MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                      FILED
this Memorandum Decision shall not be                                   Sep 05 2019, 9:23 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
Gregory Alan Caudle                                      Curtis T. Hill., Jr.
Carlisle, Indiana                                        Attorney General of Indiana
                                                         Justin F. Roebel
                                                         Supervising Deputy Attorney
                                                         General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Gregory Alan Caudle,                                     September 5, 2019
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         18A-PC-2292
        v.                                               Appeal from the
                                                         Marion Superior Court
State of Indiana,                                        The Honorable
Appellee-Respondent                                      Sheila Carlisle, Judge
                                                         The Honorable
                                                         Stanley E. Kroh, Magistrate
                                                         Trial Court Cause No.
                                                         49G03-1603-PC-9902



Vaidik, Chief Judge.



Court of Appeals of Indiana | Memorandum Decision 18A-PC-2292 | September 5, 2019               Page 1 of 6
                                          Case Summary
[1]   Gregory Alan Caudle appeals the denial of his petition for post-conviction

      relief. We affirm.



                            Facts and Procedural History
[2]   In 2013, Caudle was convicted of burglary, resisting law enforcement, and

      being a habitual offender in Marion Superior Court, and the trial court

      sentenced him to thirty-eight years. Caudle initially pursued a direct appeal but

      later withdrew it. This Court then dismissed his appeal with prejudice in

      February 2014. See 49A02-1308-CR-685.


[3]   In March 2016, Caudle filed a pro se petition for post-conviction relief alleging

      that the charging information was defective because it did not contain the

      “indorsement” “Approved by me” signed by the prosecuting attorney, as

      required by a statute that existed in 1933. See Lynn v. State, 207 Ind. 393, 193

      N.E. 380 (1934). Accordingly, Caudle claimed that the trial court lacked

      jurisdiction because there was “no commencement of criminal action.”

      Appellant’s P-C App. p. 13.


[4]   Along with his petition Caudle filed a motion to forego an evidentiary hearing

      and to proceed by affidavit. The post-conviction court granted this request and

      ordered affidavits to be filed on or before June 21, 2016, and findings and




      Court of Appeals of Indiana | Memorandum Decision 18A-PC-2292 | September 5, 2019   Page 2 of 6
      conclusions to be filed by September 20, 2016.1 Id. at 4; Appellee’s P-C App. p.

      2. Although it doesn’t appear that Caudle filed any affidavits, he asked the

      court to take judicial notice of its file and the record in his direct appeal, which

      the court agreed to do. Appellant’s P-C App. p. 47. On June 22—the day after

      affidavits were due—Caudle filed a motion for an evidentiary hearing pursuant

      to Indiana Post-Conviction Rule 1(9)(b). Id. at 20b. The post-conviction court

      denied this motion given the “claims raised on PCR” and the fact that Caudle

      had “previously requested to proceed by affidavit.” Id.


[5]   On August 12, Caudle filed a motion to amend his petition for post-conviction

      relief in order to add a claim of ineffective assistance of appellate counsel. The

      post-conviction court denied this motion. Id. at 59. Following the submission

      of proposed findings and conclusions by each party, the post-conviction court

      entered an order denying relief.


[6]   Caudle, pro se, now appeals.



                                  Discussion and Decision
[7]   Caudle contends that the post-conviction court erred in denying relief. A

      defendant who files a petition for post-conviction relief has the burden of

      establishing the grounds for relief by a preponderance of the evidence. Hollowell




      1
       Due to several motions filed by Caudle (including Caudle’s attempt to seek an interlocutory appeal) and
      continuances by the State, the due date was extended to July 31, 2018.

      Court of Appeals of Indiana | Memorandum Decision 18A-PC-2292 | September 5, 2019                Page 3 of 6
      v. State, 19 N.E.3d 263, 268-69 (Ind. 2014). If the post-conviction court denies

      relief, and the petitioner appeals, the petitioner must show that the evidence

      leads unerringly and unmistakably to a conclusion opposite that reached by

      the post-conviction court. Id. at 269.


[8]   Caudle first argues that the post-conviction court erred in denying his motion

      for an evidentiary hearing pursuant to Post-Conviction Rule 1(9)(b), which

      provides:


              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.


      We review a post-conviction court’s “decision to forego an evidentiary hearing

      when affidavits have been submitted under Rule 1(9)(b) under an abuse of

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

      trans. denied.


[9]   Here, the post-conviction court proceeded by affidavit at Caudle’s own

      request. Then, after the deadline for submitting affidavits had passed, Caudle

      “change[d] his mind” and requested an evidentiary hearing. Appellant’s Br. p.

      11. Given the narrow, legal nature of the claim Caudle raised in his petition

      (whether the charging information was defective because it wasn’t signed by the

      prosecuting attorney) and the fact that he was the one who requested to proceed




      Court of Appeals of Indiana | Memorandum Decision 18A-PC-2292 | September 5, 2019   Page 4 of 6
       by affidavit, the court did not abuse its discretion in denying Caudle’s motion

       for an evidentiary hearing.


[10]   Caudle next argues that the post-conviction court erred in denying his motion

       to amend his petition for post-conviction relief. Indiana Post-Conviction Rule

       1(4)(c) addresses the amendment of post-conviction petitions as follows:


               At any time prior to entry of judgment the court may grant leave
               to withdraw the petition. The petitioner shall be given leave to
               amend the petition as a matter of right no later than sixty [60]
               days prior to the date the petition has been set for trial. Any later
               amendment of the petition shall be by leave of the court.


       (Emphasis added). Although this case was not set for trial, affidavits were due

       on June 22, 2016, which is the equivalent of the trial date. But Caudle didn’t

       file his motion to amend his petition until August 12—nearly two months after

       the June 22 deadline. Caudle claims that the post-conviction court “abused [its]

       discretion” in denying his motion because the amendment didn’t change the

       substance of his petition but rather “merely wr[ote] between the lines to give a

       more indept[h] petition by showing how ineffective assist[a]nce played a part in

       the claim.” Appellant’s Br. p. 12. A review of Caudle’s motion to amend his

       petition, however, shows that he was not simply filling in his defective-

       charging-information argument; rather, he was raising a new issue. See

       Appellee’s P-C App. pp. 3-6. The post-conviction court did not abuse its

       discretion in denying Caudle’s motion to amend his petition filed after the

       evidentiary deadline had passed.



       Court of Appeals of Indiana | Memorandum Decision 18A-PC-2292 | September 5, 2019   Page 5 of 6
[11]   Finally, Caudle argues that the post-conviction court erred in denying relief on

       his claim that his charging information was defective because it did not contain

       the “indorsement” “Approved by me” signed by the prosecuting attorney, as

       required by a statute that existed in 1933. Regardless of what the law said in

       1933, it is no longer the law. Indiana Code section 35-34-1-2(c)—which Caudle

       does not even acknowledge on appeal—now provides that the charging

       information “shall be signed by the prosecuting attorney or the prosecuting

       attorney’s deputy.” (Emphasis added). This has been the law since at least

       1973. See Ind. Code 35-3.1-1-2(6)(b); Acts 1973, P.L. 325. Here, Caudle’s

       charging documents were signed by a deputy prosecuting attorney. See

       Appellant’s Direct Appeal App. pp. 30, 55. The post-conviction court properly

       denied relief on this claim.2


[12]   Affirmed.


       Riley, J., and Bradford, J., concur.




       2
         Caudle also appears to argue that the State’s answer to his petition for post-conviction relief was somehow
       improper because the State filed its appearance about ten days after filing its answer. Caudle did not raise
       this issue below. Therefore, it is waived.

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-2292 | September 5, 2019                  Page 6 of 6
