James K. Chenoweth v. State of Indiana (mem. dec.)

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), this Jun 09 2015, 6:31 am

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.

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE

Stanley F. Wruble III Gregory F. Zoeller

Matthew J. Anderson Attorney General of Indiana

Wruble & Associates

Henry A. Flores, Jr.

South Bend, Indiana

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

James K. Chenoweth, June 9, 2015

Appellant-Petitioner, Court of Appeals Case No.

20A04-1410-PC-465

v. Appeal from the Elkhart Circuit

Court

State of Indiana, The Honorable Terry C. Shewmaker,

Judge

Appellee-Respondent

Trial Court Cause No.

20C01-1308-PC-51

Mathias, Judge.

[1] James K. Chenoweth (“Chenoweth”) appeals the Elkhart Circuit Court’s denial

of his petition for post-conviction relief.

[2] We affirm.

Court of Appeals of Indiana | Memorandum Decision 20A04-1410-PC-465 | June 9, 2015 Page 1 of 18

Facts and Procedural History

[3] In 2009, Chenoweth was convicted of two counts of Class A felony child

molesting and ordered to serve an aggregate forty-year sentence in the

Department of Correction. Chenoweth appealed his convictions, and facts

relevant to the post-conviction proceedings were discussed in his direct appeal:

In 2006, A.S., the victim’s mother, dated Chenoweth for

approximately three months. During this time, A.S., who

suffered from a multitude of mental disorders, routinely allowed

Chenoweth to care for the four-year-old victim. J.S., A.S.’s

mother, also routinely cared for the victim. Because of her mental

disorders, A.S. was considered by J.S. to be developmentally

between twelve and fourteen years old.

After A.S. and Chenoweth broke up, they remained friends, and

Chenoweth often cared for the victim. A.S. married E.S., and the

couple allowed the forty-year-old Chenoweth to move in with

them and care for the victim. Indeed, while A.S. was hospitalized

for approximately three weeks of mental treatment, Chenoweth

spent a considerable amount of time with the victim.

During this time, J.S. observed the victim simulating oral sex

with her dolls. When A.S. was released from the hospital, J.S.

informed her of the victim’s behavior. A.S. was indifferent and

told J.S. to mind her own business.

In January or February of 2007, J.S. again observed the victim

simulating sexual behavior with the dolls by placing an unclothed

male doll on its back and straddling him with an unclothed

female doll. J.S. informed A.S. and E.S. of the behavior, but no

action was taken.

From March 9-11, 2007, Chenoweth was permitted to watch the

victim for three consecutive days at his own residence. On March

13, 2007, Chenoweth again watched the victim, and after

Chenoweth had left for the evening, the victim told E.S. that she

had pain in her “hoo-hoo,” the term she used for her vagina. E.S.

Court of Appeals of Indiana | Memorandum Decision 20A04-1410-PC-465 | June 9, 2015 Page 2 of 18

and A.S. inspected the victim and noticed that both the exterior

and interior of the victim’s vagina were red and cracking “like

dried dirt.”

On March 17, 2007, Chenoweth watched the victim while E.S.

and A.S. went out for St. Patrick’s Day. While at a bar, they

discussed the victim’s condition with friends, who urged them to

take further action. Consequently, E.S. and A.S. left the bar and

called the police.

On March 23, 2007, Gayla Konanz, a forensic interviewer with

the Child and Advocacy Center (“CAC”) conducted a forensic

interview of the victim. During the interview, the victim

indicated that Chenoweth had touched her vagina with his

finger, had placed his finger inside her vagina, had inserted his

penis in her vagina, and had ejaculated after placing his penis in

the victim’s mouth. The victim also said that Chenoweth had

touched her “butt” and that it had hurt. The victim said that

Chenoweth had told her not to tell anyone and to keep a secret

about his penis or he would go “bye-bye .”

Chenoweth v. State, No. 20A03-0912-CR-566, 930 N.E.2d 1244 (Ind. Ct. App.

Aug. 3, 2010), trans. denied (record citation omitted).

[4] Chenoweth appealed his convictions and raised three issues: 1) whether the trial

court abused its discretion when it admitted the victim’s videotaped forensic

interview because “there [was] no sufficient indication of the time frame

between the alleged acts of molestation and the date the videotape was made;”

2) whether Chenoweth’s trial counsel was ineffective for failing to enter into

evidence the transcript of the Protected Person’s Statute hearing because the

transcript would have shown that the “victim testified that all [Chenoweth] did

was touch the outside of her vagina with his finger;” and 3) whether the trial

court abused its discretion when it sentenced Chenoweth and whether his forty-

Court of Appeals of Indiana | Memorandum Decision 20A04-1410-PC-465 | June 9, 2015 Page 3 of 18

year aggregate sentence was inappropriate in light of the nature of the offense

and the character of the offender. Id. Our court rejected Chenoweth’s

arguments and affirmed his convictions and sentence.

[5] On October 5, 2013, Chenoweth filed a petition for post-conviction relief and

alleged, in part, that his appellate counsel was ineffective. Specifically,

Chenoweth alleged that appellate counsel should have 1) argued that admission

of the victim’s videotaped statement violated his Sixth Amendment right to

confrontation; and 2) argued that his trial counsel was ineffective for failing to

argue that the victim was not unavailable to testify at trial.

[6] A hearing was held on Chenoweth’s petition for post-conviction relief on

March 13, 2014. Only Chenoweth and his mother testified at the hearing.

[7] On August 1, 2014, the post-conviction court issued findings of fact and

conclusions of law denying Chenoweth’s requested relief. In pertinent part, the

court found:

19. In the instant case, Petitioner’s first claim is that the trial

court committed fundamental error in admitting the child

victim’s recorded forensic interview over Petitioner’s

Confrontation Clause objection after finding that the victim was

unavailable for medical reasons when the court determined that

she would suffer emotional trauma if forced to testify in front of

Petitioner at trial despite her ability to do so at the protected

persons hearing without losing her ability to reasonably

communicate. The Indiana Court of Appeals specifically

discussed the foundational requirement provisions of the

Protected Persons Statute, and held that the trial court ‘found

that the time, content and circumstances of the videotaped

Court of Appeals of Indiana | Memorandum Decision 20A04-1410-PC-465 | June 9, 2015 Page 4 of 18

interview provided sufficient indications of reliability,” and that

there was no error with its admission. To the extent that

Petitioner invites the court to reconsider this matter as a

freestanding claim of fundamental error, said claim is res judicata

and not available as grounds for Post Conviction Relief.

20. Petitioner, however, attempts to raise the aforementioned

issue under the umbrella of an ineffective assistance of trial

counsel claim. As noted in paragraph 4 herein above, Petitioner

already raised the issue of whether his trial counsel was

ineffective for not introducing a transcript of the subject video

recording at trial and on direct appeal. In the current post

conviction proceedings, Petitioner now alleges his counsel was

ineffective for failing to object to the trial court’s determination

that the child victim was not available to testify at trial, and

challenging the admission of the video on that basis.

21. Petitioner can not raise a new theory of ineffective assistance

of counsel in post conviction proceedings. . . .

22. In the instant case, because Petitioner argued ineffective

assistance of counsel on appeal, and the Indiana Court of

Appeals decided against him on the merits, res judicata prohibits

Petitioner from arguing new grounds for ineffective assistance in

post conviction relief.

23. Even if Petitioner’s argument was considered on the merits,

the record does not support Petitioner’s claim that counsel was

ineffective for failing to object to the trial court’s determination

that the child victim was no available to testify at trial. Mari

Duerring (“Duerring”) represented Petitioner through the

pendency of this Cause, including during the deposition of the

child victim, the pre-trial Protected Person’s Hearing, and the

jury trial. During the Protected Person’s hearing, the State

presented evidence that the victim, a minor child, was suffering

from a medical condition. Specifically, Dr. Allen J. Stuckey,

M.D., a board certified physician in both pediatrics and

psychiatry, testified that he believed the victim would suffer a

severe trauma if forced to testify at trial. Dr. Stuckey further

Court of Appeals of Indiana | Memorandum Decision 20A04-1410-PC-465 | June 9, 2015 Page 5 of 18

testified that he believed that the victim was suffering from Post-

Traumatic Stress Disorder caused by severe trauma and further

psychological damage would likely result if she was required to

testify at trial. The victim was present at the Protected Persons

Hearing, testified, and was cross-examined by counsel for

Petitioner. Moreover, at the Protected Persons Hearing, counsel

for Petitioner objected to the admissibility of the video recorded

forensic interview of the victim on the ground that the same

would violate Petitioner’s right to confrontation secured by the

Sixth Amendment.

24. The trial court took admissibility of the video taped recording

under advisement, and on September 29, 2008, issued its

confidential Order. That Order provided, in relevant part, as

follows:

In this case, the court found that Dr. Stuckey’s conclusions

concerning the harm which the victim will suffer should

she be required to testify at trial are supported by the

evidence. Accordingly, the victim is deemed unavailable to

testify. Defendant had the opportunity to depose the

victim and to cross examine her at the admissibility

hearing; therefore, Defendant’s constitutional right to

confront and cross-examine his accuser has been

preserved.

25. During the jury trial in the underlying matter, the State

offered the video recording of the victim’s forensic interview as

evidence. The record establishes that Duerring again objected

and argued that admission of the video recorded statement would

run afoul of Petitioner’s rights under the Confrontation Clause of

the Sixth Amendment. The Court, however, ruled that the child

victim was unavailable as a witness and the video recording of

his forensic interview would be admitted as evidence at trial.

26. It is well established that the Protected Person’s Statute, if

followed precisely, satisfies the constitutional guarantees of

confrontation. . . . In addition, it is clear that counsel for

Petitioner not only had the opportunity, but availed herself

Court of Appeals of Indiana | Memorandum Decision 20A04-1410-PC-465 | June 9, 2015 Page 6 of 18

thoroughly of that right, in cross-examination of the victim

during the Protected Person’s Hearing. Petitioner has not

established that any error occurred regarding the admissibility of

the video recorded interview. Accordingly, failure to challenge or

object to the same cannot be the basis for ineffective assistance of

trial counsel. Counsel did object, however, the court allowed the

admission of the video recorded statement. Petitioner’s

dissatisfaction with this result does not give him the right to re-

litigate the matter and does not amount to ineffective assistance

of counsel simply because the issue was decided adversely to

him.

Petitioner also contends that his appellate counsel was ineffective

for not raising the issue of ineffective assistance of trial counsel

on direct appeal with respect to the admission of the videotaped

interview.

***

29. The record establishes that Attorney Hilgendorf raised both

the issue of whether the admission of the video recording was

error, and whether trial counsel was ineffective for not

introducing a transcript of the subject video recording, on direct

appeal. Essentially, Petitioner is simply combining these issues

in an attempt to again raise them framed as an ineffective

assistance of counsel claim, which is inappropriate as noted in

paragraph 21 herein above. Clearly, appellate counsel was aware

of, and did raise, the issue of error regarding the admission of the

video recorded forensic interview of the victim. This claim is res

judicata regardless of how it is framed and not available for post

conviction review.

30. Even if the court considered the claim on the merits, it fails.

During the evidentiary hearing on Petitioner’s request for Post

Conviction Relief, the only evidence presented regarding whether

his appellate counsel was aware of the potential issue of counsel

ineffectiveness for failing to challenge the admission of the

videotape came from Petitioner’s mother, Linda Richmond.

Petitioner’s appellate counsel was not called to testify. Ms.

Court of Appeals of Indiana | Memorandum Decision 20A04-1410-PC-465 | June 9, 2015 Page 7 of 18

Richmond testified that she and appellate counsel discussed

various theories of ineffective assistance of counsel, the

implications of challenging the admissibility of the video

recorded interview, as well as strategic reasons as to why

appellate counsel might choose to raise some issue and not

others. Petitioner presented no evidence from any witness

possessing the knowledge, experience, education, skill, and/or

credibility as a legal professional in the State of Indiana who

challenged appellate counsel’s strategy in this case. Petitioner

failed in his burden of showing that any potential unraised issues

were more significant and/or clearly stronger than the issues

raised. Thus, neither deficient performance nor likelihood of a

different outcome had different issues been raised was

established. This court is convinced that even if appellate counsel

had presented the issue of admissibility of the video recorded

interview in any different manner, that such claim would not

have been treated differently by the Indiana Court of Appeals.

Appellant’s App. pp. 9-15. Chenoweth now appeals the denial of his petition for

post-conviction relief.

I. Untimely Notice of Appeal

[8] The State argues that Chenoweth’s appeal should be dismissed because he did

not file his Notice of Appeal within thirty days after the trial court issued its

order denying the petition for post-conviction relief. See Ind. Appellate Rule 9.

If a Notice of Appeal is not timely filed, the right to appeal is forfeited.1 Here,

1

Post-Conviction Rule 2(1) allows an eligible defendant to request permission to file a belated

appeal where the failure to file a timely notice of appeal was not the petitioner's fault and the

petitioner has been diligent in seeking permission to file a belated notice. Ind. Post-Conviction

Rule 2(1)(a); Cooper v. State, 917 N.E.2d 667, 673 (Ind. 2009). The defendant may seek

permission to file a belated notice of appeal of his conviction or sentence but not from an entry

of judgment in a post-conviction relief proceeding. See Taylor v. State, 939 N.E.2d 1132, 1135

(Ind. Ct. App. 2011).

Court of Appeals of Indiana | Memorandum Decision 20A04-1410-PC-465 | June 9, 2015 Page 8 of 18

judgment was entered on August 1, 2014, and the Notice of Appeal should

have been filed no later than September 2, 2014.2 However, Chenoweth filed his

Notice of Appeal on September 4, 2014, two days late.

[9] Failure to timely file a Notice of Appeal is not jurisdictional, but the appellant

forfeits his right to an appeal absent “extraordinarily compelling reasons.” In re

Adoption of O.R., 16 N.E.3d 965, 971 (Ind. 2014). Moreover, our Supreme Court

has observed:

our appellate rules exist to facilitate the orderly presentation and

disposition of appeals . . . and [as] our Court of Appeals has

noted we are mindful that our procedural rules are merely means

for achieving the ultimate end of orderly and speedy justice. This

policy has been incorporated into our Rules of Appellate

Procedure. See App. R. 1 (providing in part: “The Court may,

upon the motion of a party or the Court’s own motion, permit

deviation from these Rules”). Thus, despite the “shall be

forfeited” language of Rule 9(A), the Rules themselves provide a

mechanism allowing this Court to resurrect an otherwise

forfeited appeal.

Id. at 971-72 (internal quotations and citations omitted).

[10] Chenoweth is serving a forty-year sentence in the Department of Correction.

While the Notice of Appeal in these proceedings was filed two days late, in

general, Chenoweth has timely and diligently pursued the relief available to

him. Under these facts and given our preference for deciding cases on their

merits, we deny the State’s request to dismiss Chenoweth’s appeal.

2

On September 1, 2014, the Clerk’s Office was closed for observance of the Labor Day

holiday.

Court of Appeals of Indiana | Memorandum Decision 20A04-1410-PC-465 | June 9, 2015 Page 9 of 18

II. Post-Conviction Relief

[11] Post-conviction proceedings are not “super appeals” through which convicted

persons can raise issues they failed to raise at trial or on direct appeal. McCary v.

State, 761 N.E.2d 389, 391 (Ind. 2002). Rather, post-conviction proceedings

afford petitioners a limited opportunity to raise issues that were unavailable or

unknown at trial and on direct appeal. Davidson v. State, 763 N.E.2d 441, 443

(Ind. 2002). A post-conviction petitioner bears the burden of establishing

grounds for relief by a preponderance of the evidence. Henley v. State, 881

N.E.2d 639, 643 (Ind. 2008). On appeal from the denial of post-conviction

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

judgment. Id. To prevail on appeal from the denial of post-conviction relief,

the petitioner must show that the evidence as a whole leads unerringly and

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

court. Id. at 643-44.

[12] Where, as here, the post-conviction court makes findings of fact and

conclusions of law in accordance with Indiana Post–Conviction Rule 1(6), we

cannot affirm the judgment on any legal basis but rather must determine if the

court’s findings are sufficient to support its judgment. Graham v. State, 941

N.E.2d 1091, 1096 (Ind. Ct. App. 2011), aff’d on reh’g, 947 N.E.2d 962.

Although we do not defer to the post-conviction court’s legal conclusions, we

review the post-conviction court’s factual findings under a clearly erroneous

standard. Id. Accordingly, we will not reweigh the evidence or judge the

credibility of witnesses, and we will consider only the probative evidence and

Court of Appeals of Indiana | Memorandum Decision 20A04-1410-PC-465 | June 9, 2015 Page 10 of 18

reasonable inferences flowing therefrom that support the post-conviction court’s

decision. Id.

A. Ineffective Assistance of Trial Counsel

[13] First, Chenoweth contends that the post-conviction court clearly erred when it

concluded that he waived his claim of ineffective assistance of trial counsel.

Chenoweth raised a claim of ineffective assistance of trial counsel on direct

appeal, and therefore, the trial court correctly determined that the issue is

barred by the doctrine of res judicata.3 See Woods v. State, 701 N.E.2d 1208, 1220

(Ind. 1998) (holding that if a defendant chooses to raise a claim of ineffective

assistance of counsel on direct appeal, “the issue will be foreclosed from

collateral review”); see also Brewington v. State, 7N.E.3d 946, 977 (Ind. 2014)

(stating that “[r]aising ineffectiveness on direct appeal without the benefit of an

additional post-conviction record is permissible, but the issue becomes res

judicata and therefore unavailable for collateral review”). Because Chenoweth’s

freestanding claims and ineffective assistance of trial counsel claims are waived

and/or barred by res judicata, only claims framed as ineffective assistance of

appellate counsel are available in these post-conviction proceedings.

3

Although a criminal defendant claiming ineffective assistance of trial counsel is at liberty to

elect whether to present this claim on direct appeal or in post-conviction proceedings, it is

well-settled that a post-conviction proceeding is generally the preferred forum for adjudicating

claims of ineffective assistance of trial counsel because the presentation of such claims often

requires the development of new evidence not present in the trial record. See Jewell v. State, 887

N.E.2d 939 (Ind. 2008)

Court of Appeals of Indiana | Memorandum Decision 20A04-1410-PC-465 | June 9, 2015 Page 11 of 18

B. Ineffective Assistance of Appellate Counsel

[14] Chenoweth argues that his appellate counsel was ineffective for failing to argue

that admission of the victim’s videotaped forensic interview violated his Sixth

Amendment right to “meaningful confrontation.” Appellant’s Br. at 33. When

we review claims of ineffective assistance of appellate counsel, we use the same

standard applied to claims of ineffective assistance of trial counsel: the post-

conviction petitioner must show that appellate counsel’s performance fell below

an objective standard of reasonableness and that there is a reasonable

probability that, but for the deficient performance of counsel, the result of the

proceeding would have been different. Manzano v. State, 12 N.E.3d 321, 329

(Ind. Ct. App. 2014) (citing Harris v. State, 861 N.E.2d 1182, 1186 (Ind. 2007)),

trans. denied.

[15] To show that counsel was ineffective for failing to raise an issue on appeal, the

defendant must overcome the strongest presumption of adequate assistance,

and judicial scrutiny is highly deferential. Id. To evaluate the performance

prong when counsel failed to raise issues upon appeal, we apply the following

test: (1) whether the unraised issues are significant and obvious from the face of

the record, and (2) whether the unraised issues are clearly stronger than the

raised issues. Id. If the analysis under this test demonstrates deficient

performance, then we examine whether the issues which appellate counsel

failed to raise would have been clearly more likely to result in reversal or an

order for a new trial. Id. at 329-30. Ineffective assistance is very rarely found in

cases where a defendant asserts that appellate counsel failed to raise an issue on

Court of Appeals of Indiana | Memorandum Decision 20A04-1410-PC-465 | June 9, 2015 Page 12 of 18

direct appeal because the decision of what issues to raise is one of the most

important strategic decisions to be made by appellate counsel. Id. at 330.

[16] Chenoweth argues that his appellate counsel was ineffective for failing to argue

that admission of the child’s videotaped statement violated the Confrontation

Clause and denied him a fair trial. Chenoweth also argues that his appellate

counsel was deficient for failing to argue that trial counsel was ineffective

because she did not challenge the trial court’s finding that the victim was

unavailable to testify at trial.

[17] To address these issues, we initially observe that in this case, the only direct

evidence of molestation admitted at trial was the victim’s videotaped forensic

interview. Indiana Code section 35-37-4-6, known as the “protected person

statute” or the “child hearsay statute,” lists certain conditions under which

evidence that is otherwise inadmissible may be admitted in cases involving

certain crimes, including child molesting, committed against “protected

persons.” J.A. v. State, 904 N.E.2d 250, 255 (Ind. Ct. App. 2009).

[18] Because the victim was four-years old when she was molested, Chenoweth’s

victim qualified as a protected person, and therefore, the videotape of her

forensic interview was admissible at trial if:

after notice to the defendant of a hearing and of the defendant’s

right to be present, all of the following conditions are met:

(1) The court finds, in a hearing:

(A) conducted outside the presence of the jury; and

Court of Appeals of Indiana | Memorandum Decision 20A04-1410-PC-465 | June 9, 2015 Page 13 of 18

(B) attended by the protected person in person or by

using closed circuit television testimony as

described in section 8(f) and 8(g) of this chapter;

that the time, content, and circumstances of the statement or

videotape provide sufficient indications of reliability.

(2) The protected person:

(A) testifies at the trial; or

(B) is found by the court to be unavailable as a

witness for one (1) of the following reasons:

(i) From the testimony of a psychiatrist,

physician, or psychologist, and other

evidence, if any, the court finds that the

protected person’s testifying in the physical

presence of the defendant will cause the

protected person to suffer serious emotional

distress such that the protected person cannot

reasonably communicate.

(ii) The protected person cannot participate in

the trial for medical reasons.

(iii) The court has determined that the

protected person is incapable of

understanding the nature and obligation of an

oath.

I.C. § 35-37-4-6(d) & (e). The trial court found that Chenoweth’s victim was

unable to testify under subsection (e)(2)(B), making her videotaped statement

admissible only if she was available for cross-examination “at the hearing

described in subsection (e)(1)” or “when the statement or videotape was made.”

See I.C. § 35-37-4-6(f).

[19] Chenoweth does not claim that the trial court failed to follow the procedures

listed in section 35-37-4-6, and he had the opportunity to depose the victim and

Court of Appeals of Indiana | Memorandum Decision 20A04-1410-PC-465 | June 9, 2015 Page 14 of 18

to cross-examine her at the Protected Persons hearing. Therefore, we conclude

that his appellate counsel was not ineffective for failing to argue on direct

appeal that his Sixth Amendment right of confrontation was violated. See Tyler

v. State, 903 N.E.2d 463 (Ind. 2009) (discussing how the protected persons

statute addresses and protects the defendant’s Sixth Amendment right of

confrontation); Howard v. State, 853 N.E.2d 461, 470 (Ind. 2006) (stating that

“prior testimony from a subsequently unavailable witness is admissible at a

subsequent trial, provided the defendant had the opportunity to confront the

witness when the testimony was originally given”).

[20] Chenoweth also claims that his appellate counsel was deficient for failing to

argue that his trial counsel was ineffective when she failed to challenge the trial

court’s finding that the victim was unavailable to testify for medical reasons.4 In

support of this argument, Chenoweth relies on Maryland v. Craig, 497 U.S. 836

(1990) and Coy v. Iowa, 487 U.S. 1012 (1988). However, those cases address

violations of a defendant’s Sixth Amendment right of confrontation where the

witness was available at trial but shielded from the defendant’s view while

testifying.

[21] In Coy, the use of a screen to shield the child witnesses from the defendant was

held to be unconstitutional in part because there were “no individualized

findings that these particular witnesses needed special protection[.]” 487 U.S. at

4

As we noted above, Chenoweth’s trial counsel repeatedly objected to admission of the

victim’s videotaped interview on the grounds that its admission violated the Confrontation

Clause.

Court of Appeals of Indiana | Memorandum Decision 20A04-1410-PC-465 | June 9, 2015 Page 15 of 18

1021. In Craig, the Court concluded that “a State’s interest in the physical and

psychological well-being of child abuse victims may be sufficiently important to

outweigh, at least in some cases, a defendant’s right to face his or her accusers

in court.” 497 U.S. at 853. Therefore, the Craig court held that “if the State

makes [a case-specific] showing of necessity, the state interest in protecting

child witnesses from the trauma of testifying in a child abuse case is sufficiently

important to justify the use of a special procedure that permits a child witness in

such cases to testify at trial against a defendant in the absence of face-to-face

confrontation with the defendant.” Id. at 855. The statute at issue in Craig

allowed the child victim to testify via a one-way closed circuit television.5

[22] These cases do not support Chenoweth’s argument that the trial court

unconstitutionally expanded the terms of Indiana Code section 35-37-4-6(e)

when it concluded that the victim was unavailable to testify for medical

reasons. Therefore, we reject Chenoweth’s claim that appellate counsel’s

performance was deficient because he failed to argue that trial counsel was

ineffective due to her “demonstrated ignorance of the law,” i.e., her failure to

utilize Coy and Craig to challenge the unavailability of the child victim.

Appellant’s Br. at 35.

[23] Moreover, in its findings of fact and conclusions of law, the post-conviction

court noted:

5

Indiana has a similar statute authorizing use of closed circuit television for victims who

qualify as “protected persons” under Indiana Code section 35-37-4-6. I.C. 35-37-4-8.

Court of Appeals of Indiana | Memorandum Decision 20A04-1410-PC-465 | June 9, 2015 Page 16 of 18

During the Protected Person’s hearing, the State presented

evidence that the victim, a minor child, was suffering from a

medical condition. Specifically, Dr. Allen J. Stuckey, M.D., a

board certified physician in both pediatrics and psychiatry,

testified that he believed the victim would suffer a severe trauma

if forced to testify at trial. Dr. Stuckey further testified that he

believed that the victim was suffering from Post-Traumatic Stress

Disorder caused by severe trauma and further psychological damage

would likely result if she was required to testify at trial.

Appellant’s App. p. 12 (emphasis added). The victim’s unavailability for

medical reasons was established by Dr. Stuckey’s testimony.6 Therefore,

appellate counsel’s performance was not deficient when he failed to argue that

trial counsel was ineffective because she did not challenge the trial court’s

determination that the victim was unavailable as that term is defined in Indiana

Code section 35-37-4-6(e). Consequently, Chenoweth has not established that

the outcome of his direct appeal would have been different had this argument

been raised.

[24] For all of these reasons, we conclude that Chenoweth has not established that

appellate counsel’s performance fell below an objective standard of

reasonableness because the unraised issues are not clearly stronger than the

issues appellate counsel raised on direct appeal.

6

Contrary to Chenoweth’s claim, the trial court did not determine that the victim was

unavailable for the sole reason that testifying would be difficult for her and cause her

additional trauma.

Court of Appeals of Indiana | Memorandum Decision 20A04-1410-PC-465 | June 9, 2015 Page 17 of 18

Conclusion

[25] We deny the State’s request to dismiss Chenoweth’s appeal of the denial of his

petition for post-conviction relief for untimeliness. Chenoweth’s claim of

ineffective assistance of trial counsel is barred by the doctrine of res judicata.

Also, Chenoweth has not established that his appellate counsel was ineffective.

Therefore, we affirm the trial court’s order denying Chenoweth’s petition for

post-conviction relief.

[26] Affirmed.

May, J., and Robb, J., concur.

Court of Appeals of Indiana | Memorandum Decision 20A04-1410-PC-465 | June 9, 2015 Page 18 of 18