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.
Court of Appeals of Indiana | Memorandum Decision 49A02-1707-PC-1811 | November 28, 2018 Page 1 of 14 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.
Court of Appeals of Indiana | Memorandum Decision 49A02-1707-PC-1811 | November 28, 2018 Page 2 of 14 [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
register as a sex or violent offender, as a Level 5 felony, in F5-24251. In
exchange for his guilty plea, the State agreed to dismiss the other two charges in
Court of Appeals of Indiana | Memorandum Decision 49A02-1707-PC-1811 | November 28, 2018 Page 3 of 14 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
register as a sex offender. Supp. App. at 4. The post-conviction court never
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.
Court of Appeals of Indiana | Memorandum Decision 49A02-1707-PC-1811 | November 28, 2018 Page 4 of 14 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.
Court of Appeals of Indiana | Memorandum Decision 49A02-1707-PC-1811 | November 28, 2018 Page 5 of 14 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
Court of Appeals of Indiana | Memorandum Decision 49A02-1707-PC-1811 | November 28, 2018 Page 6 of 14 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
register as a sex offender. Suppl. App. at 4. The post-conviction court never
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
Court of Appeals of Indiana | Memorandum Decision 49A02-1707-PC-1811 | November 28, 2018 Page 7 of 14 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
register as a sex offender, which, in turn, would have supported his claim that
3 It is unclear from the record how Gamble was able to obtain a copy of the checklist.
Court of Appeals of Indiana | Memorandum Decision 49A02-1707-PC-1811 | November 28, 2018 Page 8 of 14 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.
Court of Appeals of Indiana | Memorandum Decision 49A02-1707-PC-1811 | November 28, 2018 Page 9 of 14 [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
register as a sex offender[.]” Appellant’s Br. at 29. In addition to her
discussions with Gamble, Harrison testified that she had “researched
Court of Appeals of Indiana | Memorandum Decision 49A02-1707-PC-1811 | November 28, 2018 Page 10 of 14 [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.
Court of Appeals of Indiana | Memorandum Decision 49A02-1707-PC-1811 | November 28, 2018 Page 11 of 14 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
Court of Appeals of Indiana | Memorandum Decision 49A02-1707-PC-1811 | November 28, 2018 Page 12 of 14 “[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.
Court of Appeals of Indiana | Memorandum Decision 49A02-1707-PC-1811 | November 28, 2018 Page 13 of 14 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.
Court of Appeals of Indiana | Memorandum Decision 49A02-1707-PC-1811 | November 28, 2018 Page 14 of 14