                                                                                     FILED
                                                                               Feb 28 2019, 8:35 am

                                                                                     CLERK
                                                                                Indiana Supreme Court
                                                                                   Court of Appeals
                                                                                     and Tax Court




      APPELLANT PRO SE                                           ATTORNEYS FOR APPELLEE
      Jesse L. Rose                                              Curtis T. Hill, Jr.
      Carlisle, Indiana                                          Attorney General of Indiana

                                                                 Chandra K. Hein
                                                                 Deputy Attorney General
                                                                 Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Jesse L. Rose,                                             February 28, 2019
      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 09A04-1708-PC-1759
              v.                                                 Appeal from the Cass Superior
                                                                 Court
      State of Indiana,                                          The Honorable Rick Maughmer,
      Appellee-Plaintiff                                         Judge
                                                                 Trial Court Cause No.
                                                                 09D02-1404-PC-5



      May, Judge.


[1]   Jesse L. Rose, pro se, appeals the post-conviction court’s denial of his petition

      for post-conviction relief. He argues the post-conviction court did not hold a

      procedurally fair hearing and did not enter adequate findings of fact and

      conclusions of law. We affirm.


      Court of Appeals of Indiana | Opinion 09A04-1708-PC-1759 | February 28, 2019                      Page 1 of 15
                                Facts and Procedural History
[2]   In 2012, Rose was convicted of four counts of Class A felony child molest. 1 We

      affirmed that conviction in a memorandum opinion. See Rose v. State, 09A05-

      1205-CR-251, 984 N.E.2d 256 (Ind. Ct. App. Feb. 15, 2013), trans. denied.


[3]   On April 30, 2014, Rose filed a petition for post-conviction relief (“PCR”). In

      his petition, he alleged ineffective assistance of trial counsel, insufficient

      evidence to support his conviction, and inappropriate sentence. A public

      defender was appointed, but the public defender’s office subsequently withdrew

      its appearance from the case. Rose requested and was granted a subpoena for

      trial court counsel Michael Boonstra. On July 11, 2017, the PCR court held a

      hearing on the petition, wherein Rose proceeded pro se.


[4]   When asked to present his case, Rose asked if Boonstra would “be here?” (Tr.

      Vol. II at 8.) The PCR court assured Rose that Boonstra had been subpoenaed

      and had “better be here. But as a witness, not as your attorney.” (Id.) It

      appears, from the transcript and the parties’ briefs, Boonstra must not have been

      in the courtroom during this exchange but arrived later. Rose proceeded to

      present various documents as evidence and then testified for himself.


[5]   When asked if he had additional witnesses, Rose responded, “I don’t have no

      witnesses. I just got really questions from, from my attorney, ex-attorney




      1
          Ind. Code § 35-42-4-3 (2007).


      Court of Appeals of Indiana | Opinion 09A04-1708-PC-1759 | February 28, 2019   Page 2 of 15
      whatever.” (Id. at 40.) However, when then asked, “Do you have other

      witnesses that you would like to call?[,]” (id.) Rose did not call Boonstra. The

      PCR court asked him again, “So, do you want to call anybody else?” (Id.)

      Rose responded, “Nope. I really don’t have nobody else.” (Id.)


[6]   The PCR court then allowed both Rose and the State to present closing

      arguments. As the PCR court was concluding the proceedings, the following

      exchange occurred:


              THE COURT: Okay. All right. All parties rest. The Court has
              the case. I will make a decision within 90 days --


              MR. ROSE: Hang on. Wait.


              THE COURT: -- I think is [sic] the time limit of [sic] today.


              MR. ROSE: I thought he, I thought he was going to be up here.


              THE COURT: Excuse me?


              MR. ROSE: I got questions that I wanted to question him.


              THE COURT: I asked you several times if you had witnesses.


              MR. ROSE: Yeah. Yeah. That’s what I was meaning by him. I
              wanted, I wanted to question him.


              THE COURT: The evidence is closed, Jessie [sic]. I was very
              polite to you --


      Court of Appeals of Indiana | Opinion 09A04-1708-PC-1759 | February 28, 2019   Page 3 of 15
        MR. ROSE: I didn’t, I didn’t, I didn’t, I didn’t under, see I got all
        my stuff right here. That’s what I, that’s what I was waiting on.
        That’s why I said, well that’s Boonstra. I didn’t know
        (indiscernible). He’s back there.


        THE COURT: He’s been here the whole time.


        MR. LUPKE: Mr. Rose just indicated he knew Mr. Boonstra
        was here and that --


        MR. ROSE: Right. I’m saying --


        MR. LUPKE: -- he indicated he knew he was here.


                                               *****


        MR. ROSE: I needed to ask, I needed to ask all of my questions.


        THE COURT: Jessie [sic], I gave you a chance to present --


        MR. ROSE: I didn’t know that’s what you meant.


        THE COURT: -- your evidence. I gave you a chance. I said
        several times do you have other witnesses to call.


        MR. ROSE: Right, I didn’t have no witnesses. I just wanted to
        ask my questions, that’s why I tried to say when I say I got --


        THE COURT: I told you that I subpoena, that you subpoenaed
        Mr. Boonstra through the Court. The Court issued a subpoena
        requiring him to be here today. He’s been here.



Court of Appeals of Indiana | Opinion 09A04-1708-PC-1759 | February 28, 2019   Page 4 of 15
              MR. ROSE: Right.


      (Id. at 48-9.)


[7]   The PCR court issued an order denying Rose’s petition. Therein, it stated the

      facts of the underlying conviction, the outcome of the direct appeal, and the

      grounds on which post-conviction relief were sought. It noted the subpoena

      that was sought and then sent to Boonstra. In relevant part, the PCR court

      found:


              9. On 15 February 2017, Rose requested that the court issue a
              subpoena for Michael Boonstra[,] attorney at law and court
              appointed trial counsel for Rose[,] to attend the PCR evidentiary
              hearing. Thereafter, the Cass Clerk subpoenaed Michael
              Boonstra to attend the evidentiary hearing scheduled for 11 July
              2017. Pursuant to the subpoena, Michael Boonstra was in
              attendance during the evidentiary hearing with Rose's apparent
              knowledge. The court informed Rose that Boonstra had been
              subpoenaed as requested, that Boonstra would be present, and
              Boonstra during the majority of the proceeding sat across from
              Rose and directly behind Prosecutor Lupke. In addition to
              Boonstra, the other person in the courtroom gallery was the jailer
              in charge of Rose during this hearing.


              10. Rose did not call Michael Boonstra as a witness. After the
              evidence and final argument was concluded, Rose complained
              that he did not understand he could have called Boonstra to
              answer questions. The State objected to reopening the evidence.


      (App. Vol. II at 18.) The PCR court’s order also noted the evidence Rose did

      present, i.e., several parts of different documents, such as pre-trial depositions,

      trial testimony, and police reports. The PCR court found: “None of the ten
      Court of Appeals of Indiana | Opinion 09A04-1708-PC-1759 | February 28, 2019   Page 5 of 15
      exhibits offered by Rose included an appropriate foundation [but that this] court

      . . . has received the same to ascertain whether pro se Rose has presented any

      meritorious claims in spite of the accepted rules of civil procedure.” 2 (Id. at 19.)

      The PCR court concluded Rose’s documentary evidence was merely “a

      presentation to this court to second guess the juries [sic] determination of guilt

      by way of alleged meaningless inconsistencies occurring prior to or during the

      trial.” (Id.) The PCR court also concluded Rose’s “testimony concerning his

      sexual prowess, multiple conquests, and lack of fidelity to his wife would have

      done little to ingratiate Rose with the jury. Trial counsel’s advice (not proven

      during this hearing) for Rose to not testify during the jury trial was more than

      appropriate and acceptable trial strategy.” (Id.)


[8]   As to the other allegations of ineffective assistance, the PCR court found those

      allegations had been waived “first because they were available to Rose on

      appeal and not raised; and second because they were not pursued by Rose in

      this evidentiary hearing.” (Id.) Other allegations of insufficient evidence and

      inappropriate sentencing were found to have been “adjudicated on appeal and

      res judicata to this proceeding.” (Id.) As Rose had not




      2
        The State objected, during the hearing, to the admission of any of this evidence. The PCR court told the
      State, “For purposes of this hearing, I’m going to admit it over your objection, Mr. Lupke. However, I’m
      reserving the right to rule on it after I consider the same in accordance with the objections that you’ve made
      [regarding foundation and hearsay]. I’m creating the record. I’m allowing these things to be put in the
      record so that I have a record.” (Tr. Vol. II at 12.) While it did not cause issue herein, we note the better
      practice would be to make a ruling on the admissibility of evidence during the hearing so the parties have
      adequate notice as to what evidence the court will use to make its decision. See Ind. Evidence Rule 104(a)
      (The court must decide any preliminary question about whether . . . evidence is admissible.”).

      Court of Appeals of Indiana | Opinion 09A04-1708-PC-1759 | February 28, 2019                       Page 6 of 15
               shown that trial counsel’s performance fell below an objective
               standard of reasonableness based on prevailing professional
               norms [and had] not shown there is a reasonable probability that,
               but for counsel’s (alleged, none proven) errors, the result of the
               jury trial would have been different[,] the petition for post-
               conviction relief [was] denied in all respects.


       (Id.)



                                   Discussion and Decision
[9]    We first note Rose proceeds pro se. It is well settled that pro se litigants are held

       to the same standards as licensed attorneys, and thus they are required to follow

       procedural rules. Evans v. State, 809 N.E.2d 338, 344 (Ind. Ct. App. 2004),

       trans. denied.


[10]   Post-conviction proceedings afford petitioners a limited opportunity to raise

       issues that were unavailable or unknown at trial and on direct appeal. Davidson

       v. State, 763 N.E.2d 441, 443 (Ind. 2002), reh’g denied, cert. denied sub nom.

       Davidson v. Indiana, 537 U.S. 1122 (2003). As post-conviction proceedings are

       civil in nature, the petitioner must prove his grounds for relief by a

       preponderance of the evidence. Id. A party appealing a negative post-

       conviction judgment must establish the evidence is without conflict and, as a

       whole, unerringly points to a conclusion contrary to that reached by the post-

       conviction court. Id.


[11]   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
       Court of Appeals of Indiana | Opinion 09A04-1708-PC-1759 | February 28, 2019   Page 7 of 15
       do not defer to the court’s legal conclusions, but “the findings and judgment

       will be reversed 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) (quoting State v. Moore, 678 N.E.2d 1258, 1261

       (Ind. 1997), cert. denied, 523 U.S. 1079 (1998)), reh’g denied, cert. denied sub nom.

       Ben-Yisrayl v. Indiana, 534 U.S. 830 (2001). The post-conviction court is the sole

       judge of the weight of the evidence and the credibility of witnesses. Fisher v.

       State, 810 N.E.2d 674, 679 (Ind. 2004).


                                  Procedural Fairness of Hearing
[12]   Rose argues “he was denied a procedurally fair setting.” (Br. of Appellant at

       13.) Rose claims the PCR court “prevented [him] from obtaining, through

       compulsory process, the evidence he needed to demonstrate his claim yet

       subsequently faulted him for failing to introduce this evidence.” (Id. at 14.)

       Rose contends the PCR court “summarily disposed” of his petition. (Id. at 15.)


[13]   A judge is given “latitude to run the courtroom and maintain discipline and

       control of the trial.” Timberlake v. State, 690 N.E.2d 243, 256 (Ind. 1997), reh’g

       denied, cert. denied 525 U.S. 1073 (1999). A court is given broad discretion with

       regard to decisions impacting the orderly procedure of the courtroom, and we

       review its decisions only for an abuse of that discretion. Vasquez v. State, 868

       N.E.2d 473, 476 (Ind. 2007).


[14]   After Rose presented his documentary evidence and testified himself, the PCR

       court inquired about any further evidence.

       Court of Appeals of Indiana | Opinion 09A04-1708-PC-1759 | February 28, 2019   Page 8 of 15
        THE COURT: . . . Do you have additional evidence that you’d
        like to present? Additional testimony?


        MR. ROSE: No, I already gave you the evidence that I was
        going to give you.


        THE COURT: Okay. I got the evidence. Do you have
        additional witnesses to call?


        MR. ROSE: I don’t have no witnesses. I just got really questions
        from, from my attorney, ex-attorney whatever.


        THE COURT: Do you have other witnesses that you would like
        to call?


        MR. ROSE: I’m not able to get none, am I? I ain’t, I ain’t, I ain’t
        got none.


        THE COURT: You had made a request for the issuance of
        subpoena’s [sic] to several people, well I think it was only, it was
        Jay Hirschauer --


        MR. ROSE: Yeah.


        THE COURT: -- and I denied that because it wasn’t sufficient
        enough and you had me issue one subpoena --


        MR. ROSE: Right. Yep.


        THE COURT: -- for Mr. Boonstra?


        MR. ROSE: Yes, sir. Yep.

Court of Appeals of Indiana | Opinion 09A04-1708-PC-1759 | February 28, 2019   Page 9 of 15
               THE COURT: So, do you want to call anybody else?


               MR. ROSE: Nope. I really don’t have nobody else.


       (Tr. Vol. II at 39-40.)


[15]   The PCR court then proceeded to ask the State whether it had any evidence and

       it did not. At that point, the PCR court closed the evidence and both parties

       presented final argument. As the PCR court was informing the parties of the

       timeframe in which to expect a ruling, Rose intervened.


               MR. ROSE: Hang on. Wait.


               THE COURT: -- I think is [sic] the time limit of [sic] today.


               MR. ROSE: I thought he, I thought he was going to be up here.


               THE COURT: Excuse me?


               MR. ROSE: I got questions that I wanted to question him.


               THE COURT: I asked you several times if you had witnesses.


               MR. ROSE: Yeah. Yeah. That’s what I was meaning by him. I
               wanted, I wanted to question him.


               THE COURT: The evidence is closed, Jessie [sic]. I was very
               polite to you --


               MR. ROSE: I didn’t, I didn’t, I didn’t, I didn’t under, see I got all
               my stuff right here. That’s what I, that’s what I was waiting on.
       Court of Appeals of Indiana | Opinion 09A04-1708-PC-1759 | February 28, 2019   Page 10 of 15
                  That’s why I said, well that’s Boonstra. I didn’t know
                  (indiscernible). He’s back there.


                  THE COURT: He’s been here the whole time.


                  [THE STATE]: Mr. Rose just indicated he knew Mr. Boonstra
                  was here and that –


       (Id. at 48.)


[16]   When the PCR court inquired as to why Rose did not call Boonstra as a

       witness, Rose responded he “thought [the PCR court] was talking about like

       witness, like somebody, that’s why I say I ain’t got no witness. Then I was

       saying I had Boonstra.” (Id. at 50.) However, as evidence was closed, 3 the

       PCR court did not allow further testimony.


[17]   Even without trial counsel’s testimony, the PCR court addressed the evidence

       of ineffective assistance of counsel Rose presented at the PCR hearing. Rose

       testified, at length, regarding what he would have said if he had taken the stand

       during his trial. The PCR court concluded that testimony “would have done

       little to ingratiate Rose with the jury.” (App. Vol. II at 19.) Rose also alleged,

       in his petition, other reasons why he did not have effective assistance of counsel

       at trial, such as counsel’s failure to move for discharge “when trial court

       violated Ind. Criminal Procedure Rule 4(c)[,]” (id. at 29), counsel’s failure to




       3
           The State objected to the reopening of evidence.


       Court of Appeals of Indiana | Opinion 09A04-1708-PC-1759 | February 28, 2019   Page 11 of 15
       move for mistrial “when Shawn Duckett violated Court’s Separation of

       Witnesses order[,]” (id.), and counsel’s failure to allow Rose to be present for

       “exparte [sic] communications with the jurors[,]” (id. at 30), etc. However, the

       PCR court determined those allegations were waived as they were either

       available during Rose’s direct appeal and not raised or Rose failed to pursue

       them during the PCR hearing. Although Rose did not present testimony from

       his trial counsel, he testified on his own behalf and the PCR court took that

       testimony into account when it ruled on Rose’s petition.


[18]   We cannot agree with Rose that he was denied an evidentiary hearing or that

       the PCR court “failed to provide [him] with a procedurally fair hearing.” (Br.

       of Appellant at 9.) He was allowed to subpoena Boonstra, Boonstra appeared

       for the hearing, and the PCR court asked Rose multiple times if he had

       witnesses to call, but Rose did not call Boonstra as a witness. The PCR court

       noted in its order that Boonstra was not only present for the hearing but also

       “sat across from Rose and directly behind [the State].” (App. Vol. II at 18.) As

       we hold pro se litigants to the same standards as licensed attorneys, see Evans,

       809 N.E.2d at 344, Rose was required to know to call the witness he

       subpoenaed. As Rose proceeded pro se, he “must be prepared to accept the

       consequences[,]” Basic v. Amouri, 58 N.E.3d 980, 984 (Ind. Ct. App. 2016), reh’g

       denied, of his inability to present his case in a more persuasive manner. See, e.g.,

       id. at 985 (due to pro se appellants’ defective brief, their arguments were deemed

       waived). Therefore, we cannot say the PCR court denied Rose a hearing or

       precluded him from presenting his witness.


       Court of Appeals of Indiana | Opinion 09A04-1708-PC-1759 | February 28, 2019   Page 12 of 15
                               Sufficiency of PCR Court’s Order
[19]   Indiana Post-Conviction Rule 1, section 6 requires a court to make “specific

       findings of fact, and conclusion of law on all issues presented[.]” “[T]hese

       findings must communicate the basis upon which the petition is granted or

       denied,” Bean v. State, 467 N.E.2d 671 (Ind. 1984), and must be “sufficient[ ] for

       review on appeal.” Lahrman v. State, 501 N.E.2d 1109, 1114 (Ind. Ct. App.

       1986).


[20]   Rose argues “the post-conviction court failed to make specific findings of fact

       and conclusion [sic] of law.” (Br. of Appellant at 16.) He contends the “court

       failed to cite one citation to support its conclusion [sic] of law.” (Id.) Rose does

       not elucidate whether he means a citation to the record or citation to caselaw

       and statutes. Nevertheless, our review of the PCR court’s findings of fact and

       conclusions of law, although not entitled as such, present an accurate

       description of the procedural posture of the case, the evidence presented, and

       the PCR court’s reasons for concluding relief should not be granted.


[21]   The PCR court sums up Rose’s testimony as:


                Rose complains that trial counsel did not allow Rose to testify
                and present his side of the story related to accusations made
                against Rose. Rose complains all of the witness testimony was a
                vendetta against Rose because Rose had been sexually unfaithful
                on multiple occasions to his wife. Further, that the sleeping
                arraignments [sic] practiced by the family provided an
                explanation for Rose being caught unclothed and the victim
                unclothed from the waist down.


       Court of Appeals of Indiana | Opinion 09A04-1708-PC-1759 | February 28, 2019   Page 13 of 15
       (App. Vol. II at 18.) The PCR court also noted “[n]one of the ten exhibits

       offered by Rose included an appropriate foundation[.] This court however has

       received the same to ascertain whether pro se Rose has presented any

       meritorious claims in spite of the accepted ruled [sic] of civil procedure.” (Id. at

       19.) The PCR court then concluded the documentary evidence was “a

       presentation to this court to second guess the juries [sic] determination of guilt

       by way of alleged meaningless inconsistencies occurring prior to or during the

       trial.” (Id.) Additionally, it concluded Rose’s testimony would not have

       endeared him to the jury; thus, Rose’s trial counsel’s strategy for Rose to not

       testify was not inappropriate. As to the other allegations, the PCR court

       concluded they were either waived due to not having been presented on direct

       appeal, waived due to not having been pursued at the evidentiary hearing, or

       barred by res judicata as they had already been pursued on direct appeal and

       ruled on. As such, the PCR court concluded Rose had not presented evidence

       his “trial counsel’s performance fell below an objective standard of

       reasonableness based on prevailing professional norms [or that] there [wa]s a

       reasonable probability that, but for counsel’s (alleged, none proved) errors, the

       result of the jury trial would have been different.” (Id.)


[22]   These findings and conclusions are sufficient for our review and correctly reflect

       the contents of the record. At the hearing, Rose presented various parts of pre-

       trial depositions, transcripts, and police reports, without foundation. Rose then

       testified on his own behalf, at length, about what happened prior to his arrest

       for child molest. The majority of this testimony consisted of reasons being


       Court of Appeals of Indiana | Opinion 09A04-1708-PC-1759 | February 28, 2019   Page 14 of 15
       given for why his wife would have been angry with him prior to going to the

       police with allegations of child molest. The foremost reason Rose listed for her

       anger was that he was not faithful to her. Rose stated he would have taken the

       stand and explained to the jury why his wife was mad, presumably in the hope

       that the jury would then believe he was not guilty of child molest.


[23]   We cannot say the PCR court’s conclusions regarding trial counsel’s strategy

       together with its conclusions regarding the waiver of some allegations are

       wrong. As the PCR court provided sufficient findings of fact and conclusions of

       law, we cannot say its order is inadequate. See, e.g., Lucas v. State, 552 N.E.2d

       35, 39 (Ind. 1990) (findings of fact and conclusions of law, even if not overly

       specific, need only be enough to enable the reviewing court to understand the

       decision and the process used in making that decision).



                                                Conclusion
[24]   As the PCR court provided a procedurally fair hearing and the PCR court

       provided adequate findings of fact and conclusions of law, we affirm the PCR

       court’s denial of Rose’s petition for post-conviction relief.


[25]   Affirmed.


       Baker, J., and Robb, J., concur.




       Court of Appeals of Indiana | Opinion 09A04-1708-PC-1759 | February 28, 2019   Page 15 of 15
