Jason Dean Hubbell v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: May 4, 2020
• Docket: 19A-PC-2058
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any FILED court except for the purpose of establishing May 04 2020, 5:49 am

the defense of res judicata, collateral CLERK estoppel, or the law of the case. Indiana Supreme Court Court of Appeals and Tax Court

APPELLANT PRO SE ATTORNEYS FOR APPELLEE Jason Dean Hubbell Curtis T. Hill, Jr. Pendleton, Indiana Attorney General of Indiana

Ellen H. Meilaender Supervising Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Jason Dean Hubbell, May 4, 2020 Appellant-Petitioner, Court of Appeals Case No. 19A-PC-2058 v. Appeal from the Bartholomew Circuit Court State of Indiana, The Honorable Kelly S. Benjamin, Appellee-Respondent. Judge Trial Court Cause No. 03C01-1504-PC-1915

Shepard, Senior Judge.

[1] Jason Hubbell appeals the denial of his petition for post-conviction relief. We

affirm.

Court of Appeals of Indiana | Memorandum Decision 19A-PC-2058 | May 4, 2020 Page 1 of 10 Facts and Procedural History [2] The underlying facts, as stated in Hubbell’s direct appeal, are as follows:

Sharon Myers left for work at the Arvin plant early on the morning of May 13, 1997. She never arrived. Another employee of Arvin, Sherry Young, saw a man and a woman leaving the Arvin plant as she arrived at work that same morning. The woman looked similar to Myers. The man had one hand on the woman’s neck or back, and the two entered a white van and drove away.

The police came to the plant later that morning to look for Myers. Young had “mentally” made note of the license plate number and gave the police the number and a description of the van. The police traced the license plate number to a white van owned by Hubbell. Hubbell worked at the Arvin plant with Myers and had called in sick on May 13. Young then identified a picture of the van as the one she had seen that morning, and later that day identified Hubbell when police presented him to her.

In November 1997, skeletal remains were found in a marsh area in Johnson County and identified as Myers’ through dental records. An autopsy showed a fracture in the hyoid bone which, together with the size of a ligature found around Myers’ neck, indicated that the cause of death was manual strangulation. Acrylic fibers found near the body were consistent with fibers found in Hubbell’s van. Grass fragments found in the search of the van were consistent with grass samples from the marsh. . . .

On August 31, 1998, Hubbell was indicted by a grand jury on the charges of murder and criminal confinement. On September 28, Hubbell filed a notice of alibi, which he amended on October 15. The State did not respond. At trial, the State introduced parts of

Court of Appeals of Indiana | Memorandum Decision 19A-PC-2058 | May 4, 2020 Page 2 of 10 Hubbell’s statements made following a polygraph examination. The State also introduced testimony from a jail inmate that Hubbell admitted the killing to him.

Hubbell v. State, 754 N.E.2d 884, 887-88 (Ind. 2001) (internal footnote omitted).

[3] Additional facts presented at trial supported the jury’s verdict. As the Arvin

human resources clerk, Myers handled insurance and disability matters. In that

position she had several interactions with Hubbell, who was having difficulty

obtaining disability payments and adding his newborn son to his insurance.

Further, an investigating officer testified at trial that Hubbell told him “it might

be possible” that he was responsible for Myers’ disappearance and that “he

can’t say that he did do it, but he has prayed to God every night since then that

it isn’t so.” Trial Tr. Vol. 17, p. 129.

[4] At the end of a four-week jury trial in late 1999, Hubbell was convicted of both

charges. The court sentenced him to consecutive terms of sixty-five years for

murder and ten years for confinement. Hubbell, 754 N.E.2d at 888.

[5] On direct appeal, Hubbell raised ten issues, and our Supreme Court affirmed

the judgment. See id. at 887.

[6] In 2002, Hubbell filed a pro se petition for post-conviction relief, which was

denied in 2015. Still acting as his own counsel, Hubbell appealed. This Court

reversed and remanded with instructions for the post-conviction court to obtain

the direct appeal record and permit Hubbell to question his witnesses and

Court of Appeals of Indiana | Memorandum Decision 19A-PC-2058 | May 4, 2020 Page 3 of 10 present his arguments with the benefit of the record. See Hubbell v. State, 58

N.E.3d 268 (Ind. Ct. App. 2016).

[7] In December 2016, Hubbell filed an amended post-conviction petition, which

the court heard in February 2019. The court took the matter under advisement

and denied Hubbell’s petition in August. He now appeals.

Issues [8] Hubbell presents two issues, which we restate as:

I. Whether the post-conviction court erred by denying Hubbell’s claim of ineffective assistance of appellate counsel.

II. Whether the post-conviction court erred by denying Hubbell’s request for discovery of evidence in an unrelated case.

Discussion and Decision [9] As the post-conviction court has denied relief, the petitioner appeals from a

negative judgment and faces the rigorous burden of showing that the evidence,

as a whole, leads unerringly and unmistakably to a conclusion opposite that

reached by the post-conviction court. Harris v. State, 762 N.E.2d 163 (Ind. Ct.

App. 2002), trans. denied. 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. Kistler v. State, 936

N.E.2d 1258 (Ind. Ct. App. 2010), trans. denied. In this review, findings of fact

Court of Appeals of Indiana | Memorandum Decision 19A-PC-2058 | May 4, 2020 Page 4 of 10 are accepted unless they are clearly erroneous, and no deference is accorded to

conclusions of law. Id.

I. Ineffective Assistance [10] To prevail on a claim of ineffective assistance of counsel, a defendant is

required to establish both (1) that counsel’s performance was deficient and (2)

that counsel’s deficient performance prejudiced the defendant. Johnson v. State,

948 N.E.2d 331 (Ind. 2011) (citing Strickland v. Washington, 466 U.S. 668, 687-

96, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). To satisfy the first element, the

defendant must show that counsel’s representation fell below an objective

standard of reasonableness and that counsel’s errors were so serious that the

defendant was denied the counsel guaranteed by the Sixth Amendment. Bethea

v. State, 983 N.E.2d 1134 (Ind. 2013). In order to satisfy the second element,

the defendant must show prejudice; that is, a reasonable probability that, but for

counsel’s errors, the result of the proceeding would have been different. Id.

There is a strong presumption that counsel rendered effective assistance and

made all significant decisions in the exercise of reasonable professional

judgment, and the defendant has the burden of overcoming this presumption.

Harris, 762 N.E.2d 163.

[11] Hubbell asserts that his appellate counsel was ineffective for failing to raise a

double jeopardy issue on appeal. Because the strategic decision regarding

which issues to raise on appeal is one of the most important decisions to be

made by appellate counsel, counsel’s failure to raise a specific issue on direct

Court of Appeals of Indiana | Memorandum Decision 19A-PC-2058 | May 4, 2020 Page 5 of 10 appeal rarely constitutes ineffective assistance. Brown v. State, 880 N.E.2d 1226

(Ind. Ct. App. 2008), trans. denied. “For countless years, experienced advocates

have ‘emphasized the importance of winnowing out weaker arguments on

appeal and focusing on one central issue if possible, or at most a few key

issues.’” Walker v. State, 988 N.E.2d 1181, 1191 (Ind. Ct. App. 2013) (quoting

Bieghler v. State, 690 N.E.2d 188, 194 (Ind. 1997)), trans. denied. Accordingly, on

review, we should be particularly deferential to appellate counsel’s strategic

decision to exclude certain issues in favor of other issues more likely to result in

a reversal. Id. To prevail on such a claim, a defendant must show from the

information available in the trial record or otherwise known to appellate

counsel that counsel failed to present a significant and obvious issue and that

this failure cannot be explained by any reasonable strategy. Ben-Yisrayl v. State,

738 N.E.2d 253 (Ind. 2000).

[12] Hubbell’s trial counsel was also his appellate counsel. Prior to Hubbell’s

sentencing, counsel filed with the trial court a motion to vacate or reduce the

confinement conviction on double jeopardy grounds. The State filed a response

identifying the evidence that supported separate injuries so as to avoid any

violation of Hubbell’s double jeopardy rights. The State pointed to trial

evidence of loss of consciousness and a cigarette burn that the jury could have

found fulfilled the serious bodily injury element of Hubbell’s confinement

charge. The court denied Hubbell’s motion.

[13] As we noted above, on direct appeal, Hubbell’s counsel raised ten issues. Our

Supreme Court affirmed.

Court of Appeals of Indiana | Memorandum Decision 19A-PC-2058 | May 4, 2020 Page 6 of 10 [14] Hubbell’s trial/appellate counsel testified at both his post-conviction hearings,

stating that the State’s response to the motion to vacate “laid out a compelling

case that the[re] were separate facts used to convict [Hubbell] of both the

criminal confinement and the murder.” 2015 PCR Tr. Vol. 1, p. 68.

Additionally, counsel testified he believed there were “other compelling or

stronger arguments to have the conviction reversed.” Id. And later he

reiterated, “[W]e did consider raising that on appeal, but it was decided, as I

testified last time that we felt that the State’s argument was strong, that we

wouldn’t be successful on that argument, and we had more arguments that we

felt were going to be more successful in the appeal than that would have been

and we made a conscious decision not to include it.” 2019 PCR Tr. Vol. 2, p.

12. Counsel also indicated that a successful double jeopardy argument would

have resulted only in a reduction of sentence whereas success on the issues

raised on appeal had the potential to lead to a reversal. Id. at 57.

[15] The post-conviction court observed that Hubbell’s trial/appellate counsel

argued double jeopardy to the trial court based on the Richardson test, that the

State responded with compelling arguments, and that the trial judge, who had

just presided over the trial, denied Hubbell’s motion. The post-conviction court

further found that counsel made a strategic decision not to include the double

jeopardy claim on appeal due to the State’s strong argument in the trial court

and the trial court’s decision, as well as the existence of stronger issues. Finally,

the court noted that counsel attempted to show the cumulative effect of multiple

Court of Appeals of Indiana | Memorandum Decision 19A-PC-2058 | May 4, 2020 Page 7 of 10 trial errors in an attempt to obtain a reversal of Hubbell’s convictions and, to do

so, used 13,997 of the allotted 14,000 words in his appellate brief.

[16] Hubbell’s appellate counsel testified that his decision not to raise a double

jeopardy claim on appeal was a strategic decision based on his assessment of

other possible claims and their corresponding potential benefit. Moreover, his

assessment was informed by the practice run in the trial court, and counsel was

thus able to make his decision in light of the State’s argument and the court’s

decision on the motion to vacate. Hubbell has not met his burden of showing

that his appellate counsel failed to present a significant and obvious issue and

that the failure cannot be explained by any reasonable strategy.

II. Request for Discovery [17] Hubbell next contends the post-conviction court erred by denying his motion

for discovery of the record of the unrelated criminal case of Michael Dean

Overstreet.

[18] Post-conviction proceedings are governed by the same rules applicable in civil

proceedings, including discovery procedures. Ind. Post-Conviction Rule 1(5).

Trial and post-conviction courts are afforded broad discretion in ruling on

discovery matters, and we will affirm their determinations absent a showing of

clear error and resulting prejudice. Wilkes v. State, 984 N.E.2d 1236 (Ind. 2013).

[19] Hubbell claims the post-conviction court’s ruling deprived him of his ability to

“fully question, present evidence, and argue [his] position that Michael Dean

Overstreet was the perpetrator of the crimes committed in [his] case.” Court of Appeals of Indiana | Memorandum Decision 19A-PC-2058 | May 4, 2020 Page 8 of 10 Appellant’s Br. pp. 21-22. However, Hubbell posed questions and argued his

position during his evidentiary hearings. At his first hearing, Hubbell

questioned his trial counsel about counsel’s investigation into Overstreet as a

suspect in the disappearance of Myers. Counsel testified that he deposed the

detective/lead investigator in Hubbell’s case who stated he had looked into

Overstreet but “could never come up with any connection.” 2015 PCR Tr. Vol.

1, p. 16. Referring to Overstreet, counsel further testified that he “thoroughly

investigated that lead at the trial stages and ruled him out positively.” Id. at 89.

Counsel recalled checking Overstreet’s BMV registration and records to

determine if he had a van of the type that was described by Sherry Young,

talking with Overstreet’s attorneys, and reviewing all the media coverage of the

Overstreet case. He stated, “The facts weren’t matching up. We made a

conclusion that he wasn’t an alternate suspect. If he would have been, we

absolutely would have included him in there. In fact, we had two other

alternate suspects that we included[,]” one of whom admitted to the murder.

Id. at 90; 2019 PCR Tr. Vol. 2, p. 17.

[20] At Hubbell’s second hearing, counsel again stated that he had thoroughly

investigated Overstreet but that he “wasn’t a viable alternative suspect.” 2019

PCR Tr. Vol. 2, p. 17. Hubbell extensively questioned his counsel as to his

investigation of Overstreet. See id. at 29-48.

[21] There was no basis for the court to allow Hubbell to engage in a fishing

expedition fueled merely by his speculation or hope that there is relief to be

found. See Roche v. State, 690 N.E.2d 1115, 1132 (Ind. 1997) (post-conviction is

Court of Appeals of Indiana | Memorandum Decision 19A-PC-2058 | May 4, 2020 Page 9 of 10 not device for investigating possible claims, but rather means for vindicating

actual claims). Hubbell has failed to demonstrate that the post-conviction

court’s refusal to allow him to obtain the records in Overstreet’s unrelated

criminal case was clearly erroneous.

Conclusion [22] Based on the foregoing, we conclude Hubbell has not met his burden of

showing the evidence leads unerringly and unmistakably to a conclusion

opposite that reached by the post-conviction court.

[23] Affirmed.

Bradford, C.J., and Bailey, J., concur.

Court of Appeals of Indiana | Memorandum Decision 19A-PC-2058 | May 4, 2020 Page 10 of 10