      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),                                       FILED
      this Memorandum Decision shall not be                                    Oct 18 2017, 9:46 am
      regarded as precedent or cited before any
                                                                                   CLERK
      court except for the purpose of establishing                             Indiana Supreme Court
                                                                                  Court of Appeals
      the defense of res judicata, collateral                                       and Tax Court

      estoppel, or the law of the case.


      APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
      Robert White                                             Curtis T. Hill, Jr.
      Greencastle, Indiana                                     Attorney General of Indiana
                                                               J.T. Whitehead
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Robert White,                                            October 18, 2017
      Appellant-Petitioner,                                    Court of Appeals Case No.
                                                               18A02-1703-PC-550
              v.                                               Appeal from the
                                                               Delaware Circuit Court
      State of Indiana,                                        The Honorable
      Appellee-Respondent.                                     Kimberly S. Dowling, Judge
                                                               Trial Court Cause No.
                                                               18C02-1609-PC-18



      Kirsch, Judge.


[1]   Robert White (“White”) appeals the summary denial of his successive petition

      for post-conviction relief (“PCR”) raising two issues, of which we find the


      Court of Appeals of Indiana | Memorandum Decision 18A02-1703-PC-550 | October 18, 2017           Page 1 of 13
      following restated issue to be dispositive: whether the post-conviction court

      erred by granting the State’s motion for summary disposition as to White’s

      successive PCR petition without holding an evidentiary hearing.


[2]   We reverse and remand for further proceedings.1


                                  Facts and Procedural History
[3]   The facts related to White’s underlying offenses were set forth in his direct

      appeal, White v. State, 756 N.E.2d 1057, 1059 (Ind. Ct. App. 2001), trans. denied.

      In May 2000, White forced his way into R.A.’s apartment in Muncie, Indiana,

      threatened to kill her, performed oral sex on her, and raped her twice. A jury

      found White guilty of one count of Class A felony rape, and in February 2001,

      the trial court sentenced him to forty years executed. White’s conviction and

      sentence were affirmed on direct appeal. In May 2002, White, pro se, filed his

      first PCR petition, which the post-conviction court denied. In November 2003,

      our court affirmed the post-conviction court’s denial of White’s petition.


[4]   Thirteen years later, White requested permission to file a successive PCR

      petition on the grounds of newly discovered evidence. Our court granted

      White’s motion after finding he had “established a reasonable possibility that he

      [was] entitled to post-conviction relief.” Appellant’s App. Vol. II at 10-11. On or

      about September 15, 2016, White, pro se, filed his Form for Successive Post-




      1
       White also contends that he was denied the right to counsel. Because we remand for further proceedings,
      we need not discuss that issue.

      Court of Appeals of Indiana | Memorandum Decision 18A02-1703-PC-550 | October 18, 2017        Page 2 of 13
      Conviction Relief Rule 1 Petition (“Successive PCR Petition”), with attached

      Exhibits A and B, alleging that trial counsel was ineffective for not timely

      notifying him of the State’s plea offer.2 Exhibit A was a one-page fax, dated

      June 22, 2000, sent from the prosecutor’s office to White’s trial attorney, Alan

      Wilson (“Wilson”). Exhibit A reflected the State’s offer to allow White to

      plead guilty to a lesser-included Class B felony and set October 12, 2000 as the

      deadline for accepting the offer. Exhibit B was a copy of just the transmission

      page of a five-page fax, dated November 20, 2000, sent from Wilson to the

      prosecutor’s office and on which Wilson had handwritten, “I blew this one.”

      Id. at 9. White offered these faxes as newly discovered evidence of Wilson’s

      ineffective representation.3


[5]   The State filed an answer to White’s Successive PCR Petition, and White, pro

      se, filed his response. On October 17, 2016, the post-conviction court held a

      pre-trial hearing, at which White participated via telephone. Tr. Vol. II at 3.

      During that hearing, the State informed the post-conviction court of its intent to

      file for summary disposition, and White agreed to take part in the summary

      disposition hearing via telephone. Id. 4, 6. However, as the following



      2
       While discussed by both parties in their briefs, the Successive PCR Petition (with attached Exhibits A and
      B), is not in the record before us. We note, however, that the State filed the Successive PCR Petition with the
      post-conviction court as part of its designated evidence relating to the State’s motion for summary
      disposition. Because this appeal arises from those proceedings, we take judicial notice of, and incorporate
      herein, the Successive PCR Petition and its exhibits, a copy of which can be found in Indiana’s Odyssey Case
      Management System under the trial court cause number 18C02-1609-PC-18. See Horton v. State, 51 N.E.3d
      1154, 1160 (Ind. 2016) (Indiana Evidence Rule 201(b)(5), as amended effective January 1, 2010, “now
      permits courts to take judicial notice of ‘records of a court of this state[.]’”
      3
          White said that he had found the two faxes in a file that had only been released to him in October 2015.


      Court of Appeals of Indiana | Memorandum Decision 18A02-1703-PC-550 | October 18, 2017              Page 3 of 13
      exchange reflects, White asked to be present for the post-conviction evidentiary

      hearing:


               THE COURT: . . . I’m trying to figure out the logistics of the
               trial. So first of all, do you have any objection to handling that
               trial by telephone on February 2nd?


               THE PETITIONER: I would rather be present.


               THE COURT: You would rather be present. All right, then I’ll
               have the court reporter do an order to transport you for that
               hearing, all right.


               THE PETITIONER: All right.


               THE COURT: Okay. But, the summary judgment hearing I
               think we can do by phone. And, when we get that, I’ll set a
               separate hearing for that, okay.


               THE PETITIONER: All right.


      Id. at 6.


[6]   On October 21, 2016, the State filed a petition for summary disposition as to the

      Successive PCR Petition and attached thereto an affidavit sworn to by trial

      attorney Wilson.4 Appellant’s App. Vol. II at 3. As part of his affidavit, Wilson




      4
        Also attached to the State’s petition for summary disposition was an affidavit sworn to by an attorney with
      the prosecutor’s office. That affidavit addressed only issues pertaining to Exhibit B. Specifically, the attorney
      said that Wilson’s comment, “I blew it,” related only “to the fact that Wilson had not timely filed a notice of

      Court of Appeals of Indiana | Memorandum Decision 18A02-1703-PC-550 | October 18, 2017              Page 4 of 13
      declared, “The November 20, 2000 fax cover sheet[, Exhibit B,] in no way

      related to the [sic] whether I timely conveyed the State’s plea offer to Mr.

      White. I conveyed the offer to Mr. White before the offer expired. After he and I

      discussed the offer, Mr. White chose to reject the offer and proceed to trial wherein he

      was convicted of Rape, a Class A Felony.” Id. at 21-22 (emphasis added).


[7]   On November 28, 2016, the post-conviction court held a hearing on the State’s

      motion for summary disposition; only the State’s attorney and White, via

      telephone, participated in that hearing. In support of its position, the State

      argued “that there were two (2) affidavits that were attached to [the State’s]

      motion, both which clearly dispute what Mr. White claims in his petition. I

      think based on those affidavits I think the Court is within its authority to grant

      that motion.”5 Tr. Vol. II at 13. The State argued that there were three issues,


               all of which [were] ineffective assistance of counsel at the various
               stages of the case[, trial, appellate, and post-conviction]. Based
               on what the facts of this case are and as the evidence appears to
               show, there doesn’t appear to be any genuine issue of material
               fact. And given that fact and the nature of evidence that [the
               State] submitted with [its] motion for summary judgment, the
               State would just ask that the Court grant that motion.




      intent to offer evidence under Rule 412.” Appellant’s App. Vol. II at 28. White raises no issues pertaining to
      Exhibit B. Accordingly, the prosecutor’s affidavit is irrelevant to White’s claim on appeal.
      5
        The affidavits to which the State referred were those of Wilson and the prosecutor. However, as we note
      above, only Wilson’s affidavit is relevant to the question of whether there was a genuine issue of material fact
      that Wilson told White about the State’s plea offer.

      Court of Appeals of Indiana | Memorandum Decision 18A02-1703-PC-550 | October 18, 2017              Page 5 of 13
      Id. at 12. The State’s key evidence was Wilson’s statement that he had

      communicated the plea offer to White—a statement that, if true, would have

      undermined each of White’s claims for ineffective assistance of counsel.


[8]   White, under oath, disagreed with the State’s argument and engaged with the

      post-conviction court in the following exchange:


              THE COURT: Okay. Well I understand that you disagree, but
              the State’s motion was kind of, was detailed and it had some
              affidavits and some documents attached to it. So I’m going to
              need you to address what the State has alleged in their filing.


              THE PETITIONER: . . . I’m saying my attorney was
              ineffective. He never did tell me about the plea bargain. You
              know, what I’m saying. That’s my argument. I’m going to stand
              by it. If he had told me about the plea bargain, I would have
              signed the plea bargain. There’s a difference between an A and a
              B [felony], you know what I’m saying. The man has took [sic]
              seventeen (17) years of my life, you know what I’m saying, when
              I could have signed the plea bargain and been home with my
              kids. . . .


      Id. at 12-13.


[9]   After both sides had rested, the post-conviction court asked White whether

      there was anything else he wanted to introduce into evidence. Id. at 15. White

      responded that he wanted a witness subpoenaed to court to testify that Wilson

      had also failed to inform the witness of a plea offer. Id. The State objected on

      the basis that the witness had no specific knowledge about White’s case, and

      the post-conviction court, after taking the matter under advisement, denied


      Court of Appeals of Indiana | Memorandum Decision 18A02-1703-PC-550 | October 18, 2017   Page 6 of 13
       White’s request for a subpoena. Id. at 15-17. The post-conviction court granted

       the State’s motion for summary disposition on December 13, 2016, effectively

       denying White’s Successive PCR Petition. Appellant’s App. Vol. II at 40-42. The

       post-conviction court supported its conclusion, in part, with the following

       findings:


                  13. The November 20, 2000 fax cover sheet in no way related to
                  whether trial counsel timely conveyed the State’s plea offer to
                  [White].6


                  14. Trial counsel conveyed the plea offer to [White] before the
                  offer expired. After counsel discussed the plea offer with
                  [White], [White] chose to reject the offer and proceed to trial
                  wherein he was convicted of Rape, a Class A felony.


                  15. Consequently, there is no genuine issue of material fact as to
                  the claim alleged in Paragraphs 8(a) and 9 (a) of the Successive
                  Petition for Post-Conviction Relief and the State of Indiana is
                  entitled to judgement as a matter of law.


       Id. at 41.


[10]   White filed a motion to correct error. During the hearing on that motion,

       White said, “I’m not really concerned about exhibit B [Wilson’s fax saying, “I

       BLEW IT”]. Exhibit A [the fax from the State advising Wilson of the plea

       offer] is my main, you know what I'm saying, about my whole appeal anyway.




       6
           White does not dispute this fact.


       Court of Appeals of Indiana | Memorandum Decision 18A02-1703-PC-550 | October 18, 2017   Page 7 of 13
       He [the deputy prosecutor] keep saying [sic] in here about exhibit A and exhibit

       B, but I don’t care about exhibit B. I’m talking about exhibit A.” Tr. Vol. II at

       22. White explained that Exhibit A was important because it reflected the

       existence of a plea offer. White argued, “[Wilson] states in his affidavit that he

       told me about a plea bargain. [Wilson] never told me about anything.” Id. at

       23. White testified that he filed the Successive PCR Petition because:


               [Wilson] was ineffective and he never told me about a plea
               bargain. I would have took [sic] an open B over a Class A
               felony, you know what I’m saying. I never knew about it . . . .
               But, if I knew about it, I would have took [sic] it. Who
               wouldn’t? You know what I’m saying, fifty (50) years to
               twenty (20) years, I would have took [sic] it. He never told
               me anything.


       Id. at 23-24.


[11]   The State, in turn, argued that White’s motion to correct error should be denied

       because White’s testimony during the summary disposition hearing consisted

       only of hearsay, i.e., stories from other inmates. Id. at 24. The State

       asserted that White offered no evidence to refute Wilson’s sworn statement

       that he told White about the plea offer. Id. The State inquired:


               [C]an White now today reopen the evidence in the matter and
               now say, present his testimony that he disputes what Mr.
               Wilson is saying? I don't know the answer to that question. It
               seems to me he can’t. I mean, the verified motion to correct
               error is asking you to fix a legal error, not reopen the hearing
               on summary judgment. But, so I think that's where we’re at.



       Court of Appeals of Indiana | Memorandum Decision 18A02-1703-PC-550 | October 18, 2017   Page 8 of 13
               ....


               I mean, if you’re still convinced that there’s no genuine issue
               of material fact, then I think the verified motion to correct
               error should be denied. If you think there is a genuine issue of
               material fact, then I suppose we should, you should set the
               order on my motion for summary judgment aside and set the
               matter for hearing.


       Id. at 25. The post-conviction court noted that White offered no new evidence

       regarding the existence of a genuine issue of material fact and denied White’s

       motion to correct error. Id. at 26. White now appeals.


                                      Discussion and Decision
[12]   Our standard of review in post-conviction proceedings is well settled. Post-

       conviction proceedings do not grant a petitioner a “super-appeal” but are

       limited to those issues available under the Indiana Post-Conviction Rules.

       Binkley v. State, 993 N.E.2d 645, 649 (Ind. Ct. App. 2013) (citing Shepherd v.

       State, 924 N.E.2d 1274, 1280 (Ind. Ct. App. 2010), trans. denied). Such

       proceedings are civil in nature, and petitioners bear the burden of proving their

       grounds for relief by a preponderance of the evidence. Ind. Post-Conviction

       Rule 1(5). “‘A petitioner who appeals the denial of PCR faces a rigorous

       standard of review, as the reviewing court may consider only the evidence and

       the reasonable inferences supporting the judgment of the post-conviction

       court.’” Id. (quoting Shepherd, 924 N.E.2d at 1280). The appellate court must

       accept the post-conviction court’s findings of fact and may reverse only if the

       findings are clearly erroneous. Id. If a PCR petitioner was denied relief, he or

       Court of Appeals of Indiana | Memorandum Decision 18A02-1703-PC-550 | October 18, 2017   Page 9 of 13
       she must show that the evidence as a whole leads unerringly and unmistakably

       to an opposite conclusion than that reached by the post-conviction court.”

       Osmanov v. State, 40 N.E.3d 904, 907 (Ind. Ct. App. 2015).


[13]   White appeals the post-conviction court’s order summarily denying post-

       conviction relief on his Successive PCR Petition. Specifically, he claims that

       the post-conviction court erred when it failed to hold an evidentiary hearing

       because there existed the disputed fact of whether trial counsel informed him of

       the State’s plea offer.


[14]   “A claim of ineffective assistance of [trial] counsel must satisfy two

       components.” Woods v. State, 48 N.E.3d 374, 377 (Ind. Ct. App. 2015) (citing

       Strickland v. Washington, 466 U.S.668, 687 (1984)). “First, 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.” Id. (citing

       Strickland, 466 U.S. at 687). “Second, 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 669).


[15]   Here, the State moved for summary disposition. Post-Conviction Rule 1,

       section 4, subsection (g) provides that a court may grant summary disposition

       upon motion by either party and after considering the pleadings and other

       evidence submitted.


       Court of Appeals of Indiana | Memorandum Decision 18A02-1703-PC-550 | October 18, 2017   Page 10 of 13
[16]   When a court disposes of a petition under subsection (g):


               [W]e review the lower court’s decision as we would a motion for
               summary judgment. We face the same issues that were before
               the post-conviction court and follow the same process. A grant
               of summary disposition is erroneous unless there is no genuine
               issue of material fact and the moving party is entitled to
               judgment as a matter of law. We must resolve all doubts about
               facts, and the inferences to be drawn from the facts, in the non-
               movant’s favor. The appellant has the burden of persuading us
               that the post-conviction court erred.


       Binkley, 993 N.E.2d at 650 (quoting Allen, 791 N.E.2d at 753) (internal

       quotation marks omitted). As our Supreme Court has explained:


               An appellate court reviews the grant of a motion for summary
               disposition in post-conviction proceedings on appeal in the same
               way as a motion for summary judgment. Thus summary
               disposition, like summary judgment, is a matter for appellate de
               novo determination when the determinative issue is a matter of
               law, not fact.


       McClure v. State, 71 N.E.3d 845, 847 (Ind. Ct. App. 2017) (quoting Norris v.

       State, 896 N.E.2d 1149, 1151 (Ind. 2008) (citations omitted)), trans. denied. “In

       summary judgment proceedings, the moving party . . . is the party that bears the

       burden to demonstrate that there is no genuine issue of material fact and that it

       is entitled to judgment as a matter of law.” Id. (citing Hughley v. State, 15

       N.E.3d 1000, 1003-04 (Ind. 2014)). Once the movant, in this case the State, has

       sustained this burden, the opponent must respond by setting forth specific facts

       showing a genuine issue for trial.


       Court of Appeals of Indiana | Memorandum Decision 18A02-1703-PC-550 | October 18, 2017   Page 11 of 13
[17]   White’s Successive PCR Petition alleged that he was prejudiced by Wilson’s

       ineffective representation because, without knowledge of the State’s plea offer,

       which White claims he would have accepted, White was subjected to a longer

       sentence. As part of its motion for summary disposition, the State offered

       Wilson’s affidavit that in relevant part said, “I [timely] conveyed the [plea] offer

       to Mr. White before the offer expired. After he and I discussed the offer, Mr.

       White chose to reject the offer and proceed to trial . . . .” Appellant’s App. Vol. II

       at 21-22. Through this affidavit, the State met its burden of showing there was

       no genuine issue of material fact, and the burden shifted to White to show that

       a genuine issue of material fact existed on the issue of whether he was told

       about the plea offer.


[18]   During the hearing on the State’s motion for summary disposition, White, via

       telephone, testified under oath as follows:


               I’m saying my attorney was ineffective. He never did tell me
               about the plea bargain. You know, what I’m saying. That’s my
               argument. I’m going to stand by it. If he had told me about the
               plea bargain, I would have signed the plea bargain. There’s a
               difference between an A and a B [felony], you know what I’m
               saying. The man has took [sic] seventeen (17) years of my life,
               you know what I’m saying, when I could have signed the plea
               bargain and been home with my kids. . . .


       Tr. Vol. II at 13.


[19]   Facts are decided, in part, based on the credibility of witnesses. During the

       preliminary hearing, White had requested of the post-conviction court that he


       Court of Appeals of Indiana | Memorandum Decision 18A02-1703-PC-550 | October 18, 2017   Page 12 of 13
       be allowed to be present during hearings. The post-conviction court agreed that

       White could be physically present at the evidentiary hearing on the Successive

       PCR Petition, but concluded that White would appear via telephone for the

       hearing on the State’s motion for summary disposition. At the summary

       disposition hearing, both White and Wilson gave conflicting statements under

       oath that were significant to the determination of whether Wilson informed

       White about the State’s plea offer. The statements of White and Wilson were

       supported by nothing more than the post-conviction court’s determination of

       their credibility. Because the ineffectiveness claim relied on a factual

       determination of whether Wilson told White about the State’s plea offer, the

       post-conviction court had before it a genuine issue of material fact. It was not

       within the province of the post-conviction court to grant the State’s motion for

       summary disposition by deciding a genuine issue of material fact as part of the

       summary disposition hearing.


[20]   Finding that the post-conviction court erred in summarily denying White’s

       Successive PCR Petition, we reverse the post-conviction court’s grant of the

       State’s motion for summary disposition and remand this case to the post-

       conviction court for a hearing on the merits of whether White’s trial counsel

       denied him the right to effective assistance of counsel.


[21]   Reversed and remanded for further proceedings.


[22]   Najam, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A02-1703-PC-550 | October 18, 2017   Page 13 of 13
