                                                                   FILED
                                                              Aug 05 2016, 6:08 am

                                                                   CLERK
                                                               Indiana Supreme Court
                                                                  Court of Appeals
                                                                    and Tax Court




APPELLANT PRO SE                                           ATTORNEYS FOR APPELLEE
Jason Dean Hubbell                                         Gregory F. Zoeller
Pendleton, Indiana                                         Attorney General of Indiana
                                                           James B. Martin
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Jason Dean Hubbell,                                        August 5, 2016
Appellant-Petitioner,                                      Court of Appeals Case No.
                                                           03A01-1511-PC-1927
        v.                                                 Appeal from the Bartholomew
                                                           Circuit Court
State of Indiana,                                          The Honorable Stephen R.
Appellee-Respondent.                                       Heimann, Judge
                                                           Trial Court Cause No.
                                                           03C01-1504-PC-1915



Brown, Judge.




Court of Appeals of Indiana | Opinion 03A01-1511-PC-1927 | August 5, 2016                Page 1 of 20
[1]   Jason Dean Hubbell appeals the denial of his petition for post-conviction relief.

      Hubbell raises three issues which we consolidate and restate as whether the trial

      court abused its discretion when it declined to take judicial notice of the record

      and whether the court denied Hubbell a fair hearing by refusing to obtain his

      direct appeal record from the Supreme Court Clerk. We reverse and remand.


                                       Facts and Procedural History

[2]   The relevant facts as discussed in Hubbell’s direct appeal follow:


              Sharon Myers left for work at the Arvin plant early on the
              morning of May 13, 1997. She never arrived. Another employee
              of Arvin, Sherry Young, saw a man and a woman leaving the
              Arvin plant as she arrived at work that same morning. The
              woman looked similar to Myers. The man had one hand on the
              woman’s neck or back, and the two entered a white van and
              drove away.


              The police came to the plant later that morning to look for
              Myers. Young had “mentally” made note of the license plate
              number and gave the police the number and a description of the
              van. The police traced the license plate number to a white van
              owned by Hubbell. Hubbell worked at the Arvin plant with
              Myers and had called in sick on May 13. Young then identified
              a picture of the van as the one she had seen that morning, and
              later that day identified Hubbell when police presented him to
              her.


              In November 1997, skeletal remains were found in a marsh area
              in Johnson County and identified as Myers’ through dental
              records. An autopsy showed a fracture in the hyoid bone which,
              together with the size of a ligature found around Myers’ neck,
              indicated that the cause of death was manual strangulation.

      Court of Appeals of Indiana | Opinion 03A01-1511-PC-1927 | August 5, 2016   Page 2 of 20
              Acrylic fibers found near the body were consistent with fibers
              found in Hubbell’s van. Grass fragments found in the search of
              the van were consistent with grass samples from the marsh. The
              FBI obtained fingerprints from the van and also shot several rolls
              of film of fingerprints that might or might not be different from
              the fingerprints taken. No prints from Myers were identified, and
              the authorities lost the rolls of film.


              On August 31, 1998, Hubbell was indicted by a grand jury on the
              charges of murder and criminal confinement. On September 28,
              Hubbell filed a notice of alibi, which he amended on October 15.
              The State did not respond. At trial, the State introduced parts of
              Hubbell’s statements made following a polygraph examination.
              The State also introduced testimony from a jail inmate that
              Hubbell admitted the killing to him. Hubbell was convicted of
              both charges after a four-week jury trial in October and
              November of 1999. The trial court sentenced him to sixty-five
              years for murder and ten years for confinement, to be served
              consecutively.


      Hubbell v. State, 754 N.E.2d 884, 887-888 (Ind. 2001) (footnote omitted). On

      direct appeal, Hubbell raised ten issues, and the Indiana Supreme Court

      affirmed the judgment of the trial court. Id. at 887.


[3]   On May 24, 2002, Hubbell filed a pro se petition for post-conviction relief under

      cause number 03C01-1504-PC-1915 (“Cause No. 1915”). On May 28, 2002,

      the court forwarded a copy of the petition to the State Public Defender. The

      public defender filed an appearance on behalf of Hubbell and later filed a

      motion to withdraw appearance. In February 2004, Daniel M. Grove filed an

      appearance on behalf of Hubbell.



      Court of Appeals of Indiana | Opinion 03A01-1511-PC-1927 | August 5, 2016   Page 3 of 20
[4]   Meanwhile, an entry dated September 22, 2003, under the direct appeal cause

      number indicates that the transcript was released to the public defender’s office

      per request, and an entry dated March 9, 2004, indicates that the transcript was

      returned. An entry dated March 22, 2006, indicates that Hubbell filed a petition

      to withdraw the record of proceedings. In an entry dated March 30, 2006, the

      Indiana Supreme Court issued an order that stated:


              The Court finds it is not presently in need of the Record,
              accordingly, the Court grants the petition and directs the Clerk of
              the Supreme Court, Court of Appeals and Tax Court (“Clerk”) to
              release the Record to attorney Daniel M. Grove. Unless and
              until admitted as an exhibit in post-conviction proceedings, the
              Record is to remain under the attorney’s control at all times.
              Even if admitted as an exhibit in post-conviction proceedings, the
              Record shall be maintained intact. The attorney shall return the
              Record to the Clerk . . . within six months from the date of this
              order or sixty (60) days from the entry of the final post-conviction
              judgment, whichever occurs first. If the Record is not returned
              within six months from the date of this order, the attorney shall
              petition the Court for additional time to return the Record,
              explaining why additional time is needed. In the event the
              Record is admitted as an exhibit in post-conviction proceedings
              and an appeal is taken from the post-conviction judgment, the
              Record shall be returned to the Clerk . . . . The Court grants
              leave for the Clerk to then transfer the Record to the Court of
              Appeals for use as a separately filed exhibit in that appeal. Once
              the decision in the post-conviction appeal has been certified as
              final, the Record shall return to the custodial care of the Clerk for
              handling consistent with usual practice.


      Chronological Case Summary, Case No. 03S00-9912-CR-00714, Hubbell v.

      State, entry dated 03/30/2006 (capitalization removed).


      Court of Appeals of Indiana | Opinion 03A01-1511-PC-1927 | August 5, 2016   Page 4 of 20
[5]   In May 2013, Hubbell sent a pro se motion to the Indiana Supreme Court

      requesting a copy of the Record of Proceedings from his direct appeal. Id.,

      entry dated 05/22/2013. In response, the Supreme Court issued the following

      letter:

                This letter is sent pursuant to the Supreme Court’s “Standing
                Order Governing the Release of Appellate Records for Copying”
                issued March 8, 2001. See, Cause No. 94S00-0103-MS-152.
                This letter pertains to the cause and moving party noted above, in
                accordance with the procedures prescribed in the standing order,
                please file-mark this letter, make an entry on the chronological
                case summary, and forward file-marked copies of this letter to the
                Indiana Public Defender, the Indiana Attorney General, to the
                moving party, and to any counsel of record. As further provided
                in the Standing Order, you are authorized to release the
                Appellate Record of Proceedings or Record on Appeal
                (“Record”) to representatives of the Indiana Public Defender
                who shall be responsible for returning it to you intact within 18
                weeks of the date of this letter. Within that time period, the
                Public Defender’s Office will make arrangements to provide a
                copy of the record to the moving party. However as the Standing
                Order further provides, if the Office of the Public Defender has
                agreed to serve as Appellant’s Counsel and Appellant wishes that
                representation to continue, then the Appellant is not entitled to a
                copy of the Record, notwithstanding any language in this letter to
                the contrary.


      Id., entry dated 06/03/2013 (capitalization removed).


[6]   The “Standing Order” to which the Court referred provides:

                This Order shall govern the procedures by which copies of
                Records of Proceedings or Records on Appeal shall be provided
                to indigent and individuals who have taken direct appeals of their

      Court of Appeals of Indiana | Opinion 03A01-1511-PC-1927 | August 5, 2016   Page 5 of 20
              criminal convictions to the Indiana Supreme Court, either
              through the exercise of direct appellate jurisdiction or by the
              court having granted transfer. Effective immediately and until
              further order, whenever the Court receives a motion requesting a
              copy of the Record of Proceedings or Record on Appeal at public
              expense that is appropriately within the Court’s jurisdiction, the
              Office of Supreme Court Administration may, without further
              order of this Court, issue a letter directing the Clerk to release the
              Record to the Public Defender for photocopying and
              transmission to the appellant. The letter will be transmitted to
              the Clerk of the Court, who shall file-mark it, make an entry on
              the appropriate docket noting that a letter has been issued
              pursuant to this standing order, and then transmit file-marked
              copies of the letter to the Indiana Public Defender, the Indiana
              Attorney General, any counsel of record, and the moving party.
              If the Record of Proceedings or Record on Appeal is released to
              the Public Defender, the Record is at all times to be under the
              supervision of the Public Defender and is to be returned intact to
              the Records Department of the Clerk . . . no later than 18 weeks
              from the date of the letter. Within that time period, the Public
              Defender is to provide a copy of the Record to the individual at
              the address indicated in the letter.


      Standing Order issued 03/08/2001, Cause No. 94S00-0103-MS-152

      (capitalization removed).


[7]   Meanwhile, in May 2013, Hubbell filed a pro se motion to dismiss his post-

      conviction counsel under Cause No. 1915. In July 2013, the court granted the

      motion to dismiss counsel and withdrew Grove’s appearance.


[8]   On November 11, 2013, Steven Teverbaugh, who had not yet filed an

      appearance on behalf of Hubbell, filed for voir dire transcripts of Hubbell’s case.

      On February 19, 2014, Teverbaugh received these transcripts. On April 14,

      Court of Appeals of Indiana | Opinion 03A01-1511-PC-1927 | August 5, 2016    Page 6 of 20
       2014, Teverbaugh filed an appearance on behalf of Hubbell, and on September

       23, 2014, he filed a motion to withdraw, which the court granted.


[9]    On December 15, 2014, Hubbell, pro se, filed a Motion for Post-Conviction

       Court to Take Judicial Notice of Own Records. On December 17, 2014, the

       court entered an order which stated that the court was unclear what Hubbell

       sought and would rule on the motion at the post-conviction hearing. On

       December 30, 2014, Hubbell filed a Motion to Clarify to Take Judicial Notice

       of Own Records and moved the court to “take judicial notice of all records in

       relation to the jury trial, to make the trial record AND voir dire record an

       exhibit in the post-conviction proceedings, and for all other just and proper

       relief.” Appellant’s Appendix at 146.


[10]   On January 7, 2015, the court entered an order indicating that it would follow

       the precedent of Graham v. State, 941 N.E.2d 1091, 1097 (Ind. Ct. App. 2011),

       aff’d on reh’g, 947 N.E.2d 962, and that the court would not take blanket judicial

       notice of any and all records of the court as requested by Hubbell nor would the

       court secure records on his behalf. On April 28, 2015, Hubbell filed an

       amended petition for post-conviction relief and asserted that he was deprived of

       the effective assistance of counsel.


[11]   On June 26, 2015, the court held an evidentiary hearing. During the testimony

       of Hubbell’s trial counsel who also served as his appellate counsel, Hubbell

       stated that he would be referring to the trial transcripts and voir dire transcripts

       and that he “would probably . . . is going to need to probably ask for a


       Court of Appeals of Indiana | Opinion 03A01-1511-PC-1927 | August 5, 2016   Page 7 of 20
       continuance until the Court is able to obtain such documents . . . .” Post-

       Conviction Transcript at 17. He also stated that the copies that he had were not

       certified and that “it would not be able to be admitted into evidence or

       exhibits.” Id. After Hubbell indicated that he was not requesting the court to

       enter a ruling at that time, Hubbell’s trial counsel testified that he gave Hubbell

       the volumes of his transcripts years ago.


[12]   After some further direct examination of trial counsel, Hubbell stated that he

       was in a predicament because “we do not have trial transcripts for me to be able

       to help my witness refer to . . . .” Id. at 22. He also stated that he “may have to

       ask for a continuance until such time the Court can obtain these documents.”

       Id. The court informed Hubbell that he had the affirmative duty to deliver the

       record to the post-conviction court. Hubbell stated that the trial transcript was

       6,500 pages, that it was uncertified, and that “for my part and being DOC, there

       is no way for me to be able to transport that. They just would not allow me to

       do such.” Id. at 27. He also stated that “they’ve been probably marked and

       written on with pen or highlighter or whatever to . . . for my own personal use

       just because the Court has their own records . . . .” Id. After further discussion,

       Hubbell withdrew his request to continue.


[13]   Hubbell questioned his direct appeal counsel about why he had not raised a

       double jeopardy argument on appeal. To refresh counsel’s recollection,

       Hubbell handed counsel a document and asked counsel to state the page

       number on the bottom. Before counsel could answer, the prosecutor

       interrupted to ask if the document was certified. Counsel answered that it did

       Court of Appeals of Indiana | Opinion 03A01-1511-PC-1927 | August 5, 2016   Page 8 of 20
       not appear to be a certified document, and the prosecutor objected to referring

       to it. The court asked Hubbell if he had a response, and Hubbell said:


               My response is part of the trial . . . trial record that I asked and
               requested to . . . be here, that would have been certified, it is part
               of the closing arguments of Kathleen Burns, of which she has
               stated and I am not in possession nor have I ever been in
               possession of a trial record that was certified. So even if I wanted
               to bring it here, I couldn’t, because I’m not in possession of one.


       Id. at 73. The prosecutor then responded:


               Your Honor, the State reiterates its . . . its objection. I believe the
               Court tried to afford Mr. Hubbell every opportunity to obtain a
               certified transcript and I believe this Court attempted to suggest
               to him that it might be against his best interests to attempt to
               proceed without it.


       Id. The court sustained the prosecutor’s objection.


[14]   Hubbell then attempted to ask his direct appeal counsel a hypothetical question

       about double jeopardy:


               This is a hypothetical. You were raising the double jeopardy
               claim within the appeal and you were aware of a statement in
               closing arguments that you could cite page, volume number, line
               to line, and let’s just say hypothetically, if that statement was to
               state with . . . without her consent or did remove Sharon Myers
               by fraud, enticement, force, threat of force from the place . . .
               from one place to another, which resulted in serious bodily injury
               to Sharon Myers, specifically her death, wouldn’t that in your
               judgment qualify as a double jeopardy, if you was [sic] to be able
               to use a quote of that nature within the appeal?


       Court of Appeals of Indiana | Opinion 03A01-1511-PC-1927 | August 5, 2016    Page 9 of 20
       Id. at 75-76. Again, the prosecutor objected:


               Objection, Your Honor. Number one, the question calls for
               speculation. Secondly, even if this is a hypothetical question to
               an expert witness, those facts are not in evidence. He cannot
               render an opinion based upon a hypothetical when the evidence
               is not in the record. The evidence is not in the record because
               Mr. Hubbell has failed to produce it.


       Id. at 76. The court again sustained the prosecutor’s objection.


[15]   On October 15, 2015, the court denied Hubbell’s petition for post-conviction

       relief. In its order, the court stated it had not taken judicial notice of the

       transcripts of the hearings and trial because it did not have those documents.


                                                     Discussion

[16]   Before discussing Hubbell’s allegations of error, we note the general standard

       under which we review a post-conviction court’s denial of a petition for post-

       conviction relief. The petitioner in a post-conviction proceeding bears the

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

       Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004); Ind. Post-Conviction Rule 1(5).

       When appealing from the denial of post-conviction relief, the petitioner stands

       in the position of one appealing from a negative judgment. Fisher, 810 N.E.2d

       at 679. On review, we will not reverse the judgment unless the evidence as a

       whole unerringly and unmistakably leads to a conclusion opposite that reached

       by the post-conviction court. Id. “A post-conviction court’s findings and

       judgment will be reversed only upon a showing of clear error – that which


       Court of Appeals of Indiana | Opinion 03A01-1511-PC-1927 | August 5, 2016   Page 10 of 20
       leaves us with a definite and firm conviction that a mistake has been made.” Id.

       In this review, we accept findings of fact unless clearly erroneous, but we

       accord no deference to conclusions of law. Id. The post-conviction court is the

       sole judge of the weight of the evidence and the credibility of witnesses. Id.


[17]   Hubbell argues that the court abused its discretion and denied him a fair

       hearing when it declined to take judicial notice of the record and voir dire

       transcripts. Hubbell argues that Ind. Evidence Rule 201(c)(2) required the court

       to take judicial notice of the particular documents. Hubbell contends that the

       court “abused its discretion against Indian[a] Evidence Rule 201(c)(2) when it

       denied [him] the ability to refer to, use, and admit into evidence, uncertified

       photo copied documents of the Record of Proceedings/Trial Transcripts and

       Voir Dire transcripts and make them part of the record of the PCR

       proceedings.” Appellant’s Brief at 15.


[18]   The State argues that the post-conviction court was not required to take judicial

       notice of the record. The State also asserts that any material relied upon by a

       trial court in deciding a case should be made part of the record for purposes of

       appeal, that Hubbell was not misled about his obligation to produce the record,

       and that it remained Hubbell’s burden to secure the trial record to admit it as an

       exhibit.


[19]   Ind. Evidence Rule 201(a) governs the kinds of facts that may be judicially

       noticed and provides that “[t]he court may judicially notice . . . the existence of

       . . . records of a court of this state.” Ind. Rule 201(b) governs the kinds of laws


       Court of Appeals of Indiana | Opinion 03A01-1511-PC-1927 | August 5, 2016   Page 11 of 20
       that may be judicially noticed and provides that “[a] court may judicially notice

       a law, which includes . . . records of a court of this state . . . .” Ind. Evidence

       Rule 201(c) provides that “[t]he court . . . (1) may take judicial notice on its

       own; or (2) must take judicial notice if a party requests it and the court is

       supplied with the necessary information.”


[20]   In Graham v. State, 941 N.E.2d 1091, 1097 (Ind. Ct. App. 2011), aff’d on reh’g,

       947 N.E.2d 962, we held that there was longstanding precedent that the record

       of proceedings from the original trial must be admitted into evidence at a post-

       conviction hearing, just like any other exhibit, and a post-conviction court may

       not take judicial notice of that record. We then noted:

               It remains to be seen whether this will still be the rule following
               an amendment to Indiana Evidence Rule 201, effective January
               1, 2010, which permits a court to take judicial notice of “records
               of a court of this state.” Ind. Evidence Rule 201(b)(5); see also In
               the Matter of the Paternity of P.R., 940 N.E.2d 346 (Ind. Ct. App.
               2010). We need not decide whether this amendment would
               apply here, given that Graham’s PCR hearing was held before its
               effective date. We would emphasize that, regardless of the rules
               regarding judicial notice, any material relied upon by a trial court
               in deciding a case should be made part of the record for appeal
               purposes.


       941 N.E.2d at 1097 n.2.


[21]   On rehearing, the State argued that the statements effectively placed the burden

       on the post-conviction court to track down and retrieve evidence mentioned by

       a litigant, but not actually supplied to the court, and then to enter it into the


       Court of Appeals of Indiana | Opinion 03A01-1511-PC-1927 | August 5, 2016   Page 12 of 20
       record. 947 N.E.2d at 964. We emphatically disagreed and stated that its

       holding did not require a post-conviction court “to go searching for records in

       support of either party’s position or to become an advocate or investigator for

       either party.” Id. We also emphasized that “if a PCR court purports to take

       judicial notice of other court records and relies upon those records in ruling

       upon a PCR petition, but those records are not made part of the PCR record, it

       places a substantial burden upon this court on appeal to either track down those

       records and have them transmitted to this court, or to attempt to decide the case

       without benefit of those records.” Id. at 965.


[22]   Recently, the Indiana Supreme Court discussed Rule 201. In Horton v. State, 51

       N.E.3d 1154, 1160 (Ind. 2016), the Court held that the failure to confirm

       Horton’s personal waiver before proceeding to a bench trial was fundamental

       error and was dispositive of the appeal, but exercised its discretion to address

       another issue “for guidance purposes only – whether an unsigned sentencing

       order and a judicially noticed case file not included in the record are sufficient

       to support the D-felony domestic battery conviction.” The Court titled the

       second issue as: “It May Be Enough Under Indiana Evidence Rule 201(b)(5) to

       Unambiguously Identify the Publicly Available Court Records Being Noticed,

       but the Best Practice Is to Enter the Particular Documents into the Record.” 51

       N.E.3d at 1160.


[23]   The Court stated:


               Effective January 1, 2010, amended Rule 201(b)(5) now permits
               courts to take judicial notice of “records of a court of this state,”

       Court of Appeals of Indiana | Opinion 03A01-1511-PC-1927 | August 5, 2016   Page 13 of 20
        precisely as the trial court did here. But that Rule is silent on
        whether a court must enter that document into the record.


        On one hand, it is vital for the parties to know the exact
        evidentiary basis on which the judgment turned—and for
        appellate courts to know likewise to facilitate review. On the
        other hand, the ultimate purpose of judicial notice is efficient
        consideration of uncontroversial facts, see Baran v. State, 639
        N.E.2d 642, 647 (Ind. 1994)—efficiency that would be
        undermined to the point of uselessness for judicial records if
        simply “tak[ing] judicial notice of the court’s own records . . . [in]
        the 0201-CM-195 case” obligated the court to physically
        incorporate that entire file into the record in the present case.
        Judicial notice “encompasses facts ascertainable from sources
        that cannot reasonably be questioned, and presumably court
        records are such sources,” in the absence of evidence tending to
        rebut that presumption. Brown v. Jones, 804 N.E.2d 1197, 1202
        (Ind. Ct. App. 2004) (addressing judicial notice of the court’s file
        in the same proceeding, before enactment of Evidence Rule
        201(b)(5), for similar notice of other court records), trans. denied.


        But as the Court of Appeals has emphasized, failing to
        incorporate noticed court records into the record on appeal
        hinders appellate review. In Graham v. State, 947 N.E.2d 962
        (Ind. Ct. App. 2011), a post-conviction court took judicial notice
        of the record in the underlying criminal trial but did not make it
        part of the post-conviction record on appeal. The Court of
        Appeals noted,


                 [I]f a PCR court purports to take judicial notice of
                 other court records and relies upon those records in
                 ruling upon a PCR petition, but those records are not
                 made part of the PCR record, it places a substantial
                 burden upon this court on appeal to either track
                 down those records and have them transmitted to this

Court of Appeals of Indiana | Opinion 03A01-1511-PC-1927 | August 5, 2016   Page 14 of 20
                 court, or to attempt to decide the case without benefit
                 of those records.


        Graham, 947 N.E.2d at 965. For those same reasons, the absence
        of the noticed records has impeded our review.


        In spite of that impediment, though, we find no error here. Even
        when copies of court records to be noticed are not available,
        “sufficient or accurate information that would allow the Court to
        readily locate the documents in its records” may be adequate.
        Love v. The Mail on Sunday, 489 F.Supp.2d 1100, 1105 n.3 (C.D.
        Cal. 2007) (denying request for judicial notice of court records
        under Federal Rule of Evidence 201 because proponent “did not
        submit copies of these documents” or provide sufficient
        information for the court to readily locate them). . . .


Id. at 1160-1161. The Court observed:


        Indiana Appellate Rule 27 provides that the Record on Appeal
        includes “all proceedings before the trial court . . ., whether or
        not . . . transmitted to the Court on Appeal.” Accordingly, even
        though the usual practice under Appellate Rule 12(A) is for trial
        court clerks to “retain the Clerk’s Record throughout the appeal,”
        the judicially noticed case file in CM-195 is part of the record in
        this case. We therefore procured copies of several documents
        from the CM195 file from the trial-court clerk—much as the
        parties could have done under Appellate Rule 32 to resolve
        disagreements as to the accuracy (including the completeness) of
        the Clerk’s Record. . . .


        We emphasize that we were under no duty to request these
        additional materials—as Graham noted, we also would have been
        well within our discretion “to attempt to decide the case without
        benefit of those records.” 947 N.E.2d at 965. Indeed, we would
        not have made the request if we had not already determined that
Court of Appeals of Indiana | Opinion 03A01-1511-PC-1927 | August 5, 2016   Page 15 of 20
               the evidence was sufficient as discussed above—since “it is not
               our responsibility to develop arguments for either party.” In re
               Riddle, 946 N.E.2d 61, 70 (Ind. Ct. App. 2011). Rather, we made
               that request only to illustrate the availability of procedures best
               employed by the affected parties when a court takes judicial notice
               without following Graham’s best-practices guidance—and before
               a unified statewide [electronic case management system] largely
               moots these concerns.


       Id. at 1162. The Court ultimately concluded that “[s]ince the prior case file was

       readily and publicly available, and its cause number was repeatedly and

       unambiguously identified in the record to enable investigation and objection if

       warranted, the failure to formally enter the relevant documents from CM-195

       into this record was not an abuse of discretion.” Id. at 1163. The Court also

       echoed Graham’s “explanation of why it is by far the preferable practice to enter

       into the record the particular documents of which the court is taking notice.”

       Id.


[24]   For all these reasons, we decline to hold the court abused its discretion when it

       refused to take judicial notice of documents that were not before the court.

       That, however, is not the end of our analysis because Hubbell also asserts the

       court’s refusal to obtain the certified copy of his direct appeal record denied him

       a fair hearing.


[25]   Although the process due to a petitioner in a post-conviction proceeding does

       not rise to the level of process due to a citizen prior to being convicted, fairness

       and justice require that the opportunity to obtain post-conviction relief be more

       than illusory. Hubbell’s inability to produce a certified copy of his Record of

       Court of Appeals of Indiana | Opinion 03A01-1511-PC-1927 | August 5, 2016   Page 16 of 20
       Proceedings from his direct appeal occurred through no fault of his own, and it

       precluded him from presenting the evidence he needed to assert his claims.


[26]   The post-conviction court’s order acknowledges Hubbell asked the court to

       “order the clerk of this court to obtain the trial records on Hubbell’s behalf from

       the Indiana Supreme Court for use at the PCR hearing.” Order Denying

       Amended Verified Petition for Post-Conviction Relief at 7-8. Evidence Rule

       201 and the case law do not require the post-conviction court to obtain the

       Record requested by Hubbell. However, neither do they prohibit a post-

       conviction court from obtaining them.


[27]   We believe issuing an order requesting the Appellate Courts Clerk to transmit

       the certified Record of Proceedings from a defendant’s direct appeal does not

       require Hubbell’s post-conviction court to “go searching for records” or to

       become his “advocate or investigator” as was discouraged by Graham. Graham,

       947 N.E.2d at 964. It is a simple request for the post-conviction court to

       subpoena a designated document. See Ind. Trial Rule 45(B) (“A subpoena may

       also command the person to whom it is directed to produce the books, papers,

       documents, or tangible things designated therein . . . .”).


[28]   The post-conviction rules do not establish a procedure for a pro se petitioner to

       subpoena a document, but they do explain the procedure if a pro se petitioner

       wishes to subpoena a witness. See Post-Conviction Rule 1(9)(b). The post-

       conviction court must subpoena witnesses for a pro se petitioner “[i]f the court

       finds the witness’ testimony would be relevant and probative.” Id. We have


       Court of Appeals of Indiana | Opinion 03A01-1511-PC-1927 | August 5, 2016   Page 17 of 20
       found reversible error in the failure to subpoena a witness when a petitioner’s

       claims could not be presented without the presence of that specific witness. See

       Medlock v. State, 547 N.E.2d 884, 887-888 (Ind. Ct. App. 1989) (clerk’s failure to

       subpoena witnesses for post-conviction proceeding following petitioner’s pro se

       request for subpoenas was not harmless error where petitioner could not prove

       claim without witness’s testimony about alleged promises witness made to

       induce petitioner’s guilty plea).


[29]   We see no reason we ought not reach the same result when a petitioner raises

       issues—such as ineffective assistance of counsel and double jeopardy 1—that

       cannot be addressed on their merits without access to the Record of

       Proceedings. Declining to obtain the direct appeal transcript in such

       circumstances is reversible error. See id.


[30]   Rather than obtaining the Record of Proceedings for Hubbell, the post-

       conviction court imposed on Hubbell “the affirmative duty to get the [R]ecord

       [of Proceedings] to the PCR Court.” Post-Conviction Transcript at 25. It is not

       apparent how Hubbell could have accomplished that task when he is not a




       1
         Simultaneous convictions of murder and criminal confinement can violate the prohibition against double
       jeopardy. See Lowrimore v. State, 728 N.E.2d 860, 868 (Ind. 2000) (vacating conviction for confinement where
       jury was presented “the same evidentiary facts—the suffocation and choking of Lawyer—to prove both the
       murder charge and the criminal confinement charge”), reh’g denied; Newgent v. State, 897 N.E.2d 520, 529
       (Ind. Ct. App. 2008) (vacating confinement conviction to eliminate double jeopardy with murder conviction).
       Because Hubbell had no way to obtain the certified copy of his Record of Proceedings for his post-conviction
       hearing, he could not present evidence that would permit us to review whether his appellate counsel’s failure
       to raise double jeopardy on appeal constituted ineffective assistance.

       Court of Appeals of Indiana | Opinion 03A01-1511-PC-1927 | August 5, 2016                      Page 18 of 20
       licensed lawyer, he is proceeding pro se, and he is indigent. Nor does there

       appear to be a published procedure that allows him to do so.


[31]   None of the Indiana Supreme Court orders entered under the direct appeal or

       the Standing Order referenced above explicitly prohibit releasing the Record of

       Proceedings from a direct appeal to persons who are not licensed attorneys or

       employees of the Public Defender’s office, but that is a fair inference, as neither

       the Public Defender nor a petitioner’s lawyer is permitted to allow the Record

       of Proceedings out of his “supervision” or “control.”


[32]   Hubbell is not represented by the State’s Public Defender, who presumably

       would be responsible for bringing the Record of Proceedings to a post-

       conviction hearing. Hubbell is not a licensed lawyer, so he cannot check out

       the Record of Proceedings himself. Neither can he send a friend or relative,

       unless such person happens to be a licensed attorney.


[33]   Hubbell is proceeding as an indigent. Therefore, he presumably cannot afford

       to hire licensed counsel for the sole purpose of transmitting the Record of

       Proceedings from the Supreme Court to the post-conviction court. Nor should

       we presume he has the funds to purchase from the trial court reporter a new

       certified copy of the proceedings, which the post-conviction court acknowledges

       included a 28-volume transcript. See Order Denying Amended Verified Petition

       for Post-Conviction Relief at 1.


[34]   Hubbell acknowledges he once received the copy of his Record of Proceedings

       to which he was entitled. See Post-Conviction Rule 1(9)(b) (“Petitioners who

       Court of Appeals of Indiana | Opinion 03A01-1511-PC-1927 | August 5, 2016   Page 19 of 20
       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.”). But he asserted in his December 30, 2014 motion

       that his copy is not certified and “may not be to the standard required by the

       court through damage occurring through shake downs . . . .” Appellant’s

       Appendix at 146.


[35]   Under these facts, it is difficult to see what more could be expected of Hubbell

       as he was attempting to present his post-conviction arguments. Until such time

       as electronic transcripts and records make this issue moot for all petitioners, pro

       se petitioners need to know how they may ensure the Records of Proceedings

       from their direct appeals are available for a post-conviction hearing.


                                                     Conclusion

[36]   For the foregoing reasons, we reverse the post-conviction court’s denial of

       Hubbell’s petition for post-conviction relief, order the court to obtain the direct

       appeal Record, and permit Hubbell to question his witnesses and present his

       arguments with the benefit of a certified Record of Proceedings.


[37]   Reversed and remanded.


       Baker, J., and May, J., concur.




       Court of Appeals of Indiana | Opinion 03A01-1511-PC-1927 | August 5, 2016   Page 20 of 20
