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
