      MEMORANDUM DECISION

      Pursuant to Ind. Appellate Rule 65(D),                                FILED
      this Memorandum Decision shall not be                            Jul 30 2019, 7:04 am
      regarded as precedent or cited before any
      court except for the purpose of establishing                          CLERK
                                                                        Indiana Supreme Court
                                                                           Court of Appeals
      the defense of res judicata, collateral                                and Tax Court

      estoppel, or the law of the case.


      APPELLANT PRO SE                                          ATTORNEYS FOR APPELLEE
      Richard E. Hull                                           Curtis T. Hill, Jr.
      Pendleton, Indiana                                        Attorney General of Indiana
                                                                Tyler G. Banks
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA
      Richard E. Hull,                                          July 30, 2019
      Appellant-Petitioner,                                     Court of Appeals Case No.
                                                                18A-PC-3067
                                                                Appeal from the Marion Superior
              v.                                                Court
                                                                The Honorable Stanley E. Kroh,
      State of Indiana,                                         Magistrate
      Appellee-Respondent.                                      Trial Court Cause No.
                                                                49G03-1711-PC-43168




      Mathias, Judge.


[1]   After pleading guilty to two counts of murder and having his aggregate sentence

      of ninety years affirmed on appeal, Richard E. Hull (“Hull”) filed a petition for

      Court of Appeals of Indiana | Memorandum Decision 18A-PC-3067 | July 30, 2019             Page 1 of 10
      post-conviction relief in Marion Superior Court. The post-conviction court

      summarily denied Hull’s petition for post-conviction relief. Hull appeals pro se,

      presenting three issues, which we restate as: (1) whether the post-conviction

      court erred in summarily denying Hull’s petition without holding an evidentiary

      hearing; (2) whether the post-conviction court erred in not requesting the parties

      to submit proposed findings of fact and conclusions of law; and (3) whether the

      post-conviction court erred when the court refused Hull’s request to subpoena

      the Marion County Court Reporter to obtain records in his underlying criminal

      case.


[2]   We affirm.


                                  Facts and Procedural History

[3]   Our court recounted the facts underlying Hull’s convictions as follows derived

      from the factual basis elicited to support Hull’s guilty pleas:

              [A]t six o’clock PM [on October 25, 2000], Stephen Stultz, an
              employee of the Teamsters Local Union at 869 South Meridian,
              discovered the bodies of a male and a female in a dumpster at the
              back of the Union address and that’s just a short distance from
              the Meikle Street address. Those individuals were later identified
              as Andrew Cataldi and Tricia Nordman, roommates of ... Hull,
              and Sarah Pender. The male had been shot in the chest and the
              female in the chest and in the head with a shotgun.


              Descriptions of the victims and photos of their tattoos were
              shown on TV newscasts. A neighbor to the four individuals,
              Sarah Pender, Richard Hull, Andrew Cataldi and Tricia
              Nordman, there at 906 Meikle, contacted law enforcement and
              told them that she knew who the individuals were that were-had
      Court of Appeals of Indiana | Memorandum Decision 18A-PC-3067 | July 30, 2019   Page 2 of 10
        been killed and also told them that Sarah Pender and Richard
        Hull also lived at that address.


        A search warrant was secured by Detective Kenneth Martinez
        and other law enforcement officers. They searched the 906 S.
        Meikle address and discovered, among other things, that there
        was a lot of blood at the scene. DNA analysis later determined
        that that blood belonged to-the blood that they tested belonged to
        Tricia Nordman, victim in this case. It was appearing as well that
        there’d been an attempt to clean up the blood and conceal
        evidence of the murders. Jana Frederick told police that Richard
        Hull borrowed a plug adapter around noon on October 25, 2000,
        to use a carpet shampoo [machine] to clean the residence there at
        906 S. Meikle.


        The police found a Richard Hull and a Sarah Pender in
        Noblesville. When Richard Hull was questioned in the early
        morning of October 27, 2000, he initially denied any knowledge
        of what happened to Andrew Cataldi and Tricia Nordman. The
        detectives advised him of some of the evidence against him,
        including that he had borrowed from-Ronnie Herron's pickup
        truck the evening of October 23, 2000. That bodies had been
        moved in that pickup truck. The DNA analysis of the pickup
        truck showed that in the bed of the pickup truck was blood of
        Andrew Cataldi, one of the victims in this case. They advised
        him that [they] were aware that he and Sarah Pender had gone to
        a South U.S. 31 Wal-Mart. Sarah Pender was driven there by
        Richard Hull and a twelve-gauge shotgun had been purchased
        there the morning of October 24, 2000, just hours before Andrew
        Cataldi and Tricia Nordman were shot with a shotgun. Richard
        Hull was observed by the clerk who had handled the sale of the
        shotgun obtaining ammunition, which was brought to the
        counter and paid for-it was paid for by Ms. Pender. That
        ammunition [was] twelve gauge deer slugs. Ms. Nordman was
        shot twice with a twelve-gauge deer slug and both Cataldi-


Court of Appeals of Indiana | Memorandum Decision 18A-PC-3067 | July 30, 2019   Page 3 of 10
              Andrew Cataldi and Tricia Nordman were shot with a shotgun.
              DNA analysis of-excuse me. Strike that temporarily.


              Richard Hull told law enforcement officers the morning of
              October 27, 2000, that his sister, Tabitha, owed Andrew Cataldi
              money. That he and Andrew got into an argument that night.
              Cataldi knew he had the Mossberg shotgun that had just been
              purchased. Cataldi went in Hull's room to try to grab the
              shotgun. They got in a struggle and Hull told detectives, “He said
              he was going to kill my f------ family” and that argument occurred
              just moments before the shooting actually took place in the
              house. On October 28, 2000, Sarah Pender, when giving their
              [sic] full statement to law enforcement, turned over to them a
              pair of black pants belonging to [Hull]. Those pants were tested
              and DNA tests established that the blood on those pants was that
              of Andrew Cataldi and Tricia Nordman. And all those events
              occurred in Marion County, Indiana.


      Hull v. State, 799 N.E.2d 1178, 1179–80 (Ind. Ct. App. 2003).


[4]   On October 31, 2000, the State charged Hull with two counts of murder. Hull

      and the State signed a written agreement in which Hull pleaded guilty to both

      charges and the State agreed that the total executed sentence would not exceed

      ninety years. At sentencing, the trial court imposed sixty-five-year executed

      sentences on both counts and ordered one of the counts to be staggered by ten

      years, for an aggregate sentence of seventy-five years. Hull appealed his

      sentence, arguing that the trial court’s staggering of one of the sentences was an

      abuse of discretion. This court agreed and reversed and remanded to the trial

      court. On re-sentencing, the trial court imposed a ninety-year aggregate




      Court of Appeals of Indiana | Memorandum Decision 18A-PC-3067 | July 30, 2019   Page 4 of 10
      sentence, and this court affirmed that sentence. See Hull v. State, 839 N.E.2d

      1250, 1252 (Ind. Ct. App. 2005).

[5]   On November 7, 2017, Hull filed a pro se petition for post-conviction relief

      consisting of two paragraphs to support his claim to relief alleging:

              That the conviction and sentence is otherwise subject to collateral
              attack upon any ground of alleged error heretofore available
              under any common law, statutory or other writ, motion, petition,
              proceeding, or remedy. Open to Amend [sic].


              That the courts [sic] conviction and sentence of me is otherwise
              subject to collateral attack upon any ground of alleged error
              heretofore available under any common law, statutory or other
              writ, motion, petition, proceeding, or remedy. That the attorney
              appointed to me was ineffective and did not represent my best
              interest.


      Appellant’s App. p. 7.


[6]   Hull did not amend his petition to add any other allegations. On December 6,

      2017, the State Public Defender’s Office filed a notice of non-representation. On

      December 15, 2017, Hull requested a subpoena duces tecum to be directed to

      the Marion County Court Reporter, requesting:


              The Chronological Case Summary and the Grand- Jury records
              and all unpublished records, any and all records that were not in
              the CCS that pertain to [the cause number under which Hull was
              convicted], all Government documents that has [sic] the
              signature of RICHARD E. HULL, or any forms of that name.
              Including but not limited to Indiana State I.D., Social Security
              Card, etc. etc...

      Court of Appeals of Indiana | Memorandum Decision 18A-PC-3067 | July 30, 2019   Page 5 of 10
      Appellant’s App. pp. 20–23.


[7]   The post-conviction court refused to issue the subpoena, writing:

              The general claims for relief contained in the PCR do not support
              granting this request. Should this matter proceed to evidentiary
              hearing the court will take judicial notice of its file at request of
              the parties.


      Appellant’s App. p. 20. The State filed an answer alleging, in part, that Hull’s

      claims were barred by wavier and res judicata. The State then filed a motion for

      summary disposition. On November 16, 2018, the post-conviction court entered

      an order summarily denying Hull’s petition for post-conviction relief because

      Hull “raised no genuine issue of material fact, having failed to assert as grounds

      any specific factual allegations in support of his claim.” Hull now appeals.


                           Post-Conviction Standard of Review

[8]   Our standard of review of claims that a post-conviction court erred in denying

      relief is well settled. That is, post-conviction proceedings are not “super

      appeals” through which convicted persons can raise issues they failed to raise at

      trial or on direct appeal. Manzano v. State, 12 N.E.3d 321, 325 (Ind. Ct. App.

      2014) (citations omitted), trans. denied. Instead, post-conviction proceedings

      afford petitioners a limited opportunity to raise issues that were unavailable or

      unknown at trial and on direct appeal. Id. A post-conviction petitioner bears the

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

      Thus, on appeal from the denial of post-conviction relief, the petitioner stands

      in the position of one appealing from a negative judgment. Id. To prevail on
      Court of Appeals of Indiana | Memorandum Decision 18A-PC-3067 | July 30, 2019   Page 6 of 10
      appeal from the denial of post-conviction relief, 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. Id.


                                     I. Ineffective Assistance of Counsel

[9]   Hull argues that his petition for post-conviction relief, alleging ineffective

      assistance of counsel, presents a genuine issue of material fact, and therefore,

      the post-conviction court abused its discretion when it failed to hold an

      evidentiary hearing. We disagree. The rules governing post-conviction

      proceedings allow either party to move for summary disposition. Ind. Post-

      Conviction Rule 1(4)(g). The post-conviction court properly grants such a

      motion when the pleadings and any submitted evidence are such that there “is

      no genuine issue of material fact and the moving party is entitled to judgment as

      a matter of law.” Id. “On appellate review from a grant of summary judgment

      against a party, the nonmoving party has the burden of demonstrating that the

      grant of summary judgment was error.” Trueblood v. State, 715 N.E.2d 1242,

      1260 (Ind. 1999). Here, Hull’s assertion is a legal conclusion, not a factual

      assertion. Hull did not allege any facts to support his ineffective assistance of

      trial counsel claim. Hull only alleged that his attorney “did not represent [his]

      best interest.” Appellant’s App. p. 7. Further, Hull did not submit any affidavits

      from other witnesses that might have supported his claim or request to

      subpoena his trial counsel. Thus, Hull failed to raise any genuine issue of

      material fact that would support Hull’s conclusion that trial counsel was

      ineffective.

      Court of Appeals of Indiana | Memorandum Decision 18A-PC-3067 | July 30, 2019   Page 7 of 10
[10]   Hull contends that the trial court erred by denying Hull’s post-conviction

       petition without holding an evidentiary hearing. An evidentiary hearing is not

       required, however, in the absence of “‘specific factual allegations in support of

       the claim[s]’ alleged by the petitioner.” Evolga v. State, 722 N.E.2d 370, 372

       (Ind. Ct. App. 2000) (quoting Sherwood v. State, 453 N.E.2d 187, 189 (Ind. Ct.

       App. 2000)). “Ind. Post–Conviction Rule 1(3)(a) provides that ‘[t]he petition

       shall be submitted in a form in substantial compliance with the standard form

       appended to this Rule.’” Tyson v. State, 868 N.E.2d 855, 858 (Ind. Ct. App.

       2007), trans. denied. “Item 9 of that form requires the petitioner to ‘state

       concisely ... the facts which support each of the grounds....’ ‘[W]ithout specific

       factual allegations in support of the claim of inadequacy of representation no

       evidentiary hearing is required.’” Id. (quoting Hutchinson v. State, 540 N.E.2d

       109, 110 (Ind. Ct. App. 1989), trans. denied) (quoting Sherwood, 453 N.E.2d at

       189)). As discussed above, Hull did not allege any specific factual circumstances

       to establish a genuine issue of material fact as to his trial counsel’s performance.

       Hull failed to demonstrate how an evidentiary hearing would have aided him.

       Therefore, we conclude that the post-conviction court did not err by summarily

       denying Hull’s petition for post-conviction relief.


                        II. Proposed Findings of Fact and Conclusions of Law

[11]   Hull argues that the trial court abused its discretion when it did not order

       findings of facts and conclusions of law from Hull. We disagree. In the first

       instance, our post-conviction rules do not require the parties to submit proposed

       orders. Secondly, Hull did not notify the trial court during any of the hearings

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-3067 | July 30, 2019   Page 8 of 10
       in this case of his intention to file proposed findings and conclusions. Absent a

       showing by Hull that he asked the trial court to be allowed to file findings of

       facts and conclusion of law, we cannot conclude that the trial court abused its

       discretion by not allowing the filing of said findings and conclusions. Therefore,

       the post-conviction court did not err.


                                                  III. Subpoena

[12]   Hull also argues that the post-conviction court abused its discretion when it

       denied his request for a subpoena for the Marion County Court Reporter.

       Indiana Post–Conviction Rule 1(9)(b) provides in pertinent part:

               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. If the
               court finds the proposed witness’ testimony is not relevant and
               probative, it shall enter a finding on the record and refuse to issue
               the subpoena.


[13]   The post-conviction court has discretion to determine whether to grant or deny

       the petitioner's request for a subpoena. Allen v. State, 791 N.E.2d 748, 756 (Ind.

       Ct. App. 2003), trans. denied. An abuse of discretion occurs when the court's

       decision is against the logic and effect of the facts and circumstances before the

       court. Id.


[14]   Here, Hull sought to obtain records of his criminal case in which he pleaded

       guilty to two counts of murder. The post-conviction court informed Hull that
       Court of Appeals of Indiana | Memorandum Decision 18A-PC-3067 | July 30, 2019   Page 9 of 10
       the court would take judicial notice of the underlying case’s file upon request.

       Hull was never denied the opportunity to obtain the needed evidence.1 Hull was

       informed by the trial court that the evidence he sought would be readily

       available to the court with a mere request, rather than a subpoena. Therefore,

       the subpoena was not necessary. We agree with the State that, “judicial notice

       is a more efficient and economical method of bringing the events of prior

       judicial proceedings before the post-conviction court.” Appellee’s Br. p. 15. The

       post-conviction court properly refused to issue the subpoena.


                                                    Conclusion

[15]   Hull failed to prove that he was denied the effective assistance of trial counsel.

       Additionally, a post-conviction court is not required to ask for a draft order

       from the parties. We also conclude that Hull was not prejudiced by the post-

       conviction court’s refusal to subpoena the Marion County Clerk to produce

       records relevant to his case because everything Hull needed could be accessed

       online or judicially noticed. Accordingly, we affirm the court’s denial of Hull’s

       petition for post-conviction relief and deny Hull’s motion for remand by

       separate order.


       May, J., and Brown, J., concur.




       1
         In fact, everything Hull needed could be found in Odyssey, Indiana’s online case management system.
       Because Hull cited to LexisNexis in his brief, there is a reasonable assumption that Hull had access to the
       internet.

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-3067 | July 30, 2019                     Page 10 of 10
