                                                                         FILED
                                                                     Aug 15 2019, 9:08 am

                                                                         CLERK
                                                                     Indiana Supreme Court
                                                                        Court of Appeals
                                                                          and Tax Court




APPELLANT PRO SE                                          ATTORNEYS FOR APPELLEE
John Laboa                                                Curtis T. Hill, Jr.
New Castle, Indiana                                       Attorney General of Indiana
                                                          Chandra K. Hein
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

John Laboa,                                               August 15, 2019
Appellant-Petitioner,                                     Court of Appeals Case No.
                                                          18A-CR-951
        v.                                                Appeal from the Floyd Superior
                                                          Court
State of Indiana,                                         The Honorable Bradley B. Jacobs,
Appellee-Respondent.                                      Special Judge
                                                          Trial Court Cause No.
                                                          22D03-1704-PC-6



Robb, Judge.




Court of Appeals of Indiana | Opinion 18A-CR-951 | August 15, 2019                           Page 1 of 10
                                 Case Summary and Issue
[1]   John Laboa pleaded guilty to child molesting, a Class B felony, and was

      sentenced to twenty years in the Indiana Department of Correction (“DOC”).

      Laboa filed a petition for post-conviction relief alleging ineffective assistance of

      counsel, prosecutorial misconduct, professional misconduct, judicial bias, and a

      conspiracy among those involved in his case to wrongfully convict and confine

      him. Without ordering the parties to proceed by affidavit or holding an

      evidentiary hearing, the post-conviction court denied his petition. Laboa, pro

      se, appeals the summary denial of his petition raising five issues, which we

      consolidate and restate as whether the post-conviction court erred by denying

      his petition without holding an evidentiary hearing. Concluding the restated

      issue is dispositive and the post-conviction court clearly erred in the procedure

      it used to dispose of Laboa’s petition, we reverse and remand with instructions.



                            Facts and Procedural History
[2]   Laboa was accused of molesting several children. After an investigation, the

      State charged Laboa with two counts of child molesting as Class A felonies and

      three counts of child molesting as Class C felonies. On March 12, 2014, Laboa

      pleaded guilty to one count of child molesting as a Class B felony, and the

      remaining counts were dismissed. The trial court sentenced him to twenty

      years in the DOC.




      Court of Appeals of Indiana | Opinion 18A-CR-951 | August 15, 2019         Page 2 of 10
[3]   Following his guilty plea, Laboa filed a petition for post-conviction relief in

      March 2015 in which he claimed ineffective assistance of counsel, prosecutorial

      misconduct, and judicial bias. However, Laboa withdrew his petition in

      February 2017. He filed another petition for post-conviction relief in April

      2017. In his second petition, Laboa alleged ineffective assistance of counsel,

      prosecutorial misconduct, abuse of discretion, and professional misconduct as

      the basis for vacating his conviction. Specifically, he alleged a “conspiracy

      [among those involved in his case] to commit malicious and nefarious

      intentional collusion to wrongfully convict [him] and wrongfully confine [him]

      in the [DOC].” Appellant’s Appendix, Volume 2 at 128. The original trial

      court judge recused herself and Special Judge Bradley Jacobs was appointed. In

      November 2017, Laboa amended his petition1 and submitted an affidavit

      summarizing his allegations. Laboa also attached his previously withdrawn

      petition for post-conviction relief and the statement of facts which he had

      submitted with his first petition, and he requested an evidentiary hearing. In

      support of his petition, Laboa filed self-serving affidavits and subsequently filed

      numerous notices with the post-conviction court. The chronological case

      summary indicates that the State did not respond to Laboa’s petition and the




      1
        Indiana Post-Conviction Rule 1(4)(c) provides that the “petitioner shall be given leave to amend the [post-
      conviction] petition as a matter of right no later than sixty [60] days prior to the date the petition has been set
      for trial. Any later amendment of the petition shall be by leave of the court.” As our supreme court has
      explained, “any motion to amend [the petition] within 60 days of an evidentiary hearing may be granted only
      by leave of the court.” Tapia v. State, 753 N.E.2d 581, 586 (Ind. 2001) (internal quotations omitted). Because
      the post-conviction court did not schedule or hold an evidentiary hearing, Laboa did not require the
      permission of the post-conviction court to amend his petition.

      Court of Appeals of Indiana | Opinion 18A-CR-951 | August 15, 2019                                    Page 3 of 10
      post-conviction court did not order the cause to be submitted by affidavit or

      schedule an evidentiary hearing.


[4]   On December 28, 2017, the post-conviction court issued findings of fact and

      conclusions thereon denying Laboa’s petition:


              [H]aving read and considered the pleadings and affidavits . . . :


              Findings of Fact


              1. [Laboa] pleaded guilty on March 12, 2014 and was sentenced
              on April 9, 2014.


              2. [Laboa] timely filed his Petition for Post-Conviction Relief
              and amendments.


              3. [Laboa] did not file any affidavits signed by anyone other than
              [himself].


              Conclusions of Law


              1. [Laboa’s] assertions that everyone involved in his case lied to
              him or colluded against him, unsupported by any independent
              evidence, are not enough to sustain his claims.


              2. [Laboa] has failed to show by a preponderance of evidence
              that he is entitled to relief.


      [State’s] Supplemental Appendix, Volume 2 at 64. Laboa then filed a motion to

      correct errors, which was deemed denied because it was not ruled on within the

      allotted time, and this appeal ensued.

      Court of Appeals of Indiana | Opinion 18A-CR-951 | August 15, 2019           Page 4 of 10
                                 Discussion and Decision
                                      I. Standard of Review
[5]   Post-conviction proceedings are civil in nature and the petitioner must therefore

      establish his claims by a preponderance of the evidence. Ind. Post-Conviction

      Rule 1(5). “Post-conviction proceedings do not afford the petitioner an

      opportunity for a super appeal, but rather, provide the opportunity to raise

      issues that were unknown or unavailable at the time of the original trial or the

      direct appeal.” Turner v. State, 974 N.E.2d 575, 581 (Ind. Ct. App. 2012), trans.

      denied. On appeal, a petitioner who has been denied post-conviction relief faces

      a “rigorous standard of review.” Dewitt v. State, 755 N.E.2d 167, 169 (Ind.

      2001). To prevail, the petitioner must show that the evidence as a whole leads

      unerringly and unmistakably to a conclusion opposite that reached by the post-

      conviction court. Hall v. State, 849 N.E.2d 466, 469 (Ind. 2006).


[6]   Where, as here, the post-conviction court makes findings of fact and

      conclusions of law in accordance with Indiana Post-Conviction Rule 1(6), we

      will reverse only “upon a showing of clear error – that which leaves us with a

      definite and firm conviction that a mistake has been made.” Ben-Yisrayl v. State,

      729 N.E.2d 102, 106 (Ind. 2000) (internal quotation omitted), cert. denied, 534

      U.S. 830 (2001).


                                   II. Summary Disposition
[7]   Laboa essentially argues that the post-conviction court erred when it summarily

      denied his petition sua sponte without holding an evidentiary hearing and
      Court of Appeals of Indiana | Opinion 18A-CR-951 | August 15, 2019       Page 5 of 10
      further argues he was denied the opportunity to offer additional evidence for a

      hearing. According to Laboa, an evidentiary hearing was the only way to

      develop his claims. The State maintains that the post-conviction court was not

      required to hold an evidentiary hearing because the post-conviction rules allow

      for summary disposition or submission by affidavit. The State also asserts that

      the post-conviction court has the discretion to order the cause to be submitted

      by affidavit and, in this case, “[i]t is evident the PCR court did not credit

      Laboa’s bald assertions that were not verified by independent sources. . . . [and]

      Laboa failed to present any verified affidavits, which he had a full and fair

      opportunity to do.” Brief of Appellee at 17.


[8]   A petition for post-conviction relief shall be heard without a jury and the court

      “may receive affidavits, depositions, oral testimony, or other evidence and may

      at its discretion order the [petitioner] brought before it for the hearing.” Ind.

      Post-Conviction Rule 1(5). We have previously explained that Post-Conviction

      Rule 1(4) contains two different subsections under which a post-conviction

      court may deny a petition without a hearing—subsection (f) and subsection

      (g)—and that each one has a different applicable standard of review. See Binkley

      v. State, 993 N.E.2d 645, 649-50 (Ind. Ct. App. 2013) (citing Allen v. State, 791

      N.E.2d 748, 752-53 (Ind. Ct. App. 2003), trans. denied). Subsection (f) provides

      that a post-conviction court “may deny the petition without further

      proceedings” if “the pleadings conclusively show that [the] petitioner is entitled

      to no relief[.]” P-C.R. 1(4)(f) (emphasis added). Subsection (g) provides that a

      post-conviction court:


      Court of Appeals of Indiana | Opinion 18A-CR-951 | August 15, 2019         Page 6 of 10
              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.


      P-C.R. 1(4)(g).


              Under the plain language of subsection g, a court may grant
              summary disposition after “a motion by either party” and after
              considering the pleadings and other evidence submitted. The
              language of subsection f, on the other hand, permits a court to
              deny a petition based upon only the pleadings and apparently
              without a motion by either party.


      Allen, 791 N.E.2d at 753 (internal citation omitted).


[9]   Post-Conviction Rule 1(9)(b) provides another way for the post-conviction court

      to rule on a petition without an evidentiary hearing:


              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.


      This subsection “clearly and plainly provides that when a petitioner proceeds

      pro se, the PCR court has the discretion to order the cause submitted upon

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

      denied. This rule is a “distinct way for a PCR court to rule on a petition without

      an evidentiary hearing.” Id. A post-conviction court is only required to hold an

      Court of Appeals of Indiana | Opinion 18A-CR-951 | August 15, 2019          Page 7 of 10
       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. See P-C.R. 1(4)(g).

       The post-conviction court’s procedural options can be summarized as follows:

       hold a full evidentiary hearing, P-C.R. 1(5); deny the petition if the pleadings

       show no merit, P-C.R. 1(4)(f); decide the petition on the basis of the pleadings

       and other evidence submitted if either party moves for summary disposition and

       there is no genuine issue of material fact to be considered at a hearing, P-C.R.

       1(4)(g); or, if the petitioner is pro se, order the case submitted on affidavit, P-

       C.R. 1(9).


[10]   The post-conviction court did not hold an evidentiary hearing as contemplated

       by Post-Conviction Rule 1(5). The State is correct that the post-conviction

       court may order the cause to be submitted by affidavit when, as here, the

       petitioner is pro se. However, our review of the record reveals that the post-

       conviction court did not order the cause to be submitted upon affidavit. The

       fact that Laboa submitted several affidavits to the court when he filed (and then

       amended) his petition, is not equivalent to ordering the parties to proceed upon

       affidavit. Had the post-conviction court ordered the case tried upon affidavit,

       Laboa would have been entitled to gather and submit additional evidence he

       felt was relevant to his claims within the allocated time by the court. In

       addition, not only did the State not submit any affidavits, the chronological case

       summary also indicates that the State failed to respond to Laboa’s petition as

       required by Post-Conviction Rule 1(4)(a), which states: “Within thirty (30) days


       Court of Appeals of Indiana | Opinion 18A-CR-951 | August 15, 2019           Page 8 of 10
       after the filing of the petition, or within any further reasonable time the court

       may fix, . . . the prosecuting attorney . . . shall respond by answer stating the

       reasons, if any, why the relief prayed for should not be granted.” (Emphasis

       added.) Therefore, the post-conviction court did not avail itself of the option

       provided by Post-Conviction Rule 1(9) to decide a post-conviction case without

       a hearing. And in its order, the post-conviction court stated it had considered

       the pleadings and affidavits submitted by Laboa; thus, it did not decide the case

       as provided by Post-Conviction Rule 1(4)(f), either. Moreover, the post-

       conviction court could not decide the case as provided by Post-Conviction Rule

       1(4)(g) because neither party moved for summary disposition. Allen, 791

       N.E.2d at 753.


[11]   Because the post-conviction court’s judgment was not decided as provided by

       the rules outlined above, we conclude the post-conviction court erred in the

       procedure it used to dispose of Laboa’s petition. Therefore, we reverse the

       judgment of the post-conviction court and remand with instructions to either

       order the cause to be submitted by affidavit, allowing Laboa time to gather and

       submit affidavits he feels are relevant to his allegations, or hold an evidentiary

       hearing. See P-C.R. 1(4)(g); P-C.R. 1(9)(b). We decline to recommend or

       comment on a particular course of action.



                                                Conclusion
[12]   Based on our evaluation of the record, we conclude the procedure the post-

       conviction court used to dispose of Laboa’s petition was clearly erroneous.

       Court of Appeals of Indiana | Opinion 18A-CR-951 | August 15, 2019         Page 9 of 10
       Accordingly, we reverse the post-conviction court’s judgment and remand for

       further proceedings consistent with this opinion.


[13]   Reversed and remanded.


       Baker, J., and Najam, J., concur.




       Court of Appeals of Indiana | Opinion 18A-CR-951 | August 15, 2019   Page 10 of 10
