MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                    FILED
regarded as precedent or cited before any
                                                                   May 18 2020, 10:43 am
court except for the purpose of establishing
the defense of res judicata, collateral                                  CLERK
                                                                     Indiana Supreme Court
estoppel, or the law of the case.                                       Court of Appeals
                                                                          and Tax Court




APPELLANT PRO SE                                         ATTORNEY FOR APPELLEE
Todd Leek                                                Evan Matthew Comer
Michigan City, Indiana                                   Deputy Attorney General
                                                         Indianapolis, Indiana




                                          IN THE
    COURT OF APPEALS OF INDIANA

Todd Leek,                                               May 18, 2020
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         19A-PC-1414
        v.                                               Appeal from the Allen Superior
                                                         Court
State of Indiana,                                        The Honorable Frances C. Gull,
Appellee-Respondent.                                     Judge
                                                         Trial Court Cause No.
                                                         02D05-1612-PC-123



Altice, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-PC-1414 | May 18, 2020                 Page 1 of 17
                                             Case Summary

[1]   Todd Leek appeals the denial of his petition for post-conviction relief, claiming

      that his trial counsel was ineffective for failing to object to the admission of

      evidence that allegedly violated Indiana Evid. Rule 404(b). Leek also asserts

      that he is entitled to relief because the post-conviction court erred in deciding

      the case by way of affidavit rather than conducting an evidentiary hearing.


[2]   We affirm.


                                 Facts and Procedural History
[3]   The facts, as reported in Leek’s direct appeal, are as follows:


              Leek met [Mother] in 2003 and they married in 2004. [Mother]
              had five children, including B.L., who was four years old at the
              time. Leek adopted all five children. The family moved often
              during the next few years, sometimes in order to avoid
              investigation of physical abuse of one of the daughters. Leek was
              verbally and physically abusive toward [Mother]. When B.L was
              between five and eight Leek began inappropriately touching her
              sexually, and the inappropriate activity progressed over the next
              several years. B.L. did not immediately report the activity
              because she was afraid of Leek. In May 2013, [Mother] and the
              children moved out. Shortly afterward B.L. described to her
              mother the inappropriate touching by Leek. B.L had made
              similar allegations once before, while the family was traveling.


[4]   Leek v. State, No. 02A03-1502-CR-52, slip op. at 2 (Ind. Ct. App. Dec. 21, 2015).


      Court of Appeals of Indiana | Memorandum Decision 19A-PC-1414 | May 18, 2020   Page 2 of 17
[5]   On February 27, 2014, the State charged Leek with three counts of child

      molesting and filed two notices indicating its intent to offer character evidence

      at trial under Evid. R. 404(b). One of the notices provided that the State sought

      to introduce evidence of past episodes of physical abuse between Leek and

      B.L.’s sister, H.L., and Mother. The State argued that this evidence was

      necessary to establish the reasons why B.L. did not report the incidents of

      sexual abuse at an earlier time, as well as “the nature of the relationship

      between the parties, the victim’s state of mind, and [Leek’s] guilty knowledge.”

      Appendix at 48. The trial court issued an order allowing the State to offer that

      evidence.



[6]   At Leek’s jury trial that commenced on January 6, 2015, H.L. was the first of

      the State’s witnesses to testify, and she described various episodes of physical

      abuse involving Leek. H.L. testified about one occasion where Leek had

      “smashed [her] head against the wall.” Transcript at 38. The State offered a

      photograph of a laceration near H.L.’s eye that she received during that

      altercation. Leek’s counsel did not object, and H.L. went on to testify that after

      she disclosed instances of Leek’s abuse to her church pastor, the family moved

      from Indiana to Florida because Leek wanted to avoid “getting the cops

      involved. . . .” Id. at 44.


[7]   Mother testified that while the family was living in Goshen, the police were

      contacted on one occasion to investigate allegations that Leek had physically

      abused H.L. Before the police interviewed H.L., Mother and Leek met with


      Court of Appeals of Indiana | Memorandum Decision 19A-PC-1414 | May 18, 2020   Page 3 of 17
      her and “had a discussion . . . about what went on and what the consequences

      would be if it went further.” Id. at 98. Leek and Mother instructed H.L. “to

      not tell [the police] everything that was going on” because “it would tear up

      [the] family. . . .” Id. Mother testified that when she confronted Leek about the

      altercation with H.L., he apologized and stated he “would try not to do it

      again.” Id. at 119-20. Without objection from Leek’s counsel, Mother testified

      that Leek “had a very bad temper, . . . he’d get very angry, very mad . . . in

      order for us to listen to him.” Id. at 115-16. She stated that Leek’s abuse

      included verbal insults and “[p]ushing, shoving, throwing things, [and] holding

      [her] down.” Id. at 116. Mother described incidents where Leek broke her

      wrist and pushed her down some stairs.


[8]   Mother testified that after she and Leek separated in February 2013, she

      petitioned for dissolution of the marriage. Mother and the children moved to

      Michigan, after which B.L. told her about the “inappropriate things that Leek

      had been doing to her” when they were living in Fort Wayne. Id. at 114-15.

      Leek was also physically violent with Mother’s sons, Ja.J. and Jo.J., and

      Mother testified that B.L. had witnessed some of those incidents. Sometimes

      when B.L. and Ja.J. fought, Mother testified that Leek would “slap [B.L.] in the

      mouth or push her or grab her by the hair and put her in her room.” Id. at 117.


[9]   The State called B.L. as a witness after Mother and H.L. testified. B.L. recalled

      that she was eight years old when Leek began sexually abusing her. On that

      first occasion, Leek took her into his bedroom, put her under the covers, and

      touched her “crotch” with his hand. Id. at 184. B.L. testified that Leek

      Court of Appeals of Indiana | Memorandum Decision 19A-PC-1414 | May 18, 2020   Page 4 of 17
       continued to engage in similar conduct over the years and she described

       incidents where Leek forced her to watch pornographic videos of “girls having .

       . . sex” on his phone, computer, and television set. Id. B.L. also described how

       Lee would make her “take . . . shower[s] in . . . his bathroom” and then order

       her “out of the shower, touch her crotch and . . . rub it with his hand.” Id. at

       184, 188. B.L. described that on several occasions, Leek forced her to touch his

       penis with her hands, “crotch,” and mouth. Id. at 189-90. The incidents where

       Leek touched her “crotch with his crotch” and “touched [her] crotch with his

       mouth” involved “skin-to-skin contact.” Id. at 192.


[10]   B.L. testified that she did not initially report Leek’s conduct because she “felt

       scared” and that “if [she] told anyone something bad would happen, [and she]

       wouldn’t be able to undo it.” Id. B.L. stated that she first disclosed the

       incidents to Mother after they had moved from Canada, but she believed that

       “[Mother] couldn’t do anything” about the situation. Id. at 194-96.


[11]   Leek testified in his own defense. Thereafter, the jury found Leek guilty as

       charged and the trial court sentenced him to an aggregate term of eighty years

       of incarceration.


[12]   This court affirmed Leek’s convictions and sentence on direct appeal. On

       November 7, 2018, Leek filed an amended petition for post-conviction relief,

       claiming that his trial counsel was ineffective for failing to object to “evidence

       and argument regarding the violent history between the petitioner and [H.L.]




       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1414 | May 18, 2020   Page 5 of 17
       and to the “drum beat of witnesses and evidence.” P.C.R. Appendix Vol. II at

       26.


[13]   Upon motion by the State, the post-conviction court ordered the cause

       submitted by affidavit on July 17, 2018. Leek filed a motion for an evidentiary

       hearing and a request for a subpoena for his trial counsel to testify, both of

       which the post-conviction court denied. Leek then filed an affidavit in support

       his petition for post-conviction relief on December 13, 2018, and both parties

       subsequently tendered proposed findings of fact and conclusions of law. On

       May 24, 2019, the post-conviction court entered findings and of fact and

       conclusions of law, denying Leek’s request for relief as follows:


               3. Mr. Leek identifies no instance in which any witness
               expressed an opinion that B.L. was testifying truthfully, and the
               Court’s review of the record has disclosed none. Attorney
               Linsky cannot be found ineffective for failing to object to
               nonexistent vouching testimony. Sanchez v. State, 675 N.E.2d
               306, 310 (Ind. 1996) (a defendant cannot prove that counsel’s
               failure to raise an objection constituted inadequate representation
               without showing that, had the objection been made, “the court
               would have had no choice but to sustain it”); Vaughn v. State, 559
               N.E.2d 610, 615 (Ind. 1990) (counsel will not be deemed
               ineffective for failing to present a meritless claim).


               4. Even if there is no expression of opinion as to whether a
               witness has testified truthfully, a “drumbeat repetition” of an
               alleged victim’s statements about the charged offense, before the
               alleged victim testifies and is subject to cross examination, may
               warrant reversal of a conviction. Modesitt v. State, 578 N.E.2d
               649, 654 (Ind. 1991). In the present case, no witnesses related
               any of B.L.’s allegations before she testified. . . . Attorney Linsky

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1414 | May 18, 2020   Page 6 of 17
        cannot be found ineffective for failing to complain about a
        nonexistent “drumbeat repetition” of B.L.’s allegations. Sanchez,
        675 N.E.2d at 3 10 (Ind. 1996). . . .


        5. A fairly large amount of the evidence at trial was not directly
        relevant to the charged offenses nor to Mr. Leek’s defense, but
        rather concerned matters such as [H.L.’s] bad relationship with
        Mr. Leek, the family’s frequent moves, and revealing outfits
        worn by [H.L.] and B.L. Mr. Leek asserts that attorney Linsky
        was ineffective in failing to raise adequate objections to such
        evidence. It is not necessary to determine whether attorney
        Linsky’s performance was deficient in this regard, because Mr.
        Leek’s defense did not suffer prejudice as a result. Bouye, 699
        N.E.2d at 623. For the following reasons, there is no reasonable
        probability that the outcome of Mr. Leek’s trial would have been
        different even if attorney Linsky had successfully objected to all
        of the evidence that was not directly relevant. . . .


        6. B.L.’s highly detailed account of events . . . gave no obvious
        indication of having been fabricated or coerced, to say the least.
        Her account was partially corroborated by [the other three
        children]. All three of these witnesses testified that Mr. Leek and
        B.L. had repeatedly been in Mr. Leek’s bedroom with the door
        closed or locked, and that Mr. Leek showed favoritism to B.L. by
        giving her more gifts than the others received, consistent with
        B.L.’s own testimony that Mr. Leek gave her gifts in return for
        touching. . . . Ja.J. and Jo.J. also testified that they had seen
        inappropriate videos displayed on devices when Mr. Leek and
        B.L. were together in Mr. Leek’s bedroom, consistent with B.L.’s
        testimony that Mr. Leek showed her such material and had her
        do the things depicted.


                                                ...




Court of Appeals of Indiana | Memorandum Decision 19A-PC-1414 | May 18, 2020   Page 7 of 17
               9. Mr. Leek’s own testimony. . . was not credible on crucial
               points.

       '




               10. For the foregoing reasons, all arising solely from the evidence
               that would have remained if all evidence not directly relevant to
               the charges or the defense had been excluded, it is evident that
               there is hardly a conceivable possibility—much less a reasonable
               probability—that Mr. Leek would have been acquitted even if all
               such evidence had been excluded. B.L.’s detailed testimony was
               credible and partially corroborated, and there was no indication
               that it was either fabricated or coerced, much less both. Mr.
               Leek’s defense was completely incredible for multiple reasons. . .
               . As Mr. Leek’s defense did not suffer prejudice as a result of
               attorney Linsky’s failure to exclude evidence not directly
               relevant, his claim of ineffectiveness on this basis must fail. . . .


       P.C.R. Appellant’s Appendix Vol. II at 54-66. Leek now appeals.

                                      Discussion and Decision
                                           I. Standard of Review

[14]   Our standard of review in post-conviction proceedings is well-settled:


           [P]ost-conviction proceedings do not grant a petitioner a ‘super-
           appeal’ but are limited to those issues available under the Indiana
           Post-Conviction Rules. Post-conviction proceedings are civil in
           nature, and petitioners bear the burden of proving their grounds for
           relief by a preponderance of the evidence. Ind. Post-Conviction
           Rule 1(5). A petitioner who appeals the denial of PCR faces a
           rigorous standard of review, as the reviewing court may consider
           only the evidence and the reasonable inferences supporting the
           judgment of the post-conviction court. The appellate court must
           accept the post-conviction court’s findings of fact and may reverse
           only if the findings are clearly erroneous. If a PCR petitioner was

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1414 | May 18, 2020   Page 8 of 17
           denied relief, he or she must show that the evidence as a whole leads
           unerringly and unmistakably to an opposite conclusion than that
           reached by the post-conviction court.


       Jent v. State, 120 N.E.3d 290, 92-93 (Ind. Ct. App. 2019) (quoting Shepherd v.

       State, 924 N.E.2d 1274, 1280 (Ind. Ct. App. 2010) (internal citations omitted),

       trans. denied.


                                                   II. Leek’s Claims


                                 A. Ineffective Assistance of Trial Counsel


[15]   Leek argues that he is entitled to post-conviction relief because his trial counsel

       was ineffective for failing to object to the testimony of Mother, H.L., and B.L.

       that Leek had physically and mentally abused them over the years. Leek claims

       that the admission of that testimony violated the prohibitions set forth in Evid.

       R. 404(b)(1) and amounted to a prejudicial “drumbeat” of evidence to the

       jurors. See Appellant’s Brief at 4. 1




       1
         We note that Leek challenged the admissibility of character evidence on direct appeal. Because his trial
       counsel did not lodge a timely objection to the admission of that evidence, a panel of this court discussed the
       doctrine of waiver and decided the issue under the theory of fundamental error. It was determined that no
       fundamental error resulted because the “evidence was offered to show why B.L. had been reluctant to report
       Leek’s behavior sooner, and it was evidence relevant to a matter at issue other than the defendant’s
       propensity to commit the charged act. . . .” Leek, slip op. at 5. In light of that determination and for the
       reasons discussed below, it follows that Leek’s trial counsel cannot be held to have rendered deficient
       performance for not objecting to the admission of that same evidence.




       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1414 | May 18, 2020                       Page 9 of 17
[16]   We initially observe that there is a strong presumption that counsel rendered

       adequate assistance and made all significant decisions in the exercise of

       reasonable professional judgment. McCullough v. State, 973 N.E.2d 62, 74 (Ind.

       Ct. App. 2012), trans. denied. Judicial scrutiny of counsel’s performance is

       highly deferential and should not be exercised through the distortions of

       hindsight. Pennycuff v. State, 745 N.E.2d 804, 811 (Ind. 2001) (citing Strickland

       v. Washington, 466 U.S. 668, 697 (1984)). Isolated poor strategy, inexperience,

       or bad tactics do not necessarily amount to ineffectiveness of counsel. Id.

       When considering ineffectiveness assistance of counsel claims, we “judge the

       reasonableness of counsel’s challenged conduct on the facts of the particular

       case, viewed as of the time of counsel’s conduct.” Id. For ineffective assistance

       claims based on a failure to object, the defendant must show that, if defense

       counsel had made the objection, the trial court “would have had no choice but

       to sustain it.” Taylor v. State, 929 N.E.2d 912, 917 (Ind. Ct. App. 2010), trans.

       denied.


[17]   Reversal is appropriate where a defendant shows both that counsel’s

       performance fell below an objective standard of reasonableness and that said

       deficient performance so prejudiced the defendant as to deprive him of a fair

       trial. See Talley v. State, 736 N.E.2d 766, 769 (Ind. Ct. App. 2000). These two

       prongs are separate and independent inquires. Manzano v. State, 12 N.E.3d 321,

       326 (Ind. Ct. App. 2014), trans. denied, cert denied, 135 S.Ct. 2376 (2015). Thus,

       if “it is easier to dispose of an ineffectiveness claim on one of the grounds




       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1414 | May 18, 2020   Page 10 of 17
       instead of the other, that course should be followed.” Talley, 736 N.E.2d at

       769.


[18]   In addressing Leek’s claims, we note that Evid. R. 404(b)(1) provides that

       “[e]vidence of a crime, wrong, or other act is not admissible to prove a person’s

       character in order to show that on a particular occasion the person acted in

       accordance with the character.” 2 The purpose of this rule is to prevent a fact

       finder from making the “forbidden inference” that prior wrongful conduct

       suggests present guilt for a charged offense. Halliburton v. State, 1 N.E.3d 670,

       681 (Ind. 2013). Rule 404(b) is inclusive rather than exclusive, and evidence of

       a defendant’s uncharged bad acts may be admissible when offered for a purpose

       other than showing “bad character or conformity therewith.” Lay v. State, 659

       N.E.2d 1005, 1010 n.5 (Ind. 1995). To that end, Evid. R. 404(b)(2) provides a

       non-exhaustive list of permitted uses for evidence of prior bad acts, which

       includes “proving motive, opportunity, intent, preparation, plan, knowledge,

       identity, absence of mistake, or lack of accident.” See Wilcoxson v. State, 132

       N.E.3d 27, 31 (Ind. Ct. App. 2019), trans. denied.


[19]   The focus of Leek’s defense was that H.L. and B.L. were unreliable witnesses

       because Leek unfairly disciplined them, and they were able to assert control by

       complaining to various authorities about his conduct. Leek also maintained




       2 When Leek was charged with the offenses, the text of Evid. R. 404 provided that “Evidence of other
       crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in
       conformity therewith,” but may “be admissible for other purposes, such as proof of motive.”



       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1414 | May 18, 2020                      Page 11 of 17
       that Mother fabricated various allegations against him because of the

       contentious divorce. Leek’s counsel asserted during the opening statement that


               there were times in the years of the relationship that [Leek] does
               take it out on the children, and yes, he is the disciplinarian of the
               household. . . . Sometimes the person who is the disciplinarian is
               not that child’s favorite person. The children also are not fond of
               the efforts (inaudible words). [Leek] does . . . believe in physical
               restraint and physical discipline of the children. [Leek] saw how
               the children disrespected and acted towards their mother. And
               that’s when he engaged in discipline. As time went on, the
               children realized that they could contact the authorities, contact
               child protective services and gain some control. Their mother,
               their step-father, their mother particularly became afraid. She
               didn’t want the police involvement, she didn’t want the child
               protective services involvement, so she said let’s move. The
               children knew of this fear and would use it against their mother.
               The children made accusations and then changed their stories.


       Transcript Vol. I at 30.


[20]   The testimony elicited from Mother, H.L., and B.L. revealed Leek’s pattern of

       instilling fear and intimidating them into not reporting his conduct to the police

       and other authorities. Moreover, the evidence established that Leek engaged in

       violent and threatening behavior to induce silence from Mother, H.L., and

       B.L., and it showed B.L.’s state of mind and her fear of Leek as a reason for not

       disclosing the sexual abuse at an earlier date.


[21]   In sum, it is apparent that the State did not offer the domestic violence and

       emotional abuse evidence for the purpose of establishing that Leek had the

       propensity to commit the offense of child molesting that Evid. R. 404(b) would

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1414 | May 18, 2020   Page 12 of 17
       preclude. See Camm v. State, 908 N.E.2d 215, 223 (Ind. 2009) (holding that

       when Evid. R. 404(b) is at issue, courts must consider whether evidence of

       other crimes is relevant to a matter other than the defendant’s propensity to

       commit the charged act), reh’g denied. Rather, the challenged evidence was

       offered for the purposes discussed above, none of which violated Evid. R.

       404(b). Thus, Leek has failed to show that an objection to this evidence by trial

       counsel would have been sustained, had one been made.


[22]   In a related argument, Leek contends that he is entitled to post-conviction relief

       because his trial counsel did not object to the “drumbeat of witness bad

       character evidence.” Appellant’s Brief at 46. The danger of “drumbeat

       repetition” testimony arises when trial courts permit multiple witnesses to relay

       out-of-court statements by a victim before that victim is allowed the chance to

       testify. Kress v. State, 133 N.E.3d 742, 746 (Ind. Ct. App. 2019), trans. denied.

       Ordinarily, “[t]he number of witnesses who may be called to prove a single

       issue of fact is within the trial court’s sound discretion.” Norris v. State, 53

       N.E.3d 512, 525 (Ind. Ct. App. 2016). “However, as additional testimony

       about the assertion ‘beats the drum,’ there is increasing danger the jury will use

       the testimony for an improper purpose.” Kress, 133 N.E.3d at 746. In those

       circumstances, testimony from multiple witnesses conveying a victim’s out-of-

       court statements may result in prejudice to a defendant if it is so repetitive that

       it impermissibly bolsters the victim’s credibility and dilutes the defendant’s

       presumption of innocence. See Modesitt v. State, 578 N.E.2d 649, 652 (Ind.




       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1414 | May 18, 2020   Page 13 of 17
       1991); see also Surber v. State, 884 N.E.2d 856, 864 (Ind. Ct. App. 2008), trans.

       denied.


[23]   In this case, neither Mother nor H.L. conveyed statements to the jury that B.L.

       had made regarding the instances of molestation. While Mother testified that

       B.L. had told her about Leek’s conduct, she did not testify about the substance

       of B.L.’s disclosures. Similarly, H.L. never testified that B.L. had made

       allegations of sexually inappropriate conduct to her. At most, the evidence

       established that B.L. disclosed something to Mother about Leek’s behavior that

       caused Mother to confront Leek. That said, the rule set forth in Modesitt that

       prohibits unfair prejudicial drumbeat repetition testimony does not bar the

       corroborative testimony that Mother and H.L. provided. See e.g., McGrew v.

       State, 673 N.E.2d 787, 796 (Ind. Ct. App. 1996) (rejecting the defendant’s claim

       that testimony consistent with the victim’s was impermissible drumbeat

       repetition evidence), summarily aff’d 682 N.E.2d 1289, 1292 (Ind. 1997). Thus,

       Leek has failed to show that his trial counsel rendered deficient performance for

       not objecting to the admission of H.L.’s and Mother’s testimony on this basis.


[24]   Finally, we note that the post-conviction court correctly observed that Leek

       failed to show that he was prejudiced by the admission of evidence that was

       “not directly relevant to the charged offenses,” in light of the “overwhelming

       evidence establishing . . . guilt.” Appellant’s Appendix Vol. II at 63, 66. Indeed,

       the weight of the evidence supporting a defendant’s guilt is central to the

       prejudice inquiry under Strickland. See Bouye v. State, 699 N.E.2d 620, 624 (Ind.

       1998).

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1414 | May 18, 2020   Page 14 of 17
[25]   In this case, B.L. testified in detail about the repeated instances of molestation,

       including when and where those episodes occurred. B.L.’s family members

       largely corroborated her account of events and they testified about Leek locking

       himself in his bedroom with B.L. and witnessing B.L. and Leek watching

       pornographic videos together on different occasions. Mother had also recorded

       a conversation that she had with Leek that was admitted into evidence where

       Leek stated, “I’m weak, yeah, and she’s got a hold of me.” State’s Ex. 4, 5.


[26]   Leek has made no showing that the admission of the evidence regarding his

       abuse hindered his ability to present a defense or compromised fairness of the

       trial. Leek also had the opportunity to challenge the State’s Evid. Rule 404(b)

       notices, and his trial counsel vigorously cross-examined B.L. Hence, there is

       hardly a conceivable possibility—much less a reasonable probability—that Leek

       would have been acquitted even if the evidence that Leek complains about had

       been excluded. For all these reasons, Leek has failed to show that his trial

       counsel was ineffective.


                                        B. Disposition By Affidavit

[27]   Leek claims that the post-conviction court erred in resolving his request for

       relief by affidavit rather than conducting an evidentiary hearing. Indiana Post-

       Conviction Rule 1(9)(b) provides that “[i]n 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 19A-PC-1414 | May 18, 2020   Page 15 of 17
[28]   Ordinarily, the issue of whether to order a case submitted by affidavit is left to

       the sound discretion of the post-conviction court and is reviewed for an abuse of

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

       denied. “A post-conviction court is only required to hold an evidentiary hearing

       after ordering a case be submitted by affidavit if (1) affidavits are, in fact,

       submitted, (2) either party moves for summary disposition, and (3) there is a

       genuine issue of material fact.” Laboa v. State, 131 N.E.3d 660, 664 (Ind. Ct.

       App. 2019) (citing Post-Conviction Rule 1(4)(g)).


[29]   If Leek desired an evidentiary hearing after the post-conviction court ordered

       the parties to submit affidavits, he was required to move for summary

       disposition and present a genuine issue of material fact. Id. Leek failed to do

       either. Additionally, while Leek filed a motion for the post-conviction court to

       issue a subpoena for his trial counsel’s testimony, the court took no action on

       that request in light of its prior order that the case be submitted by affidavit.

       Absent a formal filing of a motion for summary disposition, Leek did not follow

       the required procedures that may have triggered a mandatory hearing. As a

       result, the post-conviction court was under no obligation to hold an evidentiary

       hearing. See Smith, 822 N.E.2d at 201.


[30]   We also note that Leek’s affidavit alleged that his trial counsel failed to object

       to the physical abuse and domestic violence evidence. The affidavit described

       various injuries that H.L. had sustained, and it recounted various aspects of the

       testimony from the witnesses. The State did not dispute Leek’s averments.

       Additionally, Leek requested a subpoena for his trial counsel to testify that (1)

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1414 | May 18, 2020   Page 16 of 17
       she was his attorney; (2) the courtroom was “being flooded with prejudicial

       evidence of a violent relationship” that Leek had with H.L.; and (3) counsel

       “objected to some of the evidence but not all of the evidence.” P.C.R. Appendix

       Vol. II at 39. There is no indication in the record that Leek either attempted, or

       was unable to procure an affidavit from defense counsel outlining those facts.

       Even so, the generalized facts set forth in Leek’s subpoena request were

       accounted for in Leek’s own affidavit and were largely uncontested by the State.


[31]   In light of these circumstances, we cannot say that the post-conviction court

       abused its discretion in denying Leek’s request for an evidentiary hearing, and

       Leek has made no showing that he would have benefited from such a hearing

       had one been conducted. The post-conviction court did not err in denying

       Leek’s request for relief.


[32]   Judgment affirmed.


       Bailey, J. and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1414 | May 18, 2020   Page 17 of 17
