MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Oct 18 2017, 9:46 am
regarded as precedent or cited before any
CLERK
court except for the purpose of establishing 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
Robert White Curtis T. Hill, Jr.
Greencastle, Indiana Attorney General of Indiana
J.T. Whitehead
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Robert White, October 18, 2017
Appellant-Petitioner, Court of Appeals Case No.
18A02-1703-PC-550
v. Appeal from the
Delaware Circuit Court
State of Indiana, The Honorable
Appellee-Respondent. Kimberly S. Dowling, Judge
Trial Court Cause No.
18C02-1609-PC-18
Kirsch, Judge.
[1] Robert White (“White”) appeals the summary denial of his successive petition
for post-conviction relief (“PCR”) raising two issues, of which we find the
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following restated issue to be dispositive: whether the post-conviction court
erred by granting the State’s motion for summary disposition as to White’s
successive PCR petition without holding an evidentiary hearing.
[2] We reverse and remand for further proceedings.1
Facts and Procedural History
[3] The facts related to White’s underlying offenses were set forth in his direct
appeal, White v. State, 756 N.E.2d 1057, 1059 (Ind. Ct. App. 2001), trans. denied.
In May 2000, White forced his way into R.A.’s apartment in Muncie, Indiana,
threatened to kill her, performed oral sex on her, and raped her twice. A jury
found White guilty of one count of Class A felony rape, and in February 2001,
the trial court sentenced him to forty years executed. White’s conviction and
sentence were affirmed on direct appeal. In May 2002, White, pro se, filed his
first PCR petition, which the post-conviction court denied. In November 2003,
our court affirmed the post-conviction court’s denial of White’s petition.
[4] Thirteen years later, White requested permission to file a successive PCR
petition on the grounds of newly discovered evidence. Our court granted
White’s motion after finding he had “established a reasonable possibility that he
[was] entitled to post-conviction relief.” Appellant’s App. Vol. II at 10-11. On or
about September 15, 2016, White, pro se, filed his Form for Successive Post-
1
White also contends that he was denied the right to counsel. Because we remand for further proceedings,
we need not discuss that issue.
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Conviction Relief Rule 1 Petition (“Successive PCR Petition”), with attached
Exhibits A and B, alleging that trial counsel was ineffective for not timely
notifying him of the State’s plea offer.2 Exhibit A was a one-page fax, dated
June 22, 2000, sent from the prosecutor’s office to White’s trial attorney, Alan
Wilson (“Wilson”). Exhibit A reflected the State’s offer to allow White to
plead guilty to a lesser-included Class B felony and set October 12, 2000 as the
deadline for accepting the offer. Exhibit B was a copy of just the transmission
page of a five-page fax, dated November 20, 2000, sent from Wilson to the
prosecutor’s office and on which Wilson had handwritten, “I blew this one.”
Id. at 9. White offered these faxes as newly discovered evidence of Wilson’s
ineffective representation.3
[5] The State filed an answer to White’s Successive PCR Petition, and White, pro
se, filed his response. On October 17, 2016, the post-conviction court held a
pre-trial hearing, at which White participated via telephone. Tr. Vol. II at 3.
During that hearing, the State informed the post-conviction court of its intent to
file for summary disposition, and White agreed to take part in the summary
disposition hearing via telephone. Id. 4, 6. However, as the following
2
While discussed by both parties in their briefs, the Successive PCR Petition (with attached Exhibits A and
B), is not in the record before us. We note, however, that the State filed the Successive PCR Petition with the
post-conviction court as part of its designated evidence relating to the State’s motion for summary
disposition. Because this appeal arises from those proceedings, we take judicial notice of, and incorporate
herein, the Successive PCR Petition and its exhibits, a copy of which can be found in Indiana’s Odyssey Case
Management System under the trial court cause number 18C02-1609-PC-18. See Horton v. State, 51 N.E.3d
1154, 1160 (Ind. 2016) (Indiana Evidence Rule 201(b)(5), as amended effective January 1, 2010, “now
permits courts to take judicial notice of ‘records of a court of this state[.]’”
3
White said that he had found the two faxes in a file that had only been released to him in October 2015.
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exchange reflects, White asked to be present for the post-conviction evidentiary
hearing:
THE COURT: . . . I’m trying to figure out the logistics of the
trial. So first of all, do you have any objection to handling that
trial by telephone on February 2nd?
THE PETITIONER: I would rather be present.
THE COURT: You would rather be present. All right, then I’ll
have the court reporter do an order to transport you for that
hearing, all right.
THE PETITIONER: All right.
THE COURT: Okay. But, the summary judgment hearing I
think we can do by phone. And, when we get that, I’ll set a
separate hearing for that, okay.
THE PETITIONER: All right.
Id. at 6.
[6] On October 21, 2016, the State filed a petition for summary disposition as to the
Successive PCR Petition and attached thereto an affidavit sworn to by trial
attorney Wilson.4 Appellant’s App. Vol. II at 3. As part of his affidavit, Wilson
4
Also attached to the State’s petition for summary disposition was an affidavit sworn to by an attorney with
the prosecutor’s office. That affidavit addressed only issues pertaining to Exhibit B. Specifically, the attorney
said that Wilson’s comment, “I blew it,” related only “to the fact that Wilson had not timely filed a notice of
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declared, “The November 20, 2000 fax cover sheet[, Exhibit B,] in no way
related to the [sic] whether I timely conveyed the State’s plea offer to Mr.
White. I conveyed the offer to Mr. White before the offer expired. After he and I
discussed the offer, Mr. White chose to reject the offer and proceed to trial wherein he
was convicted of Rape, a Class A Felony.” Id. at 21-22 (emphasis added).
[7] On November 28, 2016, the post-conviction court held a hearing on the State’s
motion for summary disposition; only the State’s attorney and White, via
telephone, participated in that hearing. In support of its position, the State
argued “that there were two (2) affidavits that were attached to [the State’s]
motion, both which clearly dispute what Mr. White claims in his petition. I
think based on those affidavits I think the Court is within its authority to grant
that motion.”5 Tr. Vol. II at 13. The State argued that there were three issues,
all of which [were] ineffective assistance of counsel at the various
stages of the case[, trial, appellate, and post-conviction]. Based
on what the facts of this case are and as the evidence appears to
show, there doesn’t appear to be any genuine issue of material
fact. And given that fact and the nature of evidence that [the
State] submitted with [its] motion for summary judgment, the
State would just ask that the Court grant that motion.
intent to offer evidence under Rule 412.” Appellant’s App. Vol. II at 28. White raises no issues pertaining to
Exhibit B. Accordingly, the prosecutor’s affidavit is irrelevant to White’s claim on appeal.
5
The affidavits to which the State referred were those of Wilson and the prosecutor. However, as we note
above, only Wilson’s affidavit is relevant to the question of whether there was a genuine issue of material fact
that Wilson told White about the State’s plea offer.
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Id. at 12. The State’s key evidence was Wilson’s statement that he had
communicated the plea offer to White—a statement that, if true, would have
undermined each of White’s claims for ineffective assistance of counsel.
[8] White, under oath, disagreed with the State’s argument and engaged with the
post-conviction court in the following exchange:
THE COURT: Okay. Well I understand that you disagree, but
the State’s motion was kind of, was detailed and it had some
affidavits and some documents attached to it. So I’m going to
need you to address what the State has alleged in their filing.
THE PETITIONER: . . . I’m saying my attorney was
ineffective. He never did tell me about the plea bargain. You
know, what I’m saying. That’s my argument. I’m going to stand
by it. If he had told me about the plea bargain, I would have
signed the plea bargain. There’s a difference between an A and a
B [felony], you know what I’m saying. The man has took [sic]
seventeen (17) years of my life, you know what I’m saying, when
I could have signed the plea bargain and been home with my
kids. . . .
Id. at 12-13.
[9] After both sides had rested, the post-conviction court asked White whether
there was anything else he wanted to introduce into evidence. Id. at 15. White
responded that he wanted a witness subpoenaed to court to testify that Wilson
had also failed to inform the witness of a plea offer. Id. The State objected on
the basis that the witness had no specific knowledge about White’s case, and
the post-conviction court, after taking the matter under advisement, denied
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White’s request for a subpoena. Id. at 15-17. The post-conviction court granted
the State’s motion for summary disposition on December 13, 2016, effectively
denying White’s Successive PCR Petition. Appellant’s App. Vol. II at 40-42. The
post-conviction court supported its conclusion, in part, with the following
findings:
13. The November 20, 2000 fax cover sheet in no way related to
whether trial counsel timely conveyed the State’s plea offer to
[White].6
14. Trial counsel conveyed the plea offer to [White] before the
offer expired. After counsel discussed the plea offer with
[White], [White] chose to reject the offer and proceed to trial
wherein he was convicted of Rape, a Class A felony.
15. Consequently, there is no genuine issue of material fact as to
the claim alleged in Paragraphs 8(a) and 9 (a) of the Successive
Petition for Post-Conviction Relief and the State of Indiana is
entitled to judgement as a matter of law.
Id. at 41.
[10] White filed a motion to correct error. During the hearing on that motion,
White said, “I’m not really concerned about exhibit B [Wilson’s fax saying, “I
BLEW IT”]. Exhibit A [the fax from the State advising Wilson of the plea
offer] is my main, you know what I'm saying, about my whole appeal anyway.
6
White does not dispute this fact.
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He [the deputy prosecutor] keep saying [sic] in here about exhibit A and exhibit
B, but I don’t care about exhibit B. I’m talking about exhibit A.” Tr. Vol. II at
22. White explained that Exhibit A was important because it reflected the
existence of a plea offer. White argued, “[Wilson] states in his affidavit that he
told me about a plea bargain. [Wilson] never told me about anything.” Id. at
23. White testified that he filed the Successive PCR Petition because:
[Wilson] was ineffective and he never told me about a plea
bargain. I would have took [sic] an open B over a Class A
felony, you know what I’m saying. I never knew about it . . . .
But, if I knew about it, I would have took [sic] it. Who
wouldn’t? You know what I’m saying, fifty (50) years to
twenty (20) years, I would have took [sic] it. He never told
me anything.
Id. at 23-24.
[11] The State, in turn, argued that White’s motion to correct error should be denied
because White’s testimony during the summary disposition hearing consisted
only of hearsay, i.e., stories from other inmates. Id. at 24. The State
asserted that White offered no evidence to refute Wilson’s sworn statement
that he told White about the plea offer. Id. The State inquired:
[C]an White now today reopen the evidence in the matter and
now say, present his testimony that he disputes what Mr.
Wilson is saying? I don't know the answer to that question. It
seems to me he can’t. I mean, the verified motion to correct
error is asking you to fix a legal error, not reopen the hearing
on summary judgment. But, so I think that's where we’re at.
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....
I mean, if you’re still convinced that there’s no genuine issue
of material fact, then I think the verified motion to correct
error should be denied. If you think there is a genuine issue of
material fact, then I suppose we should, you should set the
order on my motion for summary judgment aside and set the
matter for hearing.
Id. at 25. The post-conviction court noted that White offered no new evidence
regarding the existence of a genuine issue of material fact and denied White’s
motion to correct error. Id. at 26. White now appeals.
Discussion and Decision
[12] Our standard of review in post-conviction proceedings is well settled. Post-
conviction proceedings do not grant a petitioner a “super-appeal” but are
limited to those issues available under the Indiana Post-Conviction Rules.
Binkley v. State, 993 N.E.2d 645, 649 (Ind. Ct. App. 2013) (citing Shepherd v.
State, 924 N.E.2d 1274, 1280 (Ind. Ct. App. 2010), trans. denied). Such
proceedings are civil in nature, and petitioners bear the burden of proving their
grounds for relief by a preponderance of the evidence. Ind. Post-Conviction
Rule 1(5). “‘A petitioner who appeals the denial of PCR faces a rigorous
standard of review, as the reviewing court may consider only the evidence and
the reasonable inferences supporting the judgment of the post-conviction
court.’” Id. (quoting Shepherd, 924 N.E.2d at 1280). The appellate court must
accept the post-conviction court’s findings of fact and may reverse only if the
findings are clearly erroneous. Id. If a PCR petitioner was denied relief, he or
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she must show that the evidence as a whole leads unerringly and unmistakably
to an opposite conclusion than that reached by the post-conviction court.”
Osmanov v. State, 40 N.E.3d 904, 907 (Ind. Ct. App. 2015).
[13] White appeals the post-conviction court’s order summarily denying post-
conviction relief on his Successive PCR Petition. Specifically, he claims that
the post-conviction court erred when it failed to hold an evidentiary hearing
because there existed the disputed fact of whether trial counsel informed him of
the State’s plea offer.
[14] “A claim of ineffective assistance of [trial] counsel must satisfy two
components.” Woods v. State, 48 N.E.3d 374, 377 (Ind. Ct. App. 2015) (citing
Strickland v. Washington, 466 U.S.668, 687 (1984)). “First, the defendant must
show deficient performance: representation that 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. (citing
Strickland, 466 U.S. at 687). “Second, the defendant must show prejudice: 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. (citing Strickland, 466 U.S. at 669).
[15] Here, the State moved for summary disposition. Post-Conviction Rule 1,
section 4, subsection (g) provides that a court may grant summary disposition
upon motion by either party and after considering the pleadings and other
evidence submitted.
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[16] When a court disposes of a petition under subsection (g):
[W]e review the lower court’s decision as we would a motion for
summary judgment. We face the same issues that were before
the post-conviction court and follow the same process. A grant
of summary disposition is erroneous unless there is no genuine
issue of material fact and the moving party is entitled to
judgment as a matter of law. We must resolve all doubts about
facts, and the inferences to be drawn from the facts, in the non-
movant’s favor. The appellant has the burden of persuading us
that the post-conviction court erred.
Binkley, 993 N.E.2d at 650 (quoting Allen, 791 N.E.2d at 753) (internal
quotation marks omitted). As our Supreme Court has explained:
An appellate court reviews the grant of a motion for summary
disposition in post-conviction proceedings on appeal in the same
way as a motion for summary judgment. Thus summary
disposition, like summary judgment, is a matter for appellate de
novo determination when the determinative issue is a matter of
law, not fact.
McClure v. State, 71 N.E.3d 845, 847 (Ind. Ct. App. 2017) (quoting Norris v.
State, 896 N.E.2d 1149, 1151 (Ind. 2008) (citations omitted)), trans. denied. “In
summary judgment proceedings, the moving party . . . is the party that bears the
burden to demonstrate that there is no genuine issue of material fact and that it
is entitled to judgment as a matter of law.” Id. (citing Hughley v. State, 15
N.E.3d 1000, 1003-04 (Ind. 2014)). Once the movant, in this case the State, has
sustained this burden, the opponent must respond by setting forth specific facts
showing a genuine issue for trial.
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[17] White’s Successive PCR Petition alleged that he was prejudiced by Wilson’s
ineffective representation because, without knowledge of the State’s plea offer,
which White claims he would have accepted, White was subjected to a longer
sentence. As part of its motion for summary disposition, the State offered
Wilson’s affidavit that in relevant part said, “I [timely] conveyed the [plea] offer
to Mr. White before the offer expired. After he and I discussed the offer, Mr.
White chose to reject the offer and proceed to trial . . . .” Appellant’s App. Vol. II
at 21-22. Through this affidavit, the State met its burden of showing there was
no genuine issue of material fact, and the burden shifted to White to show that
a genuine issue of material fact existed on the issue of whether he was told
about the plea offer.
[18] During the hearing on the State’s motion for summary disposition, White, via
telephone, testified under oath as follows:
I’m saying my attorney was ineffective. He never did tell me
about the plea bargain. You know, what I’m saying. That’s my
argument. I’m going to stand by it. If he had told me about the
plea bargain, I would have signed the plea bargain. There’s a
difference between an A and a B [felony], you know what I’m
saying. The man has took [sic] seventeen (17) years of my life,
you know what I’m saying, when I could have signed the plea
bargain and been home with my kids. . . .
Tr. Vol. II at 13.
[19] Facts are decided, in part, based on the credibility of witnesses. During the
preliminary hearing, White had requested of the post-conviction court that he
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be allowed to be present during hearings. The post-conviction court agreed that
White could be physically present at the evidentiary hearing on the Successive
PCR Petition, but concluded that White would appear via telephone for the
hearing on the State’s motion for summary disposition. At the summary
disposition hearing, both White and Wilson gave conflicting statements under
oath that were significant to the determination of whether Wilson informed
White about the State’s plea offer. The statements of White and Wilson were
supported by nothing more than the post-conviction court’s determination of
their credibility. Because the ineffectiveness claim relied on a factual
determination of whether Wilson told White about the State’s plea offer, the
post-conviction court had before it a genuine issue of material fact. It was not
within the province of the post-conviction court to grant the State’s motion for
summary disposition by deciding a genuine issue of material fact as part of the
summary disposition hearing.
[20] Finding that the post-conviction court erred in summarily denying White’s
Successive PCR Petition, we reverse the post-conviction court’s grant of the
State’s motion for summary disposition and remand this case to the post-
conviction court for a hearing on the merits of whether White’s trial counsel
denied him the right to effective assistance of counsel.
[21] Reversed and remanded for further proceedings.
[22] Najam, J., and Brown, J., concur.
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