Court of Appeals of Indiana | Memorandum Decision 90A02-1603-PC-581 | October 21, 2016 Page 1 of 25

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

Cara Schaefer Wieneke

Special Assistant to the 

State Public Defender

Wieneke Law Office, LLC

Brooklyn, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Jesse R. Drum

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Kyle Willhite,

Appellant-Petitioner,

v.

State of Indiana,

Appellee-Respondent.

October 21, 2016

Court of Appeals Case No.

90A02-1603-PC-581

Appeal from the Wells Circuit 

Court

The Honorable Thomas M. Hakes, 

Special Judge

Trial Court Cause No.

90C01-1407-PC-2

Bradford, Judge.

Case Summary
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[1] In March of 2007, S.M. reported that Appellant-Petitioner Kyle Willhite had 

sexually molested her during the summer of either 2001 or 2002, when she was 

nine or ten years old. S.M. claimed that the abuse had occurred at Willhite’s 

home while she was being babysat by Willhite’s sister. 

[2] On April 23, 2007, Appellee-Respondent the State of Indiana (“the State”) filed 

a petition alleging that Willhite was a juvenile delinquent for committing what 

would have been Class B felony child molesting if committed by an adult. 

Evidence indicated that Willhite was fourteen years old when he committed the 

alleged misconduct. Willhite and the State entered into an agreement under the 

terms of which Willhite agreed to consent to waiver of the matter to adult court 

in exchange for the State agreeing to reduce the charge to a Class C felony. 

Once in adult court, Willhite would enter into a written disposition of the 

charges and the State would argue that the executed portion of Willhite’s 

sentence should be capped at four years. The juvenile court accepted the 

parties’ agreement and transferred the case to adult court. 

[3] Pursuant to the terms of the parties’ agreement, the State charged Willhite with 

Class C felony child molesting in the adult court, Willhite pled guilty to the 

Class C felony child molesting charge, and the State agreed that the executed 

portion of Willhite’s sentence should be capped at four years. Willhite, 

however, subsequently failed to appear for the guilty plea hearing, after which a 

warrant was issued for his arrest. He was eventually arrested, at which time he 

again agreed to plead guilty. However, just before sentencing, Willhite filed a 

motion to dismiss the Class C felony charge, claiming that it was physically 
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impossible that he could have committed the charged acts during the summer of 

2002. Willhite also claimed that he could not be prosecuted for Class C felony 

child molesting because prosecution was barred by the applicable five-year 

statute of limitations. The trial court denied Willhite’s motion to dismiss and 

set the matter for sentencing. Again, before sentencing, Willhite filed a pro-se 

motion to withdraw his guilty plea, claiming that the matter should never have 

been waived to adult court and that he was coerced into pleading guilty by 

advice received from his counsel. The trial court denied Willhite’s motion and 

sentenced him to a term of four years with all but two years and fifteen days 

suspended to probation.

[4] Willhite subsequently sought post-conviction relief. Following an evidentiary 

hearing, the post-conviction court denied Willhite’s petition for post-conviction 

relief (“PCR petition”). Willhite appealed, contending that (1) the juvenile 

court erred in waiving the underlying matter to adult court, (2) he suffered 

ineffective assistance from both his juvenile and trial counsel, and (3) the postconviction court abused its discretion in excluding certain evidence. We affirm.

Facts and Procedural History

[5] Willhite was born on March 18, 1988, and was fourteen years old during the 

summer of 2002. S.M. was ten years old during the summer of 2002. S.M. was 

in fourth grade during the 2001-2002 school year. For about half of the 2001-

2002 school year and part of the following summer, Willhite’s sister babysat 

S.M. at Willhite’s home in Bluffton. 
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[6] On March 13, 2007, fifteen-year-old S.M. reported to Officer Steven Cale that 

Willhite had touched her vagina with his fingers and his mouth on more than 

one occasion during the summer of 2002. S.M. indicated that the incidents 

occurred while she was at Willhite’s home being babysat by Willhite’s sister 

and that the incidents ended when Willhite’s family moved to Montpelier. 

Later that same day, Officer Cale interviewed nineteen-year-old Willhite. 

During this interview, Willhite indicated that he had “dated” S.M. when he 

was “about fourteen years old” and that he had touched her vagina with his 

fingers and mouth. Appellant’s App. Vol. 3, p. 68. Willhite also signed a 

statement in which he admitted that he had molested S.M. when he was 

fourteen years old and she was ten years old. 

[7] On April 23, 2007, the State filed a petition alleging that Willhite was a 

delinquent child for committing what would have been Class B felony child 

molesting if committed by an adult. On November 25, 2008, when Willhite 

was twenty years old, the State filed a motion requesting the juvenile court to 

waive jurisdiction of the matter. After investigating the allegations levied 

against Willhite, his juvenile counsel determined that, in light of Willhite’s age, 

juvenile record, and the fact that Willhite had signed a statement under oath 

admitting that he was fourteen years old when he committed the alleged 

misconduct, “there was a strong probability” that the juvenile court judge 

would grant the State’s request. PCR Tr. p. 6. After discussing these matters 

with Willhite, juvenile counsel engaged the State in negotiations in an attempt 

to limit Willhite’s potential exposure to incarceration. Juvenile counsel 
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indicated that he engaged in this approach because he believed this approach 

would benefit Willhite. As a result of these negotiations, the parties entered 

into an agreement, the terms of which provided that Willhite would agree to the 

waiver of the matter to adult court and would enter into a written disposition of 

the adult charges. The terms of the agreement further stated that in exchange, 

the State would (1) charge Willhite in adult court with the reduced charge of 

Class C felony child molesting, (2) argue that the executed portion of Willhite’s 

sentence should be capped at four years, (3) allow Willhite to turn himself in 

once charges were filed, and (4) request that his bond be set at $5000. 

[8] On August 12, 2009, when Willhite was twenty-one years old, the juvenile 

court conducted a hearing on the State’s motion. During this hearing, the 

following exchange took place:

[Juvenile Counsel]: Yes, Your Honor, but I believe we’ve 

reached an agreement [ ] where Mr. Willhite would be agreeing 

to the waiver and we have an agreement with the State regarding

a number of other items, I don’t know if the Court wishes to hear 

the entire agreement, but the fact is that it is a waiver into adult 

Court.

[Deputy Prosecutor]: There will be a subsequent written 

disposition as to the adult charges and that was offered in 

exchange for a waiver today.

[Juvenile Court]: Mr. Willhite, are you agreeing to be 

waived to adult Court in this matter?

Mr. Willhite: Yeah.

[Juvenile Court]: Just for the record why don’t we recite 

the agreement so that I can ask Mr. Willhite some questions 

about that.

[Deputy Prosecutor]: The eventual charges will be a C 

felony. There will be a cap of a maximum of 4 years executed to 
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the [Department of Correction]. Both sides are free to argue with 

respect to sentencing, he would have a bond of $5,000 and it was 

agreed that he can turn himself in to the jail or to the officer as 

circumstances dictate as soon as the charges are filed. We 

anticipate they will be filed before the end of the week.

[Juvenile Court]: Mr. Willhite, is that the agreement 

that’s been reached between you and the State of Indiana?

Mr. Willhite: Yeah.

[Juvenile Court]: And that’s based upon that agreement 

you’re agreeing to be waived to adult Court is that correct?

Mr. Willhite: So I am still be [sic] charged for an 

[sic] adult Court?

****

[Juvenile Counsel]: You’re agreeing to be charged in adult 

Court for what [the deputy prosecutor] just recited, the waiver 

agreement is that you’ll be having charges filed as a C felony, 

that there’s going to be an agreement that there would be a cap of 

four years on any sentence with both sides to be able to argue as 

to the sentence. That you’re being allowed to leave today on the 

basis that you agree to turn yourself in once charges are filed and 

that a bond level will be of $5,000.

Mr. Willhite: Yeah.

[Juvenile Counsel]: Is that what has been agreed to?

Mr. Willite: Yes, sir. 

[Juvenile Court]: Very well then the Court will order 

Mr. Willhite to be waived to adult Court and once the charges 

are filed bond will be set at $5,000 and you’ll be given an 

opportunity to turn yourself in either to the jail or to the officer.

Petitioner’s Ex. 8, pp. 3-4.

[9] The next day, on August 13, 2009, the State charged Willhite in the trial court 

with Class C felony child molesting. On November 30, 2009, Willhite entered 

a plea of guilty, pursuant to a plea agreement which he had entered into with 
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the State. Pursuant to the terms of this plea agreement, the State again agreed 

that the executed portion of Willhite’s sentence would be capped at four years. 

Willhite, however, failed to appear for the March 29, 2010 guilty plea hearing. 

After Willhite failed to appear, the trial court issued a warrant for Willhite’s 

arrest. 

[10] On August 17, 2012, when Willhite was twenty-four years old, Willhite entered 

an open plea of guilty. In pleading guilty, Willhite admitted that during the 

summer of 2002, when he was fourteen years old, he performed oral sex on 

S.M. with the intent to arouse his sexual desire. The trial court found that the 

factual basis supported Willhite’s guilty plea, accepted the plea, and entered a 

judgment of conviction. 

[11] Following the trial court’s acceptance of his guilty plea but before sentencing, 

Willhite filed a motion to dismiss the pending criminal charge, arguing that the 

charge was barred by the applicable five-year statute of limitations. In filing this 

motion, Willhite maintained that it would have been physically impossible for 

him to commit the charged offense during the summer 2002 because his family 

had been subjected to an order of eviction from their Bluffton home that was 

entered on May 9, 2002. The trial court held a hearing on Willhite’s motion on 

January 11, 2013, during which it admitted the eviction order into evidence. 

The trial court denied Willhite’s motion to dismiss on March 8, 2013. 

[12] On March 22, 2013, Willhite filed a pro-se motion to dismiss his guilty plea. In 

seeking to have his guilty plea dismissed, Willhite argued that he had been 
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coerced into pleading guilty, that there are a number of unanswered questions 

relating to the applicable statute of limitations, and that he never should have 

been waived to adult court. The trial court conducted a sentencing hearing on 

April 16, 2013, during which it denied Willhite’s motion to dismiss his guilty 

plea and sentenced him to a term of four years, with all but two years and 

fifteen days suspended to probation. 

[13] Following sentencing, Willhite filed a direct appeal. Willhite, however, 

subsequently requested dismissal of the direct appeal and initiated the instant 

post-conviction proceedings. Willhite filed his PCR petition on July 29, 2014. 

In seeking post-conviction relief, Willhite contended that both his juvenile and 

trial counsel provided ineffective assistance. The post-conviction court 

conducted an evidentiary hearing on Willhite’s petition on December 18, 2015. 

On February 11, 2016, the post-conviction court issued an order denying 

Willhite’s petition. This appeal follows.

Discussion and Decision

[14] Post-conviction procedures do not afford the petitioner with a super-appeal. 

Williams v. State, 706 N.E.2d 149, 153 (Ind. 1999). Instead, they create a 

narrow remedy for subsequent collateral challenges to convictions, challenges 

which must be based on grounds enumerated in the post-conviction rules. Id. 

A petitioner who has been denied post-conviction relief appeals from a negative 

judgment and as a result, faces a rigorous standard of review on appeal. Dewitt 
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v. State, 755 N.E.2d 167, 169 (Ind. 2001); Colliar v. State, 715 N.E.2d 940, 942 

(Ind. Ct. App. 1999), trans. denied. 

[15] Post-conviction proceedings are civil in nature. Stevens v. State, 770 N.E.2d 739, 

745 (Ind. 2002). Therefore, in order to prevail, a petitioner must establish his 

claims by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5); 

Stevens, 770 N.E.2d at 745. When appealing from the denial of a PCR petition, 

a petitioner must convince this court that the evidence, taken as a whole, “leads 

unmistakably to a conclusion opposite that reached by the post-conviction 

court.” Stevens, 770 N.E.2d at 745. “It is only where the evidence is without 

conflict and leads to but one conclusion, and the post-conviction court has 

reached the opposite conclusion, that its decision will be disturbed as contrary 

to law.” Godby v. State, 809 N.E.2d 480, 482 (Ind. Ct. App. 2004), trans. denied. 

The post-conviction court is the sole judge of the weight of the evidence and the 

credibility of the witnesses. Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004). 

We therefore accept the post-conviction court’s findings of fact unless they are 

clearly erroneous but give no deference to its conclusions of law. Id.

[16] In seeking post-conviction relief, Willhite contends that the juvenile court erred 

in waiving the underlying matter to adult court. Willhite also contends that 

both his juvenile and trial court counsel provided ineffective assistance and that 

the post-conviction court abused its discretion in excluding certain evidence. 

For its part, the State contends that the juvenile court did not err in waiving the 

underlying matter to adult court, Willhite did not receive ineffective assistance 
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from either his juvenile or trial counsel, and that any potential error in 

excluding the challenged evidence was, at most, harmless. 

I. Jurisdictional Questions

[17] Willhite contends that he should not have been waived to adult court because 

the adult court, i.e. the trial court, did not have subject matter jurisdiction over 

his case. While Willhite presents this contention as a challenge to whether the 

trial court had subject matter jurisdiction over the underlying criminal 

proceedings, Willhite’s challenge is more accurately labeled as a challenge to 

the propriety of the juvenile court order waiving Willhite to adult court. 

[18] Juvenile courts generally have exclusive original jurisdiction over juvenile 

delinquency proceedings. Ind. Code § 31-30-1-1 (2003). However, juvenile 

courts may, under certain circumstances, waive this jurisdiction. “Waiver of 

jurisdiction refers to an order of the juvenile court that waives the case to a 

court that would have jurisdiction had the act been committed by an adult.” 

Ind. Code § 31-30-3-1 (1997). With regard to waiver of juvenile court 

jurisdiction, Indiana Code section 31-30-3-2 (1997) provides as follows:

Upon motion of the prosecuting attorney and after full 

investigation and hearing, the juvenile court may waive 

jurisdiction if it finds that:

(1) the child is charged with an act:

(A) that is heinous or aggravated, with 

greater weight given to acts against the 

person than to acts against property; or
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(B) that is a part of a repetitive pattern of 

delinquent acts, even though less 

serious;

(2) the child was at least fourteen (14) years of age 

when the act charged was allegedly committed;

(3) there is probable cause to believe that the child 

committed the act;

(4) the child is beyond rehabilitation under the 

juvenile justice system; and

(5) it is in the best interests of the safety and welfare 

of the community that the child stand trial as an 

adult.

A challenge to the waiver of a juvenile matter to adult court may be challenged 

on direct appeal following a final determination of the criminal prosecution 

which was authorized by said waiver. State ex rel. Snellgrove v. Porter Circuit and 

Juvenile Courts, 270 Ind. 431, 433-34, 386 N.E.2d 680, 680-81 (1979).

[19] “Juvenile proceedings, unlike criminal proceedings, are civil in nature and the 

burden is on the State to establish by a preponderance of the evidence that 

juvenile jurisdiction should be waived.” Phelps v. State, 969 N.E.2d 1009, 1016 

(Ind. Ct. App. 2012) (citing K.M. v. State, 804 N.E.2d 305, 308 (Ind. Ct. App. 

2004), trans. denied). “We review the juvenile court’s decision to waive its 

jurisdiction for an abuse of discretion.” Id. (citing K.M., 804 N.E.2d at 308).

“The juvenile court is entitled to give the evidence before it whatever weight it 

deems appropriate.” Phelps, 969 N.E.2d at 1016 (citing K.M., 804 N.E.2d at 

308). Further, 

[w]hen reviewing a claim [challenging] the sufficiency of a 

waiver order, we will not weigh the evidence or judge the 
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credibility of witnesses. We look only to the evidence most 

favorable to the [S]tate and reasonable inferences to be drawn 

therefrom, considering both the waiver hearing and the findings 

of fact given by the court. Goad v. State (1987), Ind., 516 N.E.2d 

26, 27; Smith v. State (1984), Ind., 459 N.E.2d 355, 360; McDowell 

v. State (1983), Ind., 456 N.E.2d 713, 715. Furthermore, the 

waiver order and record must allow a meaningful review which is 

not based on assumptions about the state of mind of the judge. 

Cartwright v. State (1976), 168 Ind. App. 517, 344 N.E.2d 83, 87. 

Thomas v. State, 562 N.E.2d 43, 45-46 (Ind. Ct. App. 1990).

[20] In arguing that the juvenile court erred in waiving its jurisdiction, Willhite 

challenges the sufficiency of the juvenile court’s waiver order. In making this 

challenge, Willhite relies on this court’s opinion in Duvall v. State, 170 Ind. App. 

473, 477, 353 N.E.2d 478, 481 (1976), in which we concluded as follows:

Although the exclusive jurisdiction of the Juvenile Court inures 

to the benefit of the juvenile, it is nevertheless the court’s 

jurisdiction. Thus, a ‘stipulation’ or consent to waiver of juvenile 

jurisdiction does not relieve the Juvenile Court from its duty to 

independently and conscientiously determine the appropriateness 

of waiver.

However, the Indiana Supreme Court has since held that 

The absence from the waiver order of the particular facts 

justifying waiver does not necessarily invalidate the waiver. This 

Court has recognized that the specific facts need not be recited in 

the order if the record contains sufficient facts for the court to 

find that waiver is appropriate. Daniel v. State (1991), Ind., 582 

N.E.2d 364, 368; [Gerrick v. State, 451 N.E.2d 327, 330 (Ind. 
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1983)]. See also [Thomas, 562 N.E.2d at 45] (pre-printed waiver 

order is valid if the record from the hearing supports the waiver).

Vance v. State, 640 N.E.2d 51, 57 (Ind. 1994).

[21] In Thomas, we reviewed the sufficiency of a waiver order, concluding that 

“although reciting statutory standards, [the waiver order] is supported by a 

record which demonstrates that the court made a conscientious determination 

that the case should not be handled in the juvenile system.” 562 N.E.2d at 46. 

In reaching this conclusion, we stated that the record showed that the juvenile 

court contemplated evidence that Thomas was charged with murder and felony 

murder, that probable cause existed, and that she was fourteen years old when 

the crime was committed. Id. As such, we found that the record demonstrated 

that Thomas’s “due process rights were accorded during the waiver hearing.” 

Id.

[22] Similarly, in the instant matter, the juvenile court’s order does not include 

explicit findings with regard to each of the required factors. However, the 

record is clear that the juvenile court conducted a hearing that was somewhat 

akin to a guilty plea hearing during which the parties presented the terms of 

their agreement and the juvenile court questioned Willhite about his 

understanding of the terms and whether he agreed to have the matter waived to 

adult court. During this hearing, the parties established that (1) Willhite was 

alleged to have committed what would be Class B felony child molesting, (2) he 

had agreed to be waived to adult court in exchange for the State agreeing to 

charge him with a Class C felony child molesting, and (3) the parties agreed 
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that the criminal charges would result in written disposition after which any 

executed sentence would be capped at four years. The court record also 

included information by which the court could determine that Willhite, who 

was twenty-one years old at the time of the waiver hearing, was fourteen years 

old when he committed the alleged offense. Further, we believe that it is 

reasonable to infer that the juvenile court determined that the molestation of a 

child, such to warrant a Class B felony charge if committed by an adult, was 

heinous.1 

[23] Like in Thomas, we conclude that although the juvenile court’s waiver order did 

not expressly state the court’s findings, the record showed that the juvenile 

court considered each of the necessary factors before waiving the matter to 

adult court.2 As such, given the information available to the juvenile court 

 

1

 In addition, while it is unclear whether the juvenile court record included information about 

Willhite’s criminal history, it is not unreasonable to assume that the juvenile court record would 

have included this information. This information would have shown that after committing the 

underlying molestation but before the waiver hearing, Willhite had been charged with Class C 

felony child molesting in Blackford County. Willhite’s criminal history would also have 

indicated that he had been adjudicated delinquent for being truant and committing what would 

have been theft if committed by an adult and convicted of possession of marijuana and operating 

a vehicle while intoxicated in a manner that endangers a person. The subsequent molestation 

charge would, at least potentially, indicate that Willhite had been alleged to have engaged in an 

unrelated act of sexual misconduct and his entire criminal history would, at least potentially, 

indicate that Willhite had engaged in a pattern of delinquent behavior. 

2

 We are also unconvinced by Willhite’s claim that the juvenile court could not have gleaned 

the necessary information from the waiver hearing simply because it was short. As we stated 

above, the juvenile court could find all necessary information from review of its record together 

with the information provided during the waiver hearing.
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coupled with Willhite’s express statement that he agreed to have the matter 

waived to adult court, we conclude that the juvenile court did not err in waiving 

its jurisdiction over the underlying matter.

[24] Having concluded that the juvenile court did not err in waiving its jurisdiction 

over the underlying matter, we also conclude that there is no question that the 

trial court, i.e. the Wells Circuit Court, had jurisdiction over the Class C felony 

charge that was brought in adult court. A court has subject matter jurisdiction 

over a matter if the court has “jurisdiction over the general class of actions to 

which a particular case belongs.” K.S. v. State, 849 N.E.2d 538, 542 (Ind. 2006). 

Relevant statutory authority provides that all circuit courts have “original and 

concurrent jurisdiction in all civil cases and in all criminal cases.” Ind. Code 

section 33-28-1-2. Thus, in light of the above-quoted statutory authority, we 

conclude that the trial court had subject matter jurisdiction over the underlying 

criminal proceedings. 

II. Ineffective Assistance of Counsel

[25] Willhite also contends that both his juvenile and trial counsel provided 

ineffective assistance. The right to effective counsel is rooted in the Sixth 

Amendment to the United States Constitution. Taylor v. State, 840 N.E.2d 324, 

331 (Ind. 2006). “‘The Sixth Amendment recognizes the right to the assistance 

of counsel because it envisions counsel’s playing a role that is critical to the 

ability of the adversarial system to produce just results.’” Id. (quoting Strickland 

v. Washington, 466 U.S. 668, 685 (1984)). “The benchmark for judging any 
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claim of ineffectiveness must be whether counsel’s conduct so undermined the 

proper function of the adversarial process that the trial court cannot be relied on 

as having produced a just result.” Strickland, 466 U.S. at 686. The United 

States Supreme Court has held that the two-part test set forth in Strickland

applies to challenges to guilty pleas based on alleged ineffective assistance of 

counsel. Hill v. Lockhart, 474 U.S. 52, 57-58 (1985).

[26] A successful claim for ineffective assistance of counsel must satisfy two 

components. Reed v. State, 866 N.E.2d 767, 769 (Ind. 2007). Under the first 

prong, the petitioner must establish that counsel’s performance was deficient by 

demonstrating that counsel’s representation “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. We recognize that 

even the finest, most experienced criminal defense attorneys may not agree on 

the ideal strategy or most effective way to represent a client, and therefore, 

under this prong, we will assume that counsel performed adequately and defer 

to counsel’s strategic and tactical decisions. Smith v. State, 765 N.E.2d 578, 585 

(Ind. 2002). Isolated mistakes, poor strategy, inexperience, and instances of 

bad judgment do not necessarily render representation ineffective. Id. 

[27] Under the second prong, the petitioner must show that the deficient 

performance resulted in prejudice. Reed, 866 N.E.2d at 769. Again, a petitioner 

may show prejudice by demonstrating that there is “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. 
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A petitioner’s failure to satisfy either prong will cause the ineffective assistance 

of counsel claim to fail. See Williams, 706 N.E.2d at 154. Stated differently, 

“[a]lthough the two parts of the Strickland test are separate inquires, a claim 

may be disposed of on either prong.” Grinstead v. State, 845 N.E.2d 1027, 1031 

(Ind. 2006) (citing Williams, 706 N.E.2d at 154). 

A. Juvenile Counsel

[28] Willhite argues that his juvenile counsel provided him with ineffective 

assistance by failing to complete an adequate investigation into whether he was 

thirteen or fourteen years old when he committed the alleged misconduct. 

Specifically, Willhite claims that juvenile counsel’s failure to complete an 

adequate investigation erroneously led juvenile counsel to believe that waiver 

was a forgone conclusion and, as a result, juvenile counsel erroneously 

“induced” and “coerced” Willhite to agree to the waiver and to subsequently 

plead guilty. Appellant’s Br. p. 21. For its part, the State argues that juvenile 

counsel did not provide Willhite with ineffective assistance as juvenile counsel’s 

investigation was adequate.

[29] During the post-conviction hearing, Willhite’s post-conviction counsel 

questioned juvenile counsel regarding the investigation conducted by juvenile 

counsel, engaging juvenile counsel in the following exchange:

Q. And do you remember the work that you did or the 

investigation that you did on the case?

A. I remember it better now because I do have my notes.... 

Q. And you’ve had a chance to review that?
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A. That’s correct.

Q. What do you remember with respect to any investigation

you might have done?

A. I would have filed discovery as far as the juvenile case 

itself. I believe I met with Mr. Willhite on several occasions and 

also telephone conference. I would have questioned the 

Probation Officer and also the police officer. I don’t think I did 

any formal discovery in way of deposition or anything of that 

fashion.

Q. Do you remember reviewing the police report?

A. Absolutely.

Q. Do you remember if you talked to Detective Cale?

A. I did.

Q. Do you remember reading that the Detective had taken an 

audio tape statement of the victim?

A. I don’t remember that.

Q. Would you have reviewed or do you recall reviewing that 

statement?

A. I did not have a copy of the audio statement in my file. 

Normally, if I would have reviewed that it would have been at 

the Prosecutor’s Office. I did that frequently. I can’t tell you that 

I remember specifically doing it in this case.

Q. Did you meet with Mr. Willhite to discuss the allegation?

A. I did.

Q. Do you remember the nature of that conversation?

A. It was more than once. The first time I met with him I 

believe he told me he thought he was 13. The police report from 

the victim thought or at least what she said was it would have 

been the summer of 2002 and Mr. Willhite would have turned 14 

in March of 2002. We went at a later date also went through and 

I saw in my notes where he thought that they had left Bluffton in 

May of 2002. Again, that didn’t place him outside of prior to 

March of 2002 or March 18th, which is his birthday. There was 

also a written statement that I believe Office Cale had written out 

for Mr. Willhite where under oath he said he was 14 and the 

victim was 10. That posed some additional problems for me as 
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far as giving further advice to Mr. Willhite as to going forward on 

a waiver issue.

PCR Tr. pp. 4-5. Juvenile counsel also indicated that he explained to Willhite 

the risk of going forward to the waiver hearing and the possible criminal 

sanctions that he could face if waived to adult court. 

[30] On cross examination, the Deputy Prosecutor engaged juvenile counsel in the 

following exchange with regard to juvenile counsel’s review of the victim’s 

recorded statement:

Q. With respect to the audio taped interview, you say you did 

not have a copy of it in your file? Is that correct?

A. When Mr. Johnson from the Endris firm brought that file 

over the date we had our deposition there was no audio tape in 

the file.

Q. Do any of your notes reflect ever having that in your file?

A. I would have to go over my notes with a fine tooth comb 

but I don’t believe so.

Q. How long had you been a public defender by this time?

A. Okay, I started as a public defender I think in 1990, so 

2007, that would have been 17 years.

Q. And was it your habit in the regular course to review all 

materials provided to you or made available to you by the 

Prosecutor’s Office?

A. Well, I always filed a Motion for Discovery so that right 

was protected and yes, if there was something to review, I would 

review it.

Q. And if they weren’t made physically available to you 

because of the nature of the information but would have been 

made available to you to review at the Prosecutor’s Office was it 

your normal procedure and habit to do that?

A. Absolutely and I’ll expand a little bit on that. About this 

time there was a lot more DVDs and things like that coming 
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forward and so in this case there wasn’t a video tape but many 

[types] of programming on one computer not jiving with another 

computer I’d go to the Prosecutor’s Office and watch it or listen 

to it on a Prosecutor’s computer.

Q: Do you believe that is what you did in this case?

A. I don’t have any direct recollection of that, [Deputy 

Prosecutor]. I would expect that, yes, that’s what I would have 

done.

Q. Based on your habit and normal course of conduct?

A. That’s correct.

PCR Tr. pp. 7-8. 

[31] Juvenile counsel’s additional testimony indicates that even if he did not review 

S.M.’s recorded statement, her grandmother’s death certificate,3 or the eviction 

notice, he was nonetheless aware that there was some question as to whether 

Willhite was thirteen or fourteen when he committed the alleged misconduct. 

Juvenile counsel acknowledged, however, that despite Willhite claiming that he 

“thought” he was thirteen, Willhite’s own sworn statement to Detective Cale 

indicated that he was fourteen at the time he committed the alleged 

misconduct. Juvenile counsel further acknowledged that this sworn statement 

would have been problematic if he were to attempt to argue that waiver was 

inappropriate because of Willhite’s age at the time he committed the alleged 

misconduct. Further, neither the recorded statement, death certificate, nor 

eviction notice would have directly contradicted Willhite’s own sworn 

 

3

 S.M.’s grandmother’s death certificate was relevant because S.M. indicated that the 

molestation occurred after her grandmother passed away.
Court of Appeals of Indiana | Memorandum Decision 90A02-1603-PC-581 | October 21, 2016 Page 21 of 25

statement that he was fourteen when he committed the alleged misconduct. 

Thus, given the victim’s statement contained in the police report together with 

Willhite’s sworn statement that he was fourteen when he committed the alleged 

misconduct, the record does not support Willhite’s claim that review of the 

recorded statement, death certificate, or eviction notice would have enabled 

juvenile counsel to successfully challenge the State’s waiver motion. We 

therefore conclude that Willhite has failed to establish that he was prejudiced by 

juvenile counsel’s alleged failure to fully investigate the matter. 

[32] Furthermore, recognizing that Willhite’s sworn statement would have made it 

difficult to convince the juvenile court that Willhite was not old enough to be 

waived to adult court, juvenile counsel made the tactical decision to enter into 

negotiations with the State in an attempt to limit the potential criminal penalties 

to which Willhite would be exposed once in adult court. Given the information 

available to juvenile counsel, we cannot say that this approach was 

unreasonable. We will therefore defer to juvenile counsel’s strategic and 

tactical decisions in this regard. See Smith, 765 N.E.2d at 585. Willhite has 

failed to establish that he received ineffective assistance from his juvenile 

counsel.

B. Trial Counsel

[33] Willhite also claims that his trial counsel provided him with ineffective 

assistance. In making this claim, Willhite acknowledges that trial counsel filed 

a motion to dismiss the matter, but argues that trial counsel was ineffective for 

basing the arguments contained in this motion on a claim that prosecution was 
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barred by the applicable statute of limitations rather than jurisdictional grounds. 

As is discussed above, the juvenile court did not err in waiving its jurisdiction 

and the trial court had subject matter jurisdiction over the criminal proceedings. 

As such, any challenge on jurisdictional grounds would have been fruitless and 

without merit. Willhite, therefore, has failed to establish that he received 

ineffective assistance from his trial counsel as he failed to prove either that his 

trial counsel provided deficient representation or that the alleged deficient 

performance resulted in prejudice. 

III. Admission of Evidence

[34] Willhite last contends that the post-conviction court abused its discretion in 

excluding certain evidence. “The Indiana Rules of Procedure for PostConviction Remedies provide in relevant part that ‘[t]he court may receive 

affidavits, depositions, oral testimony, or other evidence.’” Conner v. State, 711 

N.E.2d 1238, 1258 (Ind. 1999) (quoting Ind. Post-Conviction Rule 1(5)). 

Because the admission or exclusion of evidence is within the post-conviction 

court’s sound discretion, a reviewing court defers to the post-conviction court 

and will not disturb its ruling on review unless the trial court abused its 

discretion. Id. (citing Roche v. State, 690 N.E.2d 1115, 1134 (Ind. 1997)). We 

will find that a post-conviction court has abused its discretion if its decision is 

against the logic and effect of the facts and circumstances before it. Pannell v. 

State, 36 N.E.3d 477, 486 (Ind. Ct. App. 2015), trans. denied.
Court of Appeals of Indiana | Memorandum Decision 90A02-1603-PC-581 | October 21, 2016 Page 23 of 25

[35] Willhite argues that the post-conviction court abused its discretion by excluding 

three proffered exhibits, i.e. the eviction order, a copy of the audiotaped 

statement S.M. gave to Detective Cale, and a certified copy of S.M.’s 

grandmother’s death certificate, from evidence. The State objected to the 

admission of each of the exhibits on relevancy grounds. In arguing on appeal 

that the challenged exhibits were relevant, Willhite claims that “[a]ll three 

exhibits were relevant because they provided proof that Willhite had a strong 

defense to waiver to adult court. In fact, the exhibits showed that Willhite was 

not eligible for waiver to adult court, based on his age at the time that the sex 

acts took place.” Appellant’s Br. p. 17.

[36] The record demonstrates that Willhite proffered the exhibits in support of his 

claim that the juvenile court erred in waiving its jurisdiction over the underlying 

matter and that his juvenile court counsel failed to adequately investigate and 

present a defense to the State’s request to waive the matter to adult court. As is 

discussed above, our review of the record demonstrates that the juvenile court 

did not err in waiving its jurisdiction over the underlying matter and Willhite’s 

juvenile counsel did not provide ineffective assistance. Review of the record 

also indicates that while the post-conviction court excluded the documents, it 

appears that the post-conviction court considered the facts contained therein. 

The contents of the proffered exhibits were discussed by the parties and 

witnesses during the evidentiary hearing in connection to Willhite’s postconviction claims. 
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[37] In addition, the post-conviction court took judicial notice of all related court 

records, including the court records of the juvenile and trial court. The eviction 

notice had been entered into the record below and it appears that the facts 

contained in the eviction notice, the recorded statement, and the death 

certificate were discussed by the parties below. Further, even if the postconviction court did not consider the facts contained in these documents, the 

exclusion of these documents was harmless because neither the recorded 

statement, death certificate, nor eviction notice would have directly 

contradicted either Willhite’s own sworn statement that he was fourteen when 

he committed the alleged misconduct or the victim’s statement indicating that 

the alleged misconduct occurred when she was ten years old and Willhite was 

fourteen years old.

[38] Willhite has failed to show how admission of the actual exhibits, the contents of 

which were not at issue, would have bolstered either his claim that the juvenile 

court erred in waiving the underlying matter to adult court or that he received 

ineffective assistance from his juvenile counsel. As such, we conclude that the 

exclusion of these exhibits was, at most, harmless. We further conclude, 

therefore, that the post-conviction court did not abuse its discretion in this 

regard.

Conclusion

[39] In sum, we conclude that (1) the juvenile court did not err in waiving the 

underlying matter to adult court, (2) Willhite did not receive ineffective 
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assistance from either juvenile or trial counsel, and (3) the post-conviction court 

did not abuse its discretion in excluding certain evidence from the evidentiary 

hearing.

[40] The judgment of the post-conviction court is affirmed.

Pyle, J., and Altice, J., concur.