MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                               FILED
this Memorandum Decision shall not be
                                                                Dec 07 2016, 9:54 am
regarded as precedent or cited before any
court except for the purpose of establishing                         CLERK
                                                                 Indiana Supreme Court
                                                                    Court of Appeals
the defense of res judicata, collateral                               and Tax Court

estoppel, or the law of the case.


APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
James E. Robinson                                        Gregory F. Zoeller
Pendleton Correctional Facility                          Attorney General of Indiana
Pendleton, Indiana
                                                         Jodi Kathryn Stein
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana




                                          IN THE
    COURT OF APPEALS OF INDIANA

James E. Robinson,                                       December 7, 2016
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         12A02-1603-PC-481
        v.                                               Appeal from the Clinton Superior
                                                         Court
State of Indiana,                                        The Honorable Justin H. Hunter,
Appellee-Respondent                                      Judge
                                                         Trial Court Cause No.
                                                         12D01-1009-PC-2



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 12A02-1603-PC-481 | December 7, 2016   Page 1 of 13
                                             Case Summary
[1]   James E. Robinson appeals the postconviction court’s denial of his petition for

      postconviction relief (“PCR”). Robinson argues that the postconviction court

      abused its discretion by denying his renewed motion to amend his PCR petition

      and by excluding certain exhibits at the evidentiary hearing. He also contends

      that the judge was biased against him. We conclude that the court did not

      abuse its discretion by denying Robinson’s renewed motion to amend or by

      excluding certain exhibits. We also conclude that Robinson has failed to

      overcome the presumption that the postconviction judge was unbiased.

      Therefore, we affirm.


                                 Facts and Procedural History
[2]   On April 29, 2001, Robinson shot and killed his estranged wife Tina. On April

      30, 2001, the State charged Robinson with murder. In July 2001, Robinson

      filed a notice of insanity defense. As required by Indiana Code Section 35-36-2-

      2, the trial court appointed two doctors, Drs. Richard Rahdert and Ned

      Masbaum, to examine Robinson to determine whether at the time of the offense

      he suffered from a mental disease or defect which rendered him unable to

      appreciate the wrongfulness of his conduct.


[3]   On July 9, 2002, Robinson pled guilty as charged pursuant to a plea agreement,

      which left sentencing to the trial court’s discretion. At the change of plea

      hearing, Robinson acknowledged that, based on the doctors’ examinations, he

      had decided not to pursue the insanity defense and believed that pleading guilty


      Court of Appeals of Indiana | Memorandum Decision 12A02-1603-PC-481 | December 7, 2016   Page 2 of 13
      was in his best interest. 1 He also acknowledged that his plea was freely and

      voluntarily given. Pursuant to the plea agreement, the State moved to dismiss

      six charges against Robinson pending under cause number 12C01-0009-CF-256,

      which included criminal confinement, intimidation, criminal recklessness,

      pointing a firearm, invasion of privacy, and domestic battery against Tina. The

      trial court found that there was a factual basis for the murder charge, took the

      plea agreement under advisement, and set the matter for sentencing. At the

      sentencing hearing, the trial court sentenced Robinson to an executed term of

      sixty years. Robinson did not pursue a direct appeal.


[4]   In September 2010, Robinson filed a PCR petition, alleging that he received

      ineffective assistance of counsel at the guilty plea hearing because “counsel

      advanced pleading guilty without developing expert opinion” as to Robinson’s

      mental health and that his plea agreement was not knowingly, voluntarily, and

      intelligently entered because he was not competent to stand trial. Appellant’s

      App. Vol. 1 at 24-25. The postconviction court denied Robinson’s PCR

      petition without a hearing, and Robinson appealed. Another panel of this

      Court reversed the denial and remanded for an evidentiary hearing, concluding

      that Robinson had stated sufficiently specific factual allegations in support of

      his ineffective assistance claim and that the postconviction court erred by failing

      to hold an evidentiary hearing and issue findings of fact and conclusions of law.




      1
          The doctors’ opinions were not admitted into evidence at the postconviction evidentiary hearing.

      Court of Appeals of Indiana | Memorandum Decision 12A02-1603-PC-481 | December 7, 2016            Page 3 of 13
      Robinson v. State, No. 12D01-1009-PC-2, 2014 WL 2192756, at *3 (Ind. Ct.

      App. May 27, 2014).


[5]   On September 23, 2015, the postconviction court held an evidentiary hearing

      on Robinson’s PCR petition. Robinson represented himself. At the start of the

      hearing, he sought to introduce exhibits A through O. The State objected to all

      the exhibits, except exhibits C and D, based on lack of authenticity and

      relevance, and the trial court excluded those exhibits. The State did not object

      to exhibits C (the chronological case summary of the underlying case) and D

      (the transcripts of the guilty plea and sentencing hearings of the underlying

      case), and the postconviction court admitted them. At the end of the hearing,

      the postconviction court took the matter under advisement and requested the

      parties to submit proposed findings of fact and conclusions of law.


[6]   On October 8, 2015, Robinson filed a motion to amend his PCR petition to

      conform to the evidence and an “Offer of Proof” for exhibits A and B and E

      through O. Appellant’s App. Vol. 2 at 55-61. On October 28, 2015, the

      postconviction court issued an order denying Robinson’s motion to amend,

      stating that he had not provided the specific amendments that he believed were

      necessary and that he should consider attaching a prepared amended pleading

      as an exhibit to any motion to amend. On December 7, 2015, Robinson filed a

      renewed motion to amend with the proposed amendments included as an

      exhibit. The proposed amendments included allegations that his attorney

      provided ineffective assistance at the sentencing hearing by failing to proffer



      Court of Appeals of Indiana | Memorandum Decision 12A02-1603-PC-481 | December 7, 2016   Page 4 of 13
      Robinson’s mental health issues as a mitigating factor and that the sentencing

      court considered improper aggravating factors to enhance his sentence.


[7]   On December 18, 2015, the postconviction court denied Robinson’s Offer of

      Proof. On February 11, 2016, the postconviction court issued its findings of

      fact and conclusions of law denying Robinson’s PCR petition. On February 18,

      2015, the postconviction court denied Robinson’s renewed motion to amend.

      This appeal ensued.


                                     Discussion and Decision
[8]   The postconviction court entered findings of fact and conclusions of law as

      required by Indiana Post-Conviction Rule 1(6). Our review is limited to

      whether the findings are supported by the facts and the conclusions are

      supported by the law. Ward v. State, 969 N.E.2d 46, 51 (Ind. 2012). The

      petitioner seeking postconviction relief “bears the burden of establishing

      grounds for relief by a preponderance of the evidence.” Ritchie v. State, 875

      N.E.2d 706, 713 (Ind. 2007). A judgment entered against a party bearing the

      burden of proof is a negative judgment. Burnell v. State, 56 N.E.3d 1146, 1149-

      50 (Ind. 2016) “When a petitioner appeals from a negative judgment, he or she

      must convince the appeals court that the evidence as a whole leads unerringly

      and unmistakably to a decision opposite that reached by the trial court.”

      Lambert v. State, 743 N.E.2d 719, 726 (Ind. 2001), cert. denied (2002). Although

      Robinson is “proceeding pro se and lacks legal training, such litigants are held

      to the same standard as trained counsel and are required to follow procedural


      Court of Appeals of Indiana | Memorandum Decision 12A02-1603-PC-481 | December 7, 2016   Page 5 of 13
       rules.” Ross v. State, 877 N.E.2d 829, 833 (Ind. Ct. App. 2007), trans. denied

       (2008).


            Section 1 – The postconviction court did not abuse its
         discretion by denying Robinson’s renewed motion to amend
                              his PCR petition.
[9]    Robinson first contends that the postconviction court abused its discretion by

       denying his renewed motion to amend his PCR petition. Indiana Post-

       Conviction Rule 1(4)(c) provides,

               At any time prior to entry of judgment the court may grant leave
               to withdraw the petition. The petitioner shall be given leave to
               amend the petition as a matter of right no later than sixty [60]
               days prior to the date the petition has been set for trial. Any later
               amendment of the petition shall be by leave of the court.


       “[W]e review the post-conviction court’s refusal to amend a petition for abuse

       of discretion because the Post-Conviction Rules state that any motion to amend

       made within 60 days of an evidentiary hearing may be granted only ‘by leave of

       the court.’” Tapia v. State, 753 N.E.2d 581, 586 (Ind. 2001) (quoting Ind. Post-

       Conviction Rule 1(4)(c)).


[10]   To support his argument that the postconviction court abused its discretion,

       Robinson relies on Indiana Trial Rule 15(B), which provides,

               When issues not raised by the pleadings are tried by express or
               implied consent of the parties, they shall be treated in all respects
               as if they had been raised in the pleadings. Such amendment of
               the pleadings as may be necessary to cause them to conform to

       Court of Appeals of Indiana | Memorandum Decision 12A02-1603-PC-481 | December 7, 2016   Page 6 of 13
               the evidence and to raise these issues may be made upon motion
               of any party at any time, even after judgment, but failure so to
               amend does not affect the result of the trial of these issues.


       We note that the Indiana Trial Rules “generally only govern procedure and

       practice in civil cases.” Corcoran v. State, 845 N.E.2d 1019, 1021 (Ind. 2006).

       However, we will consider their applicability in postconviction proceedings “on

       a case-by-case basis where the Indiana Rules of Procedure for Post-Conviction

       Remedies are silent.” Id.


[11]   The State contends that Post-Conviction Rule 1(4)(c) addresses the timeframe

       for amendments to PCR petitions, and therefore the postconviction rules govern

       this issue and Trial Rule 15(B) is inapplicable. Although Post-Conviction Rule

       1(4)(c) addresses the time frame for amendments, it does not directly address

       issues tried by express or implied consent of the parties. In Harrington v. State,

       466 N.E.2d 1379 (Ind. Ct. App. 1984), another panel of this Court cited Trial

       Rule 15(B) in concluding that although the State did not plead laches as an

       affirmative defense in postconviction proceedings, the issue was tried by

       consent and the State’s answer was deemed amended to raise the laches issue.

       Id. at 1381.


[12]   Assuming, without deciding, that Trial Rule 15(B) applies to the propriety of

       the postconviction court’s decision to deny Robinson’s renewed motion to

       amend his PCR petition, Robinson’s argument is without merit. One of his

       proposed amendments was that his counsel provided ineffective assistance at

       the sentencing hearing by failing to proffer his mental health issues as a

       Court of Appeals of Indiana | Memorandum Decision 12A02-1603-PC-481 | December 7, 2016   Page 7 of 13
       mitigating factor. Robinson argues that at the evidentiary hearing, he admitted

       evidence regarding his mental health issues. However, that evidence was

       relevant to the issue of whether his counsel provided ineffective assistance

       during the guilty plea hearing and whether Robinson’s plea was knowing and

       voluntarily given. Robinson provides no citation to the record that shows that

       the parties addressed his mental health issues in the context of his counsel’s

       alleged ineffectiveness during sentencing. Therefore, ineffective assistance of

       counsel at sentencing was not tried by implied or express consent. Permitting

       Robinson to amend his petition to include this issue after the evidentiary

       hearing would prejudice the State because it was not provided an opportunity to

       rebut the mental health evidence in the context of sentencing. Therefore, the

       postconviction court did not abuse its discretion by denying Robinson’s request

       to amend his PCR petition to allege that he received ineffective assistance at his

       sentencing hearing.


[13]   Robinson also sought to amend his PCR petition to allege that the sentencing

       court considered improper aggravating factors to enhance his sentence.

       However, Robinson could have raised this issue on direct appeal. “It is [] well-

       settled that, because a post-conviction relief proceeding is not a substitute for

       direct appeal …, an issue known and available but not raised on direct appeal

       may not be raised in post-conviction proceedings.” Collins v. State, 817 N.E.2d

       230, 232 (Ind. 2004). Because the issue of whether the trial court used improper

       aggravating circumstances in sentencing Robinson was available on direct

       appeal, it cannot be raised in postconviction proceedings. See id. (“We hold


       Court of Appeals of Indiana | Memorandum Decision 12A02-1603-PC-481 | December 7, 2016   Page 8 of 13
       that the proper procedure for an individual who has pled guilty in an open plea

       to challenge the sentence imposed is to file a direct appeal or, if the time for

       filing a direct appeal has run, to file an appeal under P-C.R.2.”). Accordingly,

       the postconviction court did not abuse its discretion by denying Robinson’s

       request to amend his PCR petition.


              Section 2 - The postconviction court did not abuse its
                         discretion by excluding exhibits.
[14]   Next, Robinson asserts that the trial court abused its discretion in excluding

       exhibits A and B and E through O. We will not reverse the postconviction

       court’s decision regarding the admission or exclusion of evidence unless its

       decision constitutes an abuse of discretion. Hyppolite v. State, 774 N.E.2d 584,

       592 (Ind. Ct. App. 2002). “An abuse of discretion occurs when a decision is

       clearly against the logic and effect of the facts and circumstances before the

       court.” Id.


[15]   Exhibits A and B and E through O consisted generally of Robinson’s jail and

       medical records. The State objected to the exhibits based on lack of

       authenticity and relevance. We note that none of the exhibits were certified

       copies. Except for exhibits G and J, which we will address below, Robinson

       failed to respond to the State’s objections at the hearing. Therefore, Robinson

       failed to show at the hearing that the exhibits were authentic and relevant.

       About two weeks after the hearing, Robinson submitted his Offer of Proof,

       which presented his arguments regarding the authenticity and relevance of each

       exhibit. This subsequent attempt to show authenticity and relevance was

       Court of Appeals of Indiana | Memorandum Decision 12A02-1603-PC-481 | December 7, 2016   Page 9 of 13
       untimely. 2 Cf. State v. Snyder, 732 N.E.2d 1240, 1246 (Ind. Ct. App. 2000)

       (“The proponent of excluded evidence must make a formal offer of proof at trial

       or the error is waived and not preserved for appeal.”). Because Robinson failed

       to make any showing at the hearing regarding the authenticity and relevance of

       those exhibits, we cannot say that the trial court abused its discretion in

       excluding those exhibits.


[16]   We now turn to exhibits G and J. At the hearing, Robinson attempted to

       establish a foundation for exhibits G and J. Exhibit G contains Robinson’s

       August 2000 health records from the Howard Regional Health System. Dr.

       Oleh Dzera testified at the hearing that he completed four pages in exhibit G

       reflecting his August 2000 psychiatric evaluation of Robinson. Exhibit G is 100

       pages long, and Dr. Dzera was not a competent witness to authenticate the

       entire medical record. Even if Robinson established that Dr. Dzera’s four-page

       record was authentic, Robinson failed to show that it was relevant. Dr. Dzera

       testified that his August 2000 psychiatric evaluation of Robinson was not

       relevant to Robinson’s mental health in July 2002, when the guilty plea hearing

       took place. Accordingly, the postconviction court did not abuse its discretion

       by excluding exhibit G.




       2
         In his appellant’s brief, Robinson attempts to incorporate by reference the arguments made in his Offer of
       Proof in violation of Indiana Appellate Rule 46(A)(8)(a), which provides that an appellant’s argument must
       “contain the contentions of the appellant on the issues presented, supported by cogent reasoning.” We
       decline to consider arguments outside the brief. See T-3 Martinsville, LLC v. US Holding, LLC, 911 N.E.2d 100,
       104 n.3 (Ind. Ct. App. 2009) (“[W]e will consider only the argument presented in Hoosier’s appellee’s brief.
       Any other argument incorporated by reference is waived,”), clarified on reh’g 916 N.E.2d 205, trans. denied
       (2010).

       Court of Appeals of Indiana | Memorandum Decision 12A02-1603-PC-481 | December 7, 2016          Page 10 of 13
[17]   Exhibit J contains Robinson’s September 2000 Clinton County Jail health

       records. Dr. Randy Patee testified at the hearing and authenticated his one-

       page evaluation of Robinson. However, he was unable to authenticate the

       remaining three pages in the exhibit. As for relevance, Dr. Patee testified that

       his evaluation of Robinson in September 2000 was unlikely to have any bearing

       on Robinson’s state of mind in July 2002. Therefore, we conclude that the

       court did not abuse its discretion by excluding Exhibit J.


         Section 3 – The postconviction court was not biased against
                                 Robinson.
[18]   Robinson contends that the postconviction court exhibited actual bias or

       prejudice that placed him in jeopardy. “A trial before an impartial judge is an

       essential element of due process.” Everling v. State, 929 N.E.2d 1281, 1287 (Ind.

       2010). Indiana law presumes that a judge is unbiased and unprejudiced.

       Flowers v. State, 738 N.E.2d 1051, 1060 (Ind. 2000). To overcome that

       presumption, a “defendant must show that the trial judge’s action and

       demeanor crossed the barrier of impartiality and prejudiced the defendant’s

       case.” Id. at 1061.


               In assessing a trial judge’s partiality, we examine the judge’s
               actions and demeanor while recognizing the need for latitude to
               run the courtroom and maintain discipline and control of the
               trial. Even where the court’s remarks display a degree of
               impatience, if in the context of a particular trial they do not
               impart an appearance of partiality, they may be permissible to
               promote an orderly progression of events at trial. Bias and
               prejudice violate a defendant’s due process right to a fair trial
               only where there is an undisputed claim or where the judge
       Court of Appeals of Indiana | Memorandum Decision 12A02-1603-PC-481 | December 7, 2016   Page 11 of 13
                expressed an opinion of the controversy over which the judge
                was presiding.


       Everling, 929 N.E.2d at 1288 (citations and quotation marks omitted).


[19]   Robinson argues that the following circumstances taken as a whole show that

       the judge was biased against him: specific comments made by the judge that

       purportedly show a negative view of him and his case; 3 the judge’s numerous

       adverse decisions against him; the failure of the judge to rule on his renewed

       motion to amend until after the judge had issued findings of fact and

       conclusions of law denying his PCR petition; that the judge allowed the State to

       file its proposed findings of fact and conclusions of law after the due date; that

       the judge signed the State’s proposed findings of fact and conclusions of law the

       day after it was filed; and that the judge and the court clerk did not provide him

       with a copy of the record and transcript until after this Court issued an order

       directing the court and the clerk to provide him with a copy of the record and

       transcript or face the possibility of a rule to show cause why they should not be

       held in contempt.


[20]   We are unpersuaded that the judge’s isolated comments and the adverse rulings

       show bias. In addition, our review of the record shows that the judge gave



       3
         Robinson directs us to the following comments made by the judge. To Dr. Dzera, the judge said, “I know
       you’ve come here [] with a great inconvenience [and] you were subpoenaed here. [The] Court of Appeals at
       one point had directed that I do a hearing on this matter.” Tr. at 35. To Robinson, the judge said, “If your
       response is going to be to ask me questions [] we’re not gonna get very far in this hearing today,” and “I don’t
       expect you Mr. Robinson to deliver some sort of coherent closing statement.” Id. at 6 and 119. And, when
       Robinson said, “To show that my state of mind prior to my catching my murder case,” the judge said, “oh
       my goodness.” Id. at 7-8.

       Court of Appeals of Indiana | Memorandum Decision 12A02-1603-PC-481 | December 7, 2016            Page 12 of 13
       substantial assistance to Robinson when he was trying to introduce exhibits G

       and J into evidence. To the extent that Robinson was able to have his witnesses

       authenticate some of the pages in the exhibits, the judge essentially walked him

       through the questions that he needed to ask the witnesses in order to

       authenticate the pages. Although we are troubled by the court’s failure to

       promptly provide Robinson with copies of the record and transcript, we do not

       think that the delay necessarily shows bias as opposed to simple human error.

       We conclude that Robinson has failed to overcome the presumption that the

       judge was unbiased. Therefore, we affirm the denial of Robinson’s PCR

       petition. 4


[21]   Affirmed.


       Riley, J., and Altice, J., concur.




       4
         Robinson also argues that his counsel provided ineffective assistance by failing to raise relevant mitigating
       factors and failing to object to improper aggravating factors. However, these arguments were not raised
       before the postconviction court, and we have concluded that the court did not abuse its discretion in denying
       Robinson’s renewed motion to amend his PCR petition, and therefore they are waived. See Allen v. State, 749
       N.E.2d 1158, 1171 (Ind. 2001) (“Issues not raised in the petition for post-conviction relief may not be raised
       for the first time on post-conviction appeal.”), reh’g denied, cert. denied; Ind. Post-Conviction Rule 1(8) (“All
       grounds for relief available to a petitioner under this rule must be raised in his original petition.”). He also
       asserts that the sentencing court erred by failing to find mitigating factors and finding improper aggravating
       factors when sentencing him and that his sentence is inappropriate based on the nature of the offense and his
       character. As we observed in Section 2, because the sentencing issue was available on direct appeal, it cannot
       be raised in postconviction proceedings. See Collins, 817 N.E.2d at 232.

       Court of Appeals of Indiana | Memorandum Decision 12A02-1603-PC-481 | December 7, 2016             Page 13 of 13
