                                                                               FILED
                                                                           Mar 26 2018, 9:54 am

                                                                               CLERK
                                                                           Indiana Supreme Court
                                                                              Court of Appeals
                                                                                and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Richard J. Thonert                                        Curtis T. Hill, Jr.
Fort Wayne, Indiana                                       Attorney General of Indiana

ATTORNEYS FOR AMICUS CURIAE                               Tyler G. Banks
PUBLIC DEFENDER OF INDIANA                                Deputy Attorney General
                                                          Indianapolis, Indiana
Stephen T. Owens
Public Defender of Indiana
J. Michael Sauer
Deputy Public Defender
Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

James E. Hinkle,                                          March 26, 2018
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          20A03-1703-PC-690
        v.                                                Appeal from the Elkhart Superior
                                                          Court
State of Indiana,                                         The Honorable Teresa L. Cataldo,
Appellee-Plaintiff.                                       Judge
                                                          Trial Court Cause No.
                                                          20D03-0812-FB-61
                                                          20D03-1312-PC-81


Najam, Judge.




Court of Appeals of Indiana | Opinion 20A03-1703-PC-690 | March 26, 2018                           Page 1 of 26
                                            Statement of the Case
[1]   Employing the Davis-Hatton procedure,1 James E. Hinkle appeals his

      convictions for child molesting, as a Class A felony, and sexual misconduct

      with a minor, as a Class D felony; his adjudication for being a repeat sexual

      offender; and the post-conviction court’s denial of his petition for post-

      conviction relief. Hinkle raises the following four issues2 for our review:


                 1.    Whether the trial court abused its discretion when it
                 excluded evidence of the victim’s prior drug use.


                 2.      Whether the post-conviction court abused its discretion
                 when it prohibited Hinkle from obtaining, in the course of
                 discovery on his post-conviction claim of ineffective assistance of
                 trial counsel, all documents, records, and videos that his trial
                 counsel had access to in preparing for Hinkle’s trial.


                 3.     Whether Hinkle’s trial counsel rendered ineffective
                 assistance.


                 4.     Whether the post-conviction court’s judgment is consistent
                 with the requirement that such judgments be supported by
                 findings of fact and conclusions of law.




      1
         The Davis-Hatton procedure results in the termination or suspension of an already initiated direct appeal to
      allow the appellant to pursue a petition for post-conviction relief. See, e.g., White v. State, 25 N.E.3d 107, 121
      (Ind. Ct. App. 2014), trans. denied. Where, as here, the petition for post-conviction relief is denied, the direct
      appeal may be reinstated. Id. This procedure permits an appellant to simultaneously raise his direct-appeal
      issues as well as issues on appeal from the denial of his petition for post-conviction relief. Id. “In other
      words, the direct appeal and the appeal of the denial of post-conviction relief are consolidated.” Id.
      2
          The Public Defender of Indiana has filed a brief of amicus curiae in support of Hinkle on the second issue.

      Court of Appeals of Indiana | Opinion 20A03-1703-PC-690 | March 26, 2018                              Page 2 of 26
[2]   We affirm.


                                  Facts and Procedural History
[3]   In the summer of 2004, S.B., who lived in Michigan with his mother, visited

      family in Elkhart County, Indiana. At the time, S.B. was thirteen years old.

      While S.B. was in Elkhart County for a few weeks, his mother returned to

      Michigan.


[4]   Hinkle is part of S.B.’s extended family in Elkhart County, and S.B. spent some

      of the nights he was in Elkhart County at Hinkle’s residence. On at least one

      occasion while S.B. was with Hinkle at Hinkle’s residence, Hinkle isolated S.B.

      and performed oral sex on S.B. Hinkle then had S.B. manually stimulate him.


[5]   In the summer of 2005, when S.B. was fourteen years old, he again spent some

      time over the summer at Hinkle’s residence. On at least one occasion during

      that time, Hinkle again isolated S.B. and performed oral sex on him. And

      Hinkle again had S.B. manually stimulate him.


[6]   Over the next few years, S.B. began using illegal drugs. In the summer of 2008,

      when S.B. was seventeen years old, he used opiates and marijuana on a nearly

      daily basis. He was also experimenting with other drugs, and he had tried

      heroin a handful of times. His mother became concerned about changes in

      S.B.’s behavior, and when he again stayed with his family in Elkhart County

      that summer, his grandmother suspected drug use. S.B.’s family eventually

      discovered that S.B. had been using drugs and confronted him. During their



      Court of Appeals of Indiana | Opinion 20A03-1703-PC-690 | March 26, 2018   Page 3 of 26
      discussion, S.B. admitted to his drug use and also revealed that Hinkle had been

      molesting him.


[7]   S.B.’s family reported Hinkle’s molestations to local police. On August 13,

      2008, S.B. participated in a video-recorded interview at the Child and Family

      Advocacy Center (“CFAC”). That interview was conducted by a CFAC

      employee and attended by Elkhart City Police Department Detective Carlton

      Conway as well as a representative of the Indiana Department of Child

      Services. A few days after that interview, Detective Conway conducted his

      own interview with S.B., and he separately interviewed P.B. and S.M., S.B.’s

      grandmother and uncle, respectively. Those interviews were also video-

      recorded. Susan Snyder, the deputy prosecuting attorney, conducted a third,

      unrecorded interview of S.B. in November.


[8]   In December, the State charged Hinkle with two counts of incest, each as a

      Class B felony; two counts of sexual misconduct with a minor, each as a Class

      D felony; and for being a repeat sexual offender. Marielena Duerring entered

      her appearance as Hinkle’s trial counsel. In January of 2009, Snyder wrote

      Duerring a letter in which Snyder invited Duerring to view S.B.’s two video-

      recorded interviews from August of 2008 along with police reports that

      summarized the State’s investigation. Snyder further informed Duerring that

      Snyder had “an open file policy meaning you may schedule a time to view my




      Court of Appeals of Indiana | Opinion 20A03-1703-PC-690 | March 26, 2018   Page 4 of 26
      entire un-redacted file.” Ex. Vol. III at 121.3 However, to view the recordings

      or documents held by Snyder, Duerring was required to execute a “Discovery

      Compliance Agreement” in which Duerring “agreed that any privileged

      information would not be disclosed by counsel to anyone,” which apparently

      included Hinkle.4 Appellant’s App. Vol. IV at 58.


[9]   After numerous continuances, the court held Hinkle’s jury trial in August of

      2013. The morning of trial, the State moved to amend the charging information

      such that the State charged Hinkle with child molesting, as a Class A felony;

      sexual misconduct with a minor, as a Class D felony; and for being a repeat

      sexual offender. Duerring, who had had discussions with the State about

      amending the charging information for the preceding three months and had

      prepared for the new Class A felony allegation, did not object in order to avoid

      having Hinkle subjected to a new cause on the Class A felony.




      3
          Our pagination of the exhibits refers to the .pdf pagination.
      4
        The parties repeatedly refer to the Discovery Compliance Agreement executed by Duerring, but that
      document is not in the record on appeal. In 2013, Hinkle’s post-conviction counsel executed an
      “Acknowledgement of State’s Discovery Compliance,” which states, among other things:
                 the undersigned shall make no photocopies of the criminal offense report nor shall
                 photocopies of the criminal offense report be made by any other person for any other
                 purpose without the express written consent of the deputy prosecuting attorney, nor shall
                 counsel for defendant permit the criminal offense report or the contents therein[] to be
                 disclosed to any oth[e]r persons other than the defendant or agents of defendant’s
                 counsel. Further, while the undersigned shall be permitted to discuss the contents of the
                 criminal offense report with the defendant, the undersigned shall not permit any
                 defendant or any other person acting for or on behalf of the defendant to copy verbatim
                 or substantially verbatim any parts of said criminal offense report . . . .
      Appellant’s App. Vol. IV at 3-4. The Brief of Amicus Curiae assumes that the Discovery Compliance
      Agreement executed by Duerring and the Acknowledgement of State’s Discovery Compliance executed at
      least four years later by the post-conviction counsel are the same document. See Amicus Curiae Br. at 7.

      Court of Appeals of Indiana | Opinion 20A03-1703-PC-690 | March 26, 2018                           Page 5 of 26
[10]   During the ensuing trial, the State called S.B. as a witness, and he recounted

       Hinkle’s molestations of him. On cross-examination, Duerring made an offer

       of proof outside the presence of the jury. During that offer, Duerring examined

       S.B. on his prior drug use on the theory that S.B. had made up Hinkle’s

       molestations of him to avoid facing consequences from his family for his drug

       use. However, the trial court excluded S.B.’s drug use on the grounds that the

       court saw “no connection between this family meeting and the establishment of

       a motive to falsely accuse [Hinkle] of molestation.” Tr. Vol. III at 187. The

       jury found Hinkle guilty on the child molesting counts, and he then admitted to

       being a repeat sexual offender. The trial court entered its judgment of

       conviction and sentence accordingly.


[11]   Thereafter, Hinkle filed a petition for post-conviction relief and alleged

       ineffective assistance of trial counsel. Richard Thonert, Hinkle’s post-

       conviction counsel (and Hinkle’s counsel in this appeal), requested that

       Duerring provide to him “the discovery . . . as it relates to this case,” but

       Duerring stated that “she [wa]s unable to provide . . . the discovery without

       permission from” the Elkhart County Prosecutor’s office. Appellant’s App.

       Vol. IV at 71. And when Thonert requested the prosecutor’s office grant that

       permission to Duerring or otherwise “provide . . . a complete copy of the

       discovery in this matter,” a representative of the prosecutor declined. Id. at 28.


[12]   Accordingly, Thonert filed a motion to compel with the post-conviction court.

       In that motion, Thonert specified that he sought “all information upon which

       [the State] relied in bringing the charges against [Hinkle] in this cause, whether

       Court of Appeals of Indiana | Opinion 20A03-1703-PC-690 | March 26, 2018     Page 6 of 26
or not such information was used during the trial, including the identity of any

and all persons contacted, information received from such person whether in

writing, audio or video recording, or otherwise documented, which was either

disclosed or not disclosed to trial counsel as it relates to the investigation [or]

preparation of filing of charges in this cause against [Hinkle].” Id. at 25. On

November 18, 2014, the post-conviction court entered its order denying the

motion to compel. In that order, the court stated as follows:


        20. In the instant case, Petitioner requests that the court
        compel the State to produce any and all documents, reports,
        affidavits, memorandum, police reports, audio/videos, or other
        items otherwise designated as discovery material previously
        produced or not produced to trial counsel in the underlying
        criminal case. Petitioner also requests that the State be
        compelled to answer interrogatories identifying any discovery
        materials in its possession and control that were or were not
        produced to trial counsel as the same relates to the basis upon
        which the charges made against Petitioner were made.


        21. Although the post conviction rules provide for discovery, a
        post conviction proceeding is not a normal civil action. A post
        conviction proceeding is a special quasi-civil remedy designed for
        the presentation of errors unknown or unavailable at the time of
        trial or direct appeal. Sewell v. State, 592 N.E.2d 705, 707 (Ind.
        Ct. App. 1992). Because post conviction proceedings take place
        after trial or a guilty plea hearing, the convicted individual
        typically has discovered particular items of State evidence or
        foregone the opportunity to do so. Discovery is not required
        under the Due Process Clause of the Constitution; therefore, a
        defendant may waive pre-trial discovery rights by failing to
        exercise them. Id[.] A second opportunity to discover the same
        evidence will typically be precluded. Id.


Court of Appeals of Indiana | Opinion 20A03-1703-PC-690 | March 26, 2018     Page 7 of 26
        22. The State has an affirmative duty to disclose evidence
        favorable to a criminal defendant. Thus, . . . such evidence is
        discoverable . . . .


        23. The post conviction relief process is not, however, a device
        for investigating possible claims, but a means for vindicating
        actual claims and there is no post conviction right to fish through
        official files for belated grounds of attack on the judgment or to
        confirm mere speculation or hope that a basis for collateral relief
        may exist. Brown v. State, 698 N.E.2d 1132, 1139 (Ind. 1998). To
        the extent a petitioner does not contend that there is any specific
        information in official files that support his or her claims to post
        conviction relief, no rule of constitutional law or state procedure
        mandates unfettered access to those files in hopes of uncovering
        such information. [Id.] Any post conviction discovery order
        should be appropriately narrow and limited. Only where a
        petitioner presents the post conviction court with good cause to
        order the [S]tate to supply the petitioner with discovery that is
        relevant to the petitioner’s case and is not privileged does the
        court have discretionary authority to grant relief. Roche v. State,
        690 N.E.2d 1115, 1132 (Ind. 1997), aff’d in part, vacated in part on
        other grounds, Roche v. Davis, 291 F.3d 473[ ](7th Cir[. 2]002).


        24. Further, where a timely work product objection has been
        made, a trial court’s authority to control discovery does not
        extend to compelling production of verbatim copies of police
        reports because such reports are the work product of the
        prosecuting attorney, having been prepared for the prosecuting
        attorney by the police officer as the prosecuting attorney’s agent.
        Gault v. State, 878 N.E.2d 1260, 1266 (Ind. 2008) (citing State ex
        rel. Keaton v. Circuit Court of Rush County, 475 N.E.2d 1146, 1148
        (Ind. 1985)[)].


        25. In the instant case, the record establishes that . . . the court
        directed the State to produce for Petitioner all exculpatory

Court of Appeals of Indiana | Opinion 20A03-1703-PC-690 | March 26, 2018      Page 8 of 26
               evidence in its possession and control. Additionally, the record
               reveals that the State disclosed discoverable materials to trial
               counsel in accordance with discovery procedures, including the
               execution of a Discovery Compliance Agreement whereby it was
               agreed that any privileged information would not be disclosed by
               counsel to anyone. . . . Moreover, a thorough review of
               Petitioner’s MOTION reveals that Petitioner’s discovery request
               is over broad in that Petitioner seeks “any and all” information in
               order to determine whether trial counsel may have been
               ineffective. This request is clearly a prohibited “fishing
               expedition” to determine if a claim for post conviction relief may
               exist rather than a request for specific information to support an
               actual claim for post conviction relief. Unfettered access of this
               kind is not authorized.


       Id. at 56-59 (citations to the record omitted). Despite that order, on two

       subsequent occasions Thonert attempted to issue subpoenas duces tecum to the

       State for the same information he had attempted to obtain by way of his motion

       to compel, but the post-conviction court prohibited those subpoenas.


[13]   Following the post-conviction court’s denial of the motion to compel, Thonert

       deposed Snyder and Duerring. In her deposition, Snyder testified that she had

       informed Duerring of Snyder’s “open file” policy and that Snyder’s notes stated

       that she had “notif[ied her] staff [Duerring] was coming . . . to . . . look” at the

       evidence in the State’s possession and “to let her do it.” Appellant’s App. Vol.

       V at 34-36. Similarly, when asked whether she had taken advantage of Snyder’s

       open-file policy, Duerring testified, “I believe so,” and stated that, while she

       had no independent recollection of having reviewed the State’s recordings and

       records as they related to Hinkle, it was her “general policy . . . to go over [to


       Court of Appeals of Indiana | Opinion 20A03-1703-PC-690 | March 26, 2018    Page 9 of 26
       the prosecutor’s office] and review anything” that was available. Id. at 67, 95.

       Duerring specifically testified that she “believe[d she] viewed the videos, yes,”

       when asked, and she then described both the CFAC video and the video of the

       interview conducted by Detective Conway. Id. at 70.


[14]   During her deposition, Duerring stated that “summaries” of the videos were “in

       the discovery” that she had in her possession. Id. at 71. She then gave her file

       and notes on Hinkle’s case, which included police reports Duerring had

       obtained from Snyder, to Thonert. Id. at 55. Duerring described the documents

       she gave to Thonert during her deposition as “the extent of the discovery that

       was sent to me” by Snyder. Id. at 58. There was no discussion of the Discovery

       Compliance Agreement when Duerring handed over her file to Thonert.


[15]   In May and June of 2016, the post-conviction court held an evidentiary hearing

       on Hinkle’s petition for post-conviction relief. Following that hearing, the court

       entered findings of facts and conclusions of law and denied Hinkle’s petition.

       This appeal ensued.


                                       Discussion and Decision
                               Issue One: Whether the Trial Court
                         Abused its Discretion in the Admission of Evidence

[16]   The first issue in this Davis-Hatton appeal is whether, on direct appeal, the trial

       court abused its discretion when it prohibited Hinkle from having S.B.’s drug

       use admitted into evidence. The trial court has “inherent discretionary power

       on the admission of evidence, and its decisions are reviewed only for an abuse


       Court of Appeals of Indiana | Opinion 20A03-1703-PC-690 | March 26, 2018   Page 10 of 26
       of that discretion.” McManus v. State, 814 N.E.2d 253, 264 (Ind. 2004) (internal

       quotation marks omitted). An abuse of discretion occurs when the trial court’s

       judgment “is clearly against the logic and effect of the facts and circumstances

       and the error affects a party’s substantial rights.” Guilmette v. State, 14 N.E.3d

       38, 40 (Ind. 2014).


[17]   Hinkle asserts that S.B.’s drug use was relevant to Hinkle’s theory that S.B. had

       fabricated the molestation allegations in order to avoid facing consequences

       from his family for his drug use. In particular, Hinkle contends that he made

       his offer of proof under Indiana Evidence Rule 616, which permits “[e]vidence

       that a witness has a bias, prejudice, or interest for or against any party” when

       that evidence is “used to attack the credibility of the witness.” In denying

       Hinkle’s proffered evidence, the trial court concluded that Hinkle had not

       demonstrated a connection between S.B.’s family discussion on his drug use

       and a motive for S.B. to falsely accuse Hinkle of molestation.


[18]   In his brief, Hinkle principally relies on this Court’s recent opinion in Hyser v.

       State, 996 N.E.2d 443 (Ind. Ct. App. 2013). In Hyser, we stated:


               Hyser attempted to present a defense that the allegations and
               testimony against him were fabricated as a retaliatory act in
               response to the report [Hyser] made to DCS that he believed J.M.
               was being abused by Marner. Hyser wished to elicit testimony
               from Collins, as presented in his offer to prove, which
               demonstrated that the allegations against Hyser were first raised
               a short time after Collins threatened to report Marner. Hyser
               also wished to elicit testimony from Key that he witnessed
               Marner strike J.M., and from Detective Osterday that the report
               to DCS on December 27, 2011, was made by Hyser and that the
       Court of Appeals of Indiana | Opinion 20A03-1703-PC-690 | March 26, 2018   Page 11 of 26
        report prompted J.M.’s allegations that Hyser had molested him.
        In addition, Hyser wished to present evidence to the jury that
        Marner was a registered sex offender in support of his defense
        that the allegations against him were fabricated.


        The testimony which Hyser wished to elicit from Collins, Key,
        and Detective Osterday and the evidence that Marner was a
        registered sex offender was relevant as the evidence had, at a
        minimum, the tendency to show that the molestation allegations
        against Hyser were untrue and were made, or caused to be made
        by J.M. through the influence of Marner, in retaliation or in
        response to Hyser’s action of making a child abuse report
        regarding Marner. See Smith v. State, 982 N.E.2d 393, 402 (Ind.
        Ct. App. 2013) (“In order to be relevant, the evidence at issue
        need only have some tendency, however slight, to make the
        existence of a material fact more or less probable, or tend to shed
        any light upon the guilt or innocence of the accused.”) (citation
        and internal quotation marks omitted), trans. denied. In addition,
        we note that the testimony Hyser wished to elicit regarding his
        report to DCS was not inadmissible hearsay because Hyser did
        not wish to present it to prove the truth of the matter asserted, but
        instead to demonstrate that he had made the report against
        Marner a few days prior to the time he was first accused of the
        molestations, and the report provided a motive for Marner to
        retaliate against him by fabricating the molestation allegations
        and influencing J.M. to testify against Hyser. See Dyson v. State,
        692 N.E.2d 1374, 1376 (Ind. Ct. App. 1998) (holding that the
        trial court erred in excluding certain testimony as hearsay
        because the defendant introduced the testimony not to prove the
        fact of the matter asserted but to demonstrate that the victim was
        biased and prejudiced against him) (citing Shanholt v. State, 448
        N.E.2d 308, 316 (Ind. Ct. App. 1983) (“A witness’s bias,
        prejudice or ulterior motives are always relevant at trial in that
        they may discredit her or affect the weight of her
        testimony.”)). . . .



Court of Appeals of Indiana | Opinion 20A03-1703-PC-690 | March 26, 2018   Page 12 of 26
       Id. at 448-49 (emphasis added). According to Hinkle, the facts in Hyser are

       comparable to those here because, by showing that S.B. had used drugs and

       was being confronted by his family about his drug use at the time S.B. revealed

       Hinkle’s molestations, Hinkle sought to demonstrate that S.B.’s ulterior motive

       for accusing Hinkle of the molestations was S.B.’s desire to avoid facing

       consequences from his family for his use of drugs.


[19]   But we cannot say that the trial court abused its discretion on this issue. In

       Hyser, the defendant established a foundation for his theory that the witnesses

       against him may have acted in retaliation. Here, unlike in Hyser, there is no

       question of retaliation and Hinkle did not present any basis, other than

       speculation, to support his assumption that S.B. had invented the allegations of

       molestation against Hinkle. Rather, as the State correctly observes, Hinkle’s

       theory that S.B. falsely accused Hinkle to avoid facing consequences for his

       own drug use “is factually misplaced. S.B. testified that he . . . did not know”

       his family was considering consequences for his behavior, and, instead, he

       thought “[i]t was just an open . . . discussion” with his family about his use of

       drugs. Appellee’s Br. at 24 (citing Tr. Vol. III at 181). As such, we cannot say

       that the trial court abused its discretion when it excluded evidence of S.B.’s

       drug use.


                                  Issue Two: Post-Conviction Discovery

[20]   Hinkle next asserts that the post-conviction court abused its discretion when it

       limited Hinkle’s ability to discover potential acts of ineffective assistance of trial

       counsel. The Public Defender of Indiana joins Hinkle on this issue in its Brief
       Court of Appeals of Indiana | Opinion 20A03-1703-PC-690 | March 26, 2018   Page 13 of 26
       of Amicus Curiae. Our trial and post-conviction courts are vested with “broad

       discretion” in ruling on discovery issues, and we will reverse only upon a

       showing of an abuse of that discretion. Mut. Sec. Life Ins. Co. v. Fid. & Deposit

       Co., 659 N.E.2d 1096, 1103 (Ind. Ct. App. 1995), trans. denied. “Due to the fact-

       sensitive nature of discovery matters, the ruling of the trial court is cloaked in a

       strong presumption of correctness on appeal,” and “[d]iscovery, like all matters

       of procedure, has ultimate and necessary boundaries.” Id.


[21]   According to Hinkle, the post-conviction process entitles him to the same access

       to the State’s records that the State had made available to his trial counsel prior

       to trial. Hinkle asserts that merely alleging a Brady violation or ineffective

       assistance of counsel in his petition for post-conviction relief is sufficient to

       require this equality of access.


[22]   The Indiana Supreme Court disagrees and has squarely rejected the same

       argument that Hinkle and the amicus now present to this Court. As our

       Supreme Court has explained:


               Roche’s claim is similar to that recently considered by the New
               Jersey Supreme Court in an analogous proceeding. State v.
               Marshall, 148 N.J. 89, 690 A.2d 1 (1997), cert. denied, 522 U.S.
               850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). . . . On appeal from
               the denial of post-conviction relief, Marshall contended (as
               Roche does here) that the post-conviction court’s decision not to
               order the State to allow him to inspect the State’s entire file
               “denied him his right to a full and fair PCR hearing.” Id., 690
               A.2d at 91.




       Court of Appeals of Indiana | Opinion 20A03-1703-PC-690 | March 26, 2018    Page 14 of 26
        The New Jersey high court . . . proceeded to enunciate the
        following principles concerning discovery in post-conviction
        proceedings:


                 We anticipate that only in the unusual case will a
                 PCR court invoke its inherent right to compel
                 discovery. In most cases, a post-conviction
                 petitioner will be fully informed of the documentary
                 source of the errors that he brings to the PCR
                 court’s attention. Moreover, we note that PCR “is
                 not a device for investigating possible claims, but a
                 means for vindicating actual claims.” People v.
                 Gonzalez, 51 Cal. 3d 1179, 275 Cal. Rptr. 729, 776,
                 800 P.2d 1159, 1206 (1990), cert. denied, 502 U.S.
                 835, 112 S. Ct. 117, 116 L. Ed. 2d 85 (1991). The
                 filing of a petition for PCR is not a license to obtain
                 unlimited information from the State, but a means
                 through which a defendant may demonstrate to a
                 reviewing court that he was convicted or sentenced
                 in violation of his rights.


                 Moreover, consistent with our prior discovery
                 jurisprudence, any PCR discovery order should be
                 appropriately narrow and limited. “[T]here is no
                 postconviction right to ‘fish’ through official files for
                 belated grounds of attack on the judgment, or to
                 confirm mere speculation or hope that a basis for
                 collateral relief may exist.” Gonzalez, supra, 275 Cal.
                 Rptr. at 775, 800 P.2d at 1205; see Deputy v. Taylor,
                 19 F.3d 1485, 1493 (3d Cir.), cert. denied, 512 U.S.
                 1230, 114 S. Ct. 2730, 129 L. Ed. 2d 853 (1994);
                 State v. Thomas, 236 Neb. 553, 462 N.W.2d 862,
                 867-68 (1990). However, where a defendant
                 presents the PCR court with good cause to order the
                 State to supply the defendant with discovery that is
                 relevant to the defendant’s case and not privileged,

Court of Appeals of Indiana | Opinion 20A03-1703-PC-690 | March 26, 2018     Page 15 of 26
                 the court has discretionary authority to grant relief.
                 See Rules Governing Section 2254 Cases in the
                 United States District Courts, 28 U.S.C.A. § 2254
                 Rule 6(a); [State v.] Lewis, [ ] 656 So. 2d [1248,]
                 1250; [People ex rel. Daley v.] Fitzgerald, [123 Ill. 2d
                 175, 183] 121 Ill. Dec. [937,] 941, 526 N.E.2d [131,]
                 135 [(1988)] (noting that “good cause” standard
                 guards against potential abuse of PCR discovery
                 process).


        Marshall, 690 A.2d at 91-92 (citations to New Jersey authority
        omitted) [(alterations original to Roche)].


        Roche contends that the post-conviction court abused its
        discretion because his inability to have full access to the State’s
        files “improperly” denied him the opportunity to litigate fully (i)
        claims arising under Brady v. Maryland and (ii) claims regarding
        ineffective assistance of counsel. Brady v. Maryland, 373 U.S. 83,
        83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), and its progeny (notably
        United States v. Bagley, 473 U.S. 667, 105 S. Ct. 3375, 87 L. Ed. 2d
        481 (1985), and Kyles v. Whitley, 514 U.S. 419, 115 S. Ct. 1555,
        131 L. Ed. 2d 490 (1995)), impose an affirmative duty on the
        prosecution to disclose to a criminal defendant known favorable
        evidence that rises to a material level of importance. Roche does
        not claim a Brady violation. Rather, he argues that had he been
        provided all of the prosecutor’s files from his trial and all of the
        prosecutor’s files on each of his co-defendants and all of the
        prosecutor’s files on each of the key witnesses in his and their
        cases, he might have found a Brady violation that he could have
        litigated in his post-conviction proceeding. But, as the New
        Jersey court pointed out in Marshall, discussed supra, no rule of
        constitutional law or state procedure mandates unfettered access
        to the prosecution’s files in the hopes that a violation of the
        prosecutor’s duty under Brady will be uncovered. See Kyles, 514
        U.S. at 437, 115 S. Ct. at 1567 (“We have never held that the
        Constitution demands an open file policy (however such a policy

Court of Appeals of Indiana | Opinion 20A03-1703-PC-690 | March 26, 2018    Page 16 of 26
                  might work out in practice), and the rule in Bagley (and hence in
                  Brady) requires less of the prosecution than the ABA Standards
                  for Criminal Justice, which call generally for prosecutorial
                  disclosures of any evidence tending to exculpate or mitigate”).


                  Our analysis of Roche’s ineffective assistance of counsel
                  argument is essentially the same. He does not contend that there
                  is any specific information in the State’s files that supports his
                  claims of ineffective assistance of counsel, only that if he had
                  been able to examine the files he sought, he might have found
                  instances of ineffective assistance of counsel that he could have
                  litigated in his post-conviction proceeding. This appears to us to
                  be no more than an assertion of a post-conviction right to
                  investigate possible claims, not vindicate actual claims. See
                  Marshall, 690 A.2d at 91 (citing Gonzalez, 275 Cal. Rptr. at 776,
                  800 P.2d at 1206). The post-conviction court acted within its
                  discretion in denying the motion to compel this discovery.


       Roche v. State, 690 N.E.2d 1115, 1132-33 (Ind. 1997).5


[23]   Contrary to the argument of the amicus,6 we conclude that Hinkle’s argument

       on appeal is identical to the argument considered and rejected by our Supreme

       Court in Roche. That is, Hinkle “does not contend that there is any specific

       information in the State’s files that supports his claims of ineffective assistance

       of counsel,” or his claims under Brady. Id. at 1133. Rather, he claims “only

       that if he had been able to examine the files he sought, he might have found

       instances” of error “that he could have litigated in his post-conviction




       5
           We note that the State does not materially rely on Roche in its brief on appeal.
       6
           Hinkle does not cite Roche, let alone distinguish it, in his brief on appeal.

       Court of Appeals of Indiana | Opinion 20A03-1703-PC-690 | March 26, 2018               Page 17 of 26
       proceeding.” Id. As such, Hinkle’s discovery requests in the post-conviction

       process were improper fishing expeditions, not attempts to vindicate actual

       claims. Id. at 1132 (quoting Marshall, 690 A.2d at 91-92).


[24]   That said, we are not unsympathetic with the position of Hinkle and the amicus

       on this issue. The dichotomy adopted by the Indiana Supreme Court in Roche

       between “investigating possible claims” and “vindicating actual claims” does

       not fully take into account the fact that post-conviction counsel needs to walk in

       the shoes of trial counsel to determine whether trial counsel’s decisions created

       actual claims that deserve vindicating. This often requires an investigation into

       territory outside the trial record. As the Supreme Court of the United States has

       put it, “[a] fair assessment of attorney performance requires that every effort be

       made to . . . reconstruct the circumstances of counsel’s challenged conduct[]

       and to evaluate the conduct from counsel’s perspective at the time.” Strickland

       v. Washington, 466 U.S. 668, 689 (1984). Indeed, “[i]n any case presenting an

       ineffectiveness claim, the performance inquiry must be whether counsel’s assistance

       was reasonable considering all the circumstances.” Id. at 688 (emphases added).

       After all, “the purpose of the effective assistance guarantee of the Sixth

       Amendment . . . is simply to ensure that criminal defendants receive a fair

       trial.” Id. To prohibit an investigation into possible claims, which after an

       investigation turn out to be actual claims, does not meet those Sixth

       Amendment standards.


[25]   Nonetheless, we are in no position to reconsider the opinions of the Indiana

       Supreme Court. Horn v. Hendrickson, 824 N.E.2d 690, 694 (Ind. Ct. App. 2005).

       Court of Appeals of Indiana | Opinion 20A03-1703-PC-690 | March 26, 2018   Page 18 of 26
       Following Roche, as we must, we conclude that the post-conviction court did

       not abuse its discretion when it denied Hinkle’s motion to compel.7


                        Issue Three: Hinkle’s Claims of Ineffective Assistance

[26]   We thus turn to Hinkle’s numerous claims of ineffective assistance of trial

       counsel. Our standard of review in such appeals is clear:


                “The petitioner in a post-conviction proceeding bears the burden
                of establishing grounds for relief by a preponderance of the
                evidence.” Campbell v. State, 19 N.E.3d 271, 273-74 (Ind. 2014).
                “When appealing the denial of post-conviction relief, the
                petitioner stands in the position of one appealing from a negative
                judgment.” Id. at 274. In order to prevail on an appeal from the
                denial of post-conviction relief, a petitioner must show that the
                evidence leads unerringly and unmistakably to a conclusion
                opposite that reached by the post-conviction court. Weatherford v.
                State, 619 N.E.2d 915, 917 (Ind. 1993). Further, the post-
                conviction court in this case entered findings of fact and
                conclusions of law in accordance with Indiana Post-Conviction
                Rule 1(6). Although we do not defer to the post-conviction
                court’s legal conclusions, “[a] post-conviction court’s 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) (internal quotation omitted).


       Humphrey v. State, 73 N.E.3d 677, 681-82 (Ind. 2017). Further:




       7
         We note that Hinkle does not address in his brief on appeal the post-conviction court’s alternative bases for
       denying his motion to compel, namely, that his discovery request was overbroad and that the work-product
       privilege applied to at least some of the records Hinkle sought. Neither does Hinkle address whether
       Duerring’s production of her file to Thonert during her post-conviction deposition, which included discovery
       given to Duerring by Snyder, related to Hinkle’s discovery requests in his motion to compel.

       Court of Appeals of Indiana | Opinion 20A03-1703-PC-690 | March 26, 2018                          Page 19 of 26
               When evaluating an ineffective assistance of counsel claim, we
               apply the two-part test articulated in Strickland v. Washington, 466
               U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). See Helton v.
               State, 907 N.E.2d 1020, 1023 (Ind. 2009). To satisfy the first
               prong, “the defendant must show deficient performance:
               representation that fell below an objective standard of
               reasonableness, committing errors so serious that the defendant
               did not have the ‘counsel’ guaranteed by the Sixth Amendment.”
               McCary v. State, 761 N.E.2d 389, 392 (Ind. 2002) (citing
               Strickland, 466 U.S. at 687-88, 104 S. Ct. 2052). To satisfy the
               second prong, “the defendant must show prejudice: a reasonable
               probability (i.e. a probability sufficient to undermine confidence
               in the outcome) that, but for counsel’s errors, the result of the
               proceeding would have been different.” Id. (citing Strickland, 466
               U.S. at 694, 104 S. Ct. 2052).


       Id. at 682.


[27]   Here, Hinkle contends that Duerring rendered ineffective assistance for each of

       the following reasons: (1) she did not object to the State’s day-of-trial

       amendment to the charging information; (2) she did not call witnesses who

       would have called S.B.’s credibility into doubt; (3) she did not object to S.B.’s

       testimony at trial of uncharged acts of molestation Hinkle had allegedly

       committed; (4) she did not present an objection under Criminal Rule 4 for a

       denial of Hinkle’s speedy-trial rights; (5) she failed to properly investigate




       Court of Appeals of Indiana | Opinion 20A03-1703-PC-690 | March 26, 2018    Page 20 of 26
       Hinkle’s case; and (6) she failed to request a jury instruction on unanimity. 8 We

       address each argument in turn.

                                     Amendment to the Charging Information


[28]   First, Hinkle asserts that Duerring rendered ineffective assistance when she

       failed to object to the State’s amendment of the charging information the day of

       his trial. But we conclude that Hinkle cannot demonstrate that Duerring’s

       performance on this issue fell below an objective standard of reasonableness.

       See id. Duerring testified that she had known of the State’s anticipated

       amendment for three months before it happened; that she had prepared a

       defense for it; and that she had strategically declined to object to avoid having

       the State simply charge the Class A felony allegation under a new cause

       number. Duerring’s failure to object to the State’s amendment of the charging

       information was not ineffective assistance of counsel.

                                                     Other Witnesses


[29]   Second, Hinkle asserts that he had provided Duerring with a list of potential

       witnesses who would have testified that Hinkle was never alone with S.B.,

       contrary to S.B.’s allegations. However, Hinkle does not support his assertions

       with cogent reasoning, and he does not direct this Court to parts of the record

       on appeal that might support his assertion aside from a general citation to a




       8
         Hinkle’s assertion that the purported error in the jury instructions is fundamental error is not available to
       him. See Lindsey v. State, 888 N.E.2d 319, 325 (Ind. Ct. App. 2008), trans. denied.

       Court of Appeals of Indiana | Opinion 20A03-1703-PC-690 | March 26, 2018                            Page 21 of 26
       thirty-four page block of one volume of the transcript. See Appellant’s Br. at 43.

       As such, he has not carried his burden to show error on this issue. See Ind.

       Appellate Rule 46(A)(8)(a). His failure notwithstanding, insofar as Hinkle’s

       argument is that Duerring should have called his children as witnesses,

       Duerring testified that she did not do so because one child was too young to

       have a specific recollection of any relevant events and another child displayed

       evidence of having been “coach[ed] . . . to say something contrary to what had

       happened,” and Duerring felt that calling that child as a witness would not be

       “prudent.” Tr. Vol. VI at 130-31. We cannot say that the post-conviction court

       erred when it rejected Hinkle’s claim on this issue.

                                                  Uncharged Acts


[30]   Third, Hinkle asserts that Duerring rendered ineffective assistance when she did

       not object to S.B.’s testimony of uncharged acts of molestation. But while

       Duerring did not object, the trial court did interrupt S.B.’s testimony and

       admonished Snyder to “confine your evidence” to the acts charged and

       informed her that she “may not put in evidence of multiple acts over a period of

       time.” Tr. Vol. III at 143-44. As such, Hinkle’s real issue here is that Duerring

       did not additionally seek an admonishment to the jury. But Duerring testified

       that she did not seek such an admonishment because she did not want to draw

       the jury’s attention to the uncharged acts. Tr. Vol. VI at 62. As such, we

       cannot say that the post-conviction court erred when it rejected Hinkle’s claim

       on this issue.



       Court of Appeals of Indiana | Opinion 20A03-1703-PC-690 | March 26, 2018   Page 22 of 26
                                                     Speedy Trial


[31]   Fourth, Hinkle asserts that Duerring rendered ineffective assistance when she

       did not seek Hinkle’s discharge under Indiana Criminal Rule 4(C), which

       directs that no person shall be subject to a criminal prosecution more than one

       year after the charges are filed unless such delay is attributable to the defendant

       or court congestion. Here, the State filed its original charges against Hinkle on

       December 31, 2008, and the court held his jury trial in August of 2013.

       However, despite Hinkle’s bald assertions on appeal, each continuance between

       those two occurrences was attributable either to Hinkle or to court congestion.

       And Hinkle does not suggest on appeal that Duerring’s requests for or

       acquiescence in those continuances were deficient performance.9 As such,

       Hinkle has not demonstrated ineffective assistance of counsel under Criminal

       Rule 4(C).10

                                              Duerring’s Investigation


[32]   Fifth, Hinkle asserts that Duerring rendered ineffective assistance of counsel

       when she allegedly did not sufficiently investigate his case. Hinkle’s argument

       on this issue seems to suggest that, because Duerring testified during the post-




       9
         Hinkle seems to suggest that the court’s April 8, 2013, finding of congestion was erroneous because the
       case that prevailed over his was not ultimately tried on that date. But Hinkle does not demonstrate on appeal
       that the trial court should have known at the time it vacated Hinkle’s trial date due to congestion that the
       other case would be delayed.
       10
           Although the State diligently addresses whether Hinkle was denied his constitutional right to a speedy
       trial, we conclude that Hinkle has not supported any such argument with cogent reasoning, and therefore we
       do not consider it. See App. R. 46(A)(8)(a).

       Court of Appeals of Indiana | Opinion 20A03-1703-PC-690 | March 26, 2018                       Page 23 of 26
       conviction proceedings that she did not specifically recall various aspects of her

       investigation, she must not have investigated. However, Duerring did not

       testify that she did not investigate Hinkle’s case; she testified that she did do so,

       but she simply could not specifically recall various aspects of having done so.

       Hinkle has not carried his burden on this issue.


[33]   The State interprets Hinkle’s argument to be that Duerring should have insisted

       on going to trial in June of 2013, before the State learned that Hinkle was not

       biologically related to S.B. and, as such, when Hinkle had a complete defense to

       the incest allegations.11 But, as the State points out, Duerring testified that,

       prior to June of 2013, she knew that the State had discovered the lack of a

       biological relationship between Hinkle and S.B. and that the State had already

       intended to amend the information accordingly. As such, Hinkle has not

       demonstrated any error with respect to Duerring’s performance on this issue.

                                                    Jury Instruction


[34]   Sixth, and last, Hinkle asserts that Duerring rendered ineffective assistance of

       counsel when she did not object to the lack of a jury instruction on unanimity.

       In support of this argument, Hinkle relies on Baker v. State, 948 N.E.2d 1169

       (Ind. 2011). But while our Supreme Court in Baker discusses jury instructions

       on unanimity, the Court also held that, even if there is an error in the giving of




       11
          Insofar as Hinkle asserts that Duerring rendered ineffective assistance by not seeking another continuance
       in August of 2013 to do further investigation, we agree with the State that this claim is based on “mere
       speculation.” Appellee’s Br. at 40.

       Court of Appeals of Indiana | Opinion 20A03-1703-PC-690 | March 26, 2018                        Page 24 of 26
       such an instruction, such errors are harmless where “the only issue was the

       credibility of the alleged victims.” Id. at 1179. As our Supreme Court stated:

       “Ultimately the jury resolved the basic credibility dispute against [the

       defendant] and would have convicted [him] of any of the various offenses

       shown by the evidence to have been committed.” Id. (quotation marks omitted;

       emphasis in original). Here, assuming without deciding that a unanimity

       instruction would have been included at Hinkle’s request, the lack of such an

       instruction is harmless error because the only issue at trial was S.B.’s credibility.

       Accordingly, Hinkle cannot show that, had Duerring requested such an

       instruction, the result of his trial would have been different.


                                  Issue Four: Post-Conviction Rule 1(6)

[35]   Finally, Hinkle asserts that the post-conviction court failed to enter findings of

       fact and conclusions of law as required by Indiana Post-Conviction Rule 1(6).

       But we agree with the State that this lengthy portion of Hinkle’s brief on appeal

       is simply a “repetition of his own claims,” which we have already rejected

       above, and “does not show clear error; they simply explain that Hinkle is

       displeased with the lower court’s ultimate conclusion.” Appellee’s Br. at 56.


[36]   Moreover, we note that, under P-C Rule 1(6):


               The [post-conviction] court is required to make findings of fact
               which are sufficient to enable this Court to dispose of the issues
               upon appeal. However, the post-conviction judge is not required
               to recite the evidence but only the substantive facts which compel
               the conclusions reached. These findings must communicate the
               basis upon which the petition is granted or denied.

       Court of Appeals of Indiana | Opinion 20A03-1703-PC-690 | March 26, 2018   Page 25 of 26
       Shackelford v. State, 486 N.E.2d 1014, 1018 (Ind. 1986). The post-conviction

       court’s order denying Hinkle’s petition for relief meets that burden. As such,

       Hinkle has not demonstrated any error on this issue.


                                                    Conclusion

[37]   In sum, we affirm Hinkle’s convictions, and we affirm the post-conviction

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


[38]   Affirmed.


       Baker, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Opinion 20A03-1703-PC-690 | March 26, 2018   Page 26 of 26
