MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                        FILED
regarded as precedent or cited before any                               Dec 31 2019, 9:18 am
court except for the purpose of establishing
                                                                             CLERK
the defense of res judicata, collateral                                  Indiana Supreme Court
                                                                            Court of Appeals
estoppel, or the law of the case.                                             and Tax Court




APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
Dennis M. Feyka                                          Curtis T. Hill, Jr.
Pendleton, Indiana                                       Attorney General of Indiana

                                                         Sierra A. Murray
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Dennis M. Feyka,                                         December 31, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-PC-1917
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Mark D. Stoner,
Appellee-Plaintiff.                                      Judge
                                                         The Honorable Jeffrey L. Marchal,
                                                         Magistrate
                                                         Trial Court Cause No.
                                                         49G06-1006-PC-45550



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-PC-1917 | December 31, 2019                Page 1 of 14
[1]   Dennis Feyka appeals the denial of his petition for post-conviction relief. We

      affirm.


                                      Facts and Procedural History

[2]   The relevant facts as discussed in Feyka’s direct appeal follow:


              [D]uring spring break of 2010, Feyka’s daughter hosted a
              sleepover for a number of girls at Feyka’s house. T.B., then nine
              years old, attended the sleepover. The other girls in attendance
              were older than T.B., and they spent the evening in a locked
              bedroom while T.B. remained in the living room. T.B. slept on
              one part of an L-shaped couch, and Feyka slept on the other part.
              On three occasions during the night, Feyka placed his mouth on
              T.B.’s vagina. When school resumed after spring break, T.B.
              attended a “good touch/bad touch” program and then reported
              the incident.


      Feyka v. State, 972 N.E.2d 387, 389 (Ind. Ct. App. 2012), trans. denied.


[3]   The State charged Feyka with three counts of child molesting as class A

      felonies. Id. On June 20 and 21, 2011, the court held a jury trial. At trial,

      Attorney Nicholas McGuinness and Attorney Jeffrey Neel represented Feyka.

      On direct examination, T.B. testified that a close family member also licked her

      private with his tongue like Feyka did. On cross-examination, she testified that

      there were three other adults in the room at Feyka’s residence. A forensic child

      interviewer testified that T.B. said that her brother and her played a truth or

      dare game and he had dared her to lick his private part.




      Court of Appeals of Indiana | Memorandum Decision 18A-PC-1917 | December 31, 2019   Page 2 of 14
[4]   Indianapolis Metropolitan Police Detective Grant Melton testified that he

      received contact information for Gary Broge, Carol Carter, and Feyka’s

      daughter. When asked what information he received from Carter and Broge

      that was helpful to his investigation, Attorney Neel objected based upon

      hearsay, and the court sustained the objection.


[5]   After the State rested, Feyka’s counsel moved for a directed verdict, which the

      trial court denied. The court asked Feyka’s counsel if he intended to present

      evidence, and he answered: “I believe so. We’re still not positive.” Trial

      Transcript Volume II at 261. After a recess, the court asked again, and Feyka’s

      counsel indicated that the defense would not present evidence.


[6]   The jury found him guilty of all three counts. Feyka, 972 N.E.2d at 389. The

      court merged Counts II and III into Count I and entered a judgment of

      conviction on that count. Id.


[7]   On direct appeal, Feyka argued that the prosecutor’s comments during closing

      argument were fundamental error and the evidence was insufficient to convict

      him because the victim’s testimony was incredibly dubious. Id. This Court

      affirmed. Id.


[8]   On December 19, 2012, Feyka, by counsel, filed a petition for post-conviction

      relief alleging that he was denied effective assistance of trial counsel because

      counsel failed to call approximately twelve people who were present when the

      alleged acts occurred. On June 3, 2013, Feyka filed an amended petition

      adding allegations that his trial counsel failed to investigate whether T.B.’s

      Court of Appeals of Indiana | Memorandum Decision 18A-PC-1917 | December 31, 2019   Page 3 of 14
       parents were threatened or coerced to present T.B. for testimony, whether T.B.

       was coached in an inappropriate fashion during a period she was taken from

       her parents’ custody, and whether the State used CHINS proceedings to further

       its prosecution. He also alleged that agents or employees of the State

       threatened T.B.’s parents to cooperate and failed to disclose that T.B.’s parents

       had been threatened with CHINS proceedings and that T.B. had been taken

       from their care.


[9]    On May 16, 2013, the court held a hearing. Feyka’s post-conviction counsel

       introduced an order on disposition of the CHINS matter, a deposition “entered

       as an exhibit by agreement of the parties in lieu of live testimony of” Feyka’s

       daughter, and the record from the direct appeal. Post-Conviction Transcript

       Volume II at 3. The court admitted the record and the deposition. After some

       discussion regarding admission of the CHINS order, Feyka’s counsel moved to

       amend the petition and requested a continuance, and the court granted the

       continuance.


[10]   On October 31, 2014, the State filed a Request for Attorneys-Only PCR Status

       Hearing to address Feyka’s intent to depose T.B., which the court later granted.

       On November 20, 2014, the court held a hearing. Feyka’s counsel asserted that

       there was a family member who was accused of acts in the same period who

       later pled guilty to charges. He argued that “[t]he reason I want to depose the

       child witness are, one, to ask whether anyone had asked her about the other

       matter; and two, to find out whether my client’s counsel specifically had asked

       her any questions in preparation for trial or deposed her; and then, third,

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1917 | December 31, 2019   Page 4 of 14
       aspects of that case.” Id. at 23. He also asserted that “there may be

       inconsistencies in the child’s testimony before the trial court that I believe are

       relevant for this Court to consider as far as the credibility of the witnesses and

       why that wasn’t impeached at trial.” Id. Upon questioning by the court as to

       what has to come from the child as opposed to other sources, Feyka’s counsel

       answered: “[T]he specifics of the acts by the family member; and also, whether

       actors of the State, police officer or whomever, had asked her about that other

       incident, and also whether they put undue pressure on her to testify.” Id. at 24.

       The court indicated that it did not want to rule from the bench and confirmed

       that it still had an evidentiary hearing scheduled. On December 1, 2014, the

       court entered an order prohibiting Feyka from conducting a discovery

       deposition of T.B. “who was and is a minor child.” Appellant’s Appendix

       Volume II at 35.


[11]   On February 11, 2016, the court held a hearing. Feyka’s counsel indicated two

       of his subpoenaed witnesses did not appear but that he could make an offer of

       proof because their testimony would have been fairly simple and duplicative of

       other previously called witnesses. Feyka’s counsel indicated that the court

       would have Attorney McGuiness’s affidavit within fourteen days, and the court

       stated that it would be marked as Petitioner’s Exhibit D when it came in. The

       prosecutor stated: “My expectation based upon conversations with counsel is

       that Mr. McGuiness’s affidavit is going to essentially say that he essentially

       does not remember any of the specific details of the case, basically, handling the

       case.” Post-Conviction Transcript Volume II at 33. Feyka’s counsel replied:


       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1917 | December 31, 2019   Page 5 of 14
       “Or any strategic or tactical reasons for having not done things. And that’s

       what we anticipate.” Id.


[12]   Feyka’s counsel provided an offer of proof with respect to the testimony of

       Carter and Broge who had not appeared for the hearing. He stated that Carter

       would have testified that she was present in the house on the night in question,

       was working at a computer the entire night, was within sight of the couch, saw

       nothing untoward occur, and she was threatened that if she testified on Feyka’s

       behalf that her child would be taken from her. He also stated that Broge would

       have testified that he fell asleep part of the night at the house, saw Carter sitting

       at the computer, Feyka wanted to switch places with him, he had about one to

       two hours of sleep that night, and that the only improper thing he saw was that

       “the little girl . . . would not leave Mr. Feyka alone.” Id. at 34-35.


[13]   Feyka’s post-conviction counsel questioned Feyka who testified that Attorney

       McGuiness represented him at trial and that “Mr. McGuiness didn’t tell me

       anything until the day of the trial that we weren’t putting up a defense.” Id. at

       37. He testified that he sat down with Attorney McGuiness a week before the

       trial and “went through who [he] wanted to put on the stand,” that Attorney

       McGuiness “said okay,” and “[t]hen we come to trial, and all the sudden we’re

       not putting up a defense, and I didn’t know what to say.” Id. at 37-38. He

       indicated that he had at least five witnesses including Carter, Broge, L., and two

       other girls. He later mentioned the other people who were in his house that

       night including his daughter, T., Jay, who passed away, and Jay’s wife. He

       stated that he wanted to testify at trial and he would have testified that nothing

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1917 | December 31, 2019   Page 6 of 14
       happened that night. He also testified that he told Attorney McGuiness to

       object at certain points during the trial when the prosecutor was leading

       witnesses, and he refused to object.


[14]   The State called Detective Melton who testified that T.B.’s brother was arrested

       and charged during the same time period but was not prosecuted in order to

       coerce T.B.’s parents. He testified that he went to T.B.’s residence on

       November 22, 2010, to deliver subpoenas for a deposition and gave the

       subpoenas to a person with instructions for T.B.’s parents to give the deputy

       prosecutor a call. He stated that there was no response from T.B.’s parents on

       December 2, 2010, regarding the deposition that was to occur on December 3,

       2010. He indicated that they decided to go to the school to talk to T.B. because

       there was some concern about whether Feyka had still been coming to the

       house given that he and his brother were close friends with T.B.’s family. He

       testified that T.B. told them at school that she and her brother had played truth

       or dare and “licked each other’s privates.” Id. at 48. He stated that he called

       T.B.’s mother and that T.B.’s brother admitted the allegations. He indicated

       that a CHINS action involving T.B.’s family began on December 2, 2010, when

       the allegations against T.B.’s brother surfaced, and T.B.’s parents indicated,

       when asked why they had not responded, that they “just wanted it all to go

       away.” Id. at 50. He indicated that anything that happened in “that case had

       really no – was not driven by the case involving Dennis Feyka.” Id. at 51. He

       testified that he attempted to speak with Feyka’s daughter but did not speak

       with her. He indicated he interviewed Carter and Broge. The court and the


       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1917 | December 31, 2019   Page 7 of 14
       parties discussed Carter and Broge’s absence, and the court continued the

       hearing.


[15]   On April 13, 2017, the State filed a motion indicating that Feyka intended to

       attempt to call T.B. as a witness at the evidentiary hearing, asserting that his

       attempt to present her testimony was a blatant abuse of the post-conviction

       review process, and requesting that the court quash Feyka’s subpoena or hold a

       hearing on the issue. On April 18, 2017, the court entered an order granting the

       motion and ordering a hearing to be held on the matter on April 20, 2017. On

       April 20, 2017, Feyka’s counsel requested a continuance of the evidentiary

       hearing, and the court rescheduled the hearing.


[16]   On October 19, 2017, the court continued the evidentiary hearing. Feyka’s

       counsel stated that he did not believe that there was any further evidence to

       produce, that the only other matter “in terms of evidence would be an affidavit

       from trial counsel,” and that he and the prosecutor agreed “to submit that to the

       Court in lieu of testimony of trial counsel.” Id. at 66.


[17]   On June 7, 2018, the court denied Feyka’s petition. The court found Feyka’s

       testimony not to be credible and afforded it no weight. It found that the

       CHINS proceeding and the prosecution of T.B.’s brother were not undertaken

       as a means of leverage or to intimidate T.B.’s parents and concluded that the

       State did not engage in any misconduct through its agents. On July 9, 2018,

       Feyka filed a motion to correct error, which the trial court later denied.




       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1917 | December 31, 2019   Page 8 of 14
                                                   Discussion

[18]   Before discussing Feyka’s allegations of error, we observe that he is proceeding

       pro se. Such litigants are held to the same standard as trained counsel. Evans v.

       State, 809 N.E.2d 338, 344 (Ind. Ct. App. 2004), trans. denied. We also note the

       general standard under which we review a post-conviction court’s denial of a

       petition for post-conviction relief. The petitioner in a post-conviction

       proceeding bears the burden of establishing grounds for relief by a

       preponderance of the evidence. Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004);

       Ind. Post-Conviction Rule 1(5). When appealing from the denial of post-

       conviction relief, the petitioner stands in the position of one appealing from a

       negative judgment. Fisher, 810 N.E.2d at 679. On review, we will not reverse

       the judgment unless the evidence as a whole unerringly and unmistakably leads

       to a conclusion opposite that reached by the post-conviction court. Id. “A post-

       conviction court’s findings and judgment will be reversed only upon a showing

       of clear error—that which leaves us with a definite and firm conviction that a

       mistake has been made.” Id. In this review, we accept findings of fact unless

       clearly erroneous, but we accord no deference to conclusions of law. Id. The

       post-conviction court is the sole judge of the weight of the evidence and the

       credibility of witnesses. Id.


[19]   Without citation to the record, Feyka asserts that the post-conviction court

       should have allowed counsel to investigate, “especially considering that the

       witness has admitted to some of these allegation elements in open court and in

       front of the jury.” Appellant’s Brief at 8. He asserts that the post-conviction

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1917 | December 31, 2019   Page 9 of 14
       court abused its discretion by denying post-conviction counsel “depositions and

       or subpoenas of supporting witnesses foreclosing counsel from pursuit of

       multiple claims contained within” his petition and mentions T.B. and her

       parents. Id. at 8. He asserts his post-conviction counsel was ineffective for

       failing to present evidence from trial counsel.


[20]   The State argues the post-conviction court did not abuse its discretion by

       prohibiting Feyka from deposing the victim because the victim was thoroughly

       questioned prior to and during trial, general fishing for information is not

       allowed, the specifics of the acts by the family member are not relevant to his

       post-conviction claims, and whether State actors asked her about the other

       incident was an insufficient reason to depose T.B. as the answer was known. It

       asserts that whether State actors placed undue pressure on T.B. to testify was

       not relevant to his post-conviction claims, that she was lawfully subpoenaed

       and legally obligated to testify, and that, even if the question was relevant to his

       State misconduct claims, he failed to show that his claim was based on

       information not known at the time of the original trial and appropriate for post-

       conviction. It also contends that the post-conviction court did not abuse its

       discretion because the record does not show that the court prevented Feyka

       from introducing testimony of the victim or her parents, did not quash a

       subpoena or issue a protective order, and simply granted the State’s alternative

       request that a hearing be conducted to address the matter. It argues that Feyka

       did not receive ineffective assistance of post-conviction counsel.




       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1917 | December 31, 2019   Page 10 of 14
[21]   With respect to Feyka’s claim that the post-conviction court abused its

       discretion in denying his request to depose or subpoena T.B. and her parents,

       the management of discovery is within the sound discretion of the post-

       conviction court, and we will not reverse a court’s decision on discovery absent

       an abuse of discretion. See Roche v. State, 690 N.E.2d 1115, 1133 (Ind. 1997),

       reh’g denied. “Due to the fact-sensitive nature of discovery matters, the ruling of

       the trial court is cloaked in a strong presumption of correctness on appeal,” and

       “[d]iscovery, like all matters of procedure, has ultimate and necessary

       boundaries.” Hinkle v. State, 97 N.E.3d 654, 664 (Ind. Ct. App. 2018) (quoting

       Mut. Sec. Life Ins. Co. v. Fid. & Deposit Co., 659 N.E.2d 1096, 1103 (Ind. Ct. App.

       1995), trans. denied), trans. denied.


[22]   Feyka does not point to the record to support the argument that the post-

       conviction court refused to hear evidence from T.B.’s parents. In arguing for

       the admission of T.B.’s testimony, Feyka’s counsel asserted that he wanted to

       ask T.B. “whether anyone had asked her about the other matter” and “aspects

       of that case.” Post-Conviction Transcript Volume II at 23. He argued that

       “there may be inconsistencies in the child’s testimony before the trial court that

       I believe are relevant for this Court to consider as far as the credibility of the

       witnesses and why that wasn’t impeached at trial.” Id. We cannot say that the

       post-conviction court abused its discretion in denying Feyka’s request to

       subpoena or depose T.B. or her parents at the evidentiary hearing. See Hinkle,

       97 N.E.3d at 666 (holding that petitioner’s discovery requests in the post-

       conviction process were improper fishing expeditions, not attempts to vindicate


       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1917 | December 31, 2019   Page 11 of 14
       actual claims, and concluding that the post-conviction court did not abuse its

       discretion when it denied his motion to compel).


[23]   As for Feyka’s argument regarding his post-conviction counsel, the Indiana

       Supreme Court has summarized the method by which we are to review claims

       of ineffective assistance of post-conviction counsel:


               This Court declared its approach to claims about performance by
               a post-conviction lawyer in Baum v. State, 533 N.E.2d 1200 (Ind.
               1989). We observed that neither the Sixth Amendment of the
               U.S. Constitution nor article 1, section 13 of the Indiana
               Constitution guarantee the right to counsel in post-conviction
               proceedings, and explicitly declined to apply the well-known
               standard for trial and appellate counsel of Strickland v.
               Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L.Ed.2d 674
               (1984). Baum, 533 N.E.2d at 1201. The Baum Court noted that
               post-conviction pleadings are not regarded as criminal actions
               and need not be conducted under the standards followed in them.
               Id. We held unanimously that a claim of defective performance
               “poses no cognizable grounds for post-conviction relief” and that
               to recognize such a claim would sanction avoidance of legitimate
               defenses and constitute an abuse of the post-conviction remedy.
               Id. at 1200-01.


               We therefore adopted a standard based on principles inherent in
               protecting due course of law—one that inquires “if counsel in
               fact appeared and represented the petitioner in a procedurally fair
               setting which resulted in a judgment of the court.” Id. at 1201.
               As Justice DeBruler explained later, speaking for a majority of
               us, it is “not a ground for post-conviction relief that petitioner’s
               counsel in a prior post-conviction proceeding did not provide
               adequate legal assistance,” but such a contention could provide a
               prisoner with a basis for replying to a state claim of prior


       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1917 | December 31, 2019   Page 12 of 14
               adjudication or abuse of process. Hendrix v. State, 557 N.E.2d
               1012, 1014 (Ind. 1990) (DeBruler, J., concurring).


       Graves v. State, 823 N.E.2d 1193, 1196 (Ind. 2005).


[24]   With respect to Feyka’s claim that his post-conviction counsel failed to

       investigate, he does not mention any witnesses other than T.B. or her parents in

       his argument section. To the extent Feyka asserts that his post-conviction

       counsel was ineffective because he failed to present evidence from trial counsel,

       we observe that, while Feyka’s post-conviction counsel indicated that he would

       present the court with Attorney McGuinness’s affidavit and the record does not

       contain the affidavit, the prosecutor stated that his expectation was that the

       affidavit would indicate that Attorney McGuinness did not remember any of

       the specific details of the case. Further, Feyka’s post-conviction counsel

       replied: “Or any strategic or tactical reasons for having not done things. And

       that’s what we anticipate.” Post-Conviction Transcript Volume II at 33.


[25]   At the May 16, 2013 hearing, Feyka’s post-conviction counsel introduced an

       order on disposition of the CHINS matter, a deposition of Feyka’s daughter,

       and the record from the direct appeal. During the October 31, 2014 hearing,

       Feyka’s post-conviction counsel argued for deposing T.B. At the February 11,

       2016 hearing, Feyka’s counsel indicated that two of his subpoenaed witnesses

       did not appear but made an offer of proof with respect to their testimony. He

       also questioned Feyka. Further, he filed a motion to correct error following the

       court’s denial of the petition for post-conviction relief.


       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1917 | December 31, 2019   Page 13 of 14
[26]   Based upon the record, we cannot say that Feyka was deprived of a

       procedurally fair post-conviction hearing. See Graves, 823 N.E.2d at 1197

       (affirming the post-conviction court’s denial of relief when post-conviction

       counsel appeared at the post-conviction relief hearing and directly examined the

       petitioner).


[27]   For the foregoing reasons, we affirm the denial of Feyka’s petition for post-

       conviction relief.


[28]   Affirmed.


       Baker, J., and Riley, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1917 | December 31, 2019   Page 14 of 14
