Timothy Newman v. State of Indiana (mem. dec.)
12A02-1601-PC-83
| Ind. Ct. App. | Dec 21, 2016Background
- In 2006 a jury convicted Timothy Newman of three Class A and two Class C child-molesting felonies arising from abuse of his two step-daughters; he received consecutive sentences (30 years for each Class A, 4 years for each Class C).
- Newman appealed; this Court affirmed his convictions and sentence in a memorandum decision, and transfer was denied.
- In 2010 Newman filed a petition for post-conviction relief (PCR) alleging ineffective assistance of both trial and appellate counsel; an evidentiary PCR hearing was held in August 2012.
- The post-conviction court issued findings and denied relief in December 2015, concluding ineffective-assistance claims were litigated on direct appeal and thus barred by res judicata/waiver.
- Newman appealed the PCR denial, arguing trial counsel was ineffective for: (1) not moving for mistrial after separation-of-witnesses violations; (2) not moving for mistrial after a juror knew a State witness; (3) not seeking change of venue or judge for community bias; and (4) not objecting to or adequately cross-examining the victims’ mother for bias/inconsistencies.
- The Court of Appeals affirmed, holding Newman was foreclosed from relitigating ineffective-assistance claims in PCR because he raised ineffective-assistance on direct appeal and therefore had to present all related contentions then.
Issues
| Issue | Newman’s Argument | State’s Argument | Held |
|---|---|---|---|
| Ineffective assistance for failure to move for mistrial after separation-of-witnesses violation | Mohler should have moved for a mistrial when separation-of-witnesses was violated | Claims are barred because ineffective-assistance claims were raised on direct appeal; cannot relitigate in PCR | Forfeited/res judicata — PCR denied |
| Ineffective assistance for failing to move for mistrial when a juror knew a State witness | Trial counsel should have requested mistrial when juror knew a witness | Same: issue of counsel ineffectiveness was litigated on direct appeal; cannot raise new grounds in PCR | Forfeited/res judicata — PCR denied |
| Ineffective assistance for not requesting change of venue/judge due to community bias | Counsel should have sought venue or judge change because of community bias against Newman | Same procedural-bar argument | Forfeited/res judicata — PCR denied |
| Ineffective assistance for failing to object to or effectively cross-examine victims’ mother for bias/inconsistencies | Counsel failed to challenge witness bias and inconsistencies on cross | Same procedural-bar argument | Forfeited/res judicata — PCR denied |
Key Cases Cited
- Ben-Yisrayl v. State, 738 N.E.2d 253 (Ind. 2000) (defendant who raises ineffectiveness on direct appeal must present all issues related to that claim)
- Woods v. State, 701 N.E.2d 1208 (Ind. 1998) (ineffective-assistance claims may be litigated in PCR only if not litigated on direct appeal; specific contentions may not be split between forums)
- Landis v. State, 749 N.E.2d 1130 (Ind. 2001) (reaffirming that ineffectiveness litigated on direct appeal is unavailable in PCR)
- Craig v. State, 804 N.E.2d 170 (Ind. Ct. App. 2004) (explaining waiver/res judicata principles for PCR review)
- Fisher v. State, 878 N.E.2d 457 (Ind. Ct. App. 2007) (standard of review for PCR appeals)
- Wright v. State, 881 N.E.2d 1018 (Ind. Ct. App. 2008) (post-conviction standard for disturbing PCR court findings)