Court of Appeals of Indiana | Memorandum Decision 19A-PC-2597 | November 30, 2020 Page 1 of 15

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 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT

Rahul B. Patel

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Sierra A. Murray

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Colby R. McKnelly,

Appellant-Petitioner,

v.

State of Indiana,

Appellee-Respondent,

November 30, 2020

Court of Appeals Case No.

19A-PC-2597

Appeal from the Hancock Circuit 

Court 

The Honorable R. Scott Sirk, 

Judge

Trial Court Cause No.

30C01-1602-PC-282

Robb, Judge.
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Case Summary and Issues

[1] Following a bench trial in 2013, Colby McKnelly was convicted of murder and 

battery, a Class C felony. The trial court sentenced McKnelly to an aggregate 

term of seventy-three years. On direct appeal, McKnelly challenged his 

convictions and sentence and this court affirmed. McKnelly v. State, No. 30A05-

1307-CR-378 (Ind. Ct. App. Aug. 29, 2014), trans. denied. In 2016, McKnelly 

filed a petition for post-conviction relief alleging ineffective assistance of trial 

counsel. The petition was denied by the post-conviction court. McKnelly now 

appeals the denial of post-conviction relief, raising two issues for our review 

which we restate as: (1) whether the post-conviction court properly denied 

admission of McKnelly’s alleged newly discovered evidence; and (2) whether 

the post-conviction court erred in determining McKnelly’s trial counsel was not 

ineffective. Concluding McKnelly waived his right to challenge the postconviction court’s exclusion of new evidence and the post-conviction court did 

not err in finding McKnelly’s trial counsel was not ineffective, we affirm. 

Facts and Procedural History

[2] We summarized the facts and procedural history of this case in McKnelly’s 

direct appeal: 

In December 2012, McKnelly and Jessi Parsons Freeman 

(“Freeman”) were dating and living together. On December 23, 

2012, McKnelly and Freeman went shopping and later went to 

the home of Steven Rogers (“Rogers”). McKnelly and Freeman 

stayed at Rogers’s house for about an hour before they all left to 
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buy food and alcohol. All three then went back 

to McKnelly’s house.

At McKnelly’s house, everyone was drinking, listening to music, 

and playing pool. At some point, McKnelly and Freeman began 

to argue, and McKnelly struck Freeman. She then hid 

from McKnelly so that she could later sneak out of the 

house. McKnelly found Freeman and dragged her back into a 

bedroom. Eventually, they both went to sleep. At 4 

A.M., McKnelly woke Freeman up and told her that he wanted 

to go to the home of Chris Cave (“Cave”). McKnelly and 

Freeman drove to Cave’s house, which was a few blocks away. 

Rogers did not go to Cave’s house and stayed at McKnelly’s.

When McKnelly and Freeman arrived at Cave’s 

home, McKnelly told Freeman that he “hope[d] there’s no kids 

in there because [he’s] going to kill everybody.” McKnelly sent a 

text message to Cave, and Cave responded that he did not want 

any company. Raymond Kalchthaler (“Kalchthaler”) was staying 

with Cave and was also friends with McKnelly. McKnelly called 

Kalchthaler, and Kalchthaler went outside to 

meet McKnelly and Freeman. When Kalchthaler exited the 

house, Freeman left the car and walked 

toward McKnelly’s house. McKnelly and Kalchthaler got in the 

car and followed her.

Once they arrived at McKnelly’s house, McKnelly turned into 

the driveway, got out of the car, and began arguing with 

Freeman. Kalchthaler exited the car and walked toward a gas 

station, as he did not want to be involved in their 

argument. McKnelly told Freeman to go in the house, and she 

refused. McKnelly then got behind Freeman in an effort to push 

her towards the house. At some point while pushing Freeman 

toward the house, McKnelly cut her elbow with a knife. Freeman 

again told McKnelly that she did not want to go in the house and 
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that she wanted to leave. McKnelly told Freeman that if she left, 

he would kill her.

Kalchthaler came back to McKnelly’s house soon afterward, and 

saw Freeman on a bed crying and holding her arm. Kalchthaler 

testified that he felt very uneasy walking through the house, that 

“the atmosphere was heavy,” and that “[he] felt like it was 

almost directed toward [him].” McKnelly and Kalchthaler went 

outside to the front porch. Freeman came outside and asked 

Kalchthaler for a cigarette, and McKnelly told her to go back in 

the house. Rogers was in the kitchen eating, and Freeman told 

him that McKnelly had cut her. McKnelly told Rogers that 

Freeman had jumped out of the car and that her injuries were 

road rash. McKnelly took Freeman to the bathroom and put 

gauze and a bandage around her elbow wound. While doing 

so, McKnelly told Freeman that she “saved [Kalchthaler’s] ass.”

After bandaging the wound, McKnelly told Freeman that he was 

going to kill Rogers. Freeman asked McKnelly why and told him 

that they should take Rogers home instead. Rogers was walking 

through the house when McKnelly began saying disparaging 

remarks about himself. According to Freeman’s testimony, 

Rogers told McKnelly “there’s nothing wrong with you dude.”

Rogers then tried to give McKnelly a hug, but McKnelly stabbed 

him in the chest. Rogers grabbed a knife that was nearby and 

stabbed McKnelly. The two fought, and McKnelly got behind 

Rogers and stabbed him over fifty (50) times in the back of his 

head, neck, and back. Eventually the men stopped fighting and 

stumbled through the living room of the house. Rogers took out 

his cell phone and, according to Freeman, called his grandmother 

to “tell her bye.” McKnelly grabbed the phone from Rogers and 

hit him on the head with a thick, metal flashlight at least four 

times. Freeman and McKnelly left Rogers in the house and fled 

in McKnelly’s car. Freeman drove McKnelly to his mother’s 

home, and [he] told her not to tell his mother what had happened 

and to say he had acted in self-defense. Freeman 
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dropped McKnelly off at his mother’s house. She then went to 

her parents’ house and asked her father to call 911. Officers went 

to McKnelly’s house and found Rogers, who had died from his 

injuries.

On December 27, 2012, the State charged McKnelly with 

murder, Class B and Class C felony criminal confinement, Class 

C felony battery, Class D felony intimidation, and Class A 

misdemeanor domestic battery. McKnelly waived his right to a 

jury trial, and the trial court held a bench trial June 11, 2013. 

Before the trial began, the State dismissed several charges and 

went forward on the murder and felony battery charges.

Id. at *1-2 (citations omitted).

[3] At trial, McKnelly testified on his own behalf and stated that Rogers started the 

fight by stabbing him in the chest. McKnelly further testified that he was afraid

for his life and was defending himself from Rogers. Trial counsel argued that 

“self-defense ha[d] been established and [was] a complete defense” to

McKnelly’s murder charge. [Trial] Transcript, Volume III at 241.

1 Trial counsel

did not argue for the lesser included offense of manslaughter. The trial court 

found McKnelly guilty of murder and battery with a deadly weapon, a Class C 

felony, and sentenced him to an aggregate term of seventy-three years in the 

Indiana Department of Correction. 

1 Citation to the [Trial] Transcript is based on the .pdf pagination. 
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[4] McKnelly raised three issues on direct appeal: (1) whether the State committed 

prosecutorial misconduct in the presentation of its evidence; (2) whether 

sufficient evidence supports McKnelly’s convictions; and (3) whether 

McKnelly’s sentence was inappropriate. McKnelly, No. 30A05-1307-CR-378 at

*1. A panel of this court affirmed in all respects. Id.2

[5] In 2016, McKnelly filed a petition for post-conviction relief alleging only 

ineffective assistance of trial counsel. On July 30, 2018, an evidentiary hearing 

was held at which trial counsel testified. McKnelly subpoenaed Freeman and 

Mike Emerick3for this hearing; however, McKnelly elected not to call Freeman

as a witness after she affirmed she would testify as she had at trial and Emerick 

failed to appear. On February 13, 2019, the evidentiary hearing continued. 

Emerick did appear on that date and testified that after McKnelly’s trial,

Freeman had recanted her trial testimony. The State objected to Emerick’s 

testimony as hearsay and McKnelly claimed Emerick was a rebuttal or 

impeachment witness to Freeman’s testimony in the State’s case-in-chief at 

trial. The post-conviction court took the State’s hearsay objection under 

advisement and allowed Emerick to continue to testify. Emerick testified that 

he had known Freeman for fourteen years and three or four weeks after 

McKnelly was sentenced, Freeman told him a different story about the night of 

the murder than she had told at trial. At the conclusion of the hearing, the post2 The court did remand for the trial court to correct an error in the Abstract of Judgment.

3 Emerick is a friend of Freeman’s whom she allegedly confided in after McKnelly’s sentencing.
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conviction court instructed the parties to submit proposed findings of fact and 

conclusions of law and include argument on the hearsay issue.

[6] On June 25, 2019, McKnelly filed his proposed findings of fact and conclusions 

of law. The proposed order also included a request for a hearing about the use 

of Emerick’s testimony. The post-conviction court granted McKnelly’s motion 

and set a hearing for October 1. On August 7, 2019, the post-conviction court 

issued its findings of fact and conclusions of law “on the issue of attorney 

representation,” finding that McKnelly failed to show that trial counsel’s 

representation was deficient or prejudicial. Appendix of Appellant, Volume 3 at 

139, 153. On October 1, 2019, the post-conviction court held the hearing 

regarding Emerick’s testimony and subsequently issued an order finding 

Emerick’s testimony was impermissible as impeachment testimony under 

Indiana Rule of Evidence 613 because Freeman did not testify during the postconviction proceedings and if offered for the truth of the matter asserted, was 

inadmissible as hearsay. The post-conviction court denied post-conviction 

relief. McKnelly now appeals.4

Discussion and Decision

4 The post-conviction court issued two orders: the August 7 order about ineffective assistance of counsel and 

an October 8 order about Emerick’s testimony. McKnelly’s appeal raises issues addressed in both orders;

however, he filed only the October 8 order with his brief. We remind counsel that Indiana Appellate Rule 

46(A)(12) requires that any appealed order or judgment relating to the issues raised on appeal should be 

submitted with the brief as a separate attachment. 
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I. Post-Conviction Standard of Review

[7] Post-conviction proceedings are civil in nature and the petitioner must therefore 

establish his claims by a preponderance of the evidence. Ind. Post-Conviction

Rule 1(5). A post-conviction proceeding does not afford defendants the 

opportunity for a “super-appeal.” Atchley v. State, 730 N.E.2d 758, 762 (Ind. Ct. 

App. 2000) (citation omitted), trans. denied. Instead, such proceedings provide 

defendants with an opportunity to raise issues that were not known at the time 

of the trial, or that were unavailable on direct appeal. Id. When appealing the 

denial of post-conviction relief, the appellant faces a “rigorous standard of 

review,” id., as the reviewing court may consider only the evidence and the 

reasonable inferences supporting the judgment of the post-conviction court,

Shepherd v. State, 924 N.E.2d 1274, 1280 (Ind. Ct. App. 2010), trans. denied. The 

appellate court must accept the post-conviction court’s findings of fact and may 

reverse only if the findings are clearly erroneous. Id. A petitioner denied postconviction relief must show that the evidence as a whole leads unerringly and 

unmistakably to an opposite conclusion than that reached by the postconviction court. Id.
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II. Emerick’s Testimony

[8] McKnelly argues that Mike Emerick’s testimony should have been considered 

to be newly discovered evidence.5 The purpose of the post-conviction relief 

process is to allow a petitioner to raise issues not known at the time of the 

original trial and appeal or for some reason not available to the petitioner at 

that time. Kirk v. State, 632 N.E.2d 776, 779 (Ind. Ct. App. 1994). A valid 

claim of newly discovered evidence was, by definition, not known at the time of 

trial.

[9] In seeking post-conviction relief, a petitioner must assert all available grounds 

for relief in his original post-conviction petition. P-C.R. 1(8). It is well settled 

that “issues not raised in the petition for post-conviction relief may not be raised 

for the first time on post-conviction appeal.” Johnson v. State, 832 N.E.2d 985, 

996 (Ind. Ct. App. 2005) (citation omitted), trans. denied. In Johnson, the 

petitioner did not raise a newly discovered evidence claim in his petition,

instead raising the issue for the first time on appeal from the denial of postconviction relief. Therefore, we found his argument waived.

5 McKnelly also argues the evidence should have been reopened to allow him to call Freeman to testify and if 

she testified as she had at trial, to then use Emerick’s testimony as impeachment evidence. However, this is 

not a viable post-conviction claim as he does not raise it in the context of ineffective assistance of counsel. 

Further, he could not raise it in the context of ineffective assistance of counsel because the subject of 

Emerick’s testimony took place after the trial. 
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[10] Here, McKnelly appeals the exclusion of Emerick’s testimony as newly 

discovered evidence; however, McKnelly did not include any claim regarding

Emerick’s testimony in his original petition for post-conviction relief or file an

amended petition to include such claim after Emerick’s testimony came to 

light.

6 Therefore, he waived any challenge to the admissibility of Emerick’s 

testimony.

[11] Further, McKnelly waives this argument by failing to cite any authority or 

present a cogent argument as required by Indiana Appellate Rule 46(A)(8)(a).

McKnelly’s brief does not contain a single case or statutory citation in the 

argument section about this issue. See Brief of Appellant at 12-14. Generally, to 

obtain relief because of newly discovered evidence a party is required to show 

that:

(1) the evidence has been discovered since the trial; (2) it is 

material and relevant; (3) it is not cumulative; (4) it is not merely 

impeaching; (5) it is not privileged or incompetent; (6) due 

diligence was used to discover it in time for trial; (7) the evidence 

is worthy of credit; (8) it can be produced on a retrial of the case; 

and (9) it will probably produce a different result.

Webster v. State, 699 N.E.2d 266, 269 (Ind. 1998). McKnelly has failed to show 

that Emerick’s testimony meets this standard. Emerick testified that Freeman 

6

In McKnelly’s petition for post-conviction relief, he states that trial counsel failed to investigate and

interview witnesses, including Emerick. App. of Appellant Vol. 2 at 22. However, McKnelly does not appeal 

that claim of ineffective assistance of counsel and in fact, could not have, because Emerick’s testimony 

concerned events that occurred after McKnelly’s trial. 
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recanted her trial testimony to him after McKnelly’s sentencing; however, 

McKnelly fails to show that it is “not merely impeaching[.]” Id. Further, he 

provides no other case law to support his argument that Emerick’s testimony 

was “newly discovered evidence, which the Court should consider.” Br. of 

Appellant at 14. Therefore, his argument that the post-conviction court erred in 

its handling of this evidence is waived. 

III. Ineffective Assistance of Trial Counsel

[12] McKnelly alleges the post-conviction court erred in finding his trial counsel’s 

performance was not deficient. Although his petition for post-conviction relief 

alleged numerous instances of alleged ineffective assistance,7 on appeal he

contends only that his trial counsel’s failure to argue for a verdict of 

manslaughter, a lesser included offense of murder, was error.8 The Sixth 

Amendment to the United States Constitution guarantees a criminal defendant 

the right to counsel and mandates “that the right to counsel is the right to the 

7 McKnelly’s petition for post-conviction relief alleged numerous grounds of ineffective assistance of counsel, 

including that trial counsel failed to: (a) inform McKnelly he had previously represented the victim in an 

unrelated case; (b) conduct a complete investigation; (c) challenge the Probable Cause Affidavit; (d) file a 

motion to suppress McKnelly’s statement to Detective J.D. Fortner; (e) file a motion to suppress Detective 

Fortner’s second statement; (f) object to prosecutorial misconduct relating to McKnelly’s cellmate; (g) object 

to prosecutorial misconduct relating to deals made with witnesses; (h) adequately cross-examine State’s 

witnesses; (i) present evidence to support McKnelly’s self-defense claim; (j) investigate, interview, or 

subpoena defense witnesses; (k) argue the lesser included offense of manslaughter; and (l) offer McKnelly’s 

medical records at trial. McKnelly also claimed his trial counsel improperly waved an initial hearing and 

advised him to waive a jury trial. The post-conviction court meticulously addressed each of these claims in its 

order denying McKnelly relief.

8 McKnelly does not explicitly specify whether he means voluntary or involuntary manslaughter, but he 

states trial counsel “failed to advocate for manslaughter, a crime of passion,” Br. of Appellant at 8, which we 

interpret as voluntary manslaughter. 
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effective assistance of counsel.” Strickland v. Washington, 466 U.S. 668, 686

(1984) (quotation omitted).

[13] To prove a claim of ineffective assistance of counsel, a petitioner must show 

that counsel’s performance was deficient in that counsel’s representation fell 

below an objective standard of reasonableness, committing errors so serious 

that petitioner did not have the “counsel” guaranteed by the Sixth 

Amendment. McCary v. State, 761 N.E.2d 389, 392 (Ind. 2002). The petitioner 

must also show prejudice; that is, a reasonable probability that but for counsel’s 

errors the result of the proceeding would have been different. Id.

[14] “[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). 

[15] Further, our supreme court has held that a tactical decision not to tender a 

lesser included offense instruction does not constitute ineffective assistance of 

counsel, even where the lesser included offense is inherently included in the 

greater offense. Page v. State, 615 N.E.2d 894, 895 (Ind. 1993) (“[T]o submit an 

instruction on voluntary manslaughter would have a tendency to negate [self-]
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defense and give the message to the jury that there was really no self-defense at 

all but a deliberate killing in the heat of passion.”). And although trial counsel

could request such an instruction, in view of counsel’s theory of self-defense, 

the failure to do so does not constitute ineffective assistance of counsel. Id. As

in Page, counsel here testified that he tried the case on the theory of self-defense 

rather than argue for manslaughter, a lesser included offense of murder. 

Transcript of Evidence, Volume II at 16; see Page, 615 N.E.2d at 895 (stating, 

“There is no question that voluntary manslaughter in fact is an included offense 

in the crime of murder.”).

[16] McKnelly contends that although not arguing for a lesser included offense is a 

sound strategy for a jury trial because it could confuse the jury, it is not a sound 

tactic for a bench trial because a judge is “inherently capable of not being 

confused as to lesser offense[s] or splitting the baby.”9 Br. of Appellant at 15.

We disagree. Whether a bench trial or jury trial, this court gives trial counsel 

leeway in choosing a trial strategy. See Hinesley v. State, 999 N.E.2d 975, 984

(Ind. Ct. App. 2013) (using same standard for evaluating a claim that trial 

counsel’s strategy in a bench trial was deficient as would be applied in a jury 

trial and concluding that although “counsel’s manner of execution may not 

have been perfect or even preferred, it appears that his performance was 

consistently aimed at executing this chosen defense strategy”).

9 McKnelly provides no case law to support this assertion. 
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[17] Trial counsel testified at the post-conviction hearing that he believed selfdefense was a more “tenable and reasonable defense” than arguing for

voluntary manslaughter. Tr., Vol. II at 16. McKnelly testified that “the fight 

started [between him and Rogers] when [he] got stabbed in the chest” and that 

he “was scared for [his] life” before reaching for a knife to fight Rogers back. 

[Trial] Tr., Vol. III at 177. Because of this, it was not unreasonable that trial 

counsel would argue self-defense instead of voluntary manslaughter. Further, it 

is not proper for this court to second-guess an attorney through the distortions 

of hindsight. Mftari v. State, 537 N.E.2d 469, 473 (Ind. 1989).

[18] Trial counsel also testified that arguing for both self-defense and voluntary 

manslaughter would conflict. See Tr., Vol. II at 30. A person who knowingly or 

intentionally kills another human while acting under sudden heat commits 

voluntary manslaughter. Ind. Code § 35-42-1-3(a). Sudden heat is a mitigating 

factor that reduces murder to voluntary manslaughter. Self-defense, on the 

other hand, is a legal justification that requires “a defendant to have acted 

without fault, been in a place where he or she had a right to be, and been in 

reasonable fear or apprehension of bodily harm.” Henson v. State, 786 N.E.2d 

274, 277 (Ind. 2003). Arguing both sudden heat in an attempt to reduce the 

crime and self-defense to negate the crime altogether could conflict and based 

on McKnelly’s encounter with Rogers, trial counsel believed that self-defense 

was “more consistent” with the facts. Tr., Vol. II at 16. 

[19] Trial counsel’s choice to only argue self-defense was a strategic decision and 

does not constitute deficient performance. See Autrey v. State, 700 N.E.2d 1140, 
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1141 (Ind. 1998) (stating employing an “all or nothing” strategy is not 

ineffective assistance of counsel). And because we hold that McKnelly’s trial 

counsel’s representation did not fall below an objective standard of 

reasonableness, we need not address whether McKnelly was prejudiced. 

Accordingly, the post-conviction court’s determination that McKnelly’s counsel 

was not ineffective was not clearly erroneous.

Conclusion

[20] We conclude that McKnelly waived his right to challenge the post-conviction 

court’s exclusion of evidence and that McKnelly did not receive ineffective 

assistance of trial counsel. Accordingly, we affirm the denial of his petition for 

post-conviction relief. 

[21] Affirmed.

Crone, J., and Brown, J., concur.