Kadrovach v. State

• Decision Date: 30 December 2021
• Docket Number: Court of Appeals Case No. 21A-PC-908
• Parties: Robert KADROVACH, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent.
• Court: Indiana Appellate Court

179 N.E.3d 1073 (Table)

Robert KADROVACH, Appellant-Petitioner,
v.
STATE of Indiana, Appellee-Respondent.

Court of Appeals Case No. 21A-PC-908

Court of Appeals of Indiana.

FILED December 30, 2021

Attorney for Appellant: Mark Small, Indianapolis, Indiana

Attorneys for Appellee: Theodore E. Rokita, Attorney General of Indiana, J.T. Whitehead, Deputy Attorney General, Indianapolis, Indiana

MEMORANDUM DECISION

Najam, Judge.

Statement of the Case

[1] Robert Kadrovach appeals the post-conviction court's denial of his petition for post-conviction relief. Kadrovach raises the following restated issues for our review:

1. Whether the post-conviction court erred when it concluded that he did not receive ineffective assistance of trial counsel.

2. Whether the post-conviction court erred when it concluded that he did not receive ineffective assistance of appellate counsel.

[2] We affirm.

Facts and Procedural History

[3] In Kadrovach's direct appeal, this Court stated the facts and procedural history as follows:

Around 10:00 p.m. on June 21, 2014, Ohnjay Walker and a group of his friends left a backyard barbeque on Indianapolis's far northeast side and headed for a downtown bar. Kadrovach was operating a hotdog stand in a parking lot across from the bar, with the assistance of Frank McCampbell. After Walker and his friends spent some time inside the bar, they decided to buy some hotdogs from Kadrovach. During the transaction, McCampbell spilled jalapeno peppers on a couple of Walker's friends, and two of them asked for a refund. Kadrovach refused to give them refunds, and a scuffle ensued. Walker said that he wanted a bag of chips in lieu of a refund, and as he reached for the chips, McCampbell shoved him. The scuffle escalated to a fight, and two of Walker's friends noticed that Kadrovach had pulled out a knife. Walker turned to walk away, and Kadrovach struck him in the head with the knife. With the blade of the knife lodged in his skull and blood running down the side of his head, the mumbling and slouching Walker attempted to get to his friend's vehicle. Friends and bar personnel phoned 911, and police arrived on the scene. Officers took statements, found the knife handle on the ground nearby, and arrested Kadrovach.

With the blade still embedded in his skull, Walker was taken to a nearby hospital, where he underwent a craniotomy. The attending neurosurgeon explained that the knife had to be removed slowly to avoid fatal blood loss. The knife had penetrated to the midline of Walker's brain, in close proximity to the carotid and middle cerebral arteries, in an area vital to motor function and short-term memory.

The State charged Kadrovach with class A felony attempted murder and class B felony aggravated battery. During his trial, he did not object to the jury instructions that addressed the elements of attempted murder. The jury found him guilty as charged, and the trial court merged the aggravated battery conviction into the attempted murder conviction.

Kadrovach v. State , 61 N.E.3d 1241, 1242 (Ind. Ct. App. 2016), trans. denied. On October 8, 2015, Kadrovach was sentenced to thirty years executed, with twenty years served in the Indiana Department of Correction and ten years served with Marion County Community Corrections.

[4] On direct appeal, Kadrovach raised the sole issue that the trial court fundamentally erred in instructing the jury as to the mens rea necessary to convict him of attempted murder. We affirmed the trial court's judgment, finding that he failed to establish fundamental error. Id. The Indiana Supreme Court denied Kadrovach's transfer petition on January 19, 2017.

[5] On October 6, 2017, Kadrovach filed a petition for post-conviction relief, alleging that he had received ineffective assistance from his trial and appellate counsel; the trial court erred in admitting hearsay testimony; prosecutorial misconduct; a violation of Brady v. Maryland , and inadequate jury instructions. A fact-finding hearing was held on January 6, 2021, after which the post-conviction court entered findings and conclusions in which it denied Kadrovach's petition for post-conviction relief. This appeal ensued.

Discussion and Decision

Standard of Review

[6] Kadrovach appeals the post-conviction court's denial of his petition for post-conviction relief. Our standard of review in such appeals is clear:

"The petitioner in a post-conviction proceeding bears the burden of establishing grounds for relief by a preponderance of the evidence." Campbell v. State , 19 N.E.3d 271, 273-74 (Ind. 2014). "When appealing the denial of post-conviction relief, the petitioner stands in the position of one appealing from a negative judgment." Id. at 274. In order to prevail on an appeal from the denial of post-conviction relief, a petitioner must show that the evidence leads unerringly and unmistakably to a conclusion opposite that reached by the post-conviction court. Weatherford v. State , 619 N.E.2d 915, 917 (Ind. 1993). Further, the post-conviction court in this case entered findings of fact and conclusions of law in accordance

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