KNETTER v. STATE (2021)

MEMORANDUM DECISION

STATEMENT OF THE CASE

[1] Appellant-Petitioner, Melvin Knetter (Knetter), appeals the post-conviction court's Order denying his petition for post-conviction relief.

[2] We affirm.

ISSUES

[3] Knetter presents this court with three issues on appeal, which we restate as:

(1) Whether the trial court abused its discretion when it admitted and excluded certain evidence;

(2) Whether Knetter received the effective assistance of Trial Counsel; and

(3) Whether Knetter received the effective assistance of Appellate Counsel.

FACTS AND PROCEDURAL HISTORY

[4] The facts and procedural history of the underlying offenses as previously found by this court are as follows:

Knetter was married to Rebecca Knetter, and they had a child, K.K., who was born in December 1996. In 2010, Knetter and Rebecca moved to a home on Etna Road in Huntington County. K.K. was thirteen years old and started eighth grade that year. One day in the living room, Knetter began kissing K.K. on the face and neck and penetrated K.K.’s vagina with his finger. K.K. said, “No,” and tried to push him away. He started to pull her toward her bedroom. She fought him and kept saying no. She tried to grab the wall but he pulled her away. He finally picked her up and carried her to her bedroom, where he removed her clothing and had sexual intercourse with her. It hurt. She turned her head away and cried. Although that was the first time that Knetter had sexual intercourse with K.K., he had been engaging in inappropriate touching since she was in second or third grade.

On another occasion in 2011 when K.K. was still in eighth grade, Knetter came into her bedroom, took off her clothes, and flipped her over on her stomach, which scared her. Knetter had sexual intercourse with her from behind and ejaculated on her back. Knetter had sexual intercourse with K.K. more than twenty times in the Etna Road house. Afterward, he would apologize and say that it would not happen again. K.K. asked Knetter why he did these sexual acts to her. Knetter responded that he was upset that she did not love him the way he loved her. She told him that she wanted a father-daughter relationship without the sex acts.

In 2011, Rebecca moved to North Carolina as a result of marital issues. When K.K. finished eighth grade, she went to live with her mother and remained with her during her ninth-grade year. In 2012, when K.K. was fifteen and starting tenth grade, she returned to live with Knetter. At that time, Knetter was living with another woman with whom he had had a child. However, Knetter began sexually molesting K.K. again by having intercourse with her and putting his finger in her vagina. This became a weekly occurrence stopping only for about a month. In one incident, after K.K. turned sixteen, she tried to run away from Knetter when he began to rub against her, but he caught her and “forced it.” Another time, Knetter penetrated K.K.’s anus with his penis. “It hurt really bad and [K.K.] freaked out and jumped up.” Knetter did not try that again.

After she completed tenth grade, K.K. moved with Knetter to a new home in Huntington County, where he continued to digitally penetrate K.K.’s vagina and have sexual intercourse with her. Knetter also made K.K. engage in oral sex on two occasions by placing his penis in her mouth.

Knetter v. State, No. 35A04-1506-CR-646, slip op. pp. 1-2 (Ind. Ct. App. Dec. 22, 2015) (record citations omitted).

[5] In January of 2014, K.K. disclosed the molestation to her sister, Amy, and to Rebecca, who reported Knetter to the local authorities. On April 22, 2014, the State filed an Information, charging Knetter with two counts of Class A felony child molesting; four counts of Class B felony sexual misconduct with a minor; and three counts of Class C felony incest. Knetter retained Trial Counsel to represent him. After Knetter's arrest, K.K. lived in North Carolina. Trial Counsel filed a motion seeking to either have K.K. returned to Indiana for a deposition or to obtain the funds to travel to North Carolina so that he could depose K.K. there. The trial court denied both of those requests. The State filed a pre-trial motion pursuant to Trial Rule 404(b) seeking to have evidence of Knetter's grooming behavior, which occurred outside of Huntington County prior to the charged offenses, admitted. Trial Counsel filed a motion in limine to exclude that evidence. At a pre-trial hearing on the issue, the trial court ruled that the evidence was admissible but that its ruling was subject to revision at trial.

[6] On April 21, 2015, the trial court convened Knetter's four-day jury trial. Amy testified that K.K. had disclosed the molestation to her after K.K. had consumed alcohol. When questioned about this on cross-examination by Trial Counsel, K.K. denied drinking alcohol prior to the disclosure. In response to the State's questioning on re-direct, K.K. admitted that she had consumed alcohol and explained that she had lied during her previous testimony because she feared being in trouble for underage drinking. Trial Counsel sought to recross-examine K.K. on her contradictory testimony, but the trial court denied that request. In other testimony, K.K. related that Knetter habitually kept his pubic area shaved clean. She also testified that Knetter began grooming her for abuse in the second or third grade, and the State asked her why she had not reported the abuse if it had been going on prior to her move to Huntington County. Trial Counsel objected to this testimony as evidence of an inadmissible prior bad act. The trial court ruled that the State could probe prior grooming conduct that occurred outside of Huntington County as well as any bad acts that occurred in Huntington County. Trial Counsel objected throughout trial to other evidence which he felt contravened the trial court's 404(b) rulings. Trial Counsel also cross-examined K.K. regarding the fact that she never mentioned the molestation in journals she kept at the time, although the trial court disallowed certain cross-examination that it ruled did not constitute inconsistent statements on K.K.’s part. The trial court also sustained the State's hearsay objection to certain cross-examination by Trial Counsel regarding K.K.’s journal entries. During the testimony of a detective involved in the investigation of the offenses, the State sought to introduce photographs of Knetter's shaved pubic area taken after his arrest. Trial Counsel objected to the admission of the photographs on hearsay grounds, which was overruled. The jury ultimately found Knetter guilty as charged. On May 18, 2015, the trial court sentenced Knetter to an aggregate sentence of sixty years.

[7] Knetter pursued a direct appeal and was represented by Appellate Counsel. The sole issue appealed was the inappropriateness of Knetter's sentence in light of his offenses and his character. On December 22, 2015, this court affirmed the trial court's sixty-year sentence.

[8] On May 20, 2016, Knetter filed a petition for post-conviction relief. A public defender appeared in Knetter's post-conviction proceedings but subsequently withdrew. On January 2, 2019, Knetter filed an amended, pro se petition for post-conviction relief in which he raised the following claims of ineffective assistance of Trial Counsel:

(1)  Trial Counsel failed to investigate alleged attempts by K.K. to recant her allegations;

(2)  Trial Counsel failed to depose Knetter's son, Jonathan Knetter, and Holly Knetter, Jonathan's wife;

(3)  Trial Counsel failed to offer character evidence pertaining to K.K.’s reputation that would have rebutted her truthfulness;

(4)  Trial Counsel failed to challenge K.K.’s admissions that she had initially lied at trial about not consuming alcohol prior to her disclosure to Amy;

(5)  Trial Counsel failed to adequately impeach K.K. on her inability to accurately recall facts and details pertaining to the offenses to show that her testimony had been coached;

(6)  Trial Counsel failed to suppress evidence of prior bad acts perpetrated by Knetter on K.K. which were prior to the charged offenses;

(7)  Trial Counsel failed to object to the admission of photographs of Knetter's genitals as cumulative, irrelevant, and prejudicial;

(8)  Trial Counsel failed to have K.K.’s journals wherein she described Knetter in a positive light admitted into evidence as prior inconsistent evidence and rebuttal evidence;

(9)  Trial Counsel failed to object to a jury instruction that any guilty verdict must be unanimous;

(10) Trial Counsel failed to object to the SANE nurse's testimony on the basis that it was unduly prejudicial;

(11) Trial Counsel failed to exclude Rebecca's testimony regarding her communications with Knetter as violative of the marital privilege;

(12) Trial Counsel failed to prevent or object to Knetter allegedly being seen by the jury in handcuffs; and

(13) Trial Counsel failed to successfully petition to have Knetter released on bail pending trial.

Knetter raised claims of ineffective assistance of Appellate Counsel for failing to raise ineffectiveness of trial counsel claims on direct appeal based on the above-referenced marital privilege, handcuff, and bail issues. In addition, Knetter raised due process claims based on alleged judicial bias and prosecutorial misconduct.

[9] On October 23, 2019, the post-conviction court held a hearing on Knetter's petition. On February 25, 2020, the post-conviction court issued detailed findings of fact and conclusions thereon denying Knetter relief. The post-conviction court recounted the trial court's rulings and addressed the merits of each of Knetter's ineffectiveness of Trial and Appellate Counsel claims. The post-conviction court entered the following relevant findings of fact and conclusions thereon:

10. [ ] Post-conviction procedures do not afford a petitioner with a super-appeal, and not all issues are available. Timberlake v. State, 753 N.E.2d 591, 597 (Ind. 2001). Rather, subsequent collateral challenges to convictions must be based on grounds enumerated in the post-conviction rules. P-C.R. 1. If an issue was known and available but not raised on direct appeal, it is procedurally defaulted, and if it was raised on appeal, but decided adversely, it is res judicata. Bunch v. State, 778 N.E.2d 1285, 1289 (Ind. 2002); Timberlake, 753 N.E.2d at 597-98. If not raised on direct appeal, a claim of ineffective assistance of trial counsel is properly presented in a post-conviction proceeding. Timberlake, 753 N.E.2d at 597-98. As a general rule, however, most freestanding claims of error are not available in a post-conviction proceeding because of the doctrines of waiver and res judicata. Id.

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19. Petitioner also raised due process objections. However, these claims are barred by res judicata as they were available to him on direct appeal. Even if he could raise these arguments, Petitioner still has not met his burden of proof in a post-conviction proceeding. He believes the [c]ourt violated his due process rights because the [c]ourt was biased against him and because the State referred to prior bad acts during the trial. Petitioner never presented any proof of the [c]ourt's alleged bias and this [c]ourt does not believe the State admitted any improper evidence of prior bad acts at trial.

(Appellant's App. Vol. II, pp. 15-16, 28-29).

[10] Knetter now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

I. Abuse of Discretion

[11] Knetter first contends that the trial court abused its discretion when it admitted evidence of his grooming behavior; declined to either strike and/or instruct the jury to ignore the State's question regarding why K.K. had not reported abuse occurring before her move to Huntington County; limited cross-examination of K.K. on her journals and alcohol consumption prior to her disclosure; and admitted into evidence photographs of his shaven public area. In addition to these challenges to the trial court's evidentiary rulings, Knetter argues that the trial court abused its discretion when it denied Trial Counsel's requests for funds to travel to North Carolina to depose K.K., and Knetter claims that his due process rights were violated by the cumulative effect of the trial court's abuse of its discretion, the alleged bias of the trial court, and the prosecutor's alleged misconduct in offering evidence of his grooming behavior.

[12] As noted by the post-conviction court in its findings of fact and conclusions thereon, post-conviction relief is a “narrow remedy” that is limited to the grounds enumerated in Indiana Rules for Post-Conviction Relief. Kirby v. State, 95 N.E.3d 518, 520 (Ind. 2018). Those grounds may be generally characterized as “limited collateral challenges to a conviction and sentence” involving issues which were unknown at the time of trial or unavailable on direct appeal. Wilson v. State, 157 N.E.3d 1163, 1169 (Ind. 2020). Issues that were available for direct appeal but were not raised are waived, and issues that were raised on direct appeal that were decided adversely to the defendant are res judicata. Id. On review of the denial of post-conviction relief, this court does not review freestanding claims of error, even those presented as claims of fundamental error, if those errors were known and available to the defendant on direct appeal but were not raised. Id.

[13] Knetter contends that, while he raised all these issues as ineffectiveness of Trial Counsel claims in his petition for post-conviction relief, “the PCR Court/Trial Court took ownership of these issues making them Abuse of Discretion.” (Appellant's Br. p. 7). Knetter misunderstands the nature of the post-conviction court's findings of fact regarding the trial court's evidentiary and procedural rulings. Knetter's claims of error in the trial court's admission and exclusion of evidence, its denial of his request for funds to depose K.K. in North Carolina, and his claims of judicial bias and prosecutorial misconduct were all known and available to him on direct appeal. These claims were not raised on direct appeal and are waived. Id. Although it appears that the post-conviction court inaccurately characterized the unavailability of post-conviction relief on Knetter's due process claims as being due to res judicata rather than simply being procedurally defaulted, all of Knetter's freestanding claims are, nevertheless, waived. Therefore, we do not address them. Id.

II. Ineffectiveness of Trial Counsel

[14] In his Summary of the Argument, Knetter argues that Trial Counsel was ineffective for failing to “pursue every possible way to depose [K.K.] prior to trial, when she lived out of state.” (Appellant's Br. p. 5). However, Knetter did not raise this claim in his petition for post-conviction relief, as he only argued that Trial Counsel was ineffective for failing to depose Jonathan and Holly. As a result, this issue was not addressed by the post-conviction court in its Order denying relief. “All grounds for relief available to a petitioner under this rule must be raised in his original petition.” Ind. Post-Conviction Rule 1(8); see also Pruitt v. State, 903 N.E.2d 899, 906 (Ind. 2009) (“Issues not raised in the petition for post-conviction relief may not be raised for the first time on post-conviction appeal.”). Therefore, this issue is not available for our review, and we do not address it. Id.

III. Ineffectiveness of Appellate Counsel

[15] Knetter lastly contends that Appellate Counsel was ineffective for failing to pursue on direct appeal his freestanding claims which we have already addressed above. More specifically, Knetter contends that it has already been judicially established that Appellate Counsel was ineffective because the post-conviction court concluded in its Order that these claims were barred as “they were available to him on direct appeal.” (Appellant's App. Vol. II, pp. 28-29).

[16] Similar to Knetter's claims of ineffective assistance of Trial Counsel, his claims of ineffectiveness pertaining to Appellate Counsel are waived for failure to raise them below. In his petition for post-conviction relief, Knetter argued that Appellate Counsel rendered ineffective assistance for failing to raise claims based on marital privilege, the jury allegedly observing him in handcuffs, and pretrial release. On appeal, Knetter argues that Appellate Counsel was ineffective because he failed to argue that the trial court abused its discretion with its evidentiary and procedural rulings and that his due process rights were violated by judicial bias and prosecutorial misconduct. Contrary to Knetter's assertion, the post-conviction court did not conclude that Appellate Counsel was ineffective for failing to raise these issues on appeal; rather, it only concluded that the issues had been available to be raised on direct appeal. Because Knetter did not present his now-proffered claims of ineffectiveness of Appellate Counsel to the post-conviction court, we do not address them further. See id.

CONCLUSION

[17] Based on the foregoing, we conclude that Knetter's freestanding and novel arguments are waived and are not available for our review.

[18] Affirmed.

Riley, Judge.

[19] Mathias, J. and Crone, J. concur