                                                                                Jul 22 2015, 9:56 am
                                                                                          Jul 22 2015, 9:56 am




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      Rodolfo S. Monterrosa, Jr.                                 Gregory F. Zoeller
      South Bend, Indiana                                        Attorney General of Indiana
                                                                 James B. Martin
                                                                 Deputy Attorney General
                                                                 Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Abdullatip Osmanov,                                        July 22, 2015

      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 35A04-1412-PC-568
              v.                                                 Appeal from the Huntington Superior
                                                                 Court

      State of Indiana,                                          Lower Court Cause No.
                                                                 35D01-1410-PC-14
      Appellee-Plaintiff.
                                                                 The Honorable Jeffrey R.
                                                                 Heffelfinger, Judge




      Pyle, Judge.


                                         Statement of the Case
[1]   Abdullatip Osmanov (“Osmanov”), a United States permanent resident who

      pled guilty to a felony and a misdemeanor, filed a petition for post-conviction

      relief, in which he claimed that his plea was entered unknowingly and that his

      trial counsel was ineffective, with both claims dependent on his contention that

      Court of Appeals of Indiana | Opinion 35A04-1412-PC-568 | July 22, 2015                                    Page 1 of 12
      he had not been advised of the risk of deportation. Before the State filed a

      response to the petition, the post-conviction court—relying on a written

      advisement and waiver of rights form and the transcript from Osmanov’s guilty

      plea—summarily denied Osmanov’s post-conviction petition because the

      advisement/waiver form contained an advisement that a felony conviction

      could result in the possibility of deportation and because Osmanov stated

      during the guilty plea hearing that he had read the advisement and discussed it

      with his attorney. On appeal, Osmanov challenges both the propriety of the

      post-conviction court’s entry of a summary denial and the denial of his two

      post-conviction claims. We find Osmanov’s issue regarding the summary

      disposition to be dispositive and conclude that the post-conviction court erred

      by summarily denying Osmanov’s post-conviction petition. Accordingly, we

      reverse the post-conviction court’s judgment and remand for further

      proceedings.


[2]   We reverse and remand.


                                                        Issue1
               Whether the post-conviction court erred by summarily denying
               Osmanov’s post-conviction petition.




      1
        Osmanov raises three issues on appeal. Because we find the first one dispositive, we will not address the
      remaining two.

      Court of Appeals of Indiana | Opinion 35A04-1412-PC-568 | July 22, 2015                           Page 2 of 12
                                                           Facts
[3]   In April 2013, the State charged Osmanov, who was a United States permanent

      resident, with Class D felony theft2 and Class B misdemeanor failure to stop

      after an accident resulting in non-vehicle damage.3 In May 2013, Osmanov

      pled guilty, pursuant to a written plea agreement, to the crimes as charged.

      When doing so, he filed a “Written Advisement and Waiver of Rights” form

      with the trial court. (App. 4). The trial court sentenced Osmanov to three (3)

      years, with two (2) years and 357 days suspended to probation, for Osmanov’s

      Class D felony conviction and to 180 days, with 172 days suspended to

      probation, for his Class B misdemeanor conviction, and it ordered that these

      sentences be served concurrently.


[4]   On October 29, 2014, Osmanov, by counsel, filed a petition for post-conviction

      relief.4 In his petition he raised the following claims: (1) his guilty plea was not

      entered knowingly because he was “unaware of the immigration consequences

      that a criminal conviction would have on his legal permanent resident status[;]”

      and (2) he had received ineffective assistance of trial counsel in regard to his




      2
          IND. CODE § 35-43-4-2.
      3
          I.C. § 9-26-1-4. This statute was repealed effective January 1, 2015.
      4
       In between Osmanov’s sentencing and the filing of his post-conviction petition, he admitted that he had
      violated the terms of his probation, and the trial court ordered him to serve an additional 180 days of his
      original sentence and modified the terms of his probation to include drug testing.

      Court of Appeals of Indiana | Opinion 35A04-1412-PC-568 | July 22, 2015                            Page 3 of 12
      guilty plea, pursuant to Padilla v. Kentucky, 559 U.S. 356 (2010), because his

      counsel had failed to advise him of the risk of deportation. (App. 9).


[5]   Twelve days later and before the State had filed an answer, the post-conviction

      court issued an order, summarily denying Osmanov’s petition for post-

      conviction relief. In its order, the post-conviction court quoted Osmanov’s two

      claims from his post-conviction petition and gave its reasons for denying relief

      as follows:


              The Court would note that at the time defendant entered his
              written Motion to Enter a Plea of Guilty that the defendant also
              filed with the Court a Written Advisement and Waiver of Rights,
              which he and his attorney signed. The defendant represented to
              the Court that he had read the advisement, that he had discussed
              it with his attorney and that he understood it.
              Paragraph 7 of his Written Advisement and Waiver of Rights
              states: “If you are not a citizen of the United States of America,
              a felony conviction may have severed [sic] adverse consequences
              on your immigration status, including the possibility of
              deportation.”


      (App. 12). Thus, when ruling on Osmanov’s post-conviction petition, the post-

      conviction court apparently took judicial notice of and relied upon documents

      outside of the post-conviction proceeding—i.e., Osmanov’s Written




      Court of Appeals of Indiana | Opinion 35A04-1412-PC-568 | July 22, 2015   Page 4 of 12
      Advisement and Waiver of Rights form and guilty plea transcript from his

      criminal proceeding.5 Osmanov now appeals.


                                                     Decision
[6]   Osmanov appeals from the post-conviction court’s order summarily denying

      post-conviction relief on his claims of an unknowing guilty plea and ineffective

      assistance of trial counsel.


[7]   Our standard of review in post-conviction proceedings is well settled. “Post-

      conviction procedures . . . create a narrow remedy for subsequent collateral

      challenges to convictions, challenges which must be based on grounds

      enumerated in the post-conviction rules.” Williams v. State, 706 N.E.2d 149,

      153 (Ind. 1999), reh’g denied, cert. denied. “Petitioners bear the burden of

      establishing their grounds for relief by a preponderance of the evidence.” Id.

      However, “[w]hen one appeals the negative judgment of a post-conviction

      court, the standard is even more rigorous[,]” and such petitioners “must show

      that the evidence as a whole, ‘leads unerringly and unmistakably to a

      conclusion opposite to that reached by the trial court.’” Id. at 154 (quoting

      Weatherford v. State, 619 N.E.2d 915, 917 (Ind. 1993), reh’g denied).




      5
       Our review of the record on appeal reveals that the post-conviction court did not include the written
      advisement/waiver form in the post-conviction record; nor did Osmanov include it in his Appellant’s
      Appendix. The guilty plea transcript is also not part of the appellate record.

      Court of Appeals of Indiana | Opinion 35A04-1412-PC-568 | July 22, 2015                           Page 5 of 12
[8]    Osmanov argues that the post-conviction court erred by: (1) summarily

       denying his petition for post-conviction relief without holding a hearing; and (2)

       denying post-conviction relief on his two post-conviction claims. We find that

       Osmanov’s first issue is dispositive and will only address that issue.


[9]    In regard to Osmanov’s summary disposition argument, he contends that the

       post-conviction court erred by summarily denying his post-conviction relief

       without holding an evidentiary hearing. Osmanov asserts that the post-

       conviction court’s summary denial was erroneous because his claims raised

       issues of fact that were inappropriate for such a summary disposition.

       Additionally, Osmanov argues that the post-conviction court erred because it

       “referred to his guilty plea hearing in making its decision” but did not enter the

       guilty plea court records into evidence. (Osmanov’s Br. 6). More specifically,

       he contends that the post-conviction court erred by taking judicial notice of the

       guilty plea records from his original criminal proceeding and cites to Armstead v.

       State, 596 N.E.2d 291 (Ind. Ct. App. 1992), to support his contention.


[10]   The State does not address the propriety of the post-conviction court’s

       introduction of or reliance upon evidence from Osmanov’s guilty plea

       proceeding; nor does it directly respond to Osmanov’s contention that the post-

       conviction court erred by taking judicial notice of these underlying records.

       Instead, the State asserts that the post-conviction court properly entered a

       summary denial on Osmanov’s post-conviction claims under Post-Conviction

       Rule 1(4)(g) and properly denied his claims because Osmanov’s “conduct at his



       Court of Appeals of Indiana | Opinion 35A04-1412-PC-568 | July 22, 2015   Page 6 of 12
       guilty plea hearing and the Written Advisement and Waiver of Rights he

       endorsed” “refuted” his post-conviction claims.6 (State’s Br. 10).


[11]   Turning to Osmanov’s general contention that the post-conviction court erred

       by summarily denying his petition without a hearing, we have previously

       explained that Post-Conviction Rule 1(4) provides two different subsections

       under which a post-conviction court may deny a petition without a hearing—

       subsection (f) and subsection (g)—and that each one has a different applicable

       standard of review. See Binkley v. State, 993 N.E.2d 645, 649-50 (Ind. Ct. App.

       2013) (citing Allen v. State, 791 N.E.2d 748, 752-53 (Ind. Ct. App. 2003), trans.

       denied). Subsection (f) provides that a post-conviction court “may deny the




       6
         The State also contends that Osmanov waived review of this issue, arguing that he did so because he: (1)
       failed to make “any effort . . . to subpoena any witnesses, to present his evidence through affidavit, or to have
       an evidentiary hearing[;]” (2) failed to provide an adequate record on appeal because his appendix does not
       include the Written Advisement and Waiver of Rights form referenced by the post-conviction court; and (3)
       failed to provide cogent argument regarding the post-conviction court’s disposition of his case without an
       evidentiary hearing. (State’s Br. 6).
       We disagree with the State’s assertions of waiver. First, Osmanov did not waive appellate review of his
       challenge to the post-conviction court’s summary disposition of his case by failing to subpoena witnesses,
       present affidavits, or request a hearing. The post-conviction court summarily denied Osmanov’s post-
       conviction petition a mere twelve days after he filed it. Indeed, the rapid denial of his petition—which is
       exactly what he is challenging on appeal—did not leave time for Osmanov to do any of the acts that the State
       now faults him for not doing.
       Second, Osmanov also did not waive review of this issue due to his failure to include the Written Advisement
       and Waiver of Rights form in his Appellant’s Appendix. Appellate Rule 49(B) provides that a party’s “failure
       to include any item in an Appendix shall not waive any issue or argument.” Furthermore, it does not appear,
       from our review of the record on appeal, that the post-conviction court included this form in the record.
       Moreover, as explained later in the opinion, the post-conviction court’s reliance on this form and the guilty
       plea transcript was not proper where, as here, the court’s summarily denial of Osmanov’s was based on Post-
       Conviction Rule 1(4)(f).
       Third and lastly, we disagree with the State’s contention that Osmanov has waived his summary disposition
       argument based on a failure to provide a cogent argument. Osmanov clearly argues that the post-conviction
       court erred by summarily denying his post-conviction petition and provides citation to case law to support his
       argument.

       Court of Appeals of Indiana | Opinion 35A04-1412-PC-568 | July 22, 2015                             Page 7 of 12
       petition without further proceedings” if “the pleadings conclusively show that

       [the] petitioner is entitled to no relief[.]” Ind. Post-Conviction Rule 1(4)(f)

       (emphasis added). Subsection (g) provides that a post-conviction court:

               may grant a motion by either party for summary disposition of
               the petition when it appears from the pleadings, 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.


       P-C.R. 1(4)(g).


[12]   Here, the record on appeal reveals that neither party filed a motion for

       summary disposition or submitted affidavits or other evidence. Indeed, the

       parties did not even have time to do so as the post-conviction court denied

       Osmanov’s petition less than two weeks after he filed it and before the State had

       a chance to file an answer within the thirty-day response period. See P-C.R.

       1(4)(a). Because neither party filed a motion for summary disposition or

       submitted any sort of evidence, the post-conviction court’s summary denial

       would not have been based on Indiana Post-Conviction Rule 1(4)(g). See

       Binkley, 993 N.E.2d at 650 (clarifying that subsection (g) is “triggered” only

       when the parties have submitted affidavits, referred to evidence, or filed a

       motion for summary disposition) (emphasis added); Allen, 791 N.E.2d at 753

       (explaining that “[u]nder the plain language” of subsection (g), a post-

       conviction court “may grant summary disposition after ‘a motion by either

       party’ and after considering the pleadings and other evidence submitted” by the

       Court of Appeals of Indiana | Opinion 35A04-1412-PC-568 | July 22, 2015     Page 8 of 12
       parties) (quoting P-C.R. 1(4)(g)). Instead, the post-conviction court’s summary

       disposition would have been based on subsection (f).


[13]   “When a court disposes of a petition under subsection f, we essentially review

       the lower court’s decision as we would a motion for judgment on the

       pleadings.” Allen, 791 N.E.2d at 752. “The [post-conviction] court errs in

       disposing of a petition in this manner unless ‘the pleadings conclusively show

       that petitioner is entitled to no relief.’” Id. at 752-53 (quoting P-C.R. 1(4)(f))

       (emphasis added). If a post-conviction petition contains claims that allege only

       “errors of law,” then the post-conviction court may determine, without a

       hearing, whether the petitioner is entitled to relief on those claims. Id. at 753.

       See also Clayton v. State, 673 N.E.2d 783, 785 (Ind. Ct. App. 1996). “However, if

       the facts pled raise an issue of possible merit, then the petition should not be

       disposed of under section 4(f).” Id. “‘This is true even though the petitioner

       has only a remote chance of establishing his claim.” Id. (quoting Clayton, 673

       N.E.2d at 785). The post-conviction court “should accept the well-pled facts as

       true and determine whether the post-conviction petition raises an issue of

       possible merit.” Id. at 756.


[14]   Osmanov alleged in his post-conviction petition that his guilty plea was

       unknowingly entered because he was “unaware of the immigration

       consequences that a criminal conviction would have on his legal permanent

       resident status” and that he had received ineffective assistance of trial counsel in

       regard to his guilty plea, pursuant to Padilla v. Kentucky, 559 U.S. 356 (2010),

       because his counsel failed to advise him of the risk of deportation. (App. 9).

       Court of Appeals of Indiana | Opinion 35A04-1412-PC-568 | July 22, 2015     Page 9 of 12
       Both of Osmanov’s claims are based on questions of fact, not law, in regard to

       his awareness of the risk of deportation. Indeed, we have repeatedly held that

       the “issue of the effectiveness of counsel is an evidentiary question” and that the

       resolution of such an issue “revolves around the particular facts of each case.”

       Kelly v. State, 952 N.E.2d 297, 300 (Ind. Ct. App. 2011). See also Binkley, 993

       N.E.2d at 650 (explaining that the issue of ineffective assistance of counsel is

       “fact sensitive”); Allen, 791 N.E.2d at 756; Evolga v. State, 722 N.E.2d 370, 372

       (Ind. Ct. App. 2000); Clayton, 673 N.E.2d at 786. “Consequently, when a

       petitioner alleges ineffective assistance of counsel, and the facts pled raise an

       issue of possible merit, the petition should not be summarily denied.” Kelly, 952

       N.E.2d at 300 (emphasis added). Additionally, we have found that the issue of

       voluntariness of a guilty plea involve issues of fact not appropriate for summary

       disposition. See Hamner v. State, 739 N.E.2d 157, 161 (Ind. Ct. App. 2000).


[15]   Again, Osmanov’s post-conviction petition alleged that his trial counsel was

       ineffective and that his plea was unknowingly entered because he was not

       aware or advised of the risk of deportation. The post-conviction court

       summarily denied the petition before the State had the opportunity to respond.

       In its order, the post-conviction court referred to and relied upon documents

       outside of the post-conviction proceeding—i.e., Osmanov’s Written

       Advisement and Waiver of Rights form and guilty plea transcript from his

       criminal proceeding—when denying post-conviction relief. This apparent

       judicial notice by the post-conviction court suggests that it applied an

       inappropriate standard when reviewing Osmanov’s claims. See Allen, 791


       Court of Appeals of Indiana | Opinion 35A04-1412-PC-568 | July 22, 2015    Page 10 of 12
       N.E.2d at 755-756 (holding that the post-conviction court’s language that the

       petitioner’s ineffective assistance of counsel claim was without merit because

       “the evidence of record” and the petitioner’s contentions “suggested no good

       faith reasons for the Court to conclude otherwise” suggested that the post-

       conviction court applied an inappropriate standard when reviewing the

       petitioner’s claim). “At this stage of the [post-conviction] proceedings, we have

       only the pleadings[.]” Id. at 756. As a result, the post-conviction court’s

       consideration of the advisement/waiver form and the transcript from

       Osmanov’s guilty plea hearing, when it was summarily disposing of his petition

       under Post-Conviction Rule 1(4)(f), was not appropriate in this specific

       instance.7 See id. “Rather, the [post-conviction] court should [have] accept[ed]

       the well-pled facts as true and determine[d] whether the petition raise[d] an

       issue of possible merit.” Id.


[16]   Osmanov’s petition—when reviewed without considering documents outside

       the pleadings—pled facts that raised issues of possible merit. Thus, the post-

       conviction court erred by summarily denying relief on his post-conviction



       7
         We clarify that the impropriety of the post-conviction court’s act of taking judicial notice is specifically
       limited to the precise facts involved in this case. Indeed, we reject Osmanov’s suggestion that the post-
       conviction court cannot, in any circumstance, take judicial notice in a post-conviction proceeding, as well as,
       his reliance on Armstead to support his suggestion. We note that Armstead was issued before the effective date
       of Indiana Evidence Rule 201, which provides that courts, including a post-conviction court, may take
       judicial notice of “records of a court of this state” and of facts that “can be accurately and readily determined
       from sources whose accuracy cannot reasonably be questioned.” See Evid. R. 201(b)(5), 201(a)(1)(B),
       respectively. Additionally, Indiana Post-Conviction Rule 1(4)(d) provides that when a post-conviction
       “petition is challenging a sentence imposed following a plea of guilty, the court shall make a part of the
       record the certified transcript made pursuant to [Criminal Rule] 10.” However, because the post-conviction
       proceeding before us was at the summary disposition stage under Post-Conviction Rule 1(4)(f), consideration
       of judicially-noticed records or documents was not appropriate at this specific stage.

       Court of Appeals of Indiana | Opinion 35A04-1412-PC-568 | July 22, 2015                            Page 11 of 12
       petition under Post–Conviction Rule 1(4)(f). Accordingly, we must reverse the

       post-conviction court’s summary denial and remand for further proceedings on

       his ineffective assistance of counsel and unknowing guilty plea claims. See, e.g.,

       Binkley, 993 N.E.2d at 651 (reversing the post-conviction court’s summary

       denial under Post–Conviction Rule 1(4)(f) where the petitioner’s claim of

       ineffective assistance of counsel raised an issue of possible merit); Kelly, 952

       N.E.2d at 300-01 (holding that the post-conviction court’s summary denial of a

       post-conviction petition was erroneous and remanding for a hearing on the

       petitioner’s ineffective assistance of counsel claim); Allen, 791 N.E.2d at 756

       (reversing the post-conviction court’s summary denial under Post–Conviction

       Rule 1(4)(f) where the post-conviction court inappropriately considered matters

       outside the pleadings); Hamner, 739 N.E.2d at 161 (remanding for an

       evidentiary hearing where fact issues were involved in the petitioner’s claims of

       voluntariness of a guilty plea and effectiveness of counsel); Armstead v. State, 596

       N.E.2d 291, 293-94 (Ind. Ct. App. 1992) (reversing a post-conviction court’s

       summary denial of a petitioner’s claims of unknowing guilty plea and

       ineffective assistance of counsel and remanding for a hearing).


[17]   Reversed and remanded.


       Crone, J., and Brown, J., concur.




       Court of Appeals of Indiana | Opinion 35A04-1412-PC-568 | July 22, 2015   Page 12 of 12
