Charles Gamble v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Nov 28 2018, 9:31 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
Charles Gamble Curtis T. Hill, Jr.
New Castle, Indiana Attorney General of Indiana

Lyubov Gore
Deputy Attorney General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

Charles Gamble, November 28, 2018
Appellant-Petitioner, Court of Appeals Case No.
49A02-1707-PC-1811
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Kurt M. Eisgruber,
Appellee-Respondent. Judge
Trial Court Cause No.
49G01-1604-PC-14779

Najam, Judge.

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Statement of the Case
[1] Charles Gamble appeals from the post-conviction court’s denial of his petition

for post-conviction relief. Gamble raises four issues for our review, which we

revise and restate as the following three issues:

1. Whether the post-conviction court abused its discretion
when it denied Gamble’s request to subpoena his prison
record.

2. Whether he was denied the effective assistance of trial
counsel.

3. Whether Gamble can bring his claim that Indiana Code
Section 11-8-8-19 is an ex post facto law as applied to him in
a post-conviction proceeding.

[2] We affirm.

Facts and Procedural History
[3] On March 7, 2003, Gamble pleaded guilty to one count of sexual battery, as a

Class D felony, in Cause Number 36C01-0107-DF-222 (“DF-222”). At that

time, the trial court sentenced Gamble to one and one-half years, with one year

and three months suspended to supervised probation. The trial court also

ordered “that [Gamble] shall register as a sex offender in accord with Indiana

law.” Appellant’s App. Vol. II at 55. On May 24, 2004, the trial court found

that Gamble had violated the terms of his probation and revoked the suspended

portion of Gamble’s sentence. Gamble completed his sentence and was

released from the Department of Correction on September 14, 2004.

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[4] After he was released, Gamble was convicted of failing to register as a sex

offender in three counties. At some point, Gamble was again incarcerated.

When Gamble was released from the Department of Correction on October 19,

2011, prison officials completed a “release checklist.” Id. at 43. In that

checklist, prison officials indicated that Gamble was a sex offender, but the

officials noted that he is “NOT REQ[.] TO REGISTER.” Nonetheless, in

October of 2013, Gamble registered as a sex offender in Hendricks County. On

March 26, 2014, Gamble requested that he be removed from the sex offender

registry, but the trial court denied that request. Then, in February of 2015,

Gamble registered as a sex offender in Marion County. On July 2, officers

arrested Gamble for impersonating a law enforcement officer. After officers

arrested him, Gamble informed the officers that he had not lived at his

registered address in Marion County for approximately one week. However,

Gamble’s former landlord informed officers that Gamble had not lived at that

address for approximately one month.

[5] The State charged Gamble with one count of impersonating a public servant, as

a Level 6 felony, in Cause Number 49G01-1507-F6-23579 (“F6-23579”). The

State also charged Gamble with three counts of failing to register as a sex or

violent offender, as Level 5 felonies, in Cause Number 49G01-1507-F5-24251

(“F5-24251”). The parties entered into a plea agreement in which Gamble

agreed to plead guilty as charged in F6-23579 and to one count of failing to

exchange for his guilty plea, the State agreed to dismiss the other two charges in

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F5-24251. The trial court accepted the plea agreement and entered judgment of

conviction accordingly. The trial court sentenced Gamble to three years

executed in the Department of Correction in F5-24251, which was to run

consecutive to his sentence in F6-23579.1

[6] On August 15, 2016, Gamble, pro se, filed an amended petition for post-

conviction relief in which he alleged: (1) that he had been denied the effective

assistance of trial counsel; (2) that his rights under the Fourth Amendment to

the United States Constitution had been violated; (3) that his convictions

violated double jeopardy principles; and (4) that the requirement that he register

as a sex offender is an ex post facto law as applied to him. Gamble filed with the

post-conviction court a request that it issue a subpoena for his Department of

Correction record. Specifically, Gamble asserted that his prison record would

contain the Department of Correction release checklist that indicated that he

was not required to register as a sex offender as well as “new evidence that

[Gamble] is trying to obtain” in order to show that he was not required to

ruled on Gamble’s request. Following a hearing on January 24, 2017, the post-

conviction court entered detailed findings of fact and conclusions of law

denying Gamble’s petition for relief. This appeal ensued.

1
It is unclear from the record what Gamble’s sentence was in F6-23579. However, the plea agreement
provided that his sentence for that conviction would be one year executed, “with placement open to
argument[.]” Appellant’s App. Vol II at 69.

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Discussion and Decision
[7] Gamble appeals the post-conviction court’s denial of his petition for post-

conviction relief.2 Our standard of review is clear:

The petitioner in a post-conviction proceeding bears the burden
of establishing grounds for relief by a preponderance of the
evidence. Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004)
(citations omitted). When appealing 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, a petitioner must show
that the evidence as a whole 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 made findings of
fact and conclusions of law in accordance with Indiana Post-
Conviction Rule 1(6). Although we do not defer to the post-
conviction court’s legal conclusions, “[a] post-conviction court’s
findings and judgment will be reversed only upon a showing of
clear error—that which leaves us with a definite and firm
conviction that a mistake has been made.” Ben-Yisrayl v. State,
729 N.E.2d 102, 106 (Ind. 2000) (internal quotation omitted).

Campbell v. State, 19 N.E.3d 271, 273-74 (Ind. 2014) (alteration original to

Campbell).

2
In its findings of fact and conclusions of law, the post-conviction court found that Gamble had waived his
Fourth Amendment and double jeopardy claims. Gamble does not appeal those findings.

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Issue One: Denial of Subpoena Request

[8] Gamble first contends that the post-conviction court abused its discretion when

it denied his request to subpoena his prison record. To determine whether to

issue subpoenas, the post-conviction court has broad discretion. Johnson v.

State, 832 N.E.2d 985, 994 (Ind. Ct. App. 2005), trans. denied. “An abuse of

discretion has occurred if the court’s decision is against the logic and effect of

the facts and circumstances before the court.” Id.

[9] As this court has previously stated:

The post-conviction rules do not establish a procedure for a pro se
petitioner to subpoena a document, but they do explain the
procedure if a pro se petitioner wishes to subpoena a witness. See
Post-Conviction Rule 1(9)(b). The post-conviction court must
subpoena witnesses for a pro se petitioner “[i]f the court finds the
witness’ testimony would be relevant and probative.” Id. We
have found reversible error in the failure to subpoena a witness
when a petitioner’s claims could not be presented without the
presence of that specific witness. See Medlock v. State, 547 N.E.2d
884, 887 (Ind. Ct. App. 1989) (clerk’s failure to subpoena
witnesses for post-conviction proceeding following petitioner’s
pro se request for subpoenas was not harmless error where
petitioner could not prove claim without witness’s testimony
about alleged promises witness made to induce petitioner’s guilty
plea).

Hubbell v. State, 58 N.E.3d 268, 277 (Ind. Ct. App. 2016). That court

specifically held that “[w]e see no reason we ought not reach the same result

when a petitioner raises issues—such as ineffective assistance of counsel and

double jeopardy—that cannot be addressed on their merits without access to the

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Record of Proceedings.” Id. Similarly, here, we see no reason why we should

not reach the same result when a petitioner raises an issue that cannot be

addressed on its merits without access to a specific document. Accordingly, we

will find that the post-conviction court abused its discretion when it failed to

subpoena Gamble’s prison record only if Gamble’s claim could not be

presented and addressed on its merits without access to his prison record.

[10] To support his claim that he was denied the effective assistance of counsel,

Gamble requested that the post-conviction court subpoena his prison record. In

that request, Gamble asserted that he needed his prison record because it would

contain the 2011 Department of Correction release checklist as well as

unspecified “new evidence” that would show that he was no longer required to

ruled on that request, which, in effect, denied the request. Gamble contends

that the court’s denial of his subpoena was improper because “he needs [those

documents] to prove prejudice on the failure-to-investigate aspect of his

Ineffective Assistance of Counsel claim[.]” Appellant’s Br. at 19. We cannot

agree.

[11] Gamble requested a subpoena for his prison record in part because that record

would contain the 2011 Department of Correction release checklist, which

indicated that he was not required to register a sex offender. But Gamble was

still able to present the checklist as evidence at the hearing on his petition for

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post-conviction relief without the subpoena from the post-conviction court.3

Because Gamble was able to present the checklist as evidence without the

subpoena, he has not demonstrated that he was harmed by the post-conviction

court’s denial of his subpoena request as it relates to the release checklist.

[12] Gamble also requested the subpoena for his prison record because he contends

that there would be “new evidence” in the record that would show that he is

not required to register as a sex offender. Supp. App. at 4. But it is well-settled

that “[t]here is no post-conviction right to ‘fish’ through official files for belated

grounds of attack on the judgment, or to confirm mere speculation or hope that

a basis for collateral relief may exist.” Hinkle v. State, 97 N.E.3d 654, 665 (Ind.

Ct. App. 2018) (quoting Roche v. State, 690 N.E.2d 1115, 1132 (Ind. 1997)),

trans. denied.

[13] Gamble does not contend that there is any specific information in his prison

record beyond the release checklist that supports his claim of ineffective

assistance of counsel. Rather, Gamble requested his entire prison record simply

because he believed that “there has to be something in there that caused the

prison officials to conclude that Gamble was/is not required to register” as a

sex offender. Appellant’s Br. at 20. In essence, Gamble contends that, had he

been able to examine his entire prison record, he might have found an

additional document that would support his claim that he was not required to

3
It is unclear from the record how Gamble was able to obtain a copy of the checklist.

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his trial counsel, Jennifer Harrison, had failed to fully investigate the case when

she did not review his entire prison record. As Gamble wanted the post-

conviction court to subpoena his prison record based only on his speculation

that an additional document there exists to support his claim, Gamble’s request

for the subpoena was an improper fishing expedition, not an attempt to

vindicate an actual claim. See Hinkle, 97 N.E.3d at 666. Accordingly, we

cannot say that the post-conviction court abused its discretion when it denied

Gamble’s request to subpoena his prison record.

Issue Two: Effectiveness of Trial Counsel

[14] Gamble next contends that he received ineffective assistance from his trial

counsel, Harrison.

When evaluating an ineffective assistance of counsel claim, we
apply the two-part test articulated in Strickland v. Washington, 466
U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). See Helton v.
State, 907 N.E.2d 1020, 1023 (Ind. 2009). To satisfy the first
prong, “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.”
McCary v. State, 761 N.E.2d 389, 392 (Ind. 2002) (citing
Strickland, 466 U.S. at 687-88, 104 S. Ct. 2052). To satisfy the
second prong, “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 694, 104 S. Ct. 2052).

Campbell, 19 N.E.3d at 274.

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[15] Gamble specifically contends that Harrison’s performance was deficient

because she failed to adequately investigate the case when she did not obtain

and review his prison record, which he asserts contained the 2011 Department

of Correction release checklist as well as other documents that would show that

he was not required to register as a sex offender. “Counsel is strongly presumed

to have rendered adequate assistance and made all significant decisions in the

exercise of reasonable professional judgment.” Strickland, 466 U.S. at 690.

Further, “counsel has a duty to make reasonable investigations or to make a

reasonable decision that makes particular investigations unnecessary. In any

ineffectiveness case, a particular decision not to investigate must be directly

assessed for reasonableness in all the circumstances, applying a heavy measure

of deference to counsel’s judgments.” Id. at 691.

[16] Here, “applying a heavy measure of deference” to Harrison’s particular

decision not to review Gamble prison’s record, we cannot say that the post-

conviction court erred when it determined that Gamble had failed to meet his

evidentiary burden on this issue. Id. During the hearing on Gamble’s petition,

Harrison testified that she had met with Gamble at the jail during the course of

the proceedings and that she had had several discussions with Gamble about his

case. And “Gamble’s uncontradicted testimony is that he informed Ms.

Harrison during pre-trial discussions . . . that the Indiana Department of

Correction officials informed him in 2011 . . . that he was no longer required to

discussions with Gamble, Harrison testified that she had “researched

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[Gamble’s] prior conviction [for sexual battery]. I also researched the times that

you had been in custody and out of custody[.]” Tr. Vol. II at 12. She further

testified that she did “legal research” and that she had read the relevant case

law to determine if he was still required to register as a sex offender. Finally,

Harrison testified that, “based upon [her] research,” she believed that he was

still legally required to register as a sex offender. Id.

[17] Accordingly, the record demonstrates that Harrison had several discussions

with Gamble, during which he provided her with information about his case

and the reasons why he believed he was no longer required to register as a sex

offender. And the record also demonstrates that Harrison researched his case

and the relevant law, and based on that research, she concluded that he was still

required to register as a sex offender regardless of what the release checklist

stated. As such, Gamble has not met his burden to show that he was denied the

effective assistance of counsel.4

Issue Three: Ex Post Facto Law

[18] Finally, Gamble contends that the requirement that he register as a sex offender

is an ex post facto law as applied to him. When Gamble was convicted of sexual

battery in 2003, the sex offender registration statute provided that a sex

offender’s duty to register expired ten years after the offender was released from

4
Gamble also asserts that the post-conviction court erred when it found that he had waived his claim of
ineffective assistance of counsel. However, in light of our analysis on the merits of his ineffectiveness claim,
we need not consider the waiver argument.

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a penal facility or placed in a community transitions program, a community

corrections program, on parole, or on probation, whichever occurred last. See

Ind. Code § 5-2-12-13(a) (2003). The Indiana General Assembly repealed that

statute in 2006 and replaced it with Indiana Code Section 11-8-8-19. That

statute provides for the same ten-year registration requirement, but it also

includes a tolling provision. Specifically, the new statute provides that the ten-

year registration period “is tolled during any period that the sex or violent

offender is incarcerated.” I.C. § 11-8-8-19(a) (2008).

[19] On appeal, Gamble contends that the new statute that tolls his registration

requirement is an ex post facto law as applied to him because it “significantly

extended Gamble’s ten (10)[-]year registration period . . . since Gamble was

arrested and was incarcerated for a great deal of time after the ten (10)[-]year

registration period started under Ind[iana] Code [Section] 5-2-12-13(a).”

Appellant’s Br. at 35. But we hold that Gamble cannot bring his ex post facto

claim in a post-conviction proceeding.

[20] In Kirby v. State, the Indiana Supreme Court considered whether Kirby, a

serious sex offender, could bring a post-conviction claim that a new statute that

prevented him from entering school property was an unconstitutional ex post

facto law. 95 N.E.3d 518, 520 (Ind. 2018). That court stated that “[o]ne of the

post-conviction rules’ central limitations is that relief is generally available only

from a conviction or sentence.” Id. But “when the legislature imposes

restrictions on people convicted of certain crimes, those restrictions are not part

of a sentence, but are collateral consequences.” Id. Indeed, the court held that

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“[s]ex-offender registration itself is thus a collateral consequence.” Id. Further,

the court stated that “[t]he legislature can, for example, impose a lifetime

registration requirement even after a sentence has been fully served. Whether

or not such a belated change is an ex post facto violation, it is not part of a

sentence.” Id. at 520-21 (internal citations omitted). Accordingly, our Supreme

Court held that Kirby’s ex post facto claim challenged a collateral consequence

rather than his sentence or conviction and, thus, post-conviction review was

unavailable to Kirby. Id.

[21] Similarly, here, we hold that the requirement that Gamble register as a sex

offender is a collateral consequence of his conviction in DF-222. Because

Gamble’s ex post facto claim challenges a collateral consequence rather than his

conviction or sentence, post-conviction review is unavailable.5

Conclusion

[22] In sum, we hold that the post-conviction court did not abuse its discretion when

it did not issue a subpoena for Gamble’s prison record, and Gamble was not

denied the effective assistance of counsel. And we hold that Gamble cannot

petition for post-conviction relief on his claim that Indiana’s sex offender

5
Even though Gamble cannot raise his ex post facto claim in a post-conviction proceeding, he may still be
able to bring his claim in a declaratory-judgment action. See id. at 521-22.

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registration statute is an ex post facto law as applied to him. Accordingly, we

affirm the post-conviction court.6

[23] Affirmed.

Crone, J., and Pyle, J., concur.

6
In his reply brief, Gamble asks us to determine that he was never required to register as a sex offender
because he did not agree to any registration requirement in his plea agreement in DF-222. But Gamble did
not raise that issue in his initial brief. It is well settled that “grounds for error may only be framed in the
appellant’s initial brief and[,] if addressed for the first time in the reply brief, they are waived.” Monroe Guar.
Ins. Co. v. Magwerks Corp., 829 N.E.2d 968, 977 (Ind. 2005). Thus, Gamble has waived any purported claim
on that issue.

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