Robert White v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: October 18, 2017
• Docket: 18A02-1703-PC-550
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Oct 18 2017, 9:46 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 Robert White Curtis T. Hill, Jr. Greencastle, Indiana Attorney General of Indiana J.T. Whitehead Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Robert White, October 18, 2017 Appellant-Petitioner, Court of Appeals Case No. 18A02-1703-PC-550 v. Appeal from the Delaware Circuit Court State of Indiana, The Honorable Appellee-Respondent. Kimberly S. Dowling, Judge Trial Court Cause No. 18C02-1609-PC-18

Kirsch, Judge.

[1] Robert White (“White”) appeals the summary denial of his successive petition

for post-conviction relief (“PCR”) raising two issues, of which we find the

Court of Appeals of Indiana | Memorandum Decision 18A02-1703-PC-550 | October 18, 2017 Page 1 of 13 following restated issue to be dispositive: whether the post-conviction court

erred by granting the State’s motion for summary disposition as to White’s

successive PCR petition without holding an evidentiary hearing.

[2] We reverse and remand for further proceedings.1

Facts and Procedural History [3] The facts related to White’s underlying offenses were set forth in his direct

appeal, White v. State, 756 N.E.2d 1057, 1059 (Ind. Ct. App. 2001), trans. denied.

In May 2000, White forced his way into R.A.’s apartment in Muncie, Indiana,

threatened to kill her, performed oral sex on her, and raped her twice. A jury

found White guilty of one count of Class A felony rape, and in February 2001,

the trial court sentenced him to forty years executed. White’s conviction and

sentence were affirmed on direct appeal. In May 2002, White, pro se, filed his

first PCR petition, which the post-conviction court denied. In November 2003,

our court affirmed the post-conviction court’s denial of White’s petition.

[4] Thirteen years later, White requested permission to file a successive PCR

petition on the grounds of newly discovered evidence. Our court granted

White’s motion after finding he had “established a reasonable possibility that he

[was] entitled to post-conviction relief.” Appellant’s App. Vol. II at 10-11. On or

about September 15, 2016, White, pro se, filed his Form for Successive Post-

1 White also contends that he was denied the right to counsel. Because we remand for further proceedings, we need not discuss that issue.

Court of Appeals of Indiana | Memorandum Decision 18A02-1703-PC-550 | October 18, 2017 Page 2 of 13 Conviction Relief Rule 1 Petition (“Successive PCR Petition”), with attached

Exhibits A and B, alleging that trial counsel was ineffective for not timely

notifying him of the State’s plea offer.2 Exhibit A was a one-page fax, dated

June 22, 2000, sent from the prosecutor’s office to White’s trial attorney, Alan

Wilson (“Wilson”). Exhibit A reflected the State’s offer to allow White to

plead guilty to a lesser-included Class B felony and set October 12, 2000 as the

deadline for accepting the offer. Exhibit B was a copy of just the transmission

page of a five-page fax, dated November 20, 2000, sent from Wilson to the

prosecutor’s office and on which Wilson had handwritten, “I blew this one.”

Id. at 9. White offered these faxes as newly discovered evidence of Wilson’s

ineffective representation.3

[5] The State filed an answer to White’s Successive PCR Petition, and White, pro

se, filed his response. On October 17, 2016, the post-conviction court held a

pre-trial hearing, at which White participated via telephone. Tr. Vol. II at 3.

During that hearing, the State informed the post-conviction court of its intent to

file for summary disposition, and White agreed to take part in the summary

disposition hearing via telephone. Id. 4, 6. However, as the following

2 While discussed by both parties in their briefs, the Successive PCR Petition (with attached Exhibits A and B), is not in the record before us. We note, however, that the State filed the Successive PCR Petition with the post-conviction court as part of its designated evidence relating to the State’s motion for summary disposition. Because this appeal arises from those proceedings, we take judicial notice of, and incorporate herein, the Successive PCR Petition and its exhibits, a copy of which can be found in Indiana’s Odyssey Case Management System under the trial court cause number 18C02-1609-PC-18. See Horton v. State, 51 N.E.3d 1154, 1160 (Ind. 2016) (Indiana Evidence Rule 201(b)(5), as amended effective January 1, 2010, “now permits courts to take judicial notice of ‘records of a court of this state[.]’” 3 White said that he had found the two faxes in a file that had only been released to him in October 2015.

Court of Appeals of Indiana | Memorandum Decision 18A02-1703-PC-550 | October 18, 2017 Page 3 of 13 exchange reflects, White asked to be present for the post-conviction evidentiary

hearing:

THE COURT: . . . I’m trying to figure out the logistics of the trial. So first of all, do you have any objection to handling that trial by telephone on February 2nd?

THE PETITIONER: I would rather be present.

THE COURT: You would rather be present. All right, then I’ll have the court reporter do an order to transport you for that hearing, all right.

THE PETITIONER: All right.

THE COURT: Okay. But, the summary judgment hearing I think we can do by phone. And, when we get that, I’ll set a separate hearing for that, okay.

Id. at 6.

[6] On October 21, 2016, the State filed a petition for summary disposition as to the

Successive PCR Petition and attached thereto an affidavit sworn to by trial

attorney Wilson.4 Appellant’s App. Vol. II at 3. As part of his affidavit, Wilson

4 Also attached to the State’s petition for summary disposition was an affidavit sworn to by an attorney with the prosecutor’s office. That affidavit addressed only issues pertaining to Exhibit B. Specifically, the attorney said that Wilson’s comment, “I blew it,” related only “to the fact that Wilson had not timely filed a notice of

Court of Appeals of Indiana | Memorandum Decision 18A02-1703-PC-550 | October 18, 2017 Page 4 of 13 declared, “The November 20, 2000 fax cover sheet[, Exhibit B,] in no way

related to the [sic] whether I timely conveyed the State’s plea offer to Mr.

White. I conveyed the offer to Mr. White before the offer expired. After he and I

discussed the offer, Mr. White chose to reject the offer and proceed to trial wherein he

was convicted of Rape, a Class A Felony.” Id. at 21-22 (emphasis added).

[7] On November 28, 2016, the post-conviction court held a hearing on the State’s

motion for summary disposition; only the State’s attorney and White, via

telephone, participated in that hearing. In support of its position, the State

argued “that there were two (2) affidavits that were attached to [the State’s]

motion, both which clearly dispute what Mr. White claims in his petition. I

think based on those affidavits I think the Court is within its authority to grant

that motion.”5 Tr. Vol. II at 13. The State argued that there were three issues,

all of which [were] ineffective assistance of counsel at the various stages of the case[, trial, appellate, and post-conviction]. Based on what the facts of this case are and as the evidence appears to show, there doesn’t appear to be any genuine issue of material fact. And given that fact and the nature of evidence that [the State] submitted with [its] motion for summary judgment, the State would just ask that the Court grant that motion.

intent to offer evidence under Rule 412.” Appellant’s App. Vol. II at 28. White raises no issues pertaining to Exhibit B. Accordingly, the prosecutor’s affidavit is irrelevant to White’s claim on appeal. 5 The affidavits to which the State referred were those of Wilson and the prosecutor. However, as we note above, only Wilson’s affidavit is relevant to the question of whether there was a genuine issue of material fact that Wilson told White about the State’s plea offer.

Court of Appeals of Indiana | Memorandum Decision 18A02-1703-PC-550 | October 18, 2017 Page 5 of 13 Id. at 12. The State’s key evidence was Wilson’s statement that he had

communicated the plea offer to White—a statement that, if true, would have

undermined each of White’s claims for ineffective assistance of counsel.

[8] White, under oath, disagreed with the State’s argument and engaged with the

post-conviction court in the following exchange:

THE COURT: Okay. Well I understand that you disagree, but the State’s motion was kind of, was detailed and it had some affidavits and some documents attached to it. So I’m going to need you to address what the State has alleged in their filing.

THE PETITIONER: . . . I’m saying my attorney was ineffective. He never did tell me about the plea bargain. You know, what I’m saying. That’s my argument. I’m going to stand by it. If he had told me about the plea bargain, I would have signed the plea bargain. There’s a difference between an A and a B [felony], you know what I’m saying. The man has took [sic] seventeen (17) years of my life, you know what I’m saying, when I could have signed the plea bargain and been home with my kids. . . .

Id. at 12-13.

[9] After both sides had rested, the post-conviction court asked White whether

there was anything else he wanted to introduce into evidence. Id. at 15. White

responded that he wanted a witness subpoenaed to court to testify that Wilson

had also failed to inform the witness of a plea offer. Id. The State objected on

the basis that the witness had no specific knowledge about White’s case, and

the post-conviction court, after taking the matter under advisement, denied

Court of Appeals of Indiana | Memorandum Decision 18A02-1703-PC-550 | October 18, 2017 Page 6 of 13 White’s request for a subpoena. Id. at 15-17. The post-conviction court granted

the State’s motion for summary disposition on December 13, 2016, effectively

denying White’s Successive PCR Petition. Appellant’s App. Vol. II at 40-42. The

post-conviction court supported its conclusion, in part, with the following

findings:

13. The November 20, 2000 fax cover sheet in no way related to whether trial counsel timely conveyed the State’s plea offer to [White].6

14. Trial counsel conveyed the plea offer to [White] before the offer expired. After counsel discussed the plea offer with [White], [White] chose to reject the offer and proceed to trial wherein he was convicted of Rape, a Class A felony.

15. Consequently, there is no genuine issue of material fact as to the claim alleged in Paragraphs 8(a) and 9 (a) of the Successive Petition for Post-Conviction Relief and the State of Indiana is entitled to judgement as a matter of law.

Id. at 41.

[10] White filed a motion to correct error. During the hearing on that motion,

White said, “I’m not really concerned about exhibit B [Wilson’s fax saying, “I

BLEW IT”]. Exhibit A [the fax from the State advising Wilson of the plea

offer] is my main, you know what I'm saying, about my whole appeal anyway.

6 White does not dispute this fact.

Court of Appeals of Indiana | Memorandum Decision 18A02-1703-PC-550 | October 18, 2017 Page 7 of 13 He [the deputy prosecutor] keep saying [sic] in here about exhibit A and exhibit

B, but I don’t care about exhibit B. I’m talking about exhibit A.” Tr. Vol. II at

22. White explained that Exhibit A was important because it reflected the

existence of a plea offer. White argued, “[Wilson] states in his affidavit that he

told me about a plea bargain. [Wilson] never told me about anything.” Id. at

23. White testified that he filed the Successive PCR Petition because:

[Wilson] was ineffective and he never told me about a plea bargain. I would have took [sic] an open B over a Class A felony, you know what I’m saying. I never knew about it . . . . But, if I knew about it, I would have took [sic] it. Who wouldn’t? You know what I’m saying, fifty (50) years to twenty (20) years, I would have took [sic] it. He never told me anything.

Id. at 23-24.

[11] The State, in turn, argued that White’s motion to correct error should be denied

because White’s testimony during the summary disposition hearing consisted

only of hearsay, i.e., stories from other inmates. Id. at 24. The State

asserted that White offered no evidence to refute Wilson’s sworn statement

that he told White about the plea offer. Id. The State inquired:

[C]an White now today reopen the evidence in the matter and now say, present his testimony that he disputes what Mr. Wilson is saying? I don't know the answer to that question. It seems to me he can’t. I mean, the verified motion to correct error is asking you to fix a legal error, not reopen the hearing on summary judgment. But, so I think that's where we’re at.

Court of Appeals of Indiana | Memorandum Decision 18A02-1703-PC-550 | October 18, 2017 Page 8 of 13 ....

I mean, if you’re still convinced that there’s no genuine issue of material fact, then I think the verified motion to correct error should be denied. If you think there is a genuine issue of material fact, then I suppose we should, you should set the order on my motion for summary judgment aside and set the matter for hearing.

Id. at 25. The post-conviction court noted that White offered no new evidence

regarding the existence of a genuine issue of material fact and denied White’s

motion to correct error. Id. at 26. White now appeals.

Discussion and Decision [12] Our standard of review in post-conviction proceedings is well settled. Post-

conviction proceedings do not grant a petitioner a “super-appeal” but are

limited to those issues available under the Indiana Post-Conviction Rules.

Binkley v. State, 993 N.E.2d 645, 649 (Ind. Ct. App. 2013) (citing Shepherd v.

State, 924 N.E.2d 1274, 1280 (Ind. Ct. App. 2010), trans. denied). Such

proceedings are civil in nature, and petitioners bear the burden of proving their

grounds for relief by a preponderance of the evidence. Ind. Post-Conviction

Rule 1(5). “‘A petitioner who appeals the denial of PCR faces a rigorous

standard of review, as the reviewing court may consider only the evidence and

the reasonable inferences supporting the judgment of the post-conviction

court.’” Id. (quoting Shepherd, 924 N.E.2d at 1280). The appellate court must

accept the post-conviction court’s findings of fact and may reverse only if the

findings are clearly erroneous. Id. If a PCR petitioner was denied relief, he or

Court of Appeals of Indiana | Memorandum Decision 18A02-1703-PC-550 | October 18, 2017 Page 9 of 13 she must show that the evidence as a whole leads unerringly and unmistakably

to an opposite conclusion than that reached by the post-conviction court.”

Osmanov v. State, 40 N.E.3d 904, 907 (Ind. Ct. App. 2015).

[13] White appeals the post-conviction court’s order summarily denying post-

conviction relief on his Successive PCR Petition. Specifically, he claims that

the post-conviction court erred when it failed to hold an evidentiary hearing

because there existed the disputed fact of whether trial counsel informed him of

the State’s plea offer.

[14] “A claim of ineffective assistance of [trial] counsel must satisfy two

components.” Woods v. State, 48 N.E.3d 374, 377 (Ind. Ct. App. 2015) (citing

Strickland v. Washington, 466 U.S.668, 687 (1984)). “First, 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.” Id. (citing

Strickland, 466 U.S. at 687). “Second, 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 669).

[15] Here, the State moved for summary disposition. Post-Conviction Rule 1,

section 4, subsection (g) provides that a court may grant summary disposition

upon motion by either party and after considering the pleadings and other

evidence submitted.

Court of Appeals of Indiana | Memorandum Decision 18A02-1703-PC-550 | October 18, 2017 Page 10 of 13 [16] When a court disposes of a petition under subsection (g):

[W]e review the lower court’s decision as we would a motion for summary judgment. We face the same issues that were before the post-conviction court and follow the same process. A grant of summary disposition is erroneous unless there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. We must resolve all doubts about facts, and the inferences to be drawn from the facts, in the non- movant’s favor. The appellant has the burden of persuading us that the post-conviction court erred.

Binkley, 993 N.E.2d at 650 (quoting Allen, 791 N.E.2d at 753) (internal

quotation marks omitted). As our Supreme Court has explained:

An appellate court reviews the grant of a motion for summary disposition in post-conviction proceedings on appeal in the same way as a motion for summary judgment. Thus summary disposition, like summary judgment, is a matter for appellate de novo determination when the determinative issue is a matter of law, not fact.

McClure v. State, 71 N.E.3d 845, 847 (Ind. Ct. App. 2017) (quoting Norris v.

State, 896 N.E.2d 1149, 1151 (Ind. 2008) (citations omitted)), trans. denied. “In

summary judgment proceedings, the moving party . . . is the party that bears the

burden to demonstrate that there is no genuine issue of material fact and that it

is entitled to judgment as a matter of law.” Id. (citing Hughley v. State, 15

N.E.3d 1000, 1003-04 (Ind. 2014)). Once the movant, in this case the State, has

sustained this burden, the opponent must respond by setting forth specific facts

showing a genuine issue for trial.

Court of Appeals of Indiana | Memorandum Decision 18A02-1703-PC-550 | October 18, 2017 Page 11 of 13 [17] White’s Successive PCR Petition alleged that he was prejudiced by Wilson’s

ineffective representation because, without knowledge of the State’s plea offer,

which White claims he would have accepted, White was subjected to a longer

sentence. As part of its motion for summary disposition, the State offered

Wilson’s affidavit that in relevant part said, “I [timely] conveyed the [plea] offer

to Mr. White before the offer expired. After he and I discussed the offer, Mr.

White chose to reject the offer and proceed to trial . . . .” Appellant’s App. Vol. II

at 21-22. Through this affidavit, the State met its burden of showing there was

no genuine issue of material fact, and the burden shifted to White to show that

a genuine issue of material fact existed on the issue of whether he was told

about the plea offer.

[18] During the hearing on the State’s motion for summary disposition, White, via

telephone, testified under oath as follows:

I’m saying my attorney was ineffective. He never did tell me about the plea bargain. You know, what I’m saying. That’s my argument. I’m going to stand by it. If he had told me about the plea bargain, I would have signed the plea bargain. There’s a difference between an A and a B [felony], you know what I’m saying. The man has took [sic] seventeen (17) years of my life, you know what I’m saying, when I could have signed the plea bargain and been home with my kids. . . .

Tr. Vol. II at 13.

[19] Facts are decided, in part, based on the credibility of witnesses. During the

preliminary hearing, White had requested of the post-conviction court that he

Court of Appeals of Indiana | Memorandum Decision 18A02-1703-PC-550 | October 18, 2017 Page 12 of 13 be allowed to be present during hearings. The post-conviction court agreed that

White could be physically present at the evidentiary hearing on the Successive

PCR Petition, but concluded that White would appear via telephone for the

hearing on the State’s motion for summary disposition. At the summary

disposition hearing, both White and Wilson gave conflicting statements under

oath that were significant to the determination of whether Wilson informed

White about the State’s plea offer. The statements of White and Wilson were

supported by nothing more than the post-conviction court’s determination of

their credibility. Because the ineffectiveness claim relied on a factual

determination of whether Wilson told White about the State’s plea offer, the

post-conviction court had before it a genuine issue of material fact. It was not

within the province of the post-conviction court to grant the State’s motion for

summary disposition by deciding a genuine issue of material fact as part of the

summary disposition hearing.

[20] Finding that the post-conviction court erred in summarily denying White’s

Successive PCR Petition, we reverse the post-conviction court’s grant of the

State’s motion for summary disposition and remand this case to the post-

conviction court for a hearing on the merits of whether White’s trial counsel

denied him the right to effective assistance of counsel.

[21] Reversed and remanded for further proceedings.

[22] Najam, J., and Brown, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A02-1703-PC-550 | October 18, 2017 Page 13 of 13