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 Court of Appeals Case No.

Appellant-Petitioner, 90A02-1603-PC-581 v. Appeal from the Wells Circuit Court State of Indiana, The Honorable Thomas M. Hakes, Special Judge Appellee-Respondent.

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 In March of 2007, S.M. reported that Appellant-Petitioner Kyle Willhite had [1] 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.

On April 23, 2007, Appellee-Respondent the State of Indiana (“the State”) filed [2] 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.

Pursuant to the terms of the parties’ agreement, the State charged Willhite with [3] 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.

Willhite subsequently sought post-conviction relief. Following an evidentiary [4] 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 postconviction court abused its discretion in excluding certain evidence. We affirm.

–  –  –

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 2001school 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 On March 13, 2007, fifteen-year-old S.M. reported to Officer Steven Cale that [6] 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.





On April 23, 2007, the State filed a petition alleging that Willhite was a [7] 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.

On August 12, 2009, when Willhite was twenty-one years old, the juvenile [8] court conducted a hearing on the State’s motion. During this hearing, the

following exchange took place:

–  –  –

Petitioner’s Ex. 8, pp. 3-4.

The next day, on August 13, 2009, the State charged Willhite in the trial court [9] 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

–  –  –

On August 17, 2012, when Willhite was twenty-four years old, Willhite entered [10] 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

–  –  –

Following the trial court’s acceptance of his guilty plea but before sentencing, [11] 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.

On March 22, 2013, Willhite filed a pro-se motion to dismiss his guilty plea. In [12] 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.

Following sentencing, Willhite filed a direct appeal. Willhite, however, [13] 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.

–  –  –

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.

Post-conviction proceedings are civil in nature. Stevens v. State, 770 N.E.2d 739, [15] 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.

In seeking post-conviction relief, Willhite contends that the juvenile court erred [16] 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.

–  –  –

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.

Juvenile courts generally have exclusive original jurisdiction over juvenile [18] 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:

–  –  –

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).



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