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
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[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March 3, 2014, Pavan’s probation was revoked.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.
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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
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[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.
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[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.
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[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.
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[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.
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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
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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.
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