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
