MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Jun 23 2016, 8:57 am this Memorandum Decision shall not be CLERK regarded as precedent or cited before any Indiana Supreme Court Court of Appeals court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE Kelvin Underwood Gregory F. Zoeller Westville, Indiana Attorney General of Indiana Ian McLean Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Kelvin Underwood, June 23, 2016 Appellant-Defendant, Court of Appeals Case No. 02A03-1507-PC-835 v. Appeal from the Allen Superior Court State of Indiana, The Honorable Frances C. Gull, Appellee-Plaintiff. Judge Trial Court Cause No. 02D06-1412-PC-165
Robb, Judge.
Court of Appeals of Indiana | Memorandum Decision 02A03-1507-PC-835 | June 23, 2016 Page 1 of 15 Case Summary and Issue [1] In 2011, Kelvin Underwood pleaded guilty to robbery, a Class C felony, and
theft, a Class D felony, and the trial court sentenced him to eleven years in the
Indiana Department of Correction with five years suspended to probation. In
December 2014, Underwood filed a pro se petition for post-conviction relief,
which the post-conviction court dismissed because Underwood failed to submit
his case by affidavit. Underwood appeals the dismissal, pro se, raising eight
issues for our review, which we consolidate and restate as whether the post-
conviction court erred in dismissing his petition for post-conviction relief.
Concluding the post-conviction court did not err in dismissing Underwood’s
petition, we affirm.
Facts and Procedural History [2] On December 13, 2011, Underwood pleaded guilty to robbery as a Class C
felony and theft as a Class D felony. The trial court accepted the pleas, and on
January 9, 2012, entered judgment of conviction and sentenced Underwood to
eleven years in the Department of Correction with five years suspended to
probation. On May 24, 2013, Underwood filed a Motion to Compel, which the
trial court denied. 1 On August 30, 2013, Underwood filed a Petition for
1 At all times relevant herein, Underwood proceeded pro se. At the outset, we note many of the motions filed by Underwood are not included in the record. As a result, we rely heavily on the Chronological Case Summary in order to create a clear timeline. In addition, we note—because the motions, documents, and
Court of Appeals of Indiana | Memorandum Decision 02A03-1507-PC-835 | June 23, 2016 Page 2 of 15 Verified Copy of Record of Proceedings. On September 6, 2013, the trial court
denied Underwood’s request for his sentencing transcripts. 2
[3] On December 8, 2014, Underwood filed a verified petition for post-conviction
relief, alleging he involuntarily, unknowingly, and unintelligently pleaded guilty
and he received ineffective assistance of trial counsel. On the same day, he filed
a motion for change of judge, which the post-conviction court denied. On
December 15, 2014, the State moved to require Underwood to submit his case
by affidavit. On January 8, 2015, the post-conviction court granted the State’s
motion to require Underwood to submit his case by affidavit by April 8, 2015.
[4] On February 9, 2015, Underwood filed a notice of appeal from the post-
conviction court’s order requiring he submit his case by affidavit.. On March 2,
2015, the county clerk issued a Notice of Completion of Clerk’s Record, stating
the court reporter need not prepare transcripts for appeal as no hearings in the
post-conviction court were conducted. On March 10, 2015, we dismissed
Underwood’s appeal with prejudice because it was untimely pursuant to
Indiana Appellate Rule 9(A)(1); we further concluded Underwood forfeited his
petitions are not included in the record—we are without sufficient knowledge of Underwood’s specific requests. Therefore, we address these motions by their titles. 2 Neither the August 30 petition nor the September 6 order are included in the record. But given the notes in the Chronological Case Summary, coupled with the nature of this appeal, we presume Underwood—almost seventeen months after the trial court sentenced him—requested his sentencing transcripts in the August 30 petition.
Court of Appeals of Indiana | Memorandum Decision 02A03-1507-PC-835 | June 23, 2016 Page 3 of 15 right to appeal the post-conviction court’s order requiring him to submit his
case by affidavit.
[5] On May 4, 2015, Underwood filed with the post-conviction court a document
alleging the post-conviction court failed to rule on his motion to proceed in
forma pauperis. Because we previously dismissed Underwood’s appeal, the
post-conviction court denied his motion to proceed in forma pauperis as moot.
On June 11, 2015, the State moved to dismiss Underwood’s petition for post-
conviction relief. On the same day, the post-conviction court dismissed
Underwood’s petition because he failed to submit his case by affidavit by April
8, 2015, as ordered.
[6] On July 2, 2015, Underwood filed his notice of appeal from the dismissal of his
petition for post-conviction relief. On July 8, 2015, Underwood filed a motion
with the post-conviction court requesting the post-conviction court order the
county clerk to prepare and deliver a transcript of his guilty plea and sentencing
hearings. On July 16, 2015, the post-conviction court issued an order denying
Underwood’s motion because it had already dismissed his petition. In the same
order, the court noted it received a copy of Underwood’s Verified Petition for
Leave to Prosecute Appeal as an Indigent person and granted that motion.
[7] On September 11, 2015, Underwood filed a motion requesting copies of the
guilty plea and sentencing hearings with this court. On October 2, 2015, we
denied Underwood’s motion and remanded to the post-conviction court to
determine whether to provide Underwood with a copy of the clerk’s record
Court of Appeals of Indiana | Memorandum Decision 02A03-1507-PC-835 | June 23, 2016 Page 4 of 15 and/or transcripts at the public’s expense. Further, we ordered Underwood to
file his request for a copy of the clerk’s record and transcript with the county
clerk within fifteen days.
[8] On October 19, 2015, Underwood filed a Motion for Transcripts Held Hearings
with the post-conviction court. On October 30, 2015, the post-conviction court
denied the motion because “nothing is pending in the trial court. Court further
notes that defendant is appealing the Court’s dismissal of his Post-Conviction
Relief Petition for failing to submit his affidavit as ordered on January 8, 2015.”
Appellant’s Appendix Volume I at 20. On the same day, Underwood filed with
this court an Appellant’s Notice of Trial Courts Non-Compliance with
Appellate Court Order, alleging the post-conviction court did not order the
county clerk to release the transcripts. On November 15, 2015, Underwood
filed an Emergency Request for Transcripts and Clerk Records relating to his
guilty plea and sentencing hearings. On November 17, 2015, we ordered the
county clerk to provide Underwood with a free copy of the clerk’s record in the
post-conviction proceedings, if it had not already done so, but did not order the
post-conviction court to provide Underwood with a copy of clerk’s record
related to his criminal trial. This appeal ensued.
Discussion and Decision [9] On appeal, Underwood argues the post-conviction court committed a litany of
errors. Specifically, he contends the post-conviction court erred in failing to
hold an evidentiary hearing, denying his request for transcripts, failing to
Court of Appeals of Indiana | Memorandum Decision 02A03-1507-PC-835 | June 23, 2016 Page 5 of 15 consider his verified petition as evidence, failing to rule on multiple motions,
failing to grant his motion for an enlargement of time to submit his case by
affidavit, failing to comply with his requests for subpoenas, and denying his
request for change of judge.3 We address each contention below.
I. Standard of Review [10] Defendants who have exhausted the direct appeal process may challenge the
correctness of their convictions and sentence by filing a post-conviction petition.
Ind. Post-Conviction Rule 1(1). The petitioner for post-conviction relief has the
burden of establishing his grounds for relief by a preponderance of the evidence.
P-C.R. 1(5); Timberlake v. State, 753 N.E.2d 591, 597 (Ind. 2001), cert. denied,
537 U.S. 839 (2002). Because Underwood is appealing from a negative
judgment, to the extent his appeal turns on factual issues, he must convince this
court that the evidence as a whole unmistakably and unerringly points to a
conclusion contrary to the post-conviction court’s decision. Timberlake, 753
N.E.2d at 597.
II. Evidentiary Hearing [11] Underwood contends the post-conviction court erred when it ordered him to
submit his case by affidavit and failed to conduct an evidentiary hearing,
3 Underwood also raises two issues pertaining to the merits of his petition for post-conviction relief. However, there has been no evidence admitted in this case and the post-conviction court is the appropriate court to address the merits of Underwood’s petition. Since the post-conviction court dismissed Underwood’s petition before reaching the merits, we decline to address the merits.
Court of Appeals of Indiana | Memorandum Decision 02A03-1507-PC-835 | June 23, 2016 Page 6 of 15 arguing an evidentiary hearing was required because “any submitted affidavits
would present factual issues” which the post-conviction court could not resolve
without an evidentiary hearing. Appellant’s Brief at 11.
[12] Post-Conviction Rule 1(5) provides,
The petition shall be heard without a jury. A record of the proceedings shall be made and preserved. All rules and statutes applicable in civil proceedings including pre-trial and discovery procedures are available to the parties, except as provided above in Section 4(b). The court may receive affidavits, depositions, oral testimony, or other evidence and may at its discretion order the applicant brought before it for the hearing. The petitioner has the burden of establishing his grounds for relief by a preponderance of the evidence.
Post-Conviction Rule 1(9)(b) provides, in part,
In the event petitioner elects to proceed pro se, the court at its discretion may order the cause submitted upon affidavit. It need not order the personal presence of the petitioner unless his presence is required for a full and fair determination of the issues raised at an evidentiary hearing. 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.
Post-Conviction Rule 1(4)(g) provides,
The court may grant a motion by either party for summary disposition of the petition when it appears from the pleadings,
Court of Appeals of Indiana | Memorandum Decision 02A03-1507-PC-835 | June 23, 2016 Page 7 of 15 depositions, answers to interrogatories, admissions, stipulations of fact, and any affidavits submitted, that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. The court may ask for oral argument on the legal issue raised. If an issue of material fact is raised, then the court shall hold an evidentiary hearing as soon as reasonably possible.
Emphasis added.
[13] Here, the post-conviction court, on January 8, 2015, ordered Underwood to
submit his pro se case by affidavit by April 8, 2015. Underwood did not submit
his case by affidavit by April 8, 2015. As a result, the post-conviction court did
not have the opportunity to exercise its discretion in determining whether the
affidavits raised an issue of material fact requiring an evidentiary hearing. See
P-C.R. 1(4)(g). Accordingly, the post-conviction court did not err in not
holding an evidentiary hearing.
III. Request for Transcripts [14] Underwood contends the post-conviction court erred in denying his request for
transcripts of his guilty plea and sentencing hearings. Post-Conviction Rule
1(9)(b) provides, in part,
Petitioners who are indigent and proceeding in forma pauperis shall be entitled to production of guilty plea and sentencing transcripts at public expense, prior to a hearing, if the petition is not dismissed. In addition, such petitioners shall also be entitled to a record of the post-conviction proceeding at public expense for appeal of the denial or dismissal of the petition.
Court of Appeals of Indiana | Memorandum Decision 02A03-1507-PC-835 | June 23, 2016 Page 8 of 15 Here, the post-conviction court dismissed Underwood’s petition on June 11,
2015. Underwood did not file a motion in the post-conviction court requesting
transcripts of his guilty plea and sentencing hearings until July 8, 2015.
Because Underwood’s petition had already been dismissed prior to his request
for transcripts, the post-conviction court did not err in denying his request.
IV. Verified Petition as Evidence [15] Underwood contends the post-conviction court erred in not considering his
verified petition for post-conviction relief as evidence. In support of his
contention, Underwood cites to State v. Cleland, 477 N.E.2d 537 (Ind. 1985), for
the proposition a verified petition for post-conviction relief should be
considered as evidence. In Cleland, Cleland filed verified petitions for post-
conviction relief in three traffic cases in which he had pleaded guilty. At the
evidentiary hearing, the three petitions were the only pieces of evidence
presented by either Cleland or the State. The post-conviction court granted
Cleland’s petitions, and the State appealed. On transfer, the State argued the
verified petitions were merely pleadings and therefore did not constitute
competent evidence because they were not admitted into evidence. However,
our supreme court concluded the verified petitions acted as affidavits,
reasoning, “[A]s the petitions were verified, absent a timely objection by the
State and under the circumstances of this case, the court could properly
consider them as evidence.” Id. at 538. In State v. Sanders, 596 N.E.2d 225, 227
(Ind. 1992), cert. denied, 507 U.S. 960 (1993), our supreme court sharply limited
Cleland’s holding, stating, “[T]he better reasoned rule of law is . . . a plaintiff
Court of Appeals of Indiana | Memorandum Decision 02A03-1507-PC-835 | June 23, 2016 Page 9 of 15 cannot maintain his position by pleading under oath and then resting on that
pleading.” (Citation and internal quotation marks omitted).
[16] Here, Underwood filed a verified petition for post-conviction relief, and the
State filed an answer alleging Underwood was not entitled to relief. On June
11, 2015, the post-conviction court dismissed the petition. Prior to the
dismissal, Underwood did not request his verified petition be treated as an
affidavit, Underwood did not submit affidavits in support of his petition, and
the post-conviction court did not hold an evidentiary hearing. We conclude the
circumstances before us are entirely distinguishable from those found in Cleland.
Therefore, Underwood’s attempt to rely solely on his verified petition fails. See
id. Accordingly, the post-conviction court did not err in not considering his
petition for post-conviction relief as evidence.
V. Underwood’s Motions [17] Underwood contends the post-conviction court erred, in some fashion, in
failing to address multiple motions or petitions he filed in either the trial court
or the post-conviction court.
[18] First, nearly seventeen months after the trial court sentenced him, Underwood
filed a Motion to Compel in the trial court on May 24, 2013. 4 On June 7,
2013, the trial court denied his motion. Then, on August 30, 2013, Underwood
4 It is unclear from the record what the motion was regarding.
Court of Appeals of Indiana | Memorandum Decision 02A03-1507-PC-835 | June 23, 2016 Page 10 of 15 filed in the trial court a Petition for Verified Copy of Record of Proceedings
requesting his sentencing transcripts. See supra note 2; see also Appellant’s Br. at
18 (noting this petition was a request for sentencing transcripts). On September
6, 2013, the trial court denied his petition. In confusing fashion, it appears
Underwood now argues the post-conviction court erred in not addressing his
Motion to Compel or Petition for Verified Copy of Record of Proceedings
despite Underwood not filing his petition for post-conviction relief until
December 8, 2014. Although we conclude the post-conviction court did not err
in this regard for a number of reasons, we note Underwood never filed these
documents in the post-conviction court and therefore the post-conviction court
could not have erred in failing to address them.
[19] Second, Underwood claims he filed a petition with the post-conviction court on
February 9, 2015, requesting his sentencing transcripts. However, we are
unable to locate the petition in the record and the Chronological Case
Summary does not indicate Underwood filed such a motion until July 8, 2015,
which we addressed above in Part.III. See Chambers v. State, 551 N.E.2d 1154,
1158 (Ind. Ct. App. 1990) (“On appeal, we can consider only those matters
which are contained in the record of proceedings submitted to the court.”).
Therefore, we cannot agree the post-conviction court erred in this regard.
[20] Third, Underwood claims the post-conviction court failed to rule on his
requests to proceed in forma pauperis. Although Underwood does not cite to
any portions of the record containing any of his motions to proceed in forma
pauperis, see id., nor does he cite to any authority supporting his claim of error,
Court of Appeals of Indiana | Memorandum Decision 02A03-1507-PC-835 | June 23, 2016 Page 11 of 15 see Ind. Appellate Rule 46(A)(8)(a), we note (1) the post-conviction court denied
one request to proceed in forma pauperis as moot, and (2) after the post-
conviction court dismissed Underwood’s petition, it granted his request to
proceed in forma pauperis. Therefore, the post-conviction court did not err in
this regard.
[21] Finally, on January 8, 2015, the post-conviction court ordered Underwood to
submit his case by affidavit by April 8, 2015. Underwood claims he filed, from
prison, a Request to Compel Affidavits and/or Enlargement of Time on March
26, 2015, but the post-conviction court did not rule on it. The Chronological
Case Summary does not note the motion was filed with the post-conviction
court, but Underwood has included the motion in the Appellant’s Appendix.
The motion, however, does not include a date, a filing stamp, or a certificate of
service.5 Therefore, the record does not indicate Underwood filed the motion,
and we cannot conclude the post-conviction court erred in failing to rule on a
motion that was never filed.6
5 In support of his contention he at least sent his motion to the post-conviction court, Underwood has included in the Appellant’s Appendix a mail log purporting to show the document was sent from the prison on March 26, 2015. In addition, Underwood has included a document, purportedly signed by the law library supervisor at the prison, stating the mail log is “used at Westville Correctional Facility to track when offenders have mailed out legal work to the courts.” Appellant’s App. at 154. Generally, when a prisoner claims to have timely filed a motion, Indiana courts require a pro se prisoner to provide reasonable, legitimate, and verifiable documentation to support such a claim. Dowell v. State, 922 N.E.2d 605, 607 (Ind. 2010). The copy of the mail log and the letter from the law librarian are not verified. See id. at 607-09. Therefore, we reject Underwood’s argument. 6 In a separate argument, Underwood attempts to argue his motion to compel affidavits was actually a request for the post-conviction court to issue subpoenas pursuant to Post-Conviction Rule 1(9)(b) and therefore the post-conviction erred in failing to issue subpoenas. Post-Conviction Rule 1(9)(b) states a pro se petitioner may request the post-conviction court issue “subpoenas for witnesses at an evidentiary hearing.”
Court of Appeals of Indiana | Memorandum Decision 02A03-1507-PC-835 | June 23, 2016 Page 12 of 15 VI. Change of Judge [22] Lastly, Underwood contends the post-conviction court erred in denying his
request for change of judge. Post-Conviction Rule 1(4)(b) provides,
Within ten [10] days of filing a petition for post-conviction relief under this rule, the petitioner may request a change of judge by filing an affidavit that the judge has a personal bias or prejudice against the petitioner. The petitioner’s affidavit shall state the facts and the reasons for the belief that such bias or prejudice exists, and shall be accompanied by a certificate from the attorney of record that the attorney in good faith believes that the historical facts recited in the affidavit are true. A change of judge shall be granted if the historical facts recited in the affidavit support a rational inference of bias or prejudice. For good cause shown, the petitioner may be permitted to file the affidavit after the ten [10] day period.
When a petitioner requests a change of judge, such change is neither
“automatic” nor “discretionary.” Lambert v. State, 743 N.E.2d 719, 728 (Ind.
2001) (citation omitted), cert. denied, 534 U.S. 1136 (2002). We review a post-
conviction court’s decision to deny a motion for change of judge under a clearly
erroneous standard. Azania v. State, 778 N.E.2d 1253, 1261 (Ind. 2002). A
decision is clearly erroneous if our review “leaves us with a definite and firm
conviction that a mistake has been made.” Sturgeon v. State, 719 N.E.2d 1173,
1182 (Ind. 1999). We presume a judge is not prejudiced against a party.
Here, at no point did the post-conviction court schedule an evidentiary hearing and therefore such a request was irrelevant.
Court of Appeals of Indiana | Memorandum Decision 02A03-1507-PC-835 | June 23, 2016 Page 13 of 15 Lambert, 743 N.E.2d at 728. To require a change of judge, a judge’s bias must
be personal. Id. Personal bias “stems from an extrajudicial source—meaning a
source separate from the evidence and argument presented at the proceedings.”
Id. Adverse rulings on judicial matters do not indicate a personal bias that calls
the trial court’s impartiality into question. Harrison v. State, 707 N.E.2d 767,
790 (Ind. 1999), cert. denied, 529 U.S. 1088 (2000).
[23] Here, Underwood filed his motion for change of judge on the same day he filed
his petition for post-conviction relief. The motion alleged change of judge was
necessary because (1) the judge had a personal relationship with Underwood’s
trial counsel, (2) Underwood intended on calling the judge to testify as to
Underwood’s claims of ineffective assistance of counsel during trial, and (3) the
judge made previously adverse rulings. However, Underwood did not state
with any specificity how the judge’s relationship with trial counsel would
impact his case or how the judge’s removal, for the purpose of testifying, was
necessary to protect him from suffering an unfair and impartial hearing.
Without more, these allegations merely amount to Underwood’s own self-
serving belief the judge was personally biased and needed to be removed. In
addition, the fact the judge made previous adverse rulings on judicial matters
does not indicate any personal bias towards Underwood. See Harrison, 707
N.E.2d at 790. We conclude the post-conviction court did not err in denying
Underwood’s motion for change of judge.
Conclusion Court of Appeals of Indiana | Memorandum Decision 02A03-1507-PC-835 | June 23, 2016 Page 14 of 15 [24] The post-conviction court properly exercised it discretion in ordering
Underwood to submit his case by affidavit. Underwood did not do so. We
conclude the post-conviction court did not err in dismissing Underwood’s
petition for post-conviction relief. Accordingly, we affirm.
[25] Affirmed.
Najam, J., and Crone, J., concur.
Court of Appeals of Indiana | Memorandum Decision 02A03-1507-PC-835 | June 23, 2016 Page 15 of 15