MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing                                         FILED
the defense of res judicata, collateral                                          Aug 18 2020, 9:44 am

estoppel, or the law of the case.                                                    CLERK
                                                                                 Indiana Supreme Court
                                                                                    Court of Appeals
                                                                                      and Tax Court




APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
Robert Petty                                             Curtis T. Hill, Jr.
Pendleton, Indiana                                       Attorney General of Indiana

                                                         Evan Matthew Comer
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Robert Petty,                                            August 18, 2020
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         20A-PC-587
        v.                                               Appeal from the Scott Circuit
                                                         Court
State of Indiana,                                        The Honorable Maria D. Granger,
Appellee-Respondent.                                     Judge
                                                         Trial Court Cause No.
                                                         72C01-1902-PC-2



Bradford, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 20A-PC-587| August 18, 2020          Page 1 of 13
                                          Case Summary
[1]   In 2013, Robert Petty was convicted of Class B felony voluntary manslaughter,

      Class D felony removal of a body from the scene, and Class D felony

      obstruction of justice, and he admitted to being a habitual offender, for which

      he was sentenced to an aggregate term of fifty-six years of incarceration. On

      direct appeal, we affirmed Petty’s convictions and sentence, and the Indiana

      Supreme Court denied transfer.


[2]   In 2019, Petty petitioned for post-conviction relief (“PCR”), alleging ineffective

      assistance of trial and appellate counsel. The post-conviction court denied

      Petty’s petition. Petty contends that the post-conviction court erred by denying

      him PCR. We affirm.



                            Facts and Procedural History
[3]   The underlying facts leading to Petty’s appeal of the denial of his PCR petition

      are as follows:


              On April 7, 2007, Petty married Nina Keown (Keown), and
              welcomed their daughter, B.P., a month later. On October 9,
              2009, Petty and Keown divorced, but got back together in July
              2010. Keown was also in the process of moving back into Petty’s
              house located on 7168 East Plymouth Road, Lexington, Indiana.

              On August 7, 2010, Petty, Keown, and B.P. drove to Clarksville,
              Indiana for a day of shopping. Petty bought a video game at a
              game store, two pints of Jim Beam at a liquor store, and a ring
              for Keown at a pawn shop. They drove back to Lexington
              arriving around 4:30 p.m., dropped off B.P at Petty’s fathers’

      Court of Appeals of Indiana | Memorandum Decision 20A-PC-587| August 18, 2020   Page 2 of 13
        house, and drove to Scottsburg, Indiana to attend the HopStock
        Music Festival (concert). Petty and Keown were together at the
        beginning of the concert but later separated. At some
        point, Petty wanted to go home. He walked back to his Camo 4–
        Wheeler (4–Wheeler) only to find Keown standing next to it,
        talking to somebody on her cellphone. Keown quickly hung up,
        and when Petty asked who she was talking to, Keown replied,
        “none of your [f*****g] business.” (Transcript p. 1488). This
        made Petty angry and they started to argue. They were both
        intoxicated from the alcohol they had consumed at the concert.
        The pair set off in the 4–Wheeler but stopped at the intersection
        of Plymouth Road and Highway 3, where they got out and
        continued arguing for about two to three minutes before climbing
        back into the 4–Wheeler and driving the rest of the way home.

        Once they arrived at Petty’s residence, Petty snatched Keown’s
        cellphone. Using her call history, Petty called the last number
        Keown had dialed. It turned out that Keown had called a wrong
        number, and had spoken to a man by the name of Joe Barger
        (Barger). Barger told Petty that Keown had called him three
        times asking for “Mitch.” (Tr. p. 1456). Petty called Barger
        approximately ten times but Barger refused to talk to him or
        disclose his identity. In one of these ten phone
        calls, Petty threatened Barger and told him that he would go over
        to his house to “whip” and “kill” him. (Tr. p. 1462).

        In the meantime, Keown had gone to the master bedroom and
        had passed out on the bed, with her feet hanging over the foot of
        the bed. Since Petty did not get any information from Barger, he
        went into the master bedroom to ask Keown the same
        question. Keown was unconscious and could therefore not
        answer him back. At this point, Petty was “mad at her,” he got
        on top of Keown, put his hands on her throat and choked her.
        (Tr. p. 1575).

        When Petty saw that Keown was not responding, Petty left the
        house and drove back to Scottsburg, Indiana, stopping at Wal–
        Mart and Burger King. Approximately one hour
Court of Appeals of Indiana | Memorandum Decision 20A-PC-587| August 18, 2020   Page 3 of 13
        later, Petty drove back to his house and found Keown still
        unconscious and she had turned blue. Petty tried to resuscitate
        Keown but she did not wake up. According to Petty, he knew
        Keown had died because she had urinated on
        herself. Petty decided that he did not want to go to jail, so he
        tried “to [ ] make it all disappear.” (Tr. p. 1527). Petty placed
        Keown’s body and her boots into the back of his 4–Wheeler, and
        drove out into the countryside stopping near Saluda, Indiana. He
        then placed two phone calls from Keown’s cellphone in an
        attempt to divert suspicion from himself. After
        that, Petty removed Keown’s cellphone battery, and threw it into
        the field. Petty decided not to dump Keown’s body there, so he
        drove further down, stopping at Bethlehem Road in New
        Washington, Indiana. The road was on hill and was overlooking
        a heavily wooded area. Petty picked up Keown’s body, stepped
        over the guardrail, and began carrying her body down the hill
        and into the woods. The hill was quite steep and Petty quickly
        fell, dropping Keown’s body. Petty left Keown’s body where it
        came to rest. He then drove for a while only to realize that
        Keown’s boots were still on the floorboard of his 4–Wheeler; he
        stopped and pitched the boots over the guardrail. At some point,
        he also realized that he still had Keown’s ring in his pocket, so he
        also pitched it somewhere along that route.

        The next morning, he returned to the site where he had dumped
        Keown’s body to retrieve her clothes, because Petty feared, if
        found, it might assist the police in identifying him as Keown’s
        killer. He then drove back home, and burned Keown’s clothes
        alongside his bed clothes in his backyard. On the same
        day, Petty called Keown’s mother and grandmother and asked
        whether they had seen or heard from Keown. Petty told them
        that he and Keown had argued at the concert the night before,
        and the last time he had seen her was when she walked away at
        the intersection of Plymouth Road and Highway 3. Petty would
        continue to tell the same story to the police for about three
        weeks.


Court of Appeals of Indiana | Memorandum Decision 20A-PC-587| August 18, 2020   Page 4 of 13
        On August 26, 2010, while Petty was in custody for an unrelated
        case in [the] Clark County Jail, Petty asked to speak to the sheriff
        but he was not available. Petty spoke to Deputy Sherriff, Racheal
        Lee (Deputy Lee), and he confessed to killing Keown and he
        offered to aid the officers in Scott County with Keown’s
        investigation. Thereafter, Deputy Lee called Scott County
        Sherriff Department, and arranged to meet officers near the site
        where Petty had dumped Keown’s body. Keown’s skeletal body
        was found the next day.

        On September 29, 2010, the State filed an Information
        charging Petty with Count I, murder, I.C. § 35-42-1-1; Count II,
        removal of body from scene, a Class D felony, I.C. § 36-2-14-17;
        and Count III, obstruction of justice, a Class D felony, I.C. § 35-
        44-3-4. That same day, the State amended the Information
        adding a fourth charge, Count IV, habitual offender, I.C. § 35-50-
        2-8.

        Petty’s jury trial was conducted on January 29, 2013 through
        February 13, 2013. Toward the end of the trial, Petty tendered
        jury instructions on involuntary manslaughter. The trial court
        denied his request and only instructed the jury on voluntary
        manslaughter as the lesser-included offense of murder. At the
        close of the hearing, the jury returned a guilty verdict of
        voluntary manslaughter, removal of body from scene, and
        obstruction of justice. Following the return of a guilty verdict on
        all Counts, Petty admitted to the habitual offender charge.

        On April 17, 2013, the trial court held Petty’s sentencing hearing.
        In the end, the trial court sentenced Petty to consecutive
        sentences of: twenty years on voluntary manslaughter, enhanced
        by thirty years due to his habitual offender status; three years for
        removal of body from scene; and three years for obstruction of
        justice. Thus, Petty's aggregate sentence was fifty-six years.


Petty v. State, No. 72A05-1305-CR-237, 2014 WL 1924253, at *1–3 (Ind. Ct.

App. 2014), trans. denied. On appeal, Petty argued that (1) the trial court abused
Court of Appeals of Indiana | Memorandum Decision 20A-PC-587| August 18, 2020   Page 5 of 13
      its discretion in admitting several autopsy photographs, (2) the trial court failed

      to tender the proper jury instructions, (3) there was insufficient evidence to

      prove beyond a reasonable doubt his conviction of voluntary manslaughter, and

      (4) his sentence was inappropriate, with which we disagreed, affirming his

      convictions and sentence. Id. at *8. Petty sought transfer, which was denied by

      the Indiana Supreme Court. Petty v. State, 14 N.E.3d 44 (Ind. 2014).


[4]   On February 22, 2019, Petty filed his PCR petition, alleging ineffective

      assistance of trial and appellate counsel. The post-conviction court held

      bifurcated evidentiary hearings regarding Petty’s PCR petition on December 5

      and 19, 2019. On February 6, 2020, the post-conviction court denied Petty’s

      PCR petition.



                                 Discussion and Decision
[5]   The standard of review for appeals from the denial of PCR is well-settled.

      Petitioners who have exhausted the direct-appeal process may challenge the

      correctness of their convictions and sentences by filing a post-conviction

      petition. Stevens v. State, 770 N.E.2d 739, 745 (Ind. 2002). Petitioner bears the

      burden of establishing grounds for PCR by a preponderance of the evidence. Id.

      By appealing from a negative judgment, a petitioner faces a rigorous standard of

      review. Wesley v. State, 788 N.E.2d 1247, 1250 (Ind. 2003). Denial of PCR will

      be affirmed unless, “the evidence as a whole leads unerringly and unmistakably

      to a decision opposite that reached by the post-conviction court.” Id. We do not


      Court of Appeals of Indiana | Memorandum Decision 20A-PC-587| August 18, 2020   Page 6 of 13
      defer to the post-conviction court’s legal conclusion but do accept its factual

      findings unless they are clearly erroneous. Stevens, 770 ddickson@example.net. The post-

      conviction process does not provide a petitioner with a “super-appeal” but,

      rather, a “narrow remedy for subsequent collateral challenges to convictions,

      challenges which must be based on grounds enumerated in the post-conviction

      rules.” Rouster v. State, 705 N.E.2d 999, 1003 (Ind. 1999). Issues that were

      known and available but not raised on direct appeal are waived, and issues

      raised but decided adversely are res judicata. Id.


                     I. Ineffective Assistance of Trial Counsel
[6]   Petty contends that his trial counsel was ineffective for (1) stating in closing

      argument that Petty’s intoxication was not a factor the jury could consider, (2)

      failing to object to Pamela Murray Campbell’s testimony at the sentencing

      hearing, (3) failing to object to the trial court’s use of the elements of his

      obstruction-of-justice conviction to enhance the sentence for his removal-of-a-

      body-from-the-scene conviction, and (4) failing to object to what he

      characterizes as the trial court’s expressed displeasure with the jury’s verdict for

      voluntary manslaughter.


              This Court reviews claims of ineffective assistance of counsel
              under the two components set forth in Strickland v. Washington,
              466 U.S. 669, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). First, the
              defendant must show that counsel’s performance was deficient.
              This requires a showing that counsel’s representation fell below
              an objective standard of reasonableness, and that the errors were
              so serious that they resulted in a denial of the right to counsel
              guaranteed the defendant by the Sixth Amendment[.] Second,

      Court of Appeals of Indiana | Memorandum Decision 20A-PC-587| August 18, 2020   Page 7 of 13
              the defendant must show that the deficient performance
              prejudiced the defendant. To establish prejudice, a defendant
              must show that there is a reasonable probability that, but for
              counsel’s unprofessional errors, the result of the proceeding
              would have been different. A reasonable probability is a
              probability sufficient to undermine confidence in the outcome.


      Wentz v. State, 766 N.E.2d 351, 360 (Ind. 2002) (internal citations omitted).


              There is a strong presumption that counsel rendered adequate
              assistance and made all significant decisions in the exercise of
              reasonable professional judgment. Counsel is afforded
              considerable discretion in choosing strategy and tactics, and these
              decisions are entitled to deferential review. Isolated mistakes,
              poor strategy, inexperience, and instances of bad judgment do
              not necessarily render representation ineffective.


      Id. (quoting Stevens, 770 N.E.2d at 746–47 (citations omitted)).


                                       A. Closing Argument
[7]   Petty argues that his trial counsel was ineffective for stating in closing argument

      that the jury could not consider Petty’s state of intoxication when he committed

      the crime. During closing argument, Petty’s counsel stated the following:


              We’ve talked about alcohol some in this case. The evidence has
              talked about it some in this case. Ah, but there’s, alcohol’s not a
              defense ah, you can’t say that I took a candy bar ahm, I know I
              took the candy bar but I, I was intoxicated and therefore it’s not
              my fault. But that doesn’t mean that alcohol is not a factor or
              intoxication, I should say, is not a factor or a circumstance that
              you can consider ahm, in your, in this case.




      Court of Appeals of Indiana | Memorandum Decision 20A-PC-587| August 18, 2020   Page 8 of 13
      Direct Appeal Tr. Vol. VIII pp. 12–13. In the final instructions, the trial court

      instructed the jury that “[v]oluntary intoxication is not a defense to the crimes

      charged. You may not take voluntary intoxication into consideration in

      determining whether the defendant acted knowingly or intentionally as alleged

      in the information.” Direct Appeal Tr. Vol. VIII p. 70. Because the trial court

      also instructed the jury on voluntary intoxication and it correctly reflected the

      law, Petty has failed to establish that his counsel was ineffective, much less that

      he was prejudiced by his counsel’s statement. See Carpenter v. State, 15 N.E.3d
1075, 1078 (Ind. Ct. App. 2014) (noting that jurors are presumed to follow the

      trial court’s instructions), trans. denied, see also Ind. Code § 35-41-2-5

      (“Intoxication is not a defense in a prosecution for an offense and may not be

      taken into consideration in determining the existence of a mental state that is an

      element of the offense unless the defendant meets the requirements of IC 35-41-

      3-5.”).


                           B. Witness Testimony at Sentencing
[8]   Petty contends that his trial counsel was ineffective for failing to object to

      Pamela Murray Campbell’s testimony at his sentencing hearing, who he alleges

      made a prejudicial victim-impact statement regarding a previous, unrelated

      crime he had committed, which the trial court used as an aggravating

      circumstance. At sentencing, Campbell testified regarding a 1999 robbery Petty

      committed, during which he pointed a gun at Campbell’s head and demanded

      money while she was working at a store. Campbell also stated that the reason



      Court of Appeals of Indiana | Memorandum Decision 20A-PC-587| August 18, 2020   Page 9 of 13
       for her testimony was that she “wanted to attest to [Petty’s] violent nature, this

       was not his first violent act.” Sentencing Tr. Vol. I p. 43.


[9]    We conclude that Petty’s trial counsel was not ineffective for failing to object to

       Campbell’s testimony. Campbell was not a witness for purposes of making a

       victim-impact statement as Petty alleges, but, rather, to testify regarding Petty’s

       criminal history and character, both of which were proper circumstances for the

       trial court to consider in sentencing Petty. See Ind. Code § 35-38-1-7.1(a)(2),

       (b)(8), see also Yates v. State, 429 N.E.2d 992, 993–94 (“A trial judge may

       consider almost any relevant information in determining what sentence to

       invoke.”). Moreover, even assuming, arguendo, that Petty’s counsel should have

       objected, Petty cannot establish prejudice. In sentencing Petty, the trial court

       only considered Petty’s prior criminal history and the fact that he was on

       probation when he committed the instant offenses as aggravating

       circumstances, both of which were included in the pre-sentence investigation

       report. Petty has failed to establish that his trial counsel was ineffective in this

       regard.


                                    C. Improper Enhancement
[10]   Petty contends that his trial counsel was ineffective for failing to object to the

       trial court’s use of the elements of his obstruction-of-justice conviction to

       enhance the sentence for his removal-of-a-body-from-the-scene conviction. At

       the sentencing hearing, the trial court stated that




       Court of Appeals of Indiana | Memorandum Decision 20A-PC-587| August 18, 2020   Page 10 of 13
               On Count II it will be a total of 3 years none of that is suspended,
               with 3 years to be executed and Count II of course was removal
               of the body [from] the scene a class D felony and that will be run
               consecutive and of course it was a separate act and not only was
               it a separate act but and it is a violation of the law but the reason
               it is a violation of the law because of the harm that can result by
               removing a body from the scene and that is the destruction of
               evidence and in this case clearly it did cause a destruction of
               evidence it caused a lot of man power and it caused a lot of
               heartache for family and friends of this victim, not to know what
               happened for such a long period of time.


       Sentencing Tr. Vol. II p. 49.


[11]   Petty’s contention fails for multiple reasons. First, as stated in its sentencing

       order, the trial court considered only Petty’s criminal history and the fact that

       he was on probation when he committed the instant offenses as aggravating

       circumstances in enhancing his sentence. Second, Petty’s obstruction-of-justice

       conviction was based on his burning of the victim’s clothes and disposal of her

       cellphone, not the removal of her body. Petty has failed to establish that his

       counsel was ineffective in this regard.


                             D. Displeasure with Jury’s Verdict
[12]   Petty contends that his trial counsel was ineffective for failing to object to the

       trial court’s alleged displeasure with the jury’s verdict. At the sentencing

       hearing, the trial court stated


               Mr. Petty as a Judge I here [sic] many cases, I have been at this
               for twenty years and every case is different and I try to keep an
               open mind about every as I am required by law to do but also

       Court of Appeals of Indiana | Memorandum Decision 20A-PC-587| August 18, 2020   Page 11 of 13
         because that’s I’ve learned appropriate because so often you hear
         things that you don’t anticipate and sometimes what you think
         you know you change your mind as you go through this and as I
         first heard about your case and as I’ve learned more about it, I
         have to agree with everyone that this is a tragedy we all have
         assumptions about this case and what happened but
         unfortunately I don’t know if any of us really know what
         happened because of the things that you have been convicted of
         doing and in fact when you talk to the police each time your
         story was somewhat different every time, sometimes much
         different and so I don’t know if you in fact have fabricated all of
         the circumstances that might make it look as if this was all done
         in sudden heat. I don’t know, I just am not sure about any of
         those things. The Jury was left with a difficult decision and the
         way they resolved the decision is what determines what I’ll
         sentence you on today and so my role in this of course is limited
         some what by the statute[s] say.


Sentencing Tr. Vol. II pp. 46–47. Our review of the trial court’s statement does

not reveal displeasure with the jury’s verdict, but, rather, the trial court’s

understanding that its sentencing authority was confined to the offenses for

which the jury found Petty guilty. Petty has failed to establish that he received

ineffective assistance of trial counsel.1




1
 Petty also seemingly argues that the trial court’s statement also reveals that it failed to consider sudden heat
as a mitigating circumstance in sentencing him. While the jury’s finding of sudden heat resulted in Petty
being convicted of the lesser-included voluntary-manslaughter charge rather than murder, it does not entitle
him to mitigation in his sentence for his voluntary-manslaughter conviction. See Bane v. State, 587 N.E.2d 97,
100 (Ind. 1992) (“Sudden heat is an evidentiary predicate which allows the mitigation of a murder charge to
voluntary manslaughter.”).

Court of Appeals of Indiana | Memorandum Decision 20A-PC-587| August 18, 2020                      Page 12 of 13
                 II. Ineffective Assistance of Appellate Counsel
[13]   We evaluate an ineffective assistance of appellate counsel claim by applying the

       two-part test articulated in Strickland v. Washington, 466 U.S. 668 (1984). Carter

       v. State, 929 N.E.2d 1276, 1278 (Ind. 2010). Petty contends that his appellate

       counsel was ineffective for failing to challenge (1) the admission of Campbell’s

       testimony at his sentencing hearing, (2) the trial court’s use of the elements of

       his obstruction-of-justice conviction to enhance the sentence of his removal-of-

       a-body-from-the-scene conviction, and (3) the trial court’s alleged displeasure

       with the jury’s verdict. Given our previous conclusions that Petty’s trial counsel

       was not ineffective for failing to object to these same three issues, we conclude

       that Petty’s appellate counsel cannot have been ineffective for failing to raise the

       same alleged trial errors on appeal. Petty has failed to establish that he received

       ineffective assistance of appellate counsel.


[14]   The judgment of the post-conviction court is affirmed.


       Najam, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A-PC-587| August 18, 2020   Page 13 of 13
