Court of Appeals of Indiana | Memorandum Decision 20A-PC-587| August 18, 2020 Page 1 of 13

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.

APPELLANT PRO SE

Robert Petty

Pendleton, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Evan Matthew Comer

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Robert Petty,

Appellant-Petitioner,

v.

State of Indiana,

Appellee-Respondent.

August 18, 2020

Court of Appeals Case No.

20A-PC-587

Appeal from the Scott Circuit 

Court

The Honorable Maria D. Granger, 

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 2 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’ 
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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 
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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.
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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 
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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 
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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 postconviction 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-abody-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, 
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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. 
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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 
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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 
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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 
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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.”). 
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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-ofa-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.