MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
Dec 07 2016, 9:54 am
regarded as precedent or cited before any
court except for the purpose of establishing CLERK
Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
James E. Robinson Gregory F. Zoeller
Pendleton Correctional Facility Attorney General of Indiana
Pendleton, Indiana
Jodi Kathryn Stein
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
James E. Robinson, December 7, 2016
Appellant-Petitioner, Court of Appeals Case No.
12A02-1603-PC-481
v. Appeal from the Clinton Superior
Court
State of Indiana, The Honorable Justin H. Hunter,
Appellee-Respondent Judge
Trial Court Cause No.
12D01-1009-PC-2
Crone, Judge.
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Case Summary
[1] James E. Robinson appeals the postconviction court’s denial of his petition for
postconviction relief (“PCR”). Robinson argues that the postconviction court
abused its discretion by denying his renewed motion to amend his PCR petition
and by excluding certain exhibits at the evidentiary hearing. He also contends
that the judge was biased against him. We conclude that the court did not
abuse its discretion by denying Robinson’s renewed motion to amend or by
excluding certain exhibits. We also conclude that Robinson has failed to
overcome the presumption that the postconviction judge was unbiased.
Therefore, we affirm.
Facts and Procedural History
[2] On April 29, 2001, Robinson shot and killed his estranged wife Tina. On April
30, 2001, the State charged Robinson with murder. In July 2001, Robinson
filed a notice of insanity defense. As required by Indiana Code Section 35-36-2-
2, the trial court appointed two doctors, Drs. Richard Rahdert and Ned
Masbaum, to examine Robinson to determine whether at the time of the offense
he suffered from a mental disease or defect which rendered him unable to
appreciate the wrongfulness of his conduct.
[3] On July 9, 2002, Robinson pled guilty as charged pursuant to a plea agreement,
which left sentencing to the trial court’s discretion. At the change of plea
hearing, Robinson acknowledged that, based on the doctors’ examinations, he
had decided not to pursue the insanity defense and believed that pleading guilty
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was in his best interest. 1 He also acknowledged that his plea was freely and
voluntarily given. Pursuant to the plea agreement, the State moved to dismiss
six charges against Robinson pending under cause number 12C01-0009-CF-256,
which included criminal confinement, intimidation, criminal recklessness,
pointing a firearm, invasion of privacy, and domestic battery against Tina. The
trial court found that there was a factual basis for the murder charge, took the
plea agreement under advisement, and set the matter for sentencing. At the
sentencing hearing, the trial court sentenced Robinson to an executed term of
sixty years. Robinson did not pursue a direct appeal.
[4] In September 2010, Robinson filed a PCR petition, alleging that he received
ineffective assistance of counsel at the guilty plea hearing because “counsel
advanced pleading guilty without developing expert opinion” as to Robinson’s
mental health and that his plea agreement was not knowingly, voluntarily, and
intelligently entered because he was not competent to stand trial. Appellant’s
App. Vol. 1 at 24-25. The postconviction court denied Robinson’s PCR
petition without a hearing, and Robinson appealed. Another panel of this
Court reversed the denial and remanded for an evidentiary hearing, concluding
that Robinson had stated sufficiently specific factual allegations in support of
his ineffective assistance claim and that the postconviction court erred by failing
to hold an evidentiary hearing and issue findings of fact and conclusions of law.
1
The doctors’ opinions were not admitted into evidence at the postconviction evidentiary hearing.
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Robinson v. State, No. 12D01-1009-PC-2, 2014 WL 2192756, at *3 (Ind. Ct.
App. May 27, 2014).
[5] On September 23, 2015, the postconviction court held an evidentiary hearing
on Robinson’s PCR petition. Robinson represented himself. At the start of the
hearing, he sought to introduce exhibits A through O. The State objected to all
the exhibits, except exhibits C and D, based on lack of authenticity and
relevance, and the trial court excluded those exhibits. The State did not object
to exhibits C (the chronological case summary of the underlying case) and D
(the transcripts of the guilty plea and sentencing hearings of the underlying
case), and the postconviction court admitted them. At the end of the hearing,
the postconviction court took the matter under advisement and requested the
parties to submit proposed findings of fact and conclusions of law.
[6] On October 8, 2015, Robinson filed a motion to amend his PCR petition to
conform to the evidence and an “Offer of Proof” for exhibits A and B and E
through O. Appellant’s App. Vol. 2 at 55-61. On October 28, 2015, the
postconviction court issued an order denying Robinson’s motion to amend,
stating that he had not provided the specific amendments that he believed were
necessary and that he should consider attaching a prepared amended pleading
as an exhibit to any motion to amend. On December 7, 2015, Robinson filed a
renewed motion to amend with the proposed amendments included as an
exhibit. The proposed amendments included allegations that his attorney
provided ineffective assistance at the sentencing hearing by failing to proffer
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Robinson’s mental health issues as a mitigating factor and that the sentencing
court considered improper aggravating factors to enhance his sentence.
[7] On December 18, 2015, the postconviction court denied Robinson’s Offer of
Proof. On February 11, 2016, the postconviction court issued its findings of
fact and conclusions of law denying Robinson’s PCR petition. On February 18,
2015, the postconviction court denied Robinson’s renewed motion to amend.
This appeal ensued.
Discussion and Decision
[8] The postconviction court entered findings of fact and conclusions of law as
required by Indiana Post-Conviction Rule 1(6). Our review is limited to
whether the findings are supported by the facts and the conclusions are
supported by the law. Ward v. State, 969 N.E.2d 46, 51 (Ind. 2012). The
petitioner seeking postconviction relief “bears the burden of establishing
grounds for relief by a preponderance of the evidence.” Ritchie v. State, 875
N.E.2d 706, 713 (Ind. 2007). A judgment entered against a party bearing the
burden of proof is a negative judgment. Burnell v. State, 56 N.E.3d 1146, 1149-
50 (Ind. 2016) “When a petitioner appeals from a negative judgment, he or she
must convince the appeals court that the evidence as a whole leads unerringly
and unmistakably to a decision opposite that reached by the trial court.”
Lambert v. State, 743 N.E.2d 719, 726 (Ind. 2001), cert. denied (2002). Although
Robinson is “proceeding pro se and lacks legal training, such litigants are held
to the same standard as trained counsel and are required to follow procedural
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rules.” Ross v. State, 877 N.E.2d 829, 833 (Ind. Ct. App. 2007), trans. denied
(2008).
Section 1 – The postconviction court did not abuse its
discretion by denying Robinson’s renewed motion to amend
his PCR petition.
[9] Robinson first contends that the postconviction court abused its discretion by
denying his renewed motion to amend his PCR petition. Indiana Post-
Conviction Rule 1(4)(c) provides,
At any time prior to entry of judgment the court may grant leave
to withdraw the petition. The petitioner shall be given leave to
amend the petition as a matter of right no later than sixty [60]
days prior to the date the petition has been set for trial. Any later
amendment of the petition shall be by leave of the court.
“[W]e review the post-conviction court’s refusal to amend a petition for abuse
of discretion because the Post-Conviction Rules state that any motion to amend
made within 60 days of an evidentiary hearing may be granted only ‘by leave of
the court.’” Tapia v. State, 753 N.E.2d 581, 586 (Ind. 2001) (quoting Ind. Post-
Conviction Rule 1(4)(c)).
[10] To support his argument that the postconviction court abused its discretion,
Robinson relies on Indiana Trial Rule 15(B), which provides,
When issues not raised by the pleadings are tried by express or
implied consent of the parties, they shall be treated in all respects
as if they had been raised in the pleadings. Such amendment of
the pleadings as may be necessary to cause them to conform to
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the evidence and to raise these issues may be made upon motion
of any party at any time, even after judgment, but failure so to
amend does not affect the result of the trial of these issues.
We note that the Indiana Trial Rules “generally only govern procedure and
practice in civil cases.” Corcoran v. State, 845 N.E.2d 1019, 1021 (Ind. 2006).
However, we will consider their applicability in postconviction proceedings “on
a case-by-case basis where the Indiana Rules of Procedure for Post-Conviction
Remedies are silent.” Id.
[11] The State contends that Post-Conviction Rule 1(4)(c) addresses the timeframe
for amendments to PCR petitions, and therefore the postconviction rules govern
this issue and Trial Rule 15(B) is inapplicable. Although Post-Conviction Rule
1(4)(c) addresses the time frame for amendments, it does not directly address
issues tried by express or implied consent of the parties. In Harrington v. State,
466 N.E.2d 1379 (Ind. Ct. App. 1984), another panel of this Court cited Trial
Rule 15(B) in concluding that although the State did not plead laches as an
affirmative defense in postconviction proceedings, the issue was tried by
consent and the State’s answer was deemed amended to raise the laches issue.
Id. at 1381.
[12] Assuming, without deciding, that Trial Rule 15(B) applies to the propriety of
the postconviction court’s decision to deny Robinson’s renewed motion to
amend his PCR petition, Robinson’s argument is without merit. One of his
proposed amendments was that his counsel provided ineffective assistance at
the sentencing hearing by failing to proffer his mental health issues as a
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mitigating factor. Robinson argues that at the evidentiary hearing, he admitted
evidence regarding his mental health issues. However, that evidence was
relevant to the issue of whether his counsel provided ineffective assistance
during the guilty plea hearing and whether Robinson’s plea was knowing and
voluntarily given. Robinson provides no citation to the record that shows that
the parties addressed his mental health issues in the context of his counsel’s
alleged ineffectiveness during sentencing. Therefore, ineffective assistance of
counsel at sentencing was not tried by implied or express consent. Permitting
Robinson to amend his petition to include this issue after the evidentiary
hearing would prejudice the State because it was not provided an opportunity to
rebut the mental health evidence in the context of sentencing. Therefore, the
postconviction court did not abuse its discretion by denying Robinson’s request
to amend his PCR petition to allege that he received ineffective assistance at his
sentencing hearing.
[13] Robinson also sought to amend his PCR petition to allege that the sentencing
court considered improper aggravating factors to enhance his sentence.
However, Robinson could have raised this issue on direct appeal. “It is [] well-
settled that, because a post-conviction relief proceeding is not a substitute for
direct appeal …, an issue known and available but not raised on direct appeal
may not be raised in post-conviction proceedings.” Collins v. State, 817 N.E.2d
230, 232 (Ind. 2004). Because the issue of whether the trial court used improper
aggravating circumstances in sentencing Robinson was available on direct
appeal, it cannot be raised in postconviction proceedings. See id. (“We hold
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that the proper procedure for an individual who has pled guilty in an open plea
to challenge the sentence imposed is to file a direct appeal or, if the time for
filing a direct appeal has run, to file an appeal under P-C.R.2.”). Accordingly,
the postconviction court did not abuse its discretion by denying Robinson’s
request to amend his PCR petition.
Section 2 - The postconviction court did not abuse its
discretion by excluding exhibits.
[14] Next, Robinson asserts that the trial court abused its discretion in excluding
exhibits A and B and E through O. We will not reverse the postconviction
court’s decision regarding the admission or exclusion of evidence unless its
decision constitutes an abuse of discretion. Hyppolite v. State, 774 N.E.2d 584,
592 (Ind. Ct. App. 2002). “An abuse of discretion occurs when a decision is
clearly against the logic and effect of the facts and circumstances before the
court.” Id.
[15] Exhibits A and B and E through O consisted generally of Robinson’s jail and
medical records. The State objected to the exhibits based on lack of
authenticity and relevance. We note that none of the exhibits were certified
copies. Except for exhibits G and J, which we will address below, Robinson
failed to respond to the State’s objections at the hearing. Therefore, Robinson
failed to show at the hearing that the exhibits were authentic and relevant.
About two weeks after the hearing, Robinson submitted his Offer of Proof,
which presented his arguments regarding the authenticity and relevance of each
exhibit. This subsequent attempt to show authenticity and relevance was
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untimely. 2 Cf. State v. Snyder, 732 N.E.2d 1240, 1246 (Ind. Ct. App. 2000)
(“The proponent of excluded evidence must make a formal offer of proof at trial
or the error is waived and not preserved for appeal.”). Because Robinson failed
to make any showing at the hearing regarding the authenticity and relevance of
those exhibits, we cannot say that the trial court abused its discretion in
excluding those exhibits.
[16] We now turn to exhibits G and J. At the hearing, Robinson attempted to
establish a foundation for exhibits G and J. Exhibit G contains Robinson’s
August 2000 health records from the Howard Regional Health System. Dr.
Oleh Dzera testified at the hearing that he completed four pages in exhibit G
reflecting his August 2000 psychiatric evaluation of Robinson. Exhibit G is 100
pages long, and Dr. Dzera was not a competent witness to authenticate the
entire medical record. Even if Robinson established that Dr. Dzera’s four-page
record was authentic, Robinson failed to show that it was relevant. Dr. Dzera
testified that his August 2000 psychiatric evaluation of Robinson was not
relevant to Robinson’s mental health in July 2002, when the guilty plea hearing
took place. Accordingly, the postconviction court did not abuse its discretion
by excluding exhibit G.
2
In his appellant’s brief, Robinson attempts to incorporate by reference the arguments made in his Offer of
Proof in violation of Indiana Appellate Rule 46(A)(8)(a), which provides that an appellant’s argument must
“contain the contentions of the appellant on the issues presented, supported by cogent reasoning.” We
decline to consider arguments outside the brief. See T-3 Martinsville, LLC v. US Holding, LLC, 911 N.E.2d 100,
104 n.3 (Ind. Ct. App. 2009) (“[W]e will consider only the argument presented in Hoosier’s appellee’s brief.
Any other argument incorporated by reference is waived,”), clarified on reh’g 916 N.E.2d 205, trans. denied
(2010).
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[17] Exhibit J contains Robinson’s September 2000 Clinton County Jail health
records. Dr. Randy Patee testified at the hearing and authenticated his one-
page evaluation of Robinson. However, he was unable to authenticate the
remaining three pages in the exhibit. As for relevance, Dr. Patee testified that
his evaluation of Robinson in September 2000 was unlikely to have any bearing
on Robinson’s state of mind in July 2002. Therefore, we conclude that the
court did not abuse its discretion by excluding Exhibit J.
Section 3 – The postconviction court was not biased against
Robinson.
[18] Robinson contends that the postconviction court exhibited actual bias or
prejudice that placed him in jeopardy. “A trial before an impartial judge is an
essential element of due process.” Everling v. State, 929 N.E.2d 1281, 1287 (Ind.
2010). Indiana law presumes that a judge is unbiased and unprejudiced.
Flowers v. State, 738 N.E.2d 1051, 1060 (Ind. 2000). To overcome that
presumption, a “defendant must show that the trial judge’s action and
demeanor crossed the barrier of impartiality and prejudiced the defendant’s
case.” Id. at 1061.
In assessing a trial judge’s partiality, we examine the judge’s
actions and demeanor while recognizing the need for latitude to
run the courtroom and maintain discipline and control of the
trial. Even where the court’s remarks display a degree of
impatience, if in the context of a particular trial they do not
impart an appearance of partiality, they may be permissible to
promote an orderly progression of events at trial. Bias and
prejudice violate a defendant’s due process right to a fair trial
only where there is an undisputed claim or where the judge
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expressed an opinion of the controversy over which the judge
was presiding.
Everling, 929 N.E.2d at 1288 (citations and quotation marks omitted).
[19] Robinson argues that the following circumstances taken as a whole show that
the judge was biased against him: specific comments made by the judge that
purportedly show a negative view of him and his case; 3 the judge’s numerous
adverse decisions against him; the failure of the judge to rule on his renewed
motion to amend until after the judge had issued findings of fact and
conclusions of law denying his PCR petition; that the judge allowed the State to
file its proposed findings of fact and conclusions of law after the due date; that
the judge signed the State’s proposed findings of fact and conclusions of law the
day after it was filed; and that the judge and the court clerk did not provide him
with a copy of the record and transcript until after this Court issued an order
directing the court and the clerk to provide him with a copy of the record and
transcript or face the possibility of a rule to show cause why they should not be
held in contempt.
[20] We are unpersuaded that the judge’s isolated comments and the adverse rulings
show bias. In addition, our review of the record shows that the judge gave
3
Robinson directs us to the following comments made by the judge. To Dr. Dzera, the judge said, “I know
you’ve come here [] with a great inconvenience [and] you were subpoenaed here. [The] Court of Appeals at
one point had directed that I do a hearing on this matter.” Tr. at 35. To Robinson, the judge said, “If your
response is going to be to ask me questions [] we’re not gonna get very far in this hearing today,” and “I don’t
expect you Mr. Robinson to deliver some sort of coherent closing statement.” Id. at 6 and 119. And, when
Robinson said, “To show that my state of mind prior to my catching my murder case,” the judge said, “oh
my goodness.” Id. at 7-8.
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substantial assistance to Robinson when he was trying to introduce exhibits G
and J into evidence. To the extent that Robinson was able to have his witnesses
authenticate some of the pages in the exhibits, the judge essentially walked him
through the questions that he needed to ask the witnesses in order to
authenticate the pages. Although we are troubled by the court’s failure to
promptly provide Robinson with copies of the record and transcript, we do not
think that the delay necessarily shows bias as opposed to simple human error.
We conclude that Robinson has failed to overcome the presumption that the
judge was unbiased. Therefore, we affirm the denial of Robinson’s PCR
petition. 4
[21] Affirmed.
Riley, J., and Altice, J., concur.
4
Robinson also argues that his counsel provided ineffective assistance by failing to raise relevant mitigating
factors and failing to object to improper aggravating factors. However, these arguments were not raised
before the postconviction court, and we have concluded that the court did not abuse its discretion in denying
Robinson’s renewed motion to amend his PCR petition, and therefore they are waived. See Allen v. State, 749
N.E.2d 1158, 1171 (Ind. 2001) (“Issues not raised in the petition for post-conviction relief may not be raised
for the first time on post-conviction appeal.”), reh’g denied, cert. denied; Ind. Post-Conviction Rule 1(8) (“All
grounds for relief available to a petitioner under this rule must be raised in his original petition.”). He also
asserts that the sentencing court erred by failing to find mitigating factors and finding improper aggravating
factors when sentencing him and that his sentence is inappropriate based on the nature of the offense and his
character. As we observed in Section 2, because the sentencing issue was available on direct appeal, it cannot
be raised in postconviction proceedings. See Collins, 817 N.E.2d at 232.
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