MEMORANDUM DECISION
                                                                            FILED
Pursuant to Ind. Appellate Rule 65(D),                                  Jul 10 2018, 7:48 am
this Memorandum Decision shall not be                                       CLERK
regarded as precedent or cited before any                               Indiana Supreme Court
                                                                           Court of Appeals
court except for the purpose of establishing                                 and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


APPELLANT PRO SE                                          ATTORNEYS FOR APPELLEE
Daniel P. Brewington                                      Curtis T. Hill, Jr.
Dublin, Ohio                                              Attorney General

                                                          Stephen R. Creason
                                                          Chief Counsel
                                                          Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Daniel P. Brewington,                                     July 10, 2018
Appellant-Petitioner,                                     Court of Appeals Case No.
                                                          15A04-1712-PC-2889
        v.                                                Appeal from the Dearborn
                                                          Superior Court
State of Indiana,                                         The Honorable W. Gregory Coy,
Appellee-Respondent                                       Special Judge
                                                          Trial Court Cause No.
                                                          15D02-1702-PC-3



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 15A04-1712-PC-2889 | July 10, 2018            Page 1 of 9
                                               Case Summary
[1]   A jury convicted Daniel Brewington of class D felony intimidation, class D

      felony attempted obstruction of justice, class D felony perjury, and two class A

      misdemeanor counts of intimidation, all stemming from his threats against the

      trial judge, the judge’s wife, and a psychologist involved in his marital

      dissolution. His convictions were ultimately affirmed on direct appeal. He

      filed a pro se petition for post-conviction relief (“PCR”) and now appeals, pro

      se, the post-conviction court’s summary denial of that petition. He raises

      several issues, including judicial bias, prosecutorial and judicial misconduct,

      ineffective assistance of trial and appellate counsel, and error in denying his

      PCR petition without a hearing. Because we find that the post-conviction court

      erred in summarily denying his PCR petition, we need not address the

      remaining issues. As such, we reverse and remand for a hearing on his PCR

      petition.


                                    Fact and Procedural History
[2]   The underlying facts are as follows:1 Around 2007, when Brewington was

      involved in a contentious child-custody battle, he began a protracted campaign

      against the trial judge and the psychologist appointed as custody evaluator in

      his case. Having received an unfavorable report from the psychologist

      concerning his mental health and potential for successful parenting, he



      1
        For a more in-depth recitation of the underlying facts, as summarized by our supreme court on transfer of
      his direct appeal, see Brewington v. State, 7 N.E.3d 946, 955-58 (Ind. 2014), cert. denied (2015).

      Court of Appeals of Indiana | Memorandum Decision 15A04-1712-PC-2889 | July 10, 2018             Page 2 of 9
      repeatedly barraged the psychologist and judge with faxes and pro se motions,

      posted accusatory materials about both of them online, and threatened them

      with lawsuits and professional discipline. The trial judge eventually recused

      himself, and a special judge was appointed. At his final divorce hearing,

      Brewington engaged in volatile, angry outbursts that required the services of an

      additional law enforcement officer. He also attempted to intimidate his wife’s

      counsel. Meanwhile, he continued to post information online referencing his

      divorce with terms such as gas and fire and himself as a pyromaniac. His

      rhetoric escalated after the divorce, and he posted the trial judge’s home address

      online and made remarks so intimidating that the judge’s wife had to have a

      police escort to go to work. He also posted personal information and

      photographs of the psychologist and suggested that he might be a pervert.

      Brewington’s actions prompted both the judge and the psychologist to take

      protective measures for themselves and their families.


[3]   A grand jury indicted Brewington on six counts: class D felony intimidation (of

      the trial judge), class D felony attempted obstruction of justice, class D felony

      perjury before the grand jury, two counts of class A misdemeanor intimidation

      (of the judge’s wife and the psychologist); and class B misdemeanor unlawful

      disclosure of grand jury proceedings. A jury acquitted him on the class B

      misdemeanor disclosure count and convicted him on the remaining counts.

      Brewington appealed, raising several issues including sufficiency of the

      evidence, ineffective assistance of trial counsel, and a double jeopardy

      challenge. Another panel of this Court affirmed his three felony convictions


      Court of Appeals of Indiana | Memorandum Decision 15A04-1712-PC-2889 | July 10, 2018   Page 3 of 9
      and reversed his two misdemeanor convictions. Our supreme court accepted

      transfer and affirmed Brewington’s convictions on all five counts.


[4]   Brewington filed a pro se petition for post-conviction relief, raising twenty

      claims, including unlawful alteration of the grand jury transcripts and audio by

      the trial court, judicial and prosecutorial misconduct associated with the grand

      jury proceedings and his jury trial, violation of his free speech rights, ineffective

      assistance of counsel, and judicial bias by the trial and post-conviction courts.

      He filed a motion for change of judge, and a special judge was appointed. He

      filed a motion for summary judgment and a supporting memorandum. The

      State filed a response and an opposing memorandum, claiming that summary

      judgment is not available in PCR actions but that summary disposition was

      available pursuant to Indiana Post-Conviction Rule 1(4)(g). Brewington filed

      his reply and moved to strike certain portions of the State’s materials. The post-

      conviction court dispensed with a hearing and issued an order summarily

      denying Brewington’s motion to strike, motion for summary judgment, and

      PCR petition. Brewington filed a motion to correct error, which the court also

      denied. Brewington now appeals, claiming that the post-conviction court

      demonstrated bias against him and erred in summarily denied his PCR petition.


                                     Discussion and Decision
[5]   Brewington contends that the post-conviction court erred in summarily denying

      his PCR petition. Post-conviction relief does not offer the petitioner a super

      appeal; rather, subsequent collateral challenges must be based on grounds

      enumerated in the post-conviction rules. McKnight v. State, 1 N.E.3d 193, 199
      Court of Appeals of Indiana | Memorandum Decision 15A04-1712-PC-2889 | July 10, 2018   Page 4 of 9
      (Ind. Ct. App. 2013), trans. denied (2014). These rules limit the scope of relief to

      issues unknown or unavailable to the petitioner on direct appeal. Id. The

      petitioner in a post-conviction proceeding “bears the burden of establishing

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

      Rule 1(5); Passwater v. State, 989 N.E.2d 766, 770 (Ind. 2013). When issuing its

      decision to grant or deny relief, the post-conviction court must make findings of

      fact and conclusions of law on all issues presented, whether or not a hearing is

      held. Ind. Post-Conviction Rule 1(6).


[6]   As a preliminary matter, we note that Brewington has chosen to proceed pro se,

      both below and in this appeal. It is well settled that pro se litigants are held to

      the same legal standards as licensed attorneys. Lowrance v. State, 64 N.E.3d 935,

      938 (Ind. Ct. App. 2016). This means that they must follow our established

      rules of procedure and accept the consequences when they fail to do so. Id. It

      is not the court’s role to become an “advocate for a party, or address arguments

      that are inappropriate or too poorly developed or expressed to be understood.”

      Id.


[7]   Brewington contends that the post-conviction court erred in summarily

      disposing of his PCR action. Ordinarily, a petitioner who appeals the denial of

      his post-conviction petition faces a rigorous standard of review, that of

      demonstrating that the post-conviction court’s decision was clearly erroneous.

      Massey v. State, 955 N.E.2d 247, 253 (Ind. 2011). Here, however, the post-

      conviction court entered a summary disposition denying Brewington’s PCR

      petition. Indiana Post-Conviction Rule 1(4)(g) reads:

      Court of Appeals of Indiana | Memorandum Decision 15A04-1712-PC-2889 | July 10, 2018   Page 5 of 9
              The 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. The court may ask for oral
              argument on the legal issue raised. If an issue of material fact is
              raised, then the court shall hold an evidentiary hearing as soon as
              reasonably possible.


[8]   “[W]hen a court disposes of a petition under subsection (g), we review the

      lower court’s decision as we would a motion for summary judgment.” Binkley

      v. State, 993 N.E.2d 645, 650 (Ind. Ct. App. 2013). Like summary judgment,

      we review a summary disposition de novo, applying the same standard as the

      trial court. Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014). In conducting

      our review, we consider only those matters that were designated at the

      summary judgment stage. Haegert v. McMullan, 953 N.E.2d 1223, 1229 (Ind.

      Ct. App. 2011). A trial court’s grant of summary judgment arrives on appeal

      clothed with a presumption of validity. Williams v. Tharp, 914 N.E.2d 756, 762

      (Ind. 2009). We may affirm on any legal basis supported by the designated

      evidence. Harness v. Schmitt, 924 N.E.2d 162, 165 (Ind. Ct. App. 2010).


[9]   Here, Brewington filed a motion for summary judgment, essentially asking the

      post-conviction court to dispense with a hearing and find in his favor as a

      matter of law. The State filed a memorandum in opposition to Brewington’s

      summary judgment motion that concluded as follows:




      Court of Appeals of Indiana | Memorandum Decision 15A04-1712-PC-2889 | July 10, 2018   Page 6 of 9
                It is plain to see from the evidence provided that issues of
                material fact exist which necessitate a hearing on Brewington’s
                Petition, and that Brewington’s Motion for Summary Judgment
                therefore fails. Similarly, because this Motion is required to be
                made under Ind. R. P. Post-Conviction Remedies 4(g) as
                opposed to Ind. R. Trial P. 56, the State must only show, and has
                raised, an issue of material fact.


       Appellant’s App. Vol. 3 at 10-11.


[10]   In his PCR petition, Brewington raised twenty allegations of error, including

       ineffective assistance of trial and appellate counsel and freestanding claims of

       error, all of which centered around judicial bias, prosecutorial and judicial

       misconduct surrounding the grand jury proceedings, and an alleged conspiracy

       against him. In its order summarily denying Brewington’s PCR petition, the

       post-conviction court found that pursuant to Post-Conviction Rule 1(4)(g),2 it

       could grant a motion for summary disposition where the pleadings and

       responses, motions, and responses show that there is no genuine issue of

       material fact. The court found, in relevant part,


                13. Brewington alleges that various parties involved in his
                prosecution acted conspiratorially, this is, they acted together to
                alter grand jury transcripts; that the special judge and the
                prosecutors committed various acts of misconduct; that he was
                denied effective assistance of counsel, that the trial judge was not



       2
         To the extent that there is confusion as to whether the post-conviction court entered summary disposition
       pursuant to subsection (g) as opposed to subsection (f), which provides that the court may deny a petition
       without further proceedings “[i]f the pleadings conclusively show that petitioner is entitled to no relief,” we
       note that the court specifically cited subsection (g) in its order and made no reference to subsection (f).
       Appellant’s App. Vol. 2 at 11.

       Court of Appeals of Indiana | Memorandum Decision 15A04-1712-PC-2889 | July 10, 2018                 Page 7 of 9
                impartial, and that his appellate counsel was also ineffective.

                ….

                16. There is no factual basis to support any of Brewington’s
                claims and/or allegations against the judges and attorneys
                involved in his case.

                17. There is no need for a hearing.

                18. Even though the State did not move for summary judgment,
                based on the undersigned judge’s reading of the pleadings and
                [Brewington’s appellate cases],3 judgment should be entered
                without a hearing.

                19. Brewington’s petition should be denied.


       Appellant’s App. Vol. 2 at 11-12.


[11]   In conducting our de novo review of the court’s summary denial of

       Brewington’s petition, we find that we have a vacuum of information. The

       post-conviction court’s findings do not specifically address each of Brewington’s

       allegations, and the parties’ memoranda for and against summary judgment

       leave us with more questions than answers concerning the viability and merit of

       his various claims. Absent a developed factual record, we cannot adequately

       review the merits or even discern which of his claims remain viable as

       “unknown or unavailable on direct appeal,” McKnight, 1 N.E.3d at 199, and




       3
         Brewington v. State, 7 N.E.3d 946 (Ind. 2014), cert. denied (2015); Brewington v. State, 981 N.E.2d 585 (Ind.
       Ct. App. 2013), aff’d in part, vac. in part (2014).

       Court of Appeals of Indiana | Memorandum Decision 15A04-1712-PC-2889 | July 10, 2018                  Page 8 of 9
       which are subject to waiver, res judicata, or other procedural default. See

       Timberlake v. State, 753 N.E.2d 591, 597-98 (Ind. 2001) (“As a general rule, most

       free-standing claims of error are not available in a post-conviction proceeding

       because of the doctrines of waiver and res judicata.”), cert. denied (2002). See

       also Brewington, 7 N.E.3d at 978 (“Raising ineffectiveness [of counsel] on direct

       appeal without the benefit of an additional postconviction record is permissible,

       but the issue becomes res judicata and therefore unavailable for collateral

       review.”); Reed v. State, 856 N.E.2d 1189, 1195 (Ind. 2006) (PCR petitioner

       cannot escape effect of claim preclusion by re-designating or re-packaging

       claim). We therefore reverse the summary denial of Brewington’s PCR petition

       and remand for a factfinding hearing and a decision on the merits of any claims

       that remain viable.


[12]   Reversed and remanded.


       Bailey, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 15A04-1712-PC-2889 | July 10, 2018   Page 9 of 9
