Robert Perry v. State of Indiana (mem. dec.) ( 2020 )

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 N.E.2d at 746. 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