Court of Appeals of Indiana | Opinion 48A02-1512-PC-2125 | November 17, 2016 Page 1 of 9

APPELLANT PRO SE

Kyle Pavan

Elwood, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

James B. Martin

Deputy Attorney General

Indianapolis, Indiana

I N THE

COURT OF APPEALS OF INDIANA

Kyle Pavan,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

November 17, 2016

Court of Appeals Case No.

48A02-1512-PC-2125

Appeal from the Madison Circuit 

Court

The Honorable Thomas Newman, 

Jr., Judge

The Honorable Carl E. VanDorn, 

Special Judge

Trial Court Cause No.

48C03-1503-PC-2, 48D03-0709-

FC-267

Altice, Judge.

Case Summary
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[1] Kyle Pavan appeals from the denial of his petition for post-conviction relief

(PCR). On appeal, he asserts that the post-conviction court erred in rejecting 

his claim of ineffective assistance of trial counsel.

[2] We affirm.

Facts & Procedural History

[3] On September 28, 2007, the State charged twenty-three-year-old Pavan with 

class C felony incest for engaging in consensual sexual intercourse with his 

thirty-four-year-old biological aunt “[o]n or about various and diverse times 

between November 1, 2006 and January 31, 2007.” Appellant’s Appendix at 19. 

Pavan ultimately pled guilty and was sentenced to six years, with two years 

executed on work release and the remainder suspended to probation.1 On 

March 3, 2014, Pavan’s probation was revoked. On the same date, he filed his 

pro se petition for post-conviction relief (PCR), in which he raised a single 

issue—whether his trial counsel was ineffective for failing to argue that his

prosecution for incest was barred by the applicable statute of limitations.

[4] At a hearing On October 19, 2015, Pavan and the State argued their respective 

positions with regard to the applicable statute of limitations. Specifically, 

Pavan argued that pursuant to Ind. Code § 35-41-4-2(e), prosecution for the 

crime of incest is barred unless commenced before the date the alleged victim 

 

1

Pavan’s aunt was also charged and convicted as a result of their incestuous relationship.
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reaches thirty-one years of age. According to Pavan, his prosecution for incest 

was barred because his aunt was thirty-four years of age at the time the charges 

were filed. The State responded that I.C. § 35-41-4-2(e) was inapplicable and 

that the charges were filed within the general five-year statute of limitations 

applicable to class C felonies. Pavan and the State agreed that the facts were 

not in dispute and that Pavan’s claim presented a pure question of statutory 

interpretation. 

[5] The parties subsequently submitted proposed findings of fact and conclusions of 

law. Pavan’s proposed findings addressed not only the issue raised in his PCR 

petition and at the October 19 hearing, but also a number of additional issues

that Pavan had not previously presented to the post-conviction court. On 

November 16, 2015, the post-conviction court issued its order denying Pavan’s 

PCR petition. The order addressed only Pavan’s claim that his trial counsel 

was ineffective for failing to raise the statute-of-limitations defense before the 

trial court. Specifically, the post-conviction court concluded that that the fiveyear statute of limitations for class C felonies applied and that the charges were 

filed well within that limitations period. Accordingly, the post-conviction court 

concluded that trial counsel was not ineffective for failing to argue at trial that 

the statute of limitations had expired because any such argument was without 

merit. Pavan now appeals.

Discussion & Decision
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[6] In a post-conviction proceeding, the petitioner bears the burden of establishing 

grounds for relief by a preponderance of the evidence. Bethea v. State, 983 

N.E.2d 1134, 1138 (Ind. 2013). “When appealing the denial of post-conviction 

relief, the petitioner stands in the position of one appealing from a negative 

judgment.” Id. (quoting Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004)). In 

order to prevail, the petitioner must demonstrate that the evidence as a whole 

leads unerringly and unmistakably to a conclusion opposite the post-conviction 

court’s conclusion. Id. Although we do not defer to a post-conviction court’s 

legal conclusions, we will reverse its findings and judgment only upon a 

showing of clear error, i.e., “that which leaves us with a definite and firm 

conviction that a mistake has been made.” Id. (quoting Ben-Yisrayl v. State, 729 

N.E.2d 102, 106 (Ind. 2000)).

[7] As an initial matter, we note that Pavan raises a number of issues in his 

appellate brief that he did not raise in his PCR petition or otherwise properly 

present to the post-conviction court. It is well settled that issues not raised in a 

PCR petition may not be raised for the first time on appeal. McKnight v. State, 1 

N.E.3d 193, 202 n.3 (Ind. Ct. App. 2013). Pavan’s pro se status does not 

excuse his failure to properly preserve these issues for appeal. See Smith v. State, 

38 N.E.3d 218, 220 (Ind. Ct. App. 2015) (explaining that pro se litigants are 

held to the same standard as trained counsel and are required to follow 

procedural rules). Accordingly, these issues are waived, and we will address 

Pavan’s only remaining appellate claim—whether his trial counsel was

ineffective for failing to raise the statute-of-limitations defense.
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[8] A petitioner will prevail on a claim of ineffective assistance of counsel only 

upon a showing that counsel’s performance fell below an objective standard of 

reasonableness and that the deficient performance prejudiced the petitioner. 

Bethea, 983 N.E.2d at 1138. To satisfy the first element, the petitioner must 

demonstrate deficient performance, which is “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.” Id.

(quoting McCary v. State, 761 N.E.2d 389, 392 (Ind. 2002)). To satisfy the 

second element, the petitioner must show prejudice, which is “a reasonable 

probability that, but for counsel’s errors, the result of the proceeding would 

have been different.” Id. at 1139. In the context of a guilty plea, this requires 

the petitioner to establish a reasonable probability that, but for counsel’s errors, 

he would not have pled guilty and would have instead insisted on going to trial. 

Scott v. State, 986 N.E.2d 292, 296 (Ind. Ct. App. 2013). “A reasonable 

probability is one that is sufficient to undermine confidence in the outcome.” 

Kubsch v. State, 934 N.E.2d 1138, 1147 (Ind. 2010) (quoting Strickland v. 

Washington, 466 U.S. 668, 694 (1984)). Failure to satisfy either element will 

cause an ineffectiveness claim to fail. Carrillo v. State, 98 N.E.2d 461, 464 (Ind. 

Ct. App. 2013). Thus, if a petitioner cannot establish prejudice, we need not 

evaluate the reasonableness of counsel’s performance. Id. 
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[9] Pavan’s appellate argument is based on a flawed interpretation of I.C. § 35-41-4-

2 (2007), which, at the time Pavan was charged,2read in relevant part as 

follows:

(a) Except as otherwise provided in this section, a prosecution for 

an offense is barred unless it is commenced:

(1) within five (5) years after the commission of the 

offense, in the case of a Class B, Class C, or Class D

felony. . . .

(e) A prosecution for the following offenses is barred unless 

commenced before the date that the alleged victim of the offense 

reaches thirty-one (31) years of age:

(1) IC 35-42-4-3(a) (Child molesting).

(2) IC 35-42-4-5 (Vicarious sexual gratification).

(3) IC 35-42-4-6 (Child solicitation).

(4) IC 35-42-4-7 (Child seduction).

(5) IC 35-46-1-3 (Incest).

 

2 Our Supreme Court has explained that “the applicable statute of limitations is that which was in effect at 

the time the prosecution was initiated.” Wallace v. State, 753 N.E.2d 568, 569 (Ind. 2001). Although I.C. § 

35-41-4-2 has undergone some limited, mostly stylistic changes since Pavan was charged, its substance, at 

least as it pertains to this case, remains the same.
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[10] Pavan does not dispute that the charge against him was brought well within five 

years of the commission of the offense. Instead, according to Pavan, his 

prosecution for incest was barred pursuant to I.C. § 35-41-4-2(e) because his 

aunt, the “victim” in this case, was thirty-four years old at the time the offense 

occurred. Although Pavan frames the issue in terms of the statute of 

limitations, his argument boils down to an assertion that it is not illegal to 

engage in consensual incestuous sexual intercourse with a family member over 

the age of thirty-one. 

[11] We decline to adopt the interpretation Pavan suggests. At the time of Pavan’s 

guilty plea, the statute criminalizing incest provided as follows:

A person eighteen (18) years of age or older who engages in 

sexual intercourse or deviate sexual conduct with another person, 

when the person knows that the other person is related to the 

person biologically as a parent, child, grandparent, grandchild, 

sibling, aunt, uncle, niece, or nephew, commits incest, a Class C 

felony. However, the offense is a Class B felony if the other 

person is less than sixteen (16) years of age.

Ind. Code § 35-46-1-3 (2007).3 Notably, the statute contains no element of 

force, nor does it set forth any maximum age for the perpetrator or victim. 

Indeed, by elevating the offense to a class B felony when the other person 

involved is less than sixteen years old, the statute specifically contemplates that 

 

3 The current version of the incest statute is identical in substance, but the crime is now classified as either a 

Level 5 or a Level 4 felony depending on the age of the victim. I.C. § 35-46-1-3.
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incest continues to be criminalized when both participants are beyond the age 

of consent. Nothing in the incest statute itself supports Pavan’s assertion that it 

is not illegal to engage in consensual incestuous sex, provided that the family 

member involved is age thirty-one or over. 

[12] Our Supreme Court has noted that “[t]he legislature has provided an extended

statute of limitations for certain sex offenses in Indiana Code section 35-41-4-

2(e).” Sloan v. State, 947 N.E.2d 917, 923 n.9 (Ind. 2011) (emphasis supplied). 

Aside from incest, all of the offenses listed in I.C. § 35-41-4-2(e) are, by 

definition, crimes against children—vulnerable victims who may not be 

physically, mentally, or emotionally capable of reporting their abuse until much 

later in life. Although incest is not exclusively a crime against children, it is 

very often committed against children or other particularly vulnerable victims. 

When viewed in context, the purpose of I.C. § 35-41-4-2(e) is clear—it is 

intended to toll the statute of limitations to allow victims of certain sex crimes 

to report their abuse and seek justice upon reaching adulthood. In other words, 

the statute is intended to extend the statute of limitations for certain sex crimes. 

The statute is in no event intended to shorten the applicable statute of 

limitations for any crime or, as Pavan asserts in this case, wholly decriminalize 

an otherwise illegal sex act based on the age of the other party. 

[13] Essentially, Pavan asks us to transform a tolling provision located within the 

statute of limitations into an additional element the State must prove to secure a 

conviction for incest—that the victim or, as in this case, other willing 

participant, is under thirty-one years old. To accept Pavan’s request would be 
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to embrace an absurd and illogical interpretation of both the statute of 

limitations and the incest statute. See In re J.S., 48 N.E.3d 356, 359-60 (Ind. Ct. 

App. 2015) (explaining that “[w]e presume that the General Assembly intended 

that the language used in [a] statute be applied logically and not to bring about 

an unjust or absurd result” (quoting Alvey v. State, 10 N.E.3d 1031, 1033 (Ind. 

Ct. App. 2014), aff’d of reh’g, 15 N.E.3d 72), trans. denied.) If the legislature had 

wished to place such limitations on the reach of the incest statute, it would have 

done so explicitly and in the statute defining the offense, not impliedly and by 

way of the statute of limitations. 

[14] In sum, Pavan’s statute-of-limitations argument is without merit, and trial 

counsel cannot be deemed ineffective for failing to pursue a meritless defense. 

Accordingly, the post-conviction court properly denied Pavan’s PCR petition.

[15] Judgment affirmed. 

[16] Bradford, J. and Pyle, J., concur.