MEMORANDUM DECISION
                                                                            FILED
Pursuant to Ind. Appellate Rule 65(D),                                 Jun 23 2016, 8:57 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
Kelvin Underwood                                         Gregory F. Zoeller
Westville, Indiana                                       Attorney General of Indiana
                                                         Ian McLean
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Kelvin Underwood,                                        June 23, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         02A03-1507-PC-835
        v.                                               Appeal from the Allen Superior
                                                         Court
State of Indiana,                                        The Honorable Frances C. Gull,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         02D06-1412-PC-165




Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 02A03-1507-PC-835 | June 23, 2016             Page 1 of 15
                                 Case Summary and Issue
[1]   In 2011, Kelvin Underwood pleaded guilty to robbery, a Class C felony, and

      theft, a Class D felony, and the trial court sentenced him to eleven years in the

      Indiana Department of Correction with five years suspended to probation. In

      December 2014, Underwood filed a pro se petition for post-conviction relief,

      which the post-conviction court dismissed because Underwood failed to submit

      his case by affidavit. Underwood appeals the dismissal, pro se, raising eight

      issues for our review, which we consolidate and restate as whether the post-

      conviction court erred in dismissing his petition for post-conviction relief.

      Concluding the post-conviction court did not err in dismissing Underwood’s

      petition, we affirm.



                             Facts and Procedural History
[2]   On December 13, 2011, Underwood pleaded guilty to robbery as a Class C

      felony and theft as a Class D felony. The trial court accepted the pleas, and on

      January 9, 2012, entered judgment of conviction and sentenced Underwood to

      eleven years in the Department of Correction with five years suspended to

      probation. On May 24, 2013, Underwood filed a Motion to Compel, which the

      trial court denied. 1 On August 30, 2013, Underwood filed a Petition for




      1
        At all times relevant herein, Underwood proceeded pro se. At the outset, we note many of the motions
      filed by Underwood are not included in the record. As a result, we rely heavily on the Chronological Case
      Summary in order to create a clear timeline. In addition, we note—because the motions, documents, and

      Court of Appeals of Indiana | Memorandum Decision 02A03-1507-PC-835 | June 23, 2016             Page 2 of 15
      Verified Copy of Record of Proceedings. On September 6, 2013, the trial court

      denied Underwood’s request for his sentencing transcripts. 2


[3]   On December 8, 2014, Underwood filed a verified petition for post-conviction

      relief, alleging he involuntarily, unknowingly, and unintelligently pleaded guilty

      and he received ineffective assistance of trial counsel. On the same day, he filed

      a motion for change of judge, which the post-conviction court denied. On

      December 15, 2014, the State moved to require Underwood to submit his case

      by affidavit. On January 8, 2015, the post-conviction court granted the State’s

      motion to require Underwood to submit his case by affidavit by April 8, 2015.


[4]   On February 9, 2015, Underwood filed a notice of appeal from the post-

      conviction court’s order requiring he submit his case by affidavit.. On March 2,

      2015, the county clerk issued a Notice of Completion of Clerk’s Record, stating

      the court reporter need not prepare transcripts for appeal as no hearings in the

      post-conviction court were conducted. On March 10, 2015, we dismissed

      Underwood’s appeal with prejudice because it was untimely pursuant to

      Indiana Appellate Rule 9(A)(1); we further concluded Underwood forfeited his




      petitions are not included in the record—we are without sufficient knowledge of Underwood’s specific
      requests. Therefore, we address these motions by their titles.
      2
        Neither the August 30 petition nor the September 6 order are included in the record. But given the notes in
      the Chronological Case Summary, coupled with the nature of this appeal, we presume Underwood—almost
      seventeen months after the trial court sentenced him—requested his sentencing transcripts in the August 30
      petition.

      Court of Appeals of Indiana | Memorandum Decision 02A03-1507-PC-835 | June 23, 2016              Page 3 of 15
      right to appeal the post-conviction court’s order requiring him to submit his

      case by affidavit.


[5]   On May 4, 2015, Underwood filed with the post-conviction court a document

      alleging the post-conviction court failed to rule on his motion to proceed in

      forma pauperis. Because we previously dismissed Underwood’s appeal, the

      post-conviction court denied his motion to proceed in forma pauperis as moot.

      On June 11, 2015, the State moved to dismiss Underwood’s petition for post-

      conviction relief. On the same day, the post-conviction court dismissed

      Underwood’s petition because he failed to submit his case by affidavit by April

      8, 2015, as ordered.


[6]   On July 2, 2015, Underwood filed his notice of appeal from the dismissal of his

      petition for post-conviction relief. On July 8, 2015, Underwood filed a motion

      with the post-conviction court requesting the post-conviction court order the

      county clerk to prepare and deliver a transcript of his guilty plea and sentencing

      hearings. On July 16, 2015, the post-conviction court issued an order denying

      Underwood’s motion because it had already dismissed his petition. In the same

      order, the court noted it received a copy of Underwood’s Verified Petition for

      Leave to Prosecute Appeal as an Indigent person and granted that motion.


[7]   On September 11, 2015, Underwood filed a motion requesting copies of the

      guilty plea and sentencing hearings with this court. On October 2, 2015, we

      denied Underwood’s motion and remanded to the post-conviction court to

      determine whether to provide Underwood with a copy of the clerk’s record


      Court of Appeals of Indiana | Memorandum Decision 02A03-1507-PC-835 | June 23, 2016   Page 4 of 15
      and/or transcripts at the public’s expense. Further, we ordered Underwood to

      file his request for a copy of the clerk’s record and transcript with the county

      clerk within fifteen days.


[8]   On October 19, 2015, Underwood filed a Motion for Transcripts Held Hearings

      with the post-conviction court. On October 30, 2015, the post-conviction court

      denied the motion because “nothing is pending in the trial court. Court further

      notes that defendant is appealing the Court’s dismissal of his Post-Conviction

      Relief Petition for failing to submit his affidavit as ordered on January 8, 2015.”

      Appellant’s Appendix Volume I at 20. On the same day, Underwood filed with

      this court an Appellant’s Notice of Trial Courts Non-Compliance with

      Appellate Court Order, alleging the post-conviction court did not order the

      county clerk to release the transcripts. On November 15, 2015, Underwood

      filed an Emergency Request for Transcripts and Clerk Records relating to his

      guilty plea and sentencing hearings. On November 17, 2015, we ordered the

      county clerk to provide Underwood with a free copy of the clerk’s record in the

      post-conviction proceedings, if it had not already done so, but did not order the

      post-conviction court to provide Underwood with a copy of clerk’s record

      related to his criminal trial. This appeal ensued.



                                 Discussion and Decision
[9]   On appeal, Underwood argues the post-conviction court committed a litany of

      errors. Specifically, he contends the post-conviction court erred in failing to

      hold an evidentiary hearing, denying his request for transcripts, failing to

      Court of Appeals of Indiana | Memorandum Decision 02A03-1507-PC-835 | June 23, 2016   Page 5 of 15
       consider his verified petition as evidence, failing to rule on multiple motions,

       failing to grant his motion for an enlargement of time to submit his case by

       affidavit, failing to comply with his requests for subpoenas, and denying his

       request for change of judge.3 We address each contention below.


                                       I. Standard of Review
[10]   Defendants who have exhausted the direct appeal process may challenge the

       correctness of their convictions and sentence by filing a post-conviction petition.

       Ind. Post-Conviction Rule 1(1). The petitioner for post-conviction relief has the

       burden of establishing his grounds for relief by a preponderance of the evidence.

       P-C.R. 1(5); Timberlake v. State, 753 N.E.2d 591, 597 (Ind. 2001), cert. denied,

       537 U.S. 839 (2002). Because Underwood is appealing from a negative

       judgment, to the extent his appeal turns on factual issues, he must convince this

       court that the evidence as a whole unmistakably and unerringly points to a

       conclusion contrary to the post-conviction court’s decision. Timberlake, 753

       N.E.2d at 597.


                                      II. Evidentiary Hearing
[11]   Underwood contends the post-conviction court erred when it ordered him to

       submit his case by affidavit and failed to conduct an evidentiary hearing,




       3
        Underwood also raises two issues pertaining to the merits of his petition for post-conviction relief.
       However, there has been no evidence admitted in this case and the post-conviction court is the appropriate
       court to address the merits of Underwood’s petition. Since the post-conviction court dismissed Underwood’s
       petition before reaching the merits, we decline to address the merits.

       Court of Appeals of Indiana | Memorandum Decision 02A03-1507-PC-835 | June 23, 2016           Page 6 of 15
       arguing an evidentiary hearing was required because “any submitted affidavits

       would present factual issues” which the post-conviction court could not resolve

       without an evidentiary hearing. Appellant’s Brief at 11.


[12]   Post-Conviction Rule 1(5) provides,


               The petition shall be heard without a jury. A record of the
               proceedings shall be made and preserved. All rules and statutes
               applicable in civil proceedings including pre-trial and discovery
               procedures are available to the parties, except as provided above
               in Section 4(b). The court may receive affidavits, depositions,
               oral testimony, or other evidence and may at its discretion order
               the applicant brought before it for the hearing. The petitioner has
               the burden of establishing his grounds for relief by a
               preponderance of the evidence.


       Post-Conviction Rule 1(9)(b) provides, in part,

               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. If the pro se petitioner requests
               issuance of subpoenas for witnesses at an evidentiary hearing, the
               petitioner shall specifically state by affidavit the reason the
               witness’ testimony is required and the substance of the witness’
               expected testimony. If the court finds the witness’ testimony
               would be relevant and probative, the court shall order that the
               subpoena be issued.


       Post-Conviction Rule 1(4)(g) provides,

               The court may grant a motion by either party for summary
               disposition of the petition when it appears from the pleadings,

       Court of Appeals of Indiana | Memorandum Decision 02A03-1507-PC-835 | June 23, 2016   Page 7 of 15
               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.


       Emphasis added.


[13]   Here, the post-conviction court, on January 8, 2015, ordered Underwood to

       submit his pro se case by affidavit by April 8, 2015. Underwood did not submit

       his case by affidavit by April 8, 2015. As a result, the post-conviction court did

       not have the opportunity to exercise its discretion in determining whether the

       affidavits raised an issue of material fact requiring an evidentiary hearing. See

       P-C.R. 1(4)(g). Accordingly, the post-conviction court did not err in not

       holding an evidentiary hearing.


                                  III. Request for Transcripts
[14]   Underwood contends the post-conviction court erred in denying his request for

       transcripts of his guilty plea and sentencing hearings. Post-Conviction Rule

       1(9)(b) provides, in part,

               Petitioners who are indigent and proceeding in forma pauperis
               shall be entitled to production of guilty plea and sentencing
               transcripts at public expense, prior to a hearing, if the petition is not
               dismissed. In addition, such petitioners shall also be entitled to a
               record of the post-conviction proceeding at public expense for
               appeal of the denial or dismissal of the petition.


       Court of Appeals of Indiana | Memorandum Decision 02A03-1507-PC-835 | June 23, 2016   Page 8 of 15
       Here, the post-conviction court dismissed Underwood’s petition on June 11,

       2015. Underwood did not file a motion in the post-conviction court requesting

       transcripts of his guilty plea and sentencing hearings until July 8, 2015.

       Because Underwood’s petition had already been dismissed prior to his request

       for transcripts, the post-conviction court did not err in denying his request.


                             IV. Verified Petition as Evidence
[15]   Underwood contends the post-conviction court erred in not considering his

       verified petition for post-conviction relief as evidence. In support of his

       contention, Underwood cites to State v. Cleland, 477 N.E.2d 537 (Ind. 1985), for

       the proposition a verified petition for post-conviction relief should be

       considered as evidence. In Cleland, Cleland filed verified petitions for post-

       conviction relief in three traffic cases in which he had pleaded guilty. At the

       evidentiary hearing, the three petitions were the only pieces of evidence

       presented by either Cleland or the State. The post-conviction court granted

       Cleland’s petitions, and the State appealed. On transfer, the State argued the

       verified petitions were merely pleadings and therefore did not constitute

       competent evidence because they were not admitted into evidence. However,

       our supreme court concluded the verified petitions acted as affidavits,

       reasoning, “[A]s the petitions were verified, absent a timely objection by the

       State and under the circumstances of this case, the court could properly

       consider them as evidence.” Id. at 538. In State v. Sanders, 596 N.E.2d 225, 227

       (Ind. 1992), cert. denied, 507 U.S. 960 (1993), our supreme court sharply limited

       Cleland’s holding, stating, “[T]he better reasoned rule of law is . . . a plaintiff

       Court of Appeals of Indiana | Memorandum Decision 02A03-1507-PC-835 | June 23, 2016   Page 9 of 15
       cannot maintain his position by pleading under oath and then resting on that

       pleading.” (Citation and internal quotation marks omitted).


[16]   Here, Underwood filed a verified petition for post-conviction relief, and the

       State filed an answer alleging Underwood was not entitled to relief. On June

       11, 2015, the post-conviction court dismissed the petition. Prior to the

       dismissal, Underwood did not request his verified petition be treated as an

       affidavit, Underwood did not submit affidavits in support of his petition, and

       the post-conviction court did not hold an evidentiary hearing. We conclude the

       circumstances before us are entirely distinguishable from those found in Cleland.

       Therefore, Underwood’s attempt to rely solely on his verified petition fails. See

       id. Accordingly, the post-conviction court did not err in not considering his

       petition for post-conviction relief as evidence.


                                       V. Underwood’s Motions
[17]   Underwood contends the post-conviction court erred, in some fashion, in

       failing to address multiple motions or petitions he filed in either the trial court

       or the post-conviction court.


[18]   First, nearly seventeen months after the trial court sentenced him, Underwood

       filed a Motion to Compel in the trial court on May 24, 2013. 4 On June 7,

       2013, the trial court denied his motion. Then, on August 30, 2013, Underwood




       4
           It is unclear from the record what the motion was regarding.


       Court of Appeals of Indiana | Memorandum Decision 02A03-1507-PC-835 | June 23, 2016   Page 10 of 15
       filed in the trial court a Petition for Verified Copy of Record of Proceedings

       requesting his sentencing transcripts. See supra note 2; see also Appellant’s Br. at

       18 (noting this petition was a request for sentencing transcripts). On September

       6, 2013, the trial court denied his petition. In confusing fashion, it appears

       Underwood now argues the post-conviction court erred in not addressing his

       Motion to Compel or Petition for Verified Copy of Record of Proceedings

       despite Underwood not filing his petition for post-conviction relief until

       December 8, 2014. Although we conclude the post-conviction court did not err

       in this regard for a number of reasons, we note Underwood never filed these

       documents in the post-conviction court and therefore the post-conviction court

       could not have erred in failing to address them.


[19]   Second, Underwood claims he filed a petition with the post-conviction court on

       February 9, 2015, requesting his sentencing transcripts. However, we are

       unable to locate the petition in the record and the Chronological Case

       Summary does not indicate Underwood filed such a motion until July 8, 2015,

       which we addressed above in Part.III. See Chambers v. State, 551 N.E.2d 1154,

       1158 (Ind. Ct. App. 1990) (“On appeal, we can consider only those matters

       which are contained in the record of proceedings submitted to the court.”).

       Therefore, we cannot agree the post-conviction court erred in this regard.


[20]   Third, Underwood claims the post-conviction court failed to rule on his

       requests to proceed in forma pauperis. Although Underwood does not cite to

       any portions of the record containing any of his motions to proceed in forma

       pauperis, see id., nor does he cite to any authority supporting his claim of error,

       Court of Appeals of Indiana | Memorandum Decision 02A03-1507-PC-835 | June 23, 2016   Page 11 of 15
       see Ind. Appellate Rule 46(A)(8)(a), we note (1) the post-conviction court denied

       one request to proceed in forma pauperis as moot, and (2) after the post-

       conviction court dismissed Underwood’s petition, it granted his request to

       proceed in forma pauperis. Therefore, the post-conviction court did not err in

       this regard.


[21]   Finally, on January 8, 2015, the post-conviction court ordered Underwood to

       submit his case by affidavit by April 8, 2015. Underwood claims he filed, from

       prison, a Request to Compel Affidavits and/or Enlargement of Time on March

       26, 2015, but the post-conviction court did not rule on it. The Chronological

       Case Summary does not note the motion was filed with the post-conviction

       court, but Underwood has included the motion in the Appellant’s Appendix.

       The motion, however, does not include a date, a filing stamp, or a certificate of

       service.5 Therefore, the record does not indicate Underwood filed the motion,

       and we cannot conclude the post-conviction court erred in failing to rule on a

       motion that was never filed.6




       5
         In support of his contention he at least sent his motion to the post-conviction court, Underwood has
       included in the Appellant’s Appendix a mail log purporting to show the document was sent from the prison
       on March 26, 2015. In addition, Underwood has included a document, purportedly signed by the law library
       supervisor at the prison, stating the mail log is “used at Westville Correctional Facility to track when
       offenders have mailed out legal work to the courts.” Appellant’s App. at 154. Generally, when a prisoner
       claims to have timely filed a motion, Indiana courts require a pro se prisoner to provide reasonable,
       legitimate, and verifiable documentation to support such a claim. Dowell v. State, 922 N.E.2d 605, 607 (Ind.
       2010). The copy of the mail log and the letter from the law librarian are not verified. See id. at 607-09.
       Therefore, we reject Underwood’s argument.
       6
         In a separate argument, Underwood attempts to argue his motion to compel affidavits was actually a
       request for the post-conviction court to issue subpoenas pursuant to Post-Conviction Rule 1(9)(b) and
       therefore the post-conviction erred in failing to issue subpoenas. Post-Conviction Rule 1(9)(b) states a pro se
       petitioner may request the post-conviction court issue “subpoenas for witnesses at an evidentiary hearing.”

       Court of Appeals of Indiana | Memorandum Decision 02A03-1507-PC-835 | June 23, 2016               Page 12 of 15
                                         VI. Change of Judge
[22]   Lastly, Underwood contends the post-conviction court erred in denying his

       request for change of judge. Post-Conviction Rule 1(4)(b) provides,

                Within ten [10] days of filing a petition for post-conviction relief
                under this rule, the petitioner may request a change of judge by
                filing an affidavit that the judge has a personal bias or prejudice
                against the petitioner. The petitioner’s affidavit shall state the
                facts and the reasons for the belief that such bias or prejudice
                exists, and shall be accompanied by a certificate from the
                attorney of record that the attorney in good faith believes that the
                historical facts recited in the affidavit are true. A change of judge
                shall be granted if the historical facts recited in the affidavit
                support a rational inference of bias or prejudice. For good cause
                shown, the petitioner may be permitted to file the affidavit after
                the ten [10] day period.


       When a petitioner requests a change of judge, such change is neither

       “automatic” nor “discretionary.” Lambert v. State, 743 N.E.2d 719, 728 (Ind.

       2001) (citation omitted), cert. denied, 534 U.S. 1136 (2002). We review a post-

       conviction court’s decision to deny a motion for change of judge under a clearly

       erroneous standard. Azania v. State, 778 N.E.2d 1253, 1261 (Ind. 2002). A

       decision is clearly erroneous if our review “leaves us with a definite and firm

       conviction that a mistake has been made.” Sturgeon v. State, 719 N.E.2d 1173,

       1182 (Ind. 1999). We presume a judge is not prejudiced against a party.




       Here, at no point did the post-conviction court schedule an evidentiary hearing and therefore such a request
       was irrelevant.

       Court of Appeals of Indiana | Memorandum Decision 02A03-1507-PC-835 | June 23, 2016             Page 13 of 15
       Lambert, 743 N.E.2d at 728. To require a change of judge, a judge’s bias must

       be personal. Id. Personal bias “stems from an extrajudicial source—meaning a

       source separate from the evidence and argument presented at the proceedings.”

       Id. Adverse rulings on judicial matters do not indicate a personal bias that calls

       the trial court’s impartiality into question. Harrison v. State, 707 N.E.2d 767,

       790 (Ind. 1999), cert. denied, 529 U.S. 1088 (2000).


[23]   Here, Underwood filed his motion for change of judge on the same day he filed

       his petition for post-conviction relief. The motion alleged change of judge was

       necessary because (1) the judge had a personal relationship with Underwood’s

       trial counsel, (2) Underwood intended on calling the judge to testify as to

       Underwood’s claims of ineffective assistance of counsel during trial, and (3) the

       judge made previously adverse rulings. However, Underwood did not state

       with any specificity how the judge’s relationship with trial counsel would

       impact his case or how the judge’s removal, for the purpose of testifying, was

       necessary to protect him from suffering an unfair and impartial hearing.

       Without more, these allegations merely amount to Underwood’s own self-

       serving belief the judge was personally biased and needed to be removed. In

       addition, the fact the judge made previous adverse rulings on judicial matters

       does not indicate any personal bias towards Underwood. See Harrison, 707

       N.E.2d at 790. We conclude the post-conviction court did not err in denying

       Underwood’s motion for change of judge.



                                               Conclusion
       Court of Appeals of Indiana | Memorandum Decision 02A03-1507-PC-835 | June 23, 2016   Page 14 of 15
[24]   The post-conviction court properly exercised it discretion in ordering

       Underwood to submit his case by affidavit. Underwood did not do so. We

       conclude the post-conviction court did not err in dismissing Underwood’s

       petition for post-conviction relief. Accordingly, we affirm.


[25]   Affirmed.


       Najam, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 02A03-1507-PC-835 | June 23, 2016   Page 15 of 15
