MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Nov 29 2016, 8:18 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 Buford G. Lee Gregory F. Zoeller Pendleton, Indiana Attorney General of Indiana Tyler G. Banks Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Buford G. Lee, November 29, 2016 Appellant-Defendant, Court of Appeals Case No. 10A04-1505-PC-525 v. Appeal from the Clark Circuit Court State of Indiana, The Honorable Vicki L. Appellee-Plaintiff. Carmichael, Judge Trial Court Cause No. 10C04-1405-PC-7
Riley, Judge.
Court of Appeals of Indiana | Memorandum Decision 10A04-1505-PC-525 | November 29, 2016 Page 1 of 19 STATEMENT OF THE CASE
[1] Appellant-Petitioner, Buford G. Lee (Lee), appeals the post-conviction court’s
denial of his petition for post-conviction relief, in which he had challenged his
conviction for dealing a narcotic drug within 1,000 feet of a family housing
complex, a Class A felony, Ind. Code § 35-48-4-1(b)(3)(B)(iii) (2013).
[2] We affirm.
ISSUES
[3] Lee raises seven issues on appeal, which we consolidate and restate as the
following three issues:
(1) Whether the post-conviction court erred by failing to issue findings of fact
and conclusions of law on all issues presented for review;
(2) Whether Lee received ineffective assistance of trial counsel;
(3) Whether the post-conviction court erred by failing to continue the post-
conviction hearing in order for Lee to subpoena additional witnesses.
FACTS AND PROCEDURAL HISTORY
[4] On September 17, 2013, and September 23, 2013, the Jeffersonville Police
Department utilized a confidential informant to purchase heroin from Lee. On
both occasions, the confidential informant met with Lee at the Jeffersonville
Housing Authority in Jeffersonville, Clark County, Indiana, where he
exchanged law enforcement funds for approximately .15 grams and .25 grams,
respectively, of heroin. During the controlled drug buys, the detectives
Court of Appeals of Indiana | Memorandum Decision 10A04-1505-PC-525 | November 29, 2016 Page 2 of 19 maintained surveillance, and the confidential informant was equipped with an
electronic recording device.
[5] On October 8, 2013, the State filed an Information, charging Lee with Count I,
dealing a narcotic drug within 1,000 feet of a family housing complex, a Class
A felony, I.C. § 35-48-4-1(b)(3)(B)(iii) (2013); Count II, possession of a narcotic
drug within 1,000 feet of a family housing complex, a Class B felony, I.C. § 35-
48-4-6(b)(2)(B)(iii) (2013); Count III, dealing a narcotic drug within 1,000 feet
of a family housing complex, a Class A felony, I.C. § 35-48-4-1(b)(3)(B)(iii)
(2013); Count IV, possession of a narcotic drug within 1,000 feet of a family
housing complex, a Class B felony, I.C. § 35-48-4-6(b)(2)(B)(iii) (2013); and
Count V, conspiracy to commit dealing a narcotic drug within 1,000 feet of a
family housing complex, a Class A felony, I.C. §§ 35-41-5-2; -48-4-1(b)(3)(B)(iii)
(2013). The State also charged Lee as a habitual offender pursuant to Indiana
Code section 35-50-2-8(a).
[6] On October 9, 2013, an arrest warrant was issued, and Lee was taken into
custody. On October 16, 2013, the trial court held Lee’s initial hearing, during
which Lee requested a fast and speedy trial, and the trial court appointed a
public defender to represent Lee. On October 21, 2013, a public defender,
Christopher Sturgeon (Attorney Sturgeon), entered his appearance on Lee’s
behalf. Within days of taking Lee’s case, Attorney Sturgeon issued subpoenas
to the detectives involved in the controlled drug transactions for depositions,
which were conducted on December 4, 2013.
Court of Appeals of Indiana | Memorandum Decision 10A04-1505-PC-525 | November 29, 2016 Page 3 of 19 [7] A jury trial commenced on December 10, 2013. On the second day of trial, the
State, while examining one of the detectives involved in the case, offered into
evidence the video recording of at least one of the controlled drug purchases.
Shortly thereafter, Lee—via Attorney Sturgeon—moved for a mistrial when the
State elicited testimony from the detective which purportedly violated a motion
in limine. The trial court called for a recess and met with the attorneys in
chambers, during which the State proposed a plea deal. Under the terms of the
plea deal, Lee would plead guilty to one Count of dealing in a narcotic drug as
a Class A felony in exchange for the State’s dismissal of the remaining charges.
Furthermore, the State would also dismiss all of the charges in two other
pending cases, which included a Class A felony charge for dealing cocaine or a
narcotic drug, two Class B felony charges for possession of cocaine or a narcotic
drug, and two habitual offender charges. Attorney Sturgeon presented the offer
to Lee and advised him to accept, which Lee did. The trial court subsequently
advised Lee of his rights and found a factual basis for the plea. After finding
that Lee’s plea was made freely and voluntarily, the trial court accepted the plea
agreement and entered a judgment of conviction for a Class A felony charge of
dealing in a narcotic drug.
[8] On January 13, 2014, the trial court held a sentencing hearing. At the
beginning of the hearing, Lee informed the trial court that he wished to
withdraw his guilty plea based on information that he recently learned after his
co-defendant, Paul Overton (Overton), provided him with copies of the
depositions of the detectives who were involved in the controlled drug
Court of Appeals of Indiana | Memorandum Decision 10A04-1505-PC-525 | November 29, 2016 Page 4 of 19 transactions. Because the trial court had already accepted the plea agreement
and entered a judgment of conviction, it declined Lee’s request and advised him
that he could file a petition for post-conviction relief. Thereafter, the trial court
sentenced Lee to a term of twenty-five years, with twenty years executed in the
Indiana Department of Correction and five years suspended to probation.
[9] On July 21, 2014, Lee, pro se, filed an Amended Petition for Post-Conviction
Relief. In his petition, Lee alleged that Attorney Sturgeon had provided
ineffective assistance of counsel, in relevant part, by failing to adequately
investigate prior to trial and refusing to file the motions requested by Lee; by
withholding evidence from Lee; and by pressuring Lee to sign the plea deal
despite the State’s lack of evidence. Lee further alleged that the trial court had
demonstrated prejudice by allowing the detective to accompany the attorneys
into the trial judge’s chambers after the detective testified about Lee’s prior bad
acts in violation of a motion in limine; by failing to rule on an objection that the
jury had been prejudiced by the detective’s testimony; and by denying Lee’s
right to withdraw from the guilty plea upon discovering certain evidence in the
depositions that were withheld by Attorney Sturgeon. On November 17, 2014,
the post-conviction court conducted a post-conviction relief hearing. At the
close of the evidence, the post-conviction court granted the parties thirty days in
which to file proposed findings of fact and conclusions of law. On December
15, 2014, the State submitted its proposed order. On April 14, 2015, Lee
submitted his proposed findings of fact and conclusions of law.
Court of Appeals of Indiana | Memorandum Decision 10A04-1505-PC-525 | November 29, 2016 Page 5 of 19 [10] On April 20, 2015, the post-conviction court issued its Findings of Fact,
Conclusions of Law and Judgment, denying Lee’s petition. In particular, the
post-conviction court concluded that Lee failed to establish that he received
ineffective assistance of counsel and further determined that Lee failed to
establish that he was prejudiced by any of the other alleged errors. The post-
conviction court stated that it was
persuaded that if [Lee’s] case had been decided by the jury there is [a] high probability that he would not have received an acquittal. The large amount of evidence including audio and video of [Lee] and his actions during the drug transaction presented in the probable cause affidavit show the end result would have been conviction even had counsel acted as [Lee] suggests. The greater the amount of evidence showing [Lee] committed the crime the greater his burden to show he was prejudiced.
(Appellant’s Br. p. 33). Additionally, the post-conviction court found no error
in the trial court’s refusal to allow Lee to withdraw from his guilty plea because
“to do so would have resurrected two cases with serious drug charges,” and
“[t]he demand on judicial resources of granting [Lee] a new trial on three cases
appears unwarranted.” (Appellant’s Br. p. 33).
[11] Lee now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Standard of Review
[12] A post-conviction proceeding affords the petitioner an “opportunity to raise
issues that were unknown or unavailable at the time of the original trial or the Court of Appeals of Indiana | Memorandum Decision 10A04-1505-PC-525 | November 29, 2016 Page 6 of 19 direct appeal.” Maymon v. State, 870 N.E.2d 523, 526 (Ind. Ct. App. 2007)
(citing Ben-Yisrayl v. State, 738 N.E.2d 253, 258 (Ind. 2000), cert. denied, 534 U.S.
1164 (2002)), trans. denied. However, a post-conviction proceeding does not
constitute “a super appeal,” and it “provide[s] only a narrow remedy for
subsequent collateral challenges to convictions.” Id. (citing Ben-Yisrayl, 738
N.E.2d at 258). Post-conviction proceedings are civil in nature, and, therefore,
the petitioner bears the burden of establishing his grounds for relief by a
preponderance of the evidence. Stevens v. State, 770 N.E.2d 739, 745 (Ind.
2002), cert. denied, 540 U.S. 830 (2003); see Ind. Post-Conviction Rule 1(5).
[13] When appealing the denial of a petition for post-conviction relief, “the
petitioner stands in the position of one appealing from a negative judgment.”
Willoughby v. State, 792 N.E.2d 560, 562 (Ind. Ct. App. 2003), trans. denied. Our
court does not reweigh evidence or assess the credibility of witnesses. Id.
In order to prevail, the petitioner must show that the evidence is without conflict and leads unerringly and unmistakably to a conclusion opposite that reached by the post-conviction court. It is only where the evidence is without conflict and leads to but one conclusion, and the post-conviction court has reached the opposite conclusion, that the decision will be disturbed as being contrary to law.
Id. (internal citation and quotation marks omitted).
II. Post-Conviction Court’s Findings of Fact and Conclusions of Law
[14] Lee challenges the post-conviction court’s issuance of factual findings and
conclusions of law. Pursuant to Indiana Post-Conviction Rule 1(6), the post-
Court of Appeals of Indiana | Memorandum Decision 10A04-1505-PC-525 | November 29, 2016 Page 7 of 19 conviction court is required to “make specific findings of fact[] and conclusions
of law on all issues presented.” On appeal, our court accepts the post-
conviction court’s factual findings “unless they are ‘clearly erroneous’” but we
owe no deference to the post-conviction court’s legal conclusions. Stevens, 770
N.E.2d at 746 (quoting Ind. Trial Rule 52(A)).
[15] Here, Lee asserts that “the problem is the trial court adopted the findings of the
[State] when the [State] submitted [its] findings before [Lee] filed his Findings
of Fact and Conclusions of Law. Which shows the court did not answer the
issues presented for review.” (Appellant’s Br. p. 13). We find no basis for this
contention in the record. The Chronological Case Summary (CCS) establishes
that the State filed its proposed findings and conclusions on December 15,
2014, which was within the thirty-day deadline following the post-conviction
hearing. Lee filed his proposed findings and conclusions on April 14, 2015.
Thereafter, on April 20, 2015, the post-conviction court issued its Findings of
Fact, Conclusions of Law and Judgment. Thus, while the post-conviction court
did adopt the proposed findings and conclusions of the State verbatim, it did
not do so prior to receiving Lee’s proposed order for consideration.
[16] Although the wholesale adoption of a party’s proposed findings is not
prohibited, our supreme court has noted that such a practice “erodes confidence
that they reflect the considered judgment of the post-conviction court.”
Thompson v. State, 796 N.E.2d 834, 840 (Ind. Ct. App. 2003) (citing Stevens, 770
N.E.2d at 762), trans. denied. As support for his position that the post-
conviction court’s adoption of the State’s proposed findings reveals that it failed
Court of Appeals of Indiana | Memorandum Decision 10A04-1505-PC-525 | November 29, 2016 Page 8 of 19 to adequately consider all of the issues, Lee vaguely argues that the “trial court
would have known it could not deny an affirmative right to terminate counsel.”
(Appellant’s Br. p. 14). Under a different section of his appellate brief, Lee
explains that on November 15, 2013, he submitted a notarized request to the
trial court to terminate Attorney Sturgeon and proceed pro se, but the CCS lacks
any indication that such a document was ever filed, and the trial court never
acknowledged the request.
[17] We agree with Lee that the post-conviction court’s findings do not address the
matter of an alleged violation of his Sixth Amendment right to self-
representation; however, this is because Lee never raised this issue in his
petition for post-conviction relief. Because Lee never presented the issue of a
Sixth Amendment violation to the post-conviction court for consideration, it
cannot be said that the post-conviction court erred in failing to address this
matter in its factual findings and legal conclusions. Moreover, Lee has waived
review of any Sixth Amendment violation by raising the issue for the first time
on appeal. See Stevens, 770 N.E.2d at 746 (“Any ‘[i]ssues not raised in the
petition for post-conviction relief may not be raised for the first time on post-
conviction appeal.’” (alteration in original) (quoting Allen v. State, 749 N.E.2d
1158, 1171 (Ind. 2001))). 1
1 Thus, we do not address Lee’s separate claim that he was denied due process of law by virtue of the trial court’s failure to allow him to terminate Attorney Sturgeon and proceed pro se.
Court of Appeals of Indiana | Memorandum Decision 10A04-1505-PC-525 | November 29, 2016 Page 9 of 19 III. Ineffective Assistance of Trial Counsel
[18] Lee next claims that Attorney Sturgeon provided ineffective assistance of
counsel. To prevail on an ineffective assistance of counsel claim, a petitioner
must establish “both that his counsel’s performance was deficient and that the
petitioner was prejudiced by the deficient performance.” McCullough v. State,
987 N.E.2d 1173, 1176 (Ind. Ct. App. 2013) (citing Strickland v. Washington, 466
U.S. 668, 687 (1984), reh’g denied). A claim of ineffective assistance of counsel
will be rejected if the petitioner fails to satisfy either prong. Id. Thus, if we are
able to “dismiss an ineffective assistance claim on the prejudice prong, we need
not address whether counsel’s performance was deficient.” Id. (quoting Lee v.
State, 892 N.E.2d 1231, 1233 (Ind. 2008)).
[19] An attorney’s performance is considered deficient “if it falls below an objective
standard of reasonableness based on prevailing professional norms.” Id. It is
well established that “[c]ounsel is accorded considerable discretion in choosing
strategy and tactics, and we will accord those decisions deference.” Id. We are
mindful that there is a strong presumption “that counsel rendered adequate
assistance and made all significant decisions in the exercise of reasonable
professional judgment.” Id. In order to establish that he was prejudiced by
Attorney Sturgeon’s performance, Lee “must show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Id. (citations omitted).
Court of Appeals of Indiana | Memorandum Decision 10A04-1505-PC-525 | November 29, 2016 Page 10 of 19 [20] According to Lee, when Attorney Sturgeon presented the State’s plea deal to
Lee in the midst of the trial, Attorney Sturgeon purportedly informed him that
he would be found guilty because the detectives would testify that they
witnessed Lee handing the drugs to the confidential informant (although there
is no support in the record for this supposed conversation between Attorney
Sturgeon and Lee). However, after Lee pled guilty, he received a copy of the
detectives’ depositions from Overton, his co-defendant. Based on his review of
the depositions, the probable cause affidavit, and the video recordings, Lee
asserts that the evidence establishes that it was actually Overton who personally
delivered the heroin to the confidential informant. Thus, Lee now contends
that he
chose to plead guilty on the advice of [Attorney Sturgeon] knowing the facts of his case, specifically, the statement of the detectives as to what the detectives would testify too [sic]. [Lee] did not know of the depositions and trusted [Attorney Sturgeon] to let him know the facts of the case, and all information about the case.
(Appellant’s Br. p. 15). According to Lee, “[t]his clearly shows the
involuntariness of the plea.” (Appellant’s Br. p. 16). 2 “Moreover, when [Lee]
requested in writing to [Attorney Sturgeon] that he wanted to withdraw [the]
2 In his appellate brief, Lee raises a separate argument that he is entitled to post-conviction relief because his plea was neither voluntarily nor intelligently made. However, this argument is simply a reiteration of his ineffective assistance of counsel claim. Moreover, Lee has waived such an argument on appeal because he did not claim in his post-conviction petition that his plea was involuntary and unintelligent, and he has further failed to develop such a cogent, appropriately-cited argument on appeal. See Stevens, 770 N.E.2d at 746; Ind. Appellate Rule 46(A)(8)(a).
Court of Appeals of Indiana | Memorandum Decision 10A04-1505-PC-525 | November 29, 2016 Page 11 of 19 plea, [Attorney Sturgeon] failed to file [a] [m]otion to [w]ithdraw [the] [p]lea”
pursuant to Indiana Code section 35-35-1-4(b). (Appellant’s Br. p. 16). 3
[21] The decision to enter into a guilty plea, although unquestionably influenced by
an attorney’s advice, ultimately belongs to the defendant. Manzano v. State, 12
N.E.3d 321, 326-27 (Ind. Ct. App. 2014) (quoting State v. Van Cleave, 674
N.E.2d 1293, 1301 (Ind. 1996)), trans. denied; cert. denied, 135 S.Ct. 2376 (2015).
As such, a claim of ineffective assistance of counsel relating to a guilty plea is
distinct “from the tactical or investigatory steps that are the bases of most
claims of ineffective assistance of counsel.” Id. at 326. There are two categories
of claims for ineffective assistance of trial counsel following a guilty plea: “(1)
failure to advise the defendant on an issue that impairs or overlooks a defense
and (2) an incorrect advisement of penal consequences.” McCullough, 987
N.E.2d at 1176 (citing Segura v. State, 749 N.E.2d 496, 500 (Ind. 2001)).
[22] In this case, Lee contends that Attorney Sturgeon misadvised him as to what
the State’s evidence would reveal, which led him to plead guilty. Essentially,
Lee argues that his innocence defense was impaired by Attorney Sturgeon’s
3 Although raised in his petition for post-conviction relief, Lee does not contend on appeal that the trial court abused its discretion by declining to allow him to withdraw from the guilty plea; thus, the issue is waived. See App. R. 46(A)(8)(a). Rather, Lee’s argument is limited to an ineffective assistance of counsel claim based on Attorney Sturgeon’s advice about the State’s evidence and his failure to file a written motion to withdraw the plea agreement. However, Lee has waived his argument regarding Attorney Sturgeon’s failure to file a written motion to withdraw the plea agreement as Lee failed to raise the issue in his petition for post- conviction relief. See Stevens, 770 N.E.2d at 746. We note that at the post-conviction hearing, Lee simply asked Attorney Sturgeon whether he had received a letter from Lee indicating Lee’s desire to withdraw from the plea, but Lee did nothing to further develop this possible claim of error before the post-conviction court.
Court of Appeals of Indiana | Memorandum Decision 10A04-1505-PC-525 | November 29, 2016 Page 12 of 19 misinformation, and he would not have pled guilty had he realized that the
evidence actually revealed that it was Overton who physically handed the
narcotics to the confidential informant. Therefore, Lee’s claim falls into the
first category of ineffective assistance claims relating to guilty pleas: a failure to
advise the defendant on an issue that impairs or overlooks a defense. In order
to prevail, Lee must show
a reasonable probability of success at trial if the alleged error is one that would have affected a defense. . . . A new trial is of course necessary if an unreliable plea has been accepted. But its costs should not be imposed needlessly, and that would be the result if the petitioner cannot show a reasonable probability that the ultimate result—conviction—would not have occurred despite counsel’s error as to a defense.
Id. at 1177 (ellipsis in original) (quoting Segura, 749 N.E.2d at 503).
[23] We find that Lee has failed to satisfy his burden of establishing that the result of
his proceeding would have been different even if Attorney Sturgeon had
advised Lee that the detectives never witnessed Lee personally handing heroin
to the confidential informant. As the State points out, during at least one of the
controlled drug transactions at the Jeffersonville Housing Authority, Lee was
observed by a detective and recorded on video as he accepted money from the
confidential informant. Lee then handed the purchased heroin to Overton,
who, in turn, transferred the drugs to the confidential informant. This is
sufficient to support Lee’s conviction for dealing in narcotics as a Class A
felony. See I.C. § 35-48-4-1(a)(1)(C),(b)(3)(B)(iii) (2013) (providing that it is a
Court of Appeals of Indiana | Memorandum Decision 10A04-1505-PC-525 | November 29, 2016 Page 13 of 19 Class A felony to knowingly or intentionally deliver a narcotic drug within
1,000 feet of a family housing complex); see also I.C. § 35-48-1-11 (defining
“delivery” for the purposes of delivering a controlled substance as “(1) an actual
or constructive transfer from one (1) person to another of a controlled
substance, whether or not there is an agency relationship; or (2) the organizing
or supervising of an activity described in subdivision (1)”). Thus, based on the
ample evidence of his guilt, Lee has failed to establish a reasonable probability
that he would not have been convicted had he proceeded with the jury trial.
[24] Moreover, if Lee had declined the plea agreement, he would have been subject
to criminal liability for additional charges in the present case, including: two
Class A felonies for dealing in narcotics and conspiracy to commit dealing in
narcotics, two Class B felonies for possession of narcotics, and a habitual
offender charge. Based on the fact that Lee’s second controlled drug
transaction was also recorded, there is a reasonable probability that the jury
would have convicted him of some or all of these additional charges.
Furthermore, had Lee not accepted the plea agreement, he would not have
received the benefit of having his charges dismissed in two unrelated cases.
[25] Lee also claims that Attorney Sturgeon was ineffective by failing “to object to
the fact there was no Pre Sentence Report to rely on to sentence [Lee], because
Indiana Statute mandates a Presentence Report for a person pleading or being
convicted of a felony charge.” (Appellant’s Br. p. 17). Lee further contends
that he did not receive a fair sentencing hearing because he
Court of Appeals of Indiana | Memorandum Decision 10A04-1505-PC-525 | November 29, 2016 Page 14 of 19 would have submitted additional witnesses that would have testified about the character of [Lee] and the other positive things [Lee] have [sic] done, and other issues. These issues would have allowed the [trial court] to consider mitigating circumstances had [Lee] been found guilty after trial or if he wished to proceed with pleading guilty and receive sentence.
(Appellant’s Br. p. 19). We find that Lee has waived this issue for review by
raising it for the first time on appeal. See Stevens, 770 N.E.2d at 746.
[26] Waiver notwithstanding, we find that Lee’s argument is not only meritless, it is
also a blatant misrepresentation of the facts. The transcript of the sentencing
hearing, which was filed as an exhibit with the post-conviction court, makes it
abundantly clear that a pre-sentence investigation (PSI) report was completed
prior to sentencing. In fact, at the beginning of the sentencing hearing, the trial
court stated:
Probation has indicated to me that there was a problem in the preparation of the PSI, although they have done the best they can, produced one [sic]. But that problem, as indicated in a letter of January 7th, 2014, was that . . . Lee, while in custody[,] stated that he did not plan on accepting a [p]lea [a]greement currently filed with the [c]ourt and was not going to speak with the [p]robation [o]fficer assigned to do the PSI. And therefore she has done the best she could with the . . . limited information that she had.
(Exh. C-1, p. 4). Thereafter, Attorney Sturgeon acknowledged that he had
received a copy of the PSI report and had provided the same to Lee. Thus, it is
absurd for Lee to now attempt to argue that Attorney Sturgeon was somehow
Court of Appeals of Indiana | Memorandum Decision 10A04-1505-PC-525 | November 29, 2016 Page 15 of 19 ineffective in light of the fact that any inadequacies in the PSI report were
purely the result of Lee’s own willful refusal to cooperate with the probation
department. Therefore, we conclude that Lee did not receive ineffective
assistance of counsel.
IV. Subpoenas
[27] Lastly, Lee claims that the post-conviction court erred by refusing to continue
the post-conviction hearing in order for Lee to secure additional witnesses—
specifically, the detectives who investigated his case; his co-defendant, Overton;
and another inmate who was not directly linked to Lee’s case. Pursuant to
Indiana Post-Conviction Rule 1(9):
If the pro se petitioner requests issuance of subpoenas for witnesses at an evidentiary hearing, the petitioner shall specifically state by affidavit the reason the witness’ testimony is required and the substance of the witness’ expected testimony. If the court finds the witness’ testimony would be relevant and probative, the court shall order that the subpoena be issued. If the court finds the proposed witness’ testimony is not relevant and probative, it shall enter a finding on the record and refuse to issue the subpoena.
[28] According to the CCS, the post-conviction hearing was initially set for August
5, 2014, but was later reset to September 15, 2014. On July 3, 2014, Lee filed a
Praecipe for Issuance of Subpoena(s) to secure Attorney Sturgeon, Overton,
another inmate, and three Jeffersonville Police Department detectives as
witnesses on September 15, 2014. The trial court granted Lee’s request, and on
August 6, 2014, the subpoenas were issued, which directed Lee’s witnesses to
Court of Appeals of Indiana | Memorandum Decision 10A04-1505-PC-525 | November 29, 2016 Page 16 of 19 appear on September 15, 2014. However, on August 19, 2014, the State filed
an objection to the issuance of subpoenas based on Lee’s failure to submit
affidavits with the witnesses’ expected testimony. On August 26, 2014, the
post-conviction court ordered Lee to submit affidavits specifying the substance
of the witnesses’ testimony and why their testimony was required. Although
the subpoenas were already served, it does not appear that Lee ever complied
with the post-conviction court’s order to file affidavits. Subsequent to the
issuance of the subpoenas, the post-conviction hearing date was rescheduled to
November 17, 2014, due to Attorney Sturgeon’s unavailability. Lee never
requested that the subpoenas be re-issued to reflect the new hearing date.
[29] At the post-conviction hearing, Lee called Attorney Sturgeon, his brother, and
his wife to testify. Thereafter, even though Lee had not subpoenaed his
remaining witnesses for this hearing date, Lee nevertheless requested that the
post-conviction court continue the matter in order to secure these witnesses.
Instead, the post-conviction court asked Lee to explain to what he would expect
his witnesses to testify. Lee elaborated that the three detectives “would testify
to the giving of deposition of the things that took place as far as what transpired
in my case.” (Tr. p. 65). Additionally, Lee stated that Overton would testify
that Overton overheard Attorney Sturgeon informing Lee
that I have no grounds to get anything suppressed. I should take the plea because if I don’t take the plea, I’m going to get fifty (50) years on the dope case because the police, they going to take me to trial for the cocaine case and the officer was supposed to testify that he seen me throw it, that what give me fifty (50) years on a Class B [f]elony with a habitual . . . which there’s no way Court of Appeals of Indiana | Memorandum Decision 10A04-1505-PC-525 | November 29, 2016 Page 17 of 19 possible I can get fifty (50) years on that case. And Mr. Overton would also testify that him giving me copies of the deposition because I had, because of the results of what took place during the trial date.
(Tr. pp. 66-67). Finally, as to Lee’s last witness, a fellow inmate, Lee stated
that this witness
would testify to being in the hallway at another time when [Attorney] Sturgeon came to meet with me and we were discussing the strategy of my case and as far as, like, what evidence they had as far as the, him telling me that he seen the tapes and I asked him, you know, if you seen the tapes, let me see the tapes, and he’d tell me, nah, that he can’t [do] that, and him lunging, making an aggressive movement towards me.
(Tr. p. 68). The post-conviction court found that the detectives’ appearance was
not necessary because “their depositions [would] speak for themselves.” (Tr. p.
69). As to the other witnesses, the post-conviction court declined to continue
the matter because “[Lee] already told me what they would testify to, so I don’t
need to hear it from them.” (Tr. p. 69).
[30] We find no error in the post-conviction court’s refusal to continue the matter in
order to hear from additional witnesses. Lee failed to comply with Indiana
Post-Conviction Rule 1(9) by requesting the issuance of subpoenas with the
updated hearing date and by filing affidavits with each witness’ expected
testimony. Furthermore, it was entirely within the post-conviction court’s
discretion to determine that the anticipated testimony of Lee’s witnesses was
not relevant or probative. See Rondeau v. State, 48 N.E.3d 907, 916 (Ind. Ct.
Court of Appeals of Indiana | Memorandum Decision 10A04-1505-PC-525 | November 29, 2016 Page 18 of 19 App. 2016) (noting the standard for denying subpoenas in a post-conviction
proceeding as being an abuse of discretion), trans. denied. Here, the post-
conviction court clearly found that the testimony of the detectives was neither
relevant nor probative as such testimony would merely be repetitive of their
depositions. Likewise, the anticipated testimony of Overton and the other
inmate was largely cumulative of Lee’s other evidence which suggested that
Attorney Sturgeon withheld evidence from Lee. We also note that Lee had not
alleged in his post-conviction relief petition that Attorney Sturgeon made any
aggressive movement toward him. Therefore, we conclude that the post-
conviction court properly exercised its discretion in declining to continue the
hearing to allow for Lee to subpoena additional witnesses.
CONCLUSION
[31] Based on the foregoing, we conclude that the post-conviction court properly
denied Lee’s petition for post-conviction relief.
[32] Affirmed.
[33] Bailey, J. and Barnes, J. concur
Court of Appeals of Indiana | Memorandum Decision 10A04-1505-PC-525 | November 29, 2016 Page 19 of 19