                                                                     FILED
                                                                Nov 17 2016, 7:33 am

                                                                     CLERK
                                                                 Indiana Supreme Court
                                                                    Court of Appeals
                                                                      and Tax Court




APPELLANT PRO SE                                          ATTORNEYS FOR APPELLEE
Kyle Pavan                                                Gregory F. Zoeller
Elwood, Indiana                                           Attorney General of Indiana

                                                          James B. Martin
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Kyle Pavan,                                               November 17, 2016
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          48A02-1512-PC-2125
        v.                                                Appeal from the Madison Circuit
                                                          Court
State of Indiana,                                         The Honorable Thomas Newman,
Appellee-Plaintiff.                                       Jr., Judge
                                                          The Honorable Carl E. VanDorn,
                                                          Special Judge
                                                          Trial Court Cause No.
                                                          48C03-1503-PC-2, 48D03-0709-
                                                          FC-267



Altice, Judge.


                                          Case Summary




Court of Appeals of Indiana | Opinion 48A02-1512-PC-2125 | November 17, 2016             Page 1 of 9
[1]   Kyle Pavan appeals from the denial of his petition for post-conviction relief

      (PCR). On appeal, he asserts that the post-conviction court erred in rejecting

      his claim of ineffective assistance of trial counsel.


[2]   We affirm.


                                            Facts & Procedural History


[3]   On September 28, 2007, the State charged twenty-three-year-old Pavan with

      class C felony incest for engaging in consensual sexual intercourse with his

      thirty-four-year-old biological aunt “[o]n or about various and diverse times

      between November 1, 2006 and January 31, 2007.” Appellant’s Appendix at 19.

      Pavan ultimately pled guilty and was sentenced to six years, with two years

      executed on work release and the remainder suspended to probation.1 On

      March 3, 2014, Pavan’s probation was revoked. On the same date, he filed his

      pro se petition for post-conviction relief (PCR), in which he raised a single

      issue—whether his trial counsel was ineffective for failing to argue that his

      prosecution for incest was barred by the applicable statute of limitations.


[4]   At a hearing On October 19, 2015, Pavan and the State argued their respective

      positions with regard to the applicable statute of limitations. Specifically,

      Pavan argued that pursuant to Ind. Code § 35-41-4-2(e), prosecution for the

      crime of incest is barred unless commenced before the date the alleged victim




      1
          Pavan’s aunt was also charged and convicted as a result of their incestuous relationship.


      Court of Appeals of Indiana | Opinion 48A02-1512-PC-2125 | November 17, 2016                    Page 2 of 9
      reaches thirty-one years of age. According to Pavan, his prosecution for incest

      was barred because his aunt was thirty-four years of age at the time the charges

      were filed. The State responded that I.C. § 35-41-4-2(e) was inapplicable and

      that the charges were filed within the general five-year statute of limitations

      applicable to class C felonies. Pavan and the State agreed that the facts were

      not in dispute and that Pavan’s claim presented a pure question of statutory

      interpretation.


[5]   The parties subsequently submitted proposed findings of fact and conclusions of

      law. Pavan’s proposed findings addressed not only the issue raised in his PCR

      petition and at the October 19 hearing, but also a number of additional issues

      that Pavan had not previously presented to the post-conviction court. On

      November 16, 2015, the post-conviction court issued its order denying Pavan’s

      PCR petition. The order addressed only Pavan’s claim that his trial counsel

      was ineffective for failing to raise the statute-of-limitations defense before the

      trial court. Specifically, the post-conviction court concluded that that the five-

      year statute of limitations for class C felonies applied and that the charges were

      filed well within that limitations period. Accordingly, the post-conviction court

      concluded that trial counsel was not ineffective for failing to argue at trial that

      the statute of limitations had expired because any such argument was without

      merit. Pavan now appeals.


                                           Discussion & Decision




      Court of Appeals of Indiana | Opinion 48A02-1512-PC-2125 | November 17, 2016   Page 3 of 9
[6]   In a post-conviction proceeding, the petitioner bears the burden of establishing

      grounds for relief by a preponderance of the evidence. Bethea v. State, 983

      N.E.2d 1134, 1138 (Ind. 2013). “When appealing the denial of post-conviction

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

      judgment.” Id. (quoting Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004)). In

      order to prevail, the petitioner must demonstrate that the evidence as a whole

      leads unerringly and unmistakably to a conclusion opposite the post-conviction

      court’s conclusion. Id. Although we do not defer to a post-conviction court’s

      legal conclusions, we will reverse its findings and judgment only upon a

      showing of clear error, i.e., “that which leaves us with a definite and firm

      conviction that a mistake has been made.” Id. (quoting Ben-Yisrayl v. State, 729

      N.E.2d 102, 106 (Ind. 2000)).


[7]   As an initial matter, we note that Pavan raises a number of issues in his

      appellate brief that he did not raise in his PCR petition or otherwise properly

      present to the post-conviction court. It is well settled that issues not raised in a

      PCR petition may not be raised for the first time on appeal. McKnight v. State, 1

      N.E.3d 193, 202 n.3 (Ind. Ct. App. 2013). Pavan’s pro se status does not

      excuse his failure to properly preserve these issues for appeal. See Smith v. State,

      38 N.E.3d 218, 220 (Ind. Ct. App. 2015) (explaining that pro se litigants are

      held to the same standard as trained counsel and are required to follow

      procedural rules). Accordingly, these issues are waived, and we will address

      Pavan’s only remaining appellate claim—whether his trial counsel was

      ineffective for failing to raise the statute-of-limitations defense.


      Court of Appeals of Indiana | Opinion 48A02-1512-PC-2125 | November 17, 2016   Page 4 of 9
[8]   A petitioner will prevail on a claim of ineffective assistance of counsel only

      upon a showing that counsel’s performance fell below an objective standard of

      reasonableness and that the deficient performance prejudiced the petitioner.

      Bethea, 983 N.E.2d at 1138. To satisfy the first element, the petitioner must

      demonstrate deficient performance, which is “representation that 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.

      (quoting McCary v. State, 761 N.E.2d 389, 392 (Ind. 2002)). To satisfy the

      second element, the petitioner must show prejudice, which is “a reasonable

      probability that, but for counsel’s errors, the result of the proceeding would

      have been different.” Id. at 1139. In the context of a guilty plea, this requires

      the petitioner to establish a reasonable probability that, but for counsel’s errors,

      he would not have pled guilty and would have instead insisted on going to trial.

      Scott v. State, 986 N.E.2d 292, 296 (Ind. Ct. App. 2013). “A reasonable

      probability is one that is sufficient to undermine confidence in the outcome.”

      Kubsch v. State, 934 N.E.2d 1138, 1147 (Ind. 2010) (quoting Strickland v.

      Washington, 466 U.S. 668, 694 (1984)). Failure to satisfy either element will

      cause an ineffectiveness claim to fail. Carrillo v. State, 98 N.E.2d 461, 464 (Ind.

      Ct. App. 2013). Thus, if a petitioner cannot establish prejudice, we need not

      evaluate the reasonableness of counsel’s performance. Id.




      Court of Appeals of Indiana | Opinion 48A02-1512-PC-2125 | November 17, 2016   Page 5 of 9
[9]   Pavan’s appellate argument is based on a flawed interpretation of I.C. § 35-41-4-

      2 (2007), which, at the time Pavan was charged,2 read in relevant part as

      follows:


               (a) Except as otherwise provided in this section, a prosecution for
               an offense is barred unless it is commenced:


                        (1) within five (5) years after the commission of the
                        offense, in the case of a Class B, Class C, or Class D
                        felony. . . .


               (e) A prosecution for the following offenses is barred unless
               commenced before the date that the alleged victim of the offense
               reaches thirty-one (31) years of age:


                        (1) IC 35-42-4-3(a) (Child molesting).


                        (2) IC 35-42-4-5 (Vicarious sexual gratification).


                        (3) IC 35-42-4-6 (Child solicitation).


                        (4) IC 35-42-4-7 (Child seduction).


                        (5) IC 35-46-1-3 (Incest).




      2
        Our Supreme Court has explained that “the applicable statute of limitations is that which was in effect at
      the time the prosecution was initiated.” Wallace v. State, 753 N.E.2d 568, 569 (Ind. 2001). Although I.C. §
      35-41-4-2 has undergone some limited, mostly stylistic changes since Pavan was charged, its substance, at
      least as it pertains to this case, remains the same.

      Court of Appeals of Indiana | Opinion 48A02-1512-PC-2125 | November 17, 2016                       Page 6 of 9
[10]   Pavan does not dispute that the charge against him was brought well within five

       years of the commission of the offense. Instead, according to Pavan, his

       prosecution for incest was barred pursuant to I.C. § 35-41-4-2(e) because his

       aunt, the “victim” in this case, was thirty-four years old at the time the offense

       occurred. Although Pavan frames the issue in terms of the statute of

       limitations, his argument boils down to an assertion that it is not illegal to

       engage in consensual incestuous sexual intercourse with a family member over

       the age of thirty-one.


[11]   We decline to adopt the interpretation Pavan suggests. At the time of Pavan’s

       guilty plea, the statute criminalizing incest provided as follows:

                A person eighteen (18) years of age or older who engages in
                sexual intercourse or deviate sexual conduct with another person,
                when the person knows that the other person is related to the
                person biologically as a parent, child, grandparent, grandchild,
                sibling, aunt, uncle, niece, or nephew, commits incest, a Class C
                felony. However, the offense is a Class B felony if the other
                person is less than sixteen (16) years of age.


       Ind. Code § 35-46-1-3 (2007).3 Notably, the statute contains no element of

       force, nor does it set forth any maximum age for the perpetrator or victim.

       Indeed, by elevating the offense to a class B felony when the other person

       involved is less than sixteen years old, the statute specifically contemplates that




       3
        The current version of the incest statute is identical in substance, but the crime is now classified as either a
       Level 5 or a Level 4 felony depending on the age of the victim. I.C. § 35-46-1-3.

       Court of Appeals of Indiana | Opinion 48A02-1512-PC-2125 | November 17, 2016                           Page 7 of 9
       incest continues to be criminalized when both participants are beyond the age

       of consent. Nothing in the incest statute itself supports Pavan’s assertion that it

       is not illegal to engage in consensual incestuous sex, provided that the family

       member involved is age thirty-one or over.


[12]   Our Supreme Court has noted that “[t]he legislature has provided an extended

       statute of limitations for certain sex offenses in Indiana Code section 35-41-4-

       2(e).” Sloan v. State, 947 N.E.2d 917, 923 n.9 (Ind. 2011) (emphasis supplied).

       Aside from incest, all of the offenses listed in I.C. § 35-41-4-2(e) are, by

       definition, crimes against children—vulnerable victims who may not be

       physically, mentally, or emotionally capable of reporting their abuse until much

       later in life. Although incest is not exclusively a crime against children, it is

       very often committed against children or other particularly vulnerable victims.

       When viewed in context, the purpose of I.C. § 35-41-4-2(e) is clear—it is

       intended to toll the statute of limitations to allow victims of certain sex crimes

       to report their abuse and seek justice upon reaching adulthood. In other words,

       the statute is intended to extend the statute of limitations for certain sex crimes.

       The statute is in no event intended to shorten the applicable statute of

       limitations for any crime or, as Pavan asserts in this case, wholly decriminalize

       an otherwise illegal sex act based on the age of the other party.


[13]   Essentially, Pavan asks us to transform a tolling provision located within the

       statute of limitations into an additional element the State must prove to secure a

       conviction for incest—that the victim or, as in this case, other willing

       participant, is under thirty-one years old. To accept Pavan’s request would be

       Court of Appeals of Indiana | Opinion 48A02-1512-PC-2125 | November 17, 2016   Page 8 of 9
       to embrace an absurd and illogical interpretation of both the statute of

       limitations and the incest statute. See In re J.S., 48 N.E.3d 356, 359-60 (Ind. Ct.

       App. 2015) (explaining that “[w]e presume that the General Assembly intended

       that the language used in [a] statute be applied logically and not to bring about

       an unjust or absurd result” (quoting Alvey v. State, 10 N.E.3d 1031, 1033 (Ind.

       Ct. App. 2014), aff’d of reh’g, 15 N.E.3d 72), trans. denied.)                 If the legislature had

       wished to place such limitations on the reach of the incest statute, it would have

       done so explicitly and in the statute defining the offense, not impliedly and by

       way of the statute of limitations.


[14]   In sum, Pavan’s statute-of-limitations argument is without merit, and trial

       counsel cannot be deemed ineffective for failing to pursue a meritless defense.

       Accordingly, the post-conviction court properly denied Pavan’s PCR petition.


[15]   Judgment affirmed.


[16]   Bradford, J. and Pyle, J., concur.




       Court of Appeals of Indiana | Opinion 48A02-1512-PC-2125 | November 17, 2016                Page 9 of 9
