MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                Nov 30 2015, 8:06 am
this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


APPELLANT PRO SE                                        ATTORNEYS FOR APPELLEE
Michael Hunt                                            Gregory F. Zoeller
Carlisle, Indiana                                       Attorney General of Indiana

                                                        Jodi Kathryn Stein
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Michael Hunt,                                           November 30, 2015
Appellant-Petitioner,                                   Court of Appeals Case No.
                                                        35A04-1412-PC-555
        v.                                              Appeal from the Huntington
                                                        Circuit Court
State of Indiana,                                       The Honorable Thomas M. Hakes,
Appellee-Respondent.                                    Judge
                                                        Trial Court Cause No.
                                                        35C01-1210-PC-12



Bradford, Judge.



                                    Case Summary

Court of Appeals of Indiana | Memorandum Decision 35A04-1412-PC-555 | November 30, 2015      Page 1 of 19
[1]   In March of 2012, Appellant-Petitioner Michael Hunt pled guilty to one count

      of Class B felony robbery and to being a habitual offender. The trial court

      accepted Hunt’s guilty pleas and sentenced him to an aggregate thirty-year

      sentence. On October 16, 2012, Hunt filed a petition for post-conviction relief

      (“PCR”), in which he alleged that he suffered ineffective assistance of trial

      counsel. The post-conviction court subsequently denied Hunt’s petition. Hunt

      appealed this determination.


[2]   On appeal, Hunt again contends that he received ineffective assistance of trial

      counsel. He also contends that the post-conviction court erred in ruling on his

      PCR petition without first conducting an evidentiary hearing. Upon review, we

      conclude that Hunt has failed to establish that he received ineffective assistance

      of trial counsel. Also, because the record demonstrates that the post-conviction

      court ordered the parties to submit their evidence via affidavit pursuant to

      Indiana Post-Conviction Rule 1(9)(b) (“Post-Conviction Rule 1(9)(b)”) and

      based its ruling on said evidence, we conclude that the post-conviction court did

      not abuse its discretion in denying Hunt’s PCR petition without first conducting

      an evidentiary hearing. Accordingly, we affirm.



                            Facts and Procedural History
[3]   The factual basis supporting Hunt’s guilty pleas instructs us to the underlying

      facts leading to this post-conviction appeal:

              On or about December 27, 2011, I drove to Pilgrims Rest
              Cemetery, located in Huntington County, Indiana. When I

      Court of Appeals of Indiana | Memorandum Decision 35A04-1412-PC-555 | November 30, 2015   Page 2 of 19
              arrived I removed my bike out of the back of the vehicle I was
              driving and rode to the First Farmers Bank and Trust, also
              located in Huntington County, Indiana. Once I arrived, I
              entered the bank wearing latex gloves, a ski mask, a black wig
              with a baseball cap, a blue jacket with the hood up and a bullet
              proof vest. I was also carrying a loaded Para .45 caliber semi
              automatic gun, a device that I made to look like a bomb and a
              black bag.

              I walked up to the counter, placed the “bomb” and the black bag
              on the counter, and while pointing the gun at the tellers I
              instructed them to place $30,000 in $100.00 and $50.00 bills into
              the bag. I told the tellers that if they didn’t give me the money, I
              would blow up the bank. The tellers emptied all the drawers into
              the black bag and handed it back to me and I left the bank on my
              bike. I rode back to the Cemetery and as I was getting into my
              vehicle I could see the police cars with their lights and sirens
              activated, but I continued getting into the vehicle anyway and
              attempted to get away. After driving a short distance I wrecked
              my vehicle and tried to flee on foot but I was apprehended by
              police and taken into custody.


      Appellant’s App. pp. 75-76.


[4]   As a result of Hunt’s actions, Appellee-Respondent the State of Indiana (the

      “State”) charged Hunt with Class B felony robbery, Class D felony unlawful

      use of body armor, and Class D felony resisting law enforcement. The State

      also alleged that Hunt was a habitual offender. Hunt subsequently pled guilty

      to Class B felony robbery. He also admitted that he is a habitual offender. In

      admitting to his status as a habitual offender, Hunt stated the following:


              Prior to December 27, 2011, I had accumulated two prior
              unrelated felony convictions. I was convicted of Robbery, a class

      Court of Appeals of Indiana | Memorandum Decision 35A04-1412-PC-555 | November 30, 2015   Page 3 of 19
              B felony, in Marion County, Indiana, under cause number 81-
              285A, and I was convicted of Robbery, a class C felony, in
              Tippecanoe County, Indiana, under cause number 79D02-9602-
              CF-00012.


      Appellant’s App. p. 76. In exchange for Hunt’s guilty plea, the State agreed to

      dismiss the remaining charges and to cap the executed portion of Hunt’s

      sentence at thirty years. During the guilty plea hearing, Hunt affirmed that the

      factual bases for both the Class B felony robbery charge and the habitual

      offender allegation were true and correct.


[5]   Prior to sentencing, Hunt moved to withdraw his guilty plea, alleging that the

      plea agreement failed to specify whether his sentences were to run concurrently

      or consecutively. The State maintained that Hunt’s counsel understood and it

      was a “feign on misunderstanding” by Hunt for him to assert that he did not

      understand that the habitual offender constituted a sentence enhancement, not

      a separate sentence. Tr. p. 33. After taking the motion under advisement, the

      trial court denied Hunt’s motion.


[6]   At sentencing, the trial court again informed Hunt that his habitual offender

      enhancement did not constitute a separate sentence, but rather was an

      enhancement to the sentence imposed by virtue of Hunt’s Class B felony

      robbery conviction. Finding Hunt’s criminal history, which included numerous

      prior felony convictions, to be an aggravating factor, the trial court sentenced

      Hunt to a fifteen-year term of imprisonment. The trial court then enhanced this




      Court of Appeals of Indiana | Memorandum Decision 35A04-1412-PC-555 | November 30, 2015   Page 4 of 19
      sentence by fifteen years by virtue of Hunt’s status as a habitual offender, for an

      aggregate thirty-year sentence.


[7]   On October 16, 2012, Hunt filed a pro-se PCR petition. Hunt filed an amended

      pro-se PCR petition on May 22, 2014. The State subsequently filed a motion for

      partial summary judgment, which was granted by the post-conviction court on

      July 11, 2014. With respect to the remaining portions of Hunt’s PCR petition,

      the post-conviction court ordered the parties to submit evidence by affidavit.

      Following the submission of evidence, the post-conviction court issued an order

      denying Hunt’s PCR petition on October 31, 2014. This appeal follows.



                                 Discussion and Decision                            1




[8]   Post-conviction procedures do not afford the petitioner with a super-appeal.

      Williams v. State, 706 N.E.2d 149, 153 (Ind. 1999). Instead, they create a

      narrow remedy for subsequent collateral challenges to convictions, challenges

      which must be based on grounds enumerated in the post-conviction rules. Id.

      A petitioner who has been denied post-conviction relief appeals from a negative

      judgment and as a result, faces a rigorous standard of review on appeal. Dewitt

      v. State, 755 N.E.2d 167, 169 (Ind. 2001); Colliar v. State, 715 N.E.2d 940, 942

      (Ind. Ct. App. 1999), trans. denied.




      1
        We note that Hunt has filed a motion for oral argument and a motion to strike the State’s brief. Having
      reviewed Hunt’s motions, we deny both motions in an order issued simultaneously with this memorandum
      decision.

      Court of Appeals of Indiana | Memorandum Decision 35A04-1412-PC-555 | November 30, 2015        Page 5 of 19
[9]    Post-conviction proceedings are civil in nature. Stevens v. State, 770 N.E.2d 739,

       745 (Ind. 2002). Therefore, in order to prevail, a petitioner must establish his

       claims by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5);

       Stevens, 770 N.E.2d at 745. When appealing from the denial of a PCR petition,

       a petitioner must convince this court that the evidence, taken as a whole, “leads

       unmistakably to a conclusion opposite that reached by the post-conviction

       court.” Stevens, 770 N.E.2d at 745. “It is only where the evidence is without

       conflict and leads to but one conclusion, and the post-conviction court has

       reached the opposite conclusion, that its decision will be disturbed as contrary

       to law.” Godby v. State, 809 N.E.2d 480, 482 (Ind. Ct. App. 2004), trans. denied.

       The post-conviction court is the sole judge of the weight of the evidence and the

       credibility of the witnesses. Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004).

       We therefore accept the post-conviction court’s findings of fact unless they are

       clearly erroneous but give no deference to its conclusions of law. Id.


[10]   Hunt contends that the post-conviction court erred in denying his PCR petition,

       claiming that the record demonstrates that he received ineffective assistance of

       trial counsel. Hunt also claims that the post-conviction court erred in ruling on

       his PCR petition without first conducting an evidentiary hearing. We will

       discuss each claim in turn.




       Court of Appeals of Indiana | Memorandum Decision 35A04-1412-PC-555 | November 30, 2015   Page 6 of 19
        I. Whether Hunt Suffered Ineffective Assistance of Trial
                              Counsel
[11]   The right to effective counsel is rooted in the Sixth Amendment to the United

       States Constitution. Taylor v. State, 840 N.E.2d 324, 331 (Ind. 2006). “‘The

       Sixth Amendment recognizes the right to the assistance of counsel because it

       envisions counsel’s playing a role that is critical to the ability of the adversarial

       system to produce just results.’” Id. (quoting Strickland v. Washington, 466 U.S.

       668, 685 (1984)). “The benchmark for judging any claim of ineffectiveness

       must be whether counsel’s conduct so undermined the proper function of the

       adversarial process that the trial court cannot be relied on as having produced a

       just result.” Strickland, 466 U.S. at 686.


[12]   A successful claim for ineffective assistance of counsel must satisfy two

       components. Reed v. State, 866 N.E.2d 767, 769 (Ind. 2007). Under the first

       prong, the petitioner must establish that counsel’s performance was deficient by

       demonstrating that counsel’s representation “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. We recognize that

       even the finest, most experienced criminal defense attorneys may not agree on

       the ideal strategy or most effective way to represent a client, and therefore,

       under this prong, we will assume that counsel performed adequately and defer

       to counsel’s strategic and tactical decisions. Smith v. State, 765 N.E.2d 578, 585

       (Ind. 2002). Isolated mistakes, poor strategy, inexperience, and instances of

       bad judgment do not necessarily render representation ineffective. Id.

       Court of Appeals of Indiana | Memorandum Decision 35A04-1412-PC-555 | November 30, 2015   Page 7 of 19
[13]   Under the second prong, the petitioner must show that the deficient

       performance resulted in prejudice. Reed, 866 N.E.2d at 769. Again, a petitioner

       may show prejudice by demonstrating that there is “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.

       A petitioner’s failure to satisfy either prong will cause the ineffective assistance

       of counsel claim to fail. See Williams, 706 N.E.2d at 154. Stated differently,

       “[a]lthough the two parts of the Strickland test are separate inquires, a claim

       may be disposed of on either prong.” Grinstead v. State, 845 N.E.2d 1027, 1031

       (Ind. 2006) (citing Williams, 706 N.E.2d at 154).


[14]   Hunt claims that his trial counsel provided ineffective assistance by failing to

       adequately investigate and challenge the charging information for the habitual

       offender enhancement. He also claims that his trial counsel provided

       ineffective assistance by failing to challenge the sentence imposed by the trial

       court.


          1. Failing to Adequately Investigate and Challenge the
       Charging Information for the Habitual Offender Enhancement
[15]   On appeal, Hunt claims that his trial counsel provided ineffective assistance by

       (1) failing to adequately investigate the proper sequence of the commission,

       conviction, and sentencing dates relating to the predicate prior convictions

       listed in the charging information for the habitual offender enhancement and (2)

       failing to file a motion to dismiss the charging information for the habitual

       offender enhancement.
       Court of Appeals of Indiana | Memorandum Decision 35A04-1412-PC-555 | November 30, 2015   Page 8 of 19
[16]   In the instant matter, Hunt does not present any evidence or testimony from

       trial counsel in support of his allegation that his trial counsel failed to

       adequately investigate the proper sequence of the commission, conviction, and

       sentencing dates relating to the predicate prior convictions. When counsel is

       not called as a witness to testify or present an affidavit in support of a

       petitioner’s arguments, the post-conviction court may infer that counsel would

       not have corroborated the petitioner’s allegations. Dickson v. State, 533 N.E.2d

       586, 589 (Ind. 1989); see also Oberst v. State, 935 N.E.2d 1250, 1254 (Ind. Ct.

       App. 2010) (citing Culvahouse v. State, 819 N.E.2d 857, 863 (Ind. Ct. App.

       2004), trans. denied), trans. denied. With regard to this claim, Hunt presents only

       the self-serving statements contained in his affidavit. It was within the post-

       conviction court’s discretion to reject Hunt’s self-serving testimony as not

       credible. See Popplewell v. State, 428 N.E.2d 15, 17 (Ind. 1981) (providing that a

       court is not obligated to believe a petitioner’s self-serving testimony).


[17]   In addition, Hunt has failed to present any evidence or argument demonstrating

       that an investigation into the sequence of his prior unrelated felonies would

       have uncovered or yielded a factual or legal basis upon which to move to

       dismiss the charging information.

               Like most failures to investigate, establishing this ground for
               ineffective assistance would require going beyond the trial record
               to show what the investigation, if undertaken, would have
               produced. This is necessary because success on the prejudice
               prong of an ineffectiveness claim requires a showing of a
               reasonable probability of affecting the result.


       Court of Appeals of Indiana | Memorandum Decision 35A04-1412-PC-555 | November 30, 2015   Page 9 of 19
       Woods v. State, 701 N.E.2d 1208, 1214 (Ind. 1998) (citing State v. Moore, 678

       N.E.2d 1258, 1261 (Ind. 1997), cert. denied). Further, in order to prevail on his

       claim that trial counsel provided ineffective assistance by failing to file a motion

       to dismiss the charging information relating to the habitual offender

       enhancement, Hunt bore the burden of demonstrating a reasonable probability

       that the motion to dismiss would have been granted if made. See Garrett v. State,

       992 N.E.2d 710, 723 (Ind. 2013) (providing that in order to prevail on a claim

       of ineffective assistance of trial counsel due to the failure to file a motion to

       dismiss, a petitioner must show a reasonable probability that the motion to

       dismiss would have been granted if made). Review of the record indicates that

       Hunt failed to carry this burden.


[18]   Although Hunt alleges that the charging information relating to the habitual

       offender enhancement should have been dismissed because it failed to show the

       sequence of the commission, conviction, and sentence dates of the predicate

       unrelated felony convictions, Hunt has failed to prove that such information

       was required to be in the charging information.


[19]   “A charging information must be ‘sufficiently specific to apprise the defendant

       of the crime for which he is charged and to enable him to prepare a defense.’”

       Jones v. State, 938 N.E.2d 1248, 1252 (Ind. Ct. App. 2010) (quoting Bonner v.

       State, 789 N.E.2d 491, 493 (Ind. Ct. App. 2003)). In the instant matter, the

       charging information relating to the habitual offender enhancement read as

       follows:



       Court of Appeals of Indiana | Memorandum Decision 35A04-1412-PC-555 | November 30, 2015   Page 10 of 19
               [The Prosecuting Attorney], being duly sworn upon her oath,
               says that she is informed and verily believes that Michael Hunt
               has accumulated at least two (2) prior unrelated felony
               convictions, namely:

               1.    Robbery, a Class B felony, in Marion County, Indiana
               under cause number 81-285A.
               2.    Robbery, a Class C felony, in Tippecanoe County,
               Indiana, under cause number 79D02-9602-CF-00012.


       Appellant’s App. p. 70. The above-quoted allegations provide no ambiguity as

       to which predicate unrelated prior convictions upon which the State is relying

       on to prove Hunt’s status as a habitual offender. The charging information

       clearly informs Hunt that the predicate prior offenses are his 1981 Class B

       felony robbery conviction from Marion County under cause number 81-285A

       and his 1996 Class C felony robbery conviction out of Tippecanoe County

       under cause number 79D02-9602-CF-12.


[20]   Further, even if more specificity was needed, Hunt has failed to prove that a

       motion to dismiss would be granted as Hunt has provided no reason why the

       State would not simply have been permitted to amend the charging information

       to include the necessary information. The Indiana Supreme Court has held that

       “[w]hile the habitual offender charge is not a separate offense under Indiana

       law, it is subject to the rules governing charging of criminal offenses, including

       [Indiana Code section] 35-34-1-5(c) … which provides: ‘Upon motion of the

       prosecuting attorney, the court may, at any time before, during, or after the

       trial, permit an amendment to the indictment or information in respect to any

       defect, imperfection, or omission in form which does not prejudice the
       Court of Appeals of Indiana | Memorandum Decision 35A04-1412-PC-555 | November 30, 2015   Page 11 of 19
       substantial rights of the accused.’” Murphy v. State, 499 N.E.2d 1077, 1083

       (Ind. 1986).


[21]   Furthermore still, in order to successfully challenge a habitual offender

       determination in post-conviction proceedings, the petitioner must prove that he

       is not a habitual offender under the laws of the State. See Weatherford v. State,

       619 N.E.2d 915, 917-18 (Ind. 1993). Hunt’s evidence, however, proves the

       opposite, i.e., that he is a habitual offender under the laws of Indiana. Hunt

       submitted court documents relating to both of the predicate prior convictions to

       the post-conviction court. These exhibits support the post-conviction court’s

       determination that Hunt “actually provides documentation from the predicate

       offenses of the habitual offender enhancement demonstrating that this was a

       proper enhancement.” Appellant’s App. p. 13. Hunt has failed to show that he

       suffered any prejudice as a result of trial counsel’s alleged failure to file a

       motion to dismiss the charging information relating to the habitual offender

       enhancement.


[22]   In light of Hunt’s failure to provide any evidence other than his own self-serving

       testimony demonstrating that trial counsel did not adequately investigate the

       prior unrelated felony convictions listed in the habitual offender allegation or

       that a motion to dismiss the charging information relating to the habitual

       offender enhancement would have been successful, we conclude that the post-

       conviction court properly determined that Hunt did not receive ineffective

       assistance of trial counsel in this regard.



       Court of Appeals of Indiana | Memorandum Decision 35A04-1412-PC-555 | November 30, 2015   Page 12 of 19
                    2. Failing to Challenge the Sentence Imposed
                                  by the Trial Court
[23]   Hunt also claims that he received ineffective assistance of trial counsel because

       his trial counsel failed to challenge the fifteen-year sentence imposed by the trial

       court for his Class B felony robbery conviction. Specifically, Hunt argues that

       because the trial court found his criminal history to be an aggravating factor in

       sentencing Hunt to an aggravated fifteen-year sentence, said sentence, when

       considered together with the fifteen-year sentence enhancement that he received

       by virtue of his status as a habitual offender, amounts to a double sentence

       enhancement.


[24]   Initially, we observe that Hunt did not raise this claim in his PCR petition, but

       rather framed the issue below as whether the trial court abused its discretion in

       imposing consecutive sentences. Generally, issues not raised in the petition for

       post-conviction relief may not be raised for the first time on an appeal from the

       denial of a petitioner’s PCR petition. See Allen v. State, 749 N.E.2d 1158, 1171

       (Ind. 2001) (citing Ind. Post-Conviction Rule 1(8)). However, because Hunt’s

       arguments on appeal are similar in nature to those raised below in his original

       and amended PCR petitions, we will consider Hunt’s arguments.


[25]   First, the record demonstrates that the trial court clearly informed Hunt that the

       fifteen years imposed in relation to his status as a habitual offender did not

       constitute a separate sentence that was to be run consecutive to the fifteen-year

       sentence relating to the Class B felony robbery conviction, but rather was an



       Court of Appeals of Indiana | Memorandum Decision 35A04-1412-PC-555 | November 30, 2015   Page 13 of 19
       enhancement of the sentence. In so informing Hunt, the trial court quoted our

       opinion in Harris v. State, 964 N.E.2d 920, 927 (Ind. Ct. App. 2012).


[26]   The record also demonstrates that the instant offense, Class B felony robbery, is

       Hunt’s fifth felony robbery conviction and his seventh overall felony conviction.

       In addition to his prior felony robbery convictions, Hunt’s record also includes

       prior felony convictions for possession of cocaine and receiving stolen property.

       The Indiana General Assembly has explicitly provided that a defendant’s

       history of criminal activity is a proper aggravating factor to be considered by the

       trial court at sentencing. See Ind. Code § 35-38-1-7.1(a)(2). A single

       aggravating factor is adequate to sustain an enhanced sentence. See Hawkins v.

       State, 748 N.E.2d 362, 363 (Ind. 2001). Thus, even if the trial court were to

       have refrained from considering the predicate prior convictions which the State

       relied upon to prove Hunt’s status as a habitual offender as part of Hunt’s

       criminal history, Hunt’s criminal history is such that we are convinced that the

       trial court acted within its discretion in considering Hunt’s criminal history to

       be an aggravating factor at sentencing. As such, Hunt’s claim that

       consideration of his criminal history as an aggravating factor at sentencing

       amounted to a double enhancement is without merit. Hunt has failed to prove

       that he was prejudiced by his trial counsel’s failure to challenge the fifteen-year

       sentence imposed by the trial court. Reed, 866 N.E.2d at 769.




       Court of Appeals of Indiana | Memorandum Decision 35A04-1412-PC-555 | November 30, 2015   Page 14 of 19
                                     3. Additional Challenges
[27]   Hunt raises two additional claims of ineffective assistance of trial counsel on

       appeal. These claims include that his trial counsel failed to object to an

       allegedly insufficient factual basis and failed to advise him that by pleading

       guilty, he was waiving his right to a jury trial on the habitual offender

       enhancement. Hunt, however did not raise either of these claims in either his

       original or amended PCR petitions. These claims, therefore, may not be raised

       on appeal. See Allen, 749 N.E.2d at 1171 (providing that issues not raised in the

       PCR petition may not be raised for the first time on post-conviction appeal).



        II. Whether the Post-Conviction Court Erred By
       Denying Hunt’s PCR Petition Without Conducting
                    an Evidentiary Hearing
[28]   Hunt also contends that the post-conviction court erred by denying his PCR

       petition without first conducting an evidentiary hearing. (Appellant’s App. 48)

       On June 2, 2014, the post-conviction court ordered the parties to submit their

       evidence by affidavit pursuant to Post-Conviction Rule 1(9)(b). Post-

       Conviction Rule 1(9)(b) provides as follows:


               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.



       Court of Appeals of Indiana | Memorandum Decision 35A04-1412-PC-555 | November 30, 2015   Page 15 of 19
       (Emphasis added). “An abuse of discretion occurs when the court’s decision is

       clearly against the logic and effect of the facts and circumstances before it.”

       Fuquay v. State, 689 N.E.2d 484, 486 (Ind. Ct. App. 1997) (citing Freeman v.

       State, 541 N.E.2d 533, 538 (Ind. 1989)), trans. denied. Further,


               [a]ffidavits are sworn testimony and constitute “competent
               evidence” in post-conviction proceedings. Gould v. State, 578
               N.E.2d 382, 384 (Ind. Ct. App. 1991), trans. denied. Factual
               statements in affidavits often raise issues of fact, and to require a
               full evidentiary hearing any time affidavits submitted under
               [Post-Conviction] Rule 1(9)(b) create issues of fact would defeat
               the purpose of [Post-Conviction] Rule 1(9)(b), which is to allow
               for more flexibility in both the presentation of evidence and the
               review of post-conviction claims where the petitioner proceeds
               pro se. Accordingly, where the PCR court orders the parties to
               proceed by affidavit under [Post-Conviction] Rule 1(9)(b), the
               court may also determine that the petitioner’s personal presence
               at an evidentiary hearing is required. But we hold that the
               decision whether to hold an evidentiary hearing for a “full and
               fair determination of [t]he issues raised,” like the decision to
               proceed by affidavit, is best left to the PCR court’s discretion.


       Smith v. State, 822 N.E.2d 193, 201 (Ind. Ct. App. 2005).


[29]   Hunt submitted the affidavits of himself and Yolanda Bush-Johnson in support

       of his amended PCR petition. The mere fact that the post-conviction court

       determined that these affidavits did not carry Hunt’s evidentiary burden of

       proving that he suffered ineffective assistance of trial counsel does not

       automatically establish that he was entitled to an evidentiary hearing. Hunt

       could have obtained an affidavit from trial counsel which would support Hunt’s

       claims, but failed to do so. Hunt has failed to demonstrate on appeal how an
       Court of Appeals of Indiana | Memorandum Decision 35A04-1412-PC-555 | November 30, 2015   Page 16 of 19
       evidentiary hearing would have aided him or to identify any evidence which he

       wished to present that could not have been presented via affidavit or in

       documentary form. Because Hunt has failed to demonstrate how he would

       have benefitted from an evidentiary hearing, we conclude that the trial court

       acted within its discretion in ordering the parties to proceed by affidavit. See

       Fuquay, 689 N.E.2d at 486 (providing that the post-conviction court acted

       within its discretion in order the parties to proceed by affidavit where petitioner

       failed to demonstrate how an evidentiary hearing would have aided him).


[30]   Further, we note that Hunt relies on our prior decision in Hamner v. State, 739

       N.E.2d 157 (Ind. Ct. App. 2000) in arguing that the post-conviction court erred

       in ruling on his PCR petition without first conducting an evidentiary hearing.

       The issue presented in Hamner was whether a trial court erred by denying the

       petitioner’s PCR petition without first conducting a hearing pursuant to Indiana

       Post-Conviction Rule 1(4)(f) (“Post-Conviction Rule 1(4)(f)”), which states that

       the post-conviction court may deny the petitioner’s petition without further

       proceedings if “the pleadings conclusively show that the petitioner is entitled to

       no relief.” In Hamner, we concluded that


               [Post-Conviction Rule 1(4)(f)] dispenses with the necessity for an
               evidentiary hearing when the issues are of law only. Armstead v.
               State, 596 N.E.2d 291, 292 (Ind. Ct. App. 1992). It does not,
               however, dispense with the need for an evidentiary hearing when
               the determination hinges, in whole or in part, upon facts not
               resolved, even though it may appear unlikely that the petitioner
               will be able to produce evidence sufficient to establish his claim.
               Id. This is true even though the petitioner has only a remote


       Court of Appeals of Indiana | Memorandum Decision 35A04-1412-PC-555 | November 30, 2015   Page 17 of 19
               chance of establishing his claim. Gann v. State, 550 N.E.2d 803,
               804-805 (Ind. Ct. App. 1990).


       Hamner, 739 N.E.2d at 160.


[31]   Hunt’s reliance on Hamner is misplaced. In the instant matter, the post-

       conviction court did not deny Hunt’s petition based on the pleadings

       themselves as is provided for by Post-Conviction Rule 1(4)(f), but rather after

       reviewing the evidence which was presented by the parties via affidavit as

       proscribed by Post-Conviction Rule 1(9)(b). We have previously held that:


               although the opinion falls short of holding as much, Hamner
               suggests that after a PCR court orders that the cause be submitted
               upon affidavit under [Post-Conviction] Rule 1(9)(b), the “issue of
               fact” standard applicable to determining whether summary
               disposition is appropriate under [Post-Conviction] Rules 1(4)(f)
               and (g) applies equally to [Post-Conviction] Rule 1(9)(b). We
               disagree with Hamner to the extent that it conflated summary
               disposition and [Post-Conviction] Rule 1(9)(b).


       Smith, 822 N.E.2d at 200-01. We reaffirm our opinion in Smith regarding the

       applicability of the holding of Hamner to rulings made following a Post-

       Conviction Rule 1(9)(b) order to submit evidence via affidavit.


[32]   Hunt has failed to establish that the post-conviction court abused its discretion

       in ruling on the paper record that was created after the parties submitted their

       evidence by affidavit pursuant to Post-Conviction Rule 1(9)(b).



                                               Conclusion
       Court of Appeals of Indiana | Memorandum Decision 35A04-1412-PC-555 | November 30, 2015   Page 18 of 19
[33]   Having concluded that Hunt failed to establish either that he received

       ineffective assistance from his trial counsel or that the post-conviction court

       abused its discretion in denying his PCR petition without conducting an

       evidentiary hearing, we affirm the judgment of the post-conviction court.


[34]   The judgment of the post-conviction court is affirmed.


       Baker, J., and Pyle, J, concur.




       Court of Appeals of Indiana | Memorandum Decision 35A04-1412-PC-555 | November 30, 2015   Page 19 of 19
