Pursuant to Ind.Appellate Rule 65(D),                                            Oct 18 2013, 5:34 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:                                 ATTORNEY FOR APPELLEE:

CHAD MUSICK                                       GREGORY F. ZOELLER
Carlisle, Indiana                                 Attorney General of Indiana

                                                  BRIAN REITZ
                                                  Deputy Attorney General
                                                  Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

CHAD MUSICK,                                      )
                                                  )
        Appellant-Petitioner,                     )
                                                  )
               vs.                                )       No. 18A04-1302-PC-61
                                                  )
STATE OF INDIANA,                                 )
                                                  )
        Appellee-Respondent.                      )


                     APPEAL FROM THE DELAWARE CIRCUIT COURT
                          The Honorable Marianne Voorhees, Judge
                               Cause No. 18C01-0703-FA-2


                                       October 18, 2013

                MEMORANDUM DECISION – NOT FOR PUBLICATION

BARNES, Judge
                                      Case Summary

       Chad Musick appeals the denial of his petition for post-conviction relief (“PCR

petition”), which challenged his conviction for Class A felony possession of cocaine. We

affirm in part, reverse in part, and remand.

                                           Issue

       Musick raises two issues, but we address only one dispositive issue: whether

Musick received ineffective assistance of post-conviction counsel.

                                           Facts

       For purposes of this appeal we need not recite in detail the facts behind Musick’s

conviction.   On November 2, 2007, a jury found Musick guilty of Class A felony

possession of cocaine. Following denial of a motion to correct error, Musick appealed

his conviction, challenging the trial court’s denial of a motion to suppress, the sufficiency

of the evidence supporting his convictions, whether there was juror misconduct during

his trial, and the appropriateness of his sentence. We affirmed Musick’s conviction and

sentence, and our supreme court denied transfer. See Musick v. State, No. 18A02-0803-

CR-310 (Ind. Ct. App. Dec. 12, 2008), trans. denied.

       On March 5, 2009, Musick filed a pro se PCR petition. The petition generally

alleged that Musick received ineffective assistance of trial counsel because counsel failed

to file a motion to suppress, failed to call witnesses, and failed to object to improper

evidence. It also alleged that Musick received ineffective assistance of appellate counsel

based on failure to raise a jury instruction issue on direct appeal. On March 18, 2009,

                                               2
this court released the transcript from Musick’s direct appeal to his attorney, Hilary Bowe

Ricks, at Musick’s request.1 Ricks returned the transcript to this court on February 4,

2011 and there is no record on this court’s docket that it was ever withdrawn again by

anyone. Ricks withdrew her appearance of Musick on May 26, 2011. On May 15, 2012,

attorney Michael Alexander filed an appearance on Musick’s behalf. Alexander did not

attempt to amend Musick’s pro se petition.

        The PCR court conducted a hearing on Musick’s petition on September 19, 2012.

Alexander did not present any evidence or call any witnesses, aside from calling Musick

himself to the stand. Alexander also did not bring an original or copy of the trial

transcript to the hearing, although he indicated that he had the transcript in his possession

but “I didn’t carry it over here today . . . .” Tr. p. 12. Musick testified that he believed

trial counsel should have called certain witnesses on his behalf, including witnesses who

could have attacked the veracity of one of the State’s key eyewitnesses against him.

Musick also made general reference to there being evidence that he believed trial counsel

should have objected to and also possibly a question the jury asked during deliberations.

Alexander asked if Musick “would be able to show better by reference to pages of your

transcript” in addressing trial counsel’s failure to object, and Musick responded in the

affirmative. Id. at 9. Alexander made no legal argument to the post-conviction court at

the conclusion of the hearing, and also stated, with the prosecutor’s acquiescence, that he


1
 Ricks did not enter an appearance on behalf of Musick until May 12, 2010. Until that time, Musick was
officially represented by the State Public Defender after the filing of his pro se PCR petition; the State
Public Defender thereafter withdrew its appearance.
                                                    3
would submit the trial transcript to the court at a later date; he also requested thirty days

to prepare proposed findings and conclusions, which the court granted. The court later

granted Alexander an additional sixty days to submit proposed findings and conclusions.

        On January 8, 2013, after the deadline for Alexander to submit proposed findings

and conclusions had passed without any submission from him, the post-conviction court

entered its order denying Musick’s PCR petition. The order began by stating that the

court had taken “judicial notice of the Chronological Case Summary in both cause

numbers, the pleadings in the court files in both cases, and the evidence submitted by the

parties in this case.” App. p. 24. As for the trial transcript, however, the court stated that

it “never received the transcript from counsel.”2 Id. It also noted that Musick had failed

to call either his trial or appellate attorneys as witnesses at the PCR hearing and,

therefore, it would infer that they would not have presented evidence or testimony

supporting Musick’s ineffective assistance claims.               It further observed that although

Musick had generally claimed his trial attorney failed to make proper objections, he did

not indicate via the transcript what objections should have been made.                        The court

ultimately found Musick failed to prove his claims of ineffective assistance of trial and

appellate counsel and denied his PCR petition. Musick now appeals pro se.

                                                Analysis


2
  The court also stated that it had reviewed this court’s online docket and discovered that Ricks had never
returned the transcript to this court after checking it out. As stated earlier, however, the docket does
indicate that Ricks returned the transcript to this court on February 4, 2011. Unfortunately, however, the
docket does not reveal that Alexander ever checked out the transcript, even though he said at the post-
conviction hearing that he had it in his possession.
                                                    4
       PCR proceedings are civil in nature, and a defendant bears the burden of

establishing his or her claims by a preponderance of the evidence. Smith v. State, 822

N.E.2d 193, 198 (Ind. Ct. App. 2005), trans. denied. A defendant appealing the denial of

a PCR petition is challenging a negative judgment. Id. A defendant must convince this

court that there is no way within the law that the court below could have reached the

decision it did. Id. We will not defer to the PCR court’s legal conclusions, but we do

accept its factual findings unless they are “clearly erroneous.” Id.

       On appeal, Musick makes no argument that the post-conviction court erred in

rejecting his claim of ineffective assistance of appellate counsel. He does argue that it

erred with respect to his claim of ineffective assistance of trial counsel. However, we

focus on the preliminary issue Musick raises, which is whether he received ineffective

assistance of post-conviction counsel.

       Post-conviction proceedings are technically civil in nature, and a post-conviction

relief petitioner has no right to counsel under either the United States or Indiana

Constitutions.   Baum v. State, 533 N.E.2d 1200, 1201 (Ind. 1989). Therefore, our

supreme court has held that the performance of an attorney representing a post-conviction

relief petitioner should not be judged by the ineffective assistance of counsel standard

outlined in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). Id. Rather,




                                             5
post-conviction counsel is deemed adequate if he or she in fact appeared and represented

the petitioner in a procedurally fair setting that resulted in a judgment of the court.3 Id.

       A post-conviction relief attorney must be more than just a “warm body,” however.

For example, in Waters v. State, 574 N.E.2d 911, 911-12 (Ind. 1991), our supreme court

held that a post-conviction petitioner received ineffective assistance of post-conviction

counsel where, although the attorney entered an appearance, “no actual legal

representation occurred.” There, the post-conviction court ordered the case submitted on

affidavits; the petitioner on his own submitted inadequate affidavits to the court without

assistance from the attorney and the post-conviction court denied the petition. Our

supreme court stated that under these facts, “Counsel, in essence, abandoned his client

and did not present any evidence in support of his client’s claim.” Id. at 912.

       Of particular relevance to Musick’s case are Bahm v. State, 789 N.E.2d 50 (Ind.

Ct. App. 2003), trans. denied, and Taylor v. State, 882 N.E.2d 777 (Ind. Ct. App. 2008).

In both cases, we found that a post-conviction relief petitioner received ineffective

assistance of post-conviction counsel where the attorney failed to submit any evidence, in

particular the trial transcript, in support of the petitioner’s claim of ineffective assistance

of trial counsel. Bahm, 789 N.E.2d at 61-62; Taylor, 882 N.E.2d at 783. We noted that

“‘[i]t is practically impossible to gauge the performance of trial counsel without the trial


3
  Musick argues extensively that the Baum standard should be revisited in light of developments in
federal law that have made it much harder for prisoners to seek and obtain federal habeas corpus relief,
thus placing more emphasis on state collateral proceedings. Putting aside the fact that we are bound to
follow Baum, Musick has adequately stated a claim of ineffective assistance of post-conviction counsel
under that case so we need not address that argument.
                                                   6
record’” and that it is “impossible for the post-conviction court to conduct the necessary

Strickland analysis” if no evidence, including the trial record, is introduced in support of

an ineffective assistance claim. Taylor, 882 N.E.2d at 782, 784 (quoting Tapia v. State,

753 N.E.2d 581, 588 n.10 (Ind. 2001)).

       Here, as in Bahm and Taylor, Alexander presented absolutely no evidence in

support of Musick’s ineffective assistance of trial counsel claims, aside from calling

Musick to the stand and allowing Musick to testify as to why he thought trial counsel was

ineffective.   Musick easily could have done so without counsel’s assistance.         Most

egregiously, Alexander did not bring the transcript to the post-conviction hearing or ever

provide the post-conviction court with a copy of it. This is especially troubling, given

that Alexander asked Musick questions at the hearing indicating the difficulty of making

his arguments without being able to refer to specific parts of the transcript, and

Alexander’s representation at the hearing that he had the transcript in his possession and

would provide the post-conviction court with it at a later date.

       It is true that after Bahm and Taylor were decided, Indiana Evidence Rule 201(b)

was amended to permit courts to take judicial notice of “records of a court of this state.”

Prior to this amendment, post-conviction courts could not take judicial notice of a direct

appeal record and transcript, but they are now permitted to do so in order to evaluate

claims of ineffective assistance of counsel. Mitchell v. State, 946 N.E.2d 640, 644 (Ind.

Ct. App. 2011), trans. denied. The prohibition against taking judicial notice of a direct

appeal record and transcript in post-conviction proceedings was part of the basis of our

                                             7
holdings in Bahm and Taylor that post-conviction counsels were ineffective for not

providing the trial records to the post-conviction courts.

       Still, “judicial notice” does not mean that a court has some kind of telepathic

knowledge of the material to be noticed. There still must be some indication that the

court actually noticed the material and actually considered it when making a ruling. The

post-conviction court here did not actually consider the trial transcript before ruling on

the PCR petition. And although the post-conviction judge in this case also was the judge

in Musick’s original trial, we should not presume she remembered all the details of his

trial that had taken place approximately five years before the post-conviction hearing.

Here, the post-conviction court was relying upon Alexander to provide it with a copy of

the trial transcript. When he did not do so, the court was not required to take judicial

notice of the trial transcript, its own efforts to locate the transcript apparently were

fruitless, and it ruled upon on Musick’s petition without having reviewed that transcript.

       We further observe that Alexander appears to have provided even less

representation than the post-conviction attorneys in Bahm and Taylor. The attorneys in

those cases at least made some legal arguments on behalf of their clients. Alexander,

however, never made any type of written or oral legal argument on Musick’s behalf,

despite the post-conviction court giving him first thirty, then an additional sixty days to

file proposed findings and conclusions.       The State posits that Alexander may have

evaluated Musick’s claims, decided they were meritless, and reasonably decided not to

make any legal arguments. In support of this position the State cites a dissent by Justice

                                              8
Givan in Waters. Whatever the merits of that dissent, we are bound to follow the

majority opinion in Waters.

       Finally, Alexander failed to call Musick’s trial attorney as a witness at the post-

conviction hearing. As noted by the post-conviction court, this permitted an inference

that trial counsel would not have corroborated Musick’s claims of ineffective assistance.

See Oberst v. State, 935 N.E.2d 1250, 1254 (Ind. Ct. App. 2010), trans. denied. Musick

thus was severely hampered from litigating his ineffective assistance claim because he

was precluded from examining trial counsel’s strategy as to why he decided not to call

certain witnesses or ask certain questions or present certain evidence or make certain

objections. Whether such examination could have proven fruitful is impossible to guess.

       Even under the deferential Baum standard for gauging the adequacy of post-

conviction counsel, we conclude Musick received ineffective assistance of post-

conviction counsel.   Musick was effectively and legally abandoned by Alexander’s

failure to present any evidence or ensure that the post-conviction court was able to review

the direct appeal transcript, in failing to make any legal arguments on Musick’s behalf,

and in failing to call Musick’s trial attorney to testify at the post-conviction hearing.

Thus, we reverse in part the denial of Musick’s post-conviction relief petition and remand

for him “to begin anew his quest for post-conviction relief” on his claim of ineffective

assistance of trial counsel.   Waters, 574 N.E.2d at 912.      We need not address the

substance of that claim at this juncture. See id. (declining to address remaining issues on

appeal from denial of post-conviction relief after finding that counsel was ineffective).

                                            9
Musick is entitled to have that claim first litigated in a procedurally fair setting.

However, because Musick has made no argument that the trial court erred in ruling upon

his ineffective assistance of appellate counsel claim or that Alexander’s ineffectiveness

impacted resolution of that claim, we affirm the denial of post-conviction relief with

respect to Musick’s claim of ineffective assistance of appellate counsel.

                                         Conclusion

       We affirm the denial of Musick’s PCR petition to the extent the post-conviction

court found he did not receive ineffective assistance of appellate counsel. We reverse

that denial with respect to the claim of ineffective assistance of trial counsel and remand

for further proceedings on that claim.

       Affirmed in part, reversed in part, and remanded.

CRONE, J., and PYLE. J., concur.




                                            10
