Robert Jeffrey Pelley, Appellant-Petitioner v. State of Indiana, Appellee-Respondent (2025)

MEMORANDUM DECISION

Case Summary

[1] Robert Jeffrey Pelley appeals the post-conviction court's denial of his petition for post-conviction relief. We affirm.

Issues

[2] Pelley raises the following issues for our review:

1. Whether he was denied the effective assistance of trial counsel.

2. Whether the State violated his due process rights.

3. Whether the pre- and post-charging delays violated his constitutional rights to a speedy trial.

Facts and Procedural History

[3] In Pelley's direct appeal, our Supreme Court stated the facts and procedural history as follows:

In the spring of 1989, seventeen-year-old Jeff Pelley lived with his father, Bob, his sister, Jacque, his stepmother, Dawn, and her children, Jessica, Janel, and Jolene. Jeff and Jacque's mother had died of cancer in 1985, and Bob and Dawn had married approximately nine months later. In 1986, Bob had become minister of the Olive Branch Church on Osborne Road in Lakeville, approximately twelve miles from South Bend, and the family moved into the parsonage next door. Bob and Jeff were frequently in conflict, often relating to Jeff's resentment of his stepmother and his feeling that she was replacing his deceased mother.

In April 1989, Bob grounded Jeff and prohibited him from driving his Ford Mustang and attending senior prom activities, which included dinner, a dance, an after prom, and a trip to the Great America amusement park in suburban Chicago. The insurance on Jeff's Mustang was suspended on April 12, 1989, and the policy change noted that Jeff “is grounded from using this car and all vehicles in household.” As the prom approached, Jeff eventually received permission to attend the dance on the condition that Bob would drive Jeff and his girlfriend, Darla Emmons. Jeff and Darla were not pleased with this arrangement.

A few days before prom weekend, Jeff told Darla that he was working on changing Bob's mind to permit him to attend the dinner before the dance. On the Friday night before the prom, Jeff told Darla that he had received permission to attend all prom activities, but that Darla should not mention this to anyone because it was a sore subject. However, according to five witnesses, Bob told them in the twenty-four hours before the prom that Jeff was permitted to attend only the dance, and Bob would drive Jeff and Darla. Bob also mentioned that he had removed a part from Jeff's car to prevent Jeff from driving.

On the day of the prom, Saturday, April 29, 1989, Jeff worked the early morning shift at McDonald's, washed his car, and watched a baseball game on television. By late afternoon, Bob, Dawn, Jeff, Janel, and Jolene were all at the parsonage, and Jessica and Jacque were visiting friends for the weekend. Around 4:30 or 4:45, Kim Oldenburg, a family friend who had dated Jeff, stopped by with her mother and prom date to show the Pelleys her dress. Kim felt there was tension at the house during her visit. Kim noticed that Jeff was quiet and was wearing a pink and blue shirt and blue jeans.

Matt Miller, Jeff's friend from school, stopped by around 4:40 or 4:45. Matt left after a few minutes when he realized that he had forgotten his date's corsage at home. Kim, her date, and her mother left shortly before 5:00. After picking up the corsage, Matt passed back by the Pelley residence around 5:15 and saw Jeff's car in the driveway.

Around 5:20, Jeff, now wearing a black shirt and jeans, arrived at a local Amoco station driving his Mustang. He entered the station and called Darla to let her know he was running late. He also asked the attendant for a piece of cardboard and a screwdriver to fix his car, which he said was idling too high. After receiving some help with his car from another Amoco employee, Jeff left the station.

Around 5:30, Jeff met Darla and another couple at a friend's home. Jeff quickly changed into his tuxedo and posed for some pictures. Both couples left for dinner.

The first indication that the Pelleys had been murdered came around 5:30, when Bob and Dawn failed to make an expected arrival at Crystal Easterday's home to see her prom dress. After waiting about fifteen minutes, Crystal and her date decided to stop by the Pelleys on their way to dinner. When Crystal arrived at the Pelley home, the Pelleys’ station wagons, but not Jeff's Mustang, were in the driveway, and all the doors were locked and the curtains closed. This surprised her because the Pelleys normally kept their doors and curtains open during the day when their cars were in the driveway.

Others noticed the lack of movement at the Pelley home. Around 6:00, one of the Pelleys’ neighbors was mowing his lawn and noticed that the Pelleys’ lights were off and that none of the girls were playing outside, which he thought was unusual. Around 6:30 or 7:00, a member left the church and noticed that there was no movement at the Pelley house.

Jeff and Darla arrived at dinner in South Bend around 6:40. After dinner, Jeff and Darla went to the dance. Jeff saw Crystal at the dance and asked whether his parents had stopped by her home. She told him they had not, but that she had stopped at the Pelley home and found it locked.

After the dance, Jeff changed out of his tuxedo at a friend's house and went to the after-prom party at a local bowling alley. At the bowling alley, Jeff asked Kim Oldenburg if he could join the slumber party at her house that night. Kim agreed, and Jeff and Darla spent the night at Kim's house with several other friends.

Around 7:00 a.m. on Sunday, April 30, Jeff and Darla left Kim's to get Darla's car and some money. While Darla was retrieving money from her house, Jeff spoke with Darla's mother, who said she was surprised that he was going to Great America. Jeff responded that he had a “two-day pass from Pelley prison.” Jeff and Darla returned to Kim's house, where a group proceeded to Great America. At Great America, Jeff became quiet and told Darla that he “had a feeling that something was wrong” and “felt like something wasn't right inside.”

Meanwhile, back in Lakeville, Harold Saunders, the Pelleys’ next door neighbor, called the Pelleys around 7:00 a.m. to ask if they would let his dog out that day. The Pelleys did not answer their phone, and their curtains were closed. Harold and his wife had noticed that the night before, the Pelleys’ basement light was still on at 9:15 and around midnight. They thought this was strange because the girls slept downstairs and normally went to bed early. They also noticed that the Pelleys’ dog was outside on its chain, instead of in its kennel where it normally stayed when the Pelleys’ curtains were closed.

Just before 9:30 a.m. on Sunday, members of Bob Pelley's congregation assembled for the church service. When Bob and the family did not arrive at church, members of the church's board of trustees went to the parsonage and found the doors locked and the curtains closed. After finding a spare key, they entered the home.

The trustees found Bob Pelley's body in the upstairs hallway. He had been shot twice with deer slugs from a 20-gauge shotgun, once in the chest and once in the neck. His feet were pointed toward the end of the hallway leading to Jeff's bedroom and the master bedroom, and he was dressed in everyday clothes rather than pajamas or church clothes. The trustees called an ambulance. After the paramedics arrived, they found the bodies of Dawn, Janel, and Jolene huddled together in the basement, also dressed in everyday clothes. Each had been shot once from a distance of a few feet with deer slugs from a 20-gauge shotgun. Dawn had been shot in the temple, Janel in the forehead, and Jolene just below her right eye.

Police later learned that Bob owned a 20-gauge Mossberg 500 pump-action, single-barrel shotgun with interchangeable rib and slug barrels. The shotgun held five or six rounds and was typically stored in the master bedroom gun rack. Jessica saw the shotgun in the gun rack on Friday afternoon before she left, but it was not in the home after the murders, and was never found.

After investigating the crime scene, police found no evidence of burglary or forced entry. Inside the washing machine was a small load consisting of a pink and blue shirt, blue jeans, and socks that had been through a wash cycle. A luminol test of the washing machine cylinder was inconclusive, indicating either a reaction with blood or with the phosphates found in laundry detergents used in 1989. An empty gun case was found in the basement behind some sleeping bags. No shell casings were found.

Jessica told police that Jeff had gone to Great America, and Lakeville police contacted Illinois authorities, who found Jeff and Darla, told them of the murders, and held them until Lakeville police arrived and returned them to the Lakeville police station. On the way home from Great America, Jeff spontaneously told Darla that he “didn't do it,” and asked whether she believed him.

Around 4:45 a.m. on Monday, May 1, police conducted a videotaped interview of Jeff in the presence of his maternal grandparents who had arrived from their home in Kentucky. Jeff said he left his home at 4:45 or 4:50 p.m. on Saturday and stopped at a Casey's gas station because his car was idling too fast. He made the repair with some cardboard from his car, using his key as a screwdriver, and proceeded to get Darla. At 7:00 p.m. on May 1, Jeff gave a second, unrecorded statement. Jeff again gave his version of the events, stating that he stopped at the Casey's gas station because of car trouble. By this time, the police had learned from Darla that Jeff had called her from an Amoco station. When questioned about the discrepancy, Jeff became nervous and upset. He said that he had stopped at Casey's, but had also stopped at an Amoco station because it had tools. When questioned again, he said that he stopped at Casey's to buy a pop and proceeded to the Amoco. The detective told Jeff that he did not accept this story because pop was available at both stations. The detective then told Jeff that he believed Jeff was involved in the murders, and the car trouble was part of a way to account for a time gap. Jeff slumped down in his chair, lowered his head, covered his eyes, and asked whether he could see Darla that night, whether he would go to jail that night, and whether he would get the electric chair. Jeff also asked “if there were some things that led up to what happened, would it make a difference with what happened to him.”

Pelley v. State, 901 N.E.2d 494, 500-03 (Ind. 2009). The State did not file any charges against Pelley at that time.

[4] Several years later, a cold case unit was established, and it began a new investigation into the Pelleys’ murders. On August 7, 2002, thirteen years after the shootings, the State charged Pelley with four counts of murder. On January 7, 2003, Pelley filed a motion for discharge and asserted that the delay in filing the charges against him violated his constitutional rights. Then, on January 4, 2006, Pelley filed a motion for discharge under Criminal Rule 4(C) and asserted that the State had failed to bring him to trial within one year. The court denied both motions.

[5] The court then held a ten-day jury trial beginning on July 11, 2006. In its opening statement, the State argued that, during the initial investigation into the murders, officers had gone to a washing machine in the Pelleys’ basement “and found one partial set of clothes that had been run in the washer. Two socks, shirt[,] and pants.” Trial Tr. Vol. 2 at 21.¹ The State then called as witnesses several of the officers who had responded to the scene. Officer Allan Metcalf testified that, “[i]nside the washer were some clothes up against the inside of the tub like they had went [sic] through a spinning cycle[.]” Id. at 99. He also testified that “it was a small amount of clothes,” not “like a normal full load,” and that he did not collect them. Id. at 115.

[6] Officer John Pavlekovich testified that Lieutenant Jerry Rutkowski had collected clothes from the washer, including a pair of jeans. The State then moved to admit several exhibits, including State's Exhibit 107, which the State described as “pants, blue jeans[.]” Id. at 175. Pelley stated that he had “no objection.” Id. at 176. At the conclusion of Officer Pavlekovich's testimony, the court noted that a “multitude of exhibits” had been admitted but not published to the jury. Id. at 221. After a discussion about repackaging the exhibits, Pelley stipulated to the exhibits being released to the State “for the purpose of packaging.” Id. at 222.

[7] Detective Ronald Nowicki, who investigated the murder as part of the cold case unit, testified that several items had been “recovered from within the washing machine,” including a pair of blue jeans, and that those items had been sent to a laboratory to be tested for blood. Trial Tr. Vol. 5 at 45. He further testified that none of the items contained any blood and that the shooter could not “have avoided contact with all blood and brain matter” from the basement. Id. at 51.

[8] The State also called Officer John Botich as a witness. On cross-examination, Pelley asked Officer Botich if he had been “provided information by the family concerning some trouble that occurred in Florida when [Bob] was working in the banking business.” Trial Tr. Vol. 6 at 30-31. The State objected, and, in an offer of proof, Pelley argued:

My offer of proof is that in April of 1990 in a conversation that Assistant Chief Botich had with Jeff Pelley, Jeff told him that his dad used to work in a bank in Florida, and his dad might have found out about somebody laundering money and that could have been why he was killed.

In a written report by Craig Whitfield in 2002, Mr. Whitfield reports having gone to Kansas to interview Jacque Pelley[,] who is Jeff's younger sister[,] and she told Investigator Whitfield that just prior to their moving to Lakeville a million dollars in cash turned up missing from the bank that her father was working at. Her dad got called to work in the middle of the night. She said it was his job to find the missing money and he was in charge of the computers at the bank. She said that the DEA closed down the bank in March of 1990.

* * *

And I believe that I'm entitled - - I should be entitled to inquire as to the investigation, whether anything was done to look into this as a possible alternative theory of the murders o[r] possible suspects[.]

Id. at 36-37. The court found that the offered evidence was “too attenuated because it leaves utter speculation” and sustained the State's objection. Id. at 41.

[9] During Pelley's case-in-chief, he called his sister, Jacque. During a sidebar, Pelley informed the court that he wanted to ask Jacque “about the Florida situation” and “any unusual events that occurred in the family's background that might have ․ been a factor or a least some alternate theory of a motive for these murders.” Trial Tr. Vol. 8 at 104. The State objected, and the court sustained the objection.

[10] After both parties had rested, the State gave its closing argument. The State argued that the “timeline,” the physical evidence, and the lack of any “breaking and entering” into the home demonstrated that Pelley was the person who had killed the four people. Trial Tr. Vol. 7 at 91, 95.

[11] In his closing, Pelley argued that the “physical evidence” established that “there were two shooters in the Pelley house[.]” Id. at 102. He further argued about various flaws in the police investigation into the murders and that there was no evidence tying him to the murders because there was no blood on any of the clothing items found in the washing machine. In addition, Pelley argued that he “had no motive” and that the timeline did not fit because he would have had “15 minutes, ten minutes” to kill four people, clean himself up, collect and hide evidence, and meet up with his friends. Id. at 123, 125.

[12] In rebuttal, the State argued that one shirt, one pair of blue jeans and two socks had been found in the washer. The State then argued that the case came down to “20 minutes [that] cost four people their lives” and that “only one person is there in those 20 minutes” and “[o]nly one person knew about the shotgun and knew how to get it out of there.” Id. at 141-42.

[13] At the conclusion of the trial, after approximately thirty hours of deliberation, the jury found Pelley guilty of all four counts. The court entered judgment of conviction accordingly and sentenced Pelley to consecutive terms of forty years on each count, for an aggregate sentence of one hundred and sixty years.

[14] On direct appeal, Pelley argued that the trial court had erred when it denied his Criminal Rule 4(C) motion for discharge, that the State had presented insufficient evidence to support his convictions, that the court had abused its discretion when it excluded evidence of a third-party motive, and that the court had erred when it denied his petition for a special prosecutor. Our Supreme Court disagreed and affirmed his convictions. Pelley, 901 N.E.2d at 508.

[15] On September 22, 2021, Pelley filed his fourth amended petition for post-conviction relief. In that petition, Pelley asserted that the pre- and post-charging delays violated his constitutional rights; that his counsel had been ineffective for failing to recognize that the blue jeans in the washer had not been washed, which would have been evidence of his innocence, and for failing to adequately investigate and present evidence regarding a third-party motive; and that the State violated his due process rights when it knowingly presented false information that the jeans had been washed and when it failed to notify him of the existence of exculpatory evidence.

[16] The court held a multi-day fact-finding hearing on Pelley's petition. During the hearing, Pelley presented evidence that State's Exhibit 107 contained not only the pair of blue jeans but also numerous coins, a receipt, and a paper grocery bag. In addition, he presented evidence that the property receipt from the original investigation did not list any items as having been taken from the washing machine and that an FBI letter mentioned other clothes as having come from the washing machine but not the jeans. And he presented evidence that the other items in the exhibit bag could not be seen unless the jeans were removed. One of Pelley's attorneys acknowledged that he had never looked inside Exhibit 107 before he stipulated to its admissibility. He also acknowledged that he could not offer a strategy for failing to challenge the assertion that the jeans had come from the washing machine and been washed. In addition, Pelley also presented an FBI file as evidence that indicated that the jeans were “heavily soiled.” P.-C. Ex. at 43.

[17] Pelley also presented testimony from several witnesses, who all testified that Bob had potentially been involved in a money laundering scheme in Florida before he moved to Indiana, that he did not want to be found by anyone, and that he was scared that someone from his past was going to kill him. Following the hearing, the court entered extensive ² findings of fact and conclusions thereon denying Pelley's petition. This appeal ensued.

Discussion and Decision

Standard of Review

[18] Our Supreme Court has provided our standard of review:

Post-conviction proceedings are civil proceedings in which a defendant may present limited collateral challenges to a conviction and sentence. Ind. Post-Conviction Rule 1(1)(b); Wilkes v. State, 984 N.E.2d 1236, 1240 (Ind. 2013). The scope of potential relief is limited to issues unknown at trial or unavailable on direct appeal. Ward v. State, 969 N.E.2d 46, 51 (Ind. 2012).

“Issues available on direct appeal but not raised are waived, while issues litigated adversely to the defendant are res judicata.” Id. The defendant bears the burden of establishing his claims by a preponderance of the evidence. P.-C.R. 1(5). When, as here, the defendant appeals from a negative judgment denying post-conviction relief, he “must establish that the evidence, as a whole, unmistakably and unerringly points to a conclusion contrary to the post-conviction court's decision.” Ben-Yisrayl v. State, 738 N.E.2d 253, 258 (Ind. 2000). When a defendant fails to meet this “rigorous standard of review,” we will affirm the post-conviction court's denial of relief. DeWitt v. State, 755 N.E.2d 167, 169-70 (Ind. 2001).

Gibson v. State, 133 N.E.3d 673, 681 (Ind. 2019), cert. denied.

Issue One: Effectiveness of Trial Counsel

[19] Pelley first contends that he received ineffective assistance from his trial counsel. Our standard of review is clear:

When evaluating an ineffective assistance of counsel claim, we apply the two-part test articulated in Strickland v. Washington, 466 U.S. 668 (1984). See Helton v. State, 907 N.E.2d 1020, 1023 (Ind. 2009). To satisfy the first prong, “the defendant must show deficient performance: 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.” McCary v. State, 761 N.E.2d 389, 392 (Ind. 2002) (citing Strickland, 466 U.S. at 687-88). To satisfy the second prong, “the defendant must show prejudice: a reasonable probability (i.e.[,] a probability sufficient to undermine confidence in the outcome) that, but for counsel's errors, the result of the proceeding would have been different.” Id. (citing Strickland, 466 U.S. at 694).

Humphrey v. State, 73 N.E.3d 677, 682 (Ind. 2017). Failure to satisfy either of the two prongs will cause the claim to fail. French v. State, 778 N.E.2d 816, 824 (Ind. 2002). Indeed, most ineffective assistance of counsel claims can be resolved by a prejudice inquiry alone. Id.

[20] “[C]ounsel's performance is presumed effective, and a defendant must offer strong and convincing evidence to overcome this presumption.” Williams v. State, 771 N.E.2d 70, 73 (Ind. 2002). Counsel has wide latitude in selecting trial strategy and tactics, which we afford great deference. Ward v. State, 969 N.E.2d 46, 51 (Ind. 2012). We “will not speculate as to what may have been counsel's most advantageous strategy, and isolated poor strategy, bad tactics, or inexperience does not necessarily amount to ineffective assistance.” Sarwacinski v. State, 564 N.E.2d 950, 951 (Ind. Ct. App. 1991) (citation omitted).

[21] Further, as the Supreme Court has stated:

strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments.

Strickland, 466 U.S. at 690-91.

[22] On appeal, Pelley contends that his counsel rendered ineffective assistance when they failed to recognize that the jeans in the washer had not been washed, which he contends was exculpatory evidence, and when they did not adequately investigate and present evidence of a third-party motive. We address each argument in turn.

Jeans

[23] On this issue, Pelley first contends that his counsel rendered ineffective assistance when they failed to recognize that the jeans in the washer had not been washed. He maintains, and the post-conviction court agreed, that his counsels performed deficiently when they failed to look into the exhibit bag that contained the jeans and when they failed to argue both that the FBI report did not list the jeans as having been recovered from the washing machine or that the legible receipt and coins in the pocket of the jeans demonstrated that the jeans had not been washed.

[24] Pelley asserts on appeal that the post-conviction court erred when it found that he had not demonstrated that he was prejudiced by his counsel's deficient performance. He argues that “where [the blue jeans] were found and their condition” was critical to the State's case and that, “[i]f the jeans were not washed, then the lack of any blood, brain, or bone matter on the jeans was proof that [he] was innocent.” Appellant's Br. at 54-55. In essence, he maintains that the fact that the jeans were unwashed was “exculpatory” and counsel's failure to recognize or argue that to the jury prejudiced him. Id. at 55.

[25] However, even if Pelley has demonstrated that his attorneys were deficient, he has not shown that he was prejudiced by their errors. Indeed, while Pelley focuses much of his argument on the fact that the FBI letter and original evidence log did not list the jeans as having come from the washing machine, he disregards the fact that the FBI letter explicitly stated that a shirt and socks had been found there. And the evidence presented at trial demonstrated that the shirt found in the washer was the same shirt Pelley had been wearing earlier in the day. As such, there is still evidence that other clothing items he had worn that same day had been found in the washer.

[26] Further, and importantly, the jury was allowed to keep all of the evidence for the entire thirty hours that they deliberated. The jury was able to remove the jeans from the exhibit bag and examine them and the remaining contents of the exhibit, including the legible receipt and the coins. As such, the jury was able to see the stains on the jeans, and they could determine for themselves whether the jeans appeared to have been washed. Because there was other clothing of Pelley's found in the washer and because the jury was able to see the jeans for themselves, Pelley has not demonstrated that there is a reasonable probability that, but for counsel's errors, the result of the proceedings would have been different.

Third-Party Motive

[27] Pelley also contends that his counsel was ineffective for failing to properly investigate and present evidence that a third party had motive to murder the Pelleys.³ In particular, Pelley contends that, had his counsel more fully investigated statements that Bob was involved in a money-laundering scheme in Florida, they could have presented that evidence to the jury and more fully argued that someone else had committed the crime.

[28] Regarding Pelley's contention that his attorneys failed to fully investigate Bob's history in Florida, one of his attorneys testified that he had sent an investigator to Florida but that it was a “dead end” and that “nothing tangible” came from the investigation. P.-C. Tr. Vol. 2 at 222. As such, there is evidence to demonstrate that Pelley's attorneys investigated Bob's history but did not find anything they felt was usable.

[29] As for his argument that his attorneys failed to present adequate evidence regarding a third-party motive, at the post-conviction hearing, one of Pelley's attorneys testified that their theory of defense was that Pelley “could have not done the murders in the timeframe that he was unaccounted for.” Id. at 239. Specifically, the attorney stated that Pelley could not have done “all of the things that he would have had to have done if he's guilty here,” including “the gathering of these shell casings, the cleaning, the getting rid of the gun, [and] the drive.” Id. And Pelley's other attorney testified that he “would not take on the role of trying to prove someone else committed the crime[.]” P.-C. Tr. Vol. 3 at 26.

[30] Stated differently, Pelley's attorneys made a strategic decision to focus their defense on proving that Pelley did not commit the murders rather than attempting to prove that someone else did. And it is well settled that counsel “is afforded considerable discretion in choosing strategy and tactics and these decisions are entitled to deferential review.” Weisheit v. State, 109 N.E.3d 978, 983 (Ind. 2018). We cannot say that Pelley's trial counsel's strategy to focus on the physical evidence and timeline to show that Pelley could not have committed the offenses was “so deficient or unreasonable as to fall outside the objective standard of reasonableness.” Potter v. State, 684 N.E.2d 1127, 1133 (Ind. 1997). The post-conviction court did not clearly err when it determined that Pelley was not denied the effective assistance of counsel.⁴

Issue Two: Due Process Violations

False Testimony 5

[31] Pelley next contends that the State violated his due process rights when it knowingly presented false evidence in violation of Napue v. Illinois, 360 U.S. 264 (1959). “It is well established that ‘a conviction obtained through use of false evidence, known to be such by representatives of the State, must fall under the Fourteenth Amendment. The same result obtains when the State, although not soliciting false evidence, allows it to go uncorrected when it appears.’ ” Smith v. State, 34 N.E.3d 1211, 1219 (Ind. 2015) (quoting Napue, 360 U.S. at 269.) That is, “a defendant's Fourteenth Amendment due process rights are violated when the prosecution knowingly uses false testimony without disclosing its falsity or attempting to correct it.” Id. The main focus is “whether the jury's ability to assess all of the facts and the credibility of the witnesses supplying those facts has been impeded to the unfair disadvantage of the defendant.” Id. at 1220.

[32] Pelley contends that the State “knew or should have known that both the evidence it presented showing the blue jeans had been collected from the washing machine and its argument that [Pelley] washed his jeans were false.” Appellant's Br. at 69. Pelley maintains that the “evidence inventory makes no mention of the jeans having been collected from the washing machine”; the FBI letter “describes the shirt and socks as having been removed from the washing machine, but does not mention the jeans”; not one trial witness “testified to seeing the blue jeans removed from the washing machine”; the jeans were “heavily soiled”; and the “receipt was readable.” Appellant's Br. at 69-70. According to Pelley, the State nonetheless falsely argued that the jeans had been washed and “fail[ed] to correct” false testimony by witnesses. Id. at 71.

[33] However, none of the State's witnesses testified that the jeans had been washed. Officer Pavlekovich testified that Lieutenant Rutkowski had collected clothes from the washing machine, including a pair of jeans. Detective Nowicki similarly testified that clothes, including jeans, had been “recovered from within the washing machine[.]” Tr. Vol. 5 at 45. And, while Officer Metcalf testified that there were some clothes in the washing machine and that they were “up against the inside of the tub like they had went [sic] through a spinning cycle,” he did not testify that they had actually been washed. Tr. Vol. 2 at 99. Thus, even assuming that the jeans were unwashed, there is no evidence that the State knowingly presented false evidence that they had been washed. While we acknowledge that the FBI letter and inventory log did not identify the jeans as having been removed from the washer, that conflicting evidence does not demonstrate the State knowingly presented false evidence. And, again, the State did not present any evidence that the jeans had actually been washed.

[34] Importantly, and as the trial court found, the jury was presented with the jeans and had access to them for the entire duration of their deliberations. As a result, they would have been able to view the state of the jeans and make their own determination as to whether they had been washed. The State did not violate Pelley's due process rights on this issue.

Exculpatory Evidence

[35] Pelley also contends that the State violated his due process rights when it failed to provide him with exculpatory evidence. As this Court has stated:

In Brady v. Maryland, the United States Supreme Court held that “the suppression by the prosecution of evidence favorable to the accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). “To prevail on a Brady claim, a defendant must establish: (1) that the prosecution suppressed evidence; (2) that the evidence was favorable to the defense; and (3) that the evidence was material to an issue at trial.” Minnick v. State, 698 N.E.2d 745, 755 (Ind.1998) (citing Brady, 373 U.S. at 87, 83 S. Ct. 1194), cert. denied, 528 U.S. 1006, 120 S. Ct. 501, 145 L. Ed. 2d 387 (1999). Evidence is material under Brady “only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A ‘reasonable probability’ is a probability sufficient to undermine confidence in the outcome.” United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985).

Bunch v. State, 964 N.E.2d 274, 297 (Ind. Ct. App. 2012).

[36] On appeal, Pelley contends that the State “failed to disclose” the FBI file to him before trial, that the file “contained information favorable to the defense” because it showed that the jeans were heavily soiled, and that the FBI file “was material” to his defense. Appellant's Br. at 77. But even if we were to agree for the sake of argument that the State withheld the FBI file and that the file contained evidence favorable to the defense, we do not agree that the evidence was material.

[37] Again, evidence is material under Brady only if there is a reasonable probability that, had it been disclosed to the defense, the result of the proceedings would have been different. But, here, Pelley simply contends that the FBI file would have shown that the jeans were dirty, which would have “definitively proved that [he] did not murder his family” because it would have rebutted the State's theory that he had washed his jeans in order to remove evidence. Id. But, as discussed above, the jury had access to the jeans for the entirety of their deliberations and could have seen for themselves whether the jeans were heavily soiled. We cannot say that there is a reasonable probability that the result of the trial would have been different if Pelley had received the FBI file prior to trial.

Issue Three: Pre- and Post-Charging Delays

[38] Finally, Pelley contends that the thirteen-year delay in charging him and the subsequent four-year delay in bringing him to trial violated his constitutional rights. However, “[p]ost-conviction proceedings provide defendants with the opportunity to raise issues that either were not available on direct appeal or were not known at the time of the original trial.” State v. Hernandez, 910 N.E.2d 213, 216 (Ind. 2009). It has long been held that claims available on direct appeal but not presented are not available for post-conviction review. Id. Here, Pelley's claims that the pre- and post-charging delays violated his constitutional rights were clearly known and available to Pelley but not raised on direct appeal. Accordingly, those claims are not available for post-conviction review. The post-conviction court properly denied those freestanding claims of error.

Conclusion

[39] The court did not err when it determined that Pelley had not been denied the effective assistance of trial counsel. The court also did not err when it determined that the State did not violate his due process rights. And Pelley's claims regarding the pre- and post-charging delays were not available for post-conviction review. We therefore affirm the post-conviction court.

[40] Affirmed.

FOOTNOTES

1.   Our pagination of any document in the Record on Appeal refers to the .pdf pagination.

2.   The post-conviction court's order is ninety-one pages long. We acknowledge the time and effort the post-conviction court expended in order to provide the parties with such a thorough and well-reasoned order.

3.   The court did not find that Pelley's counsel rendered deficient performance on this claim.

4.   Pelley also asserts that the “combined effect” of his counsel's errors prejudiced him. Appellant's Br. at 62. However, as discussed above, his trial counsels’ only error was the failure to fully investigate the jeans, which error did not prejudice him. Because there was only one error, there is no cumulative effect.

Bailey, Judge.

Judges Brown and Weissmann concur. Brown, J., and Weissmann, J., concur.