MEMORANDUM DECISION
                                                                    FILED
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                           Sep 21 2016, 8:54 am

regarded as precedent or cited before any                           CLERK
                                                                Indiana Supreme Court
court except for the purpose of establishing                       Court of Appeals
                                                                     and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
Michael A. Combs                                         Gregory F. Zoeller
Carlisle, Indiana                                        Attorney General of Indiana

                                                         Richard C. Webster
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Michael A. Combs,                                        September 21, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         02A03-1602-PC-343
        v.                                               Appeal from the Allen Superior
                                                         Court
State of Indiana,                                        The Honorable Frances C. Gull,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         02D05-1307-PC-111
                                                         02D06-1109-FB-210



Vaidik, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 02A03-1602-PC-343 | September 21, 2016   Page 1 of 11
                                          Case Summary
[1]   Michael A. Combs, pro se, appeals the denial of his petition for post-conviction

      relief. Specifically, Combs contends that the post-conviction court erred in

      denying his motion to compel the State to provide him with documents he

      claims were missing from his trial counsel’s attorney-client file, in ordering the

      cause to be submitted by affidavit and not holding an evidentiary hearing, and

      in denying his petition on the merits. Finding no error, we affirm.



                            Facts and Procedural History
[2]   The facts underlying this case are as follows:

              In August 2010, Shanna Vorndran and her children, two-year-old
              M.D. and one-year-old D.D., moved into a house in Fort Wayne
              with Combs, his sister, Anna Hogan, and Hogan’s four children.
              M.D. had a speech delay and rarely talked. Vorndran worked at
              a Wendy’s restaurant, but Combs and Hogan were not working.
              Combs and Hogan watched the children while Vorndran worked.
              After moving into the house, Vorndran started noticing more
              bruises on M.D. and D.D. and noticed that M.D. had a rash
              around his anus and injuries to his anus and penis. Vorndran,
              Hogan, and a neighbor had also seen Combs hit M.D.


              On September, 14, 2010, Vorndran worked from approximately
              11:45 a.m. until 5:00 p.m. Vorndran did not recall having
              contact with her children before she left for work. Combs and
              Hogan watched the children while Vorndran was working.
              When Vorndran got home from work, she found D.D. on a bed,
              in pain, and with a swollen leg. Hogan said that D.D. had fallen
              out of his playpen. At approximately 10:00 p.m., Vorndran took
              D.D. to the hospital. Vorndran learned that D.D. had a spiral

      Court of Appeals of Indiana | Memorandum Decision 02A03-1602-PC-343 | September 21, 2016   Page 2 of 11
        fracture of his femur, and he had surgery that night. The spiral
        fracture was inconsistent with a fall, and the Department of Child
        Services (“DCS”) was contacted.


        On September 15, 2010, Lanita Holder, a DCS family case
        manager, talked with Vorndran. Vorndran initially claimed that
        she and the children were living with her mother. However,
        Vorndran’s mother reported that she had not seen Vorndran in
        months. When DCS family case managers and police officers
        arrived at Vorndran’s house, they discovered that M.D. was
        filthy, covered with bruises, and had blood in his diaper. Combs
        claimed that M.D. had fallen out of the bathtub when he was
        watching him. DCS removed M.D. and Hogan’s children from
        the residence. M.D. was examined at a sexual assault treatment
        center and at the hospital emergency room. The sexual assault
        nurse documented seventy-five injuries on M.D., including
        numerous bruises and abrasions on his body. M.D. had bruises
        and abrasions on his genitals and several tears to his anus,
        including one fresh tear. The anal injuries were consistent with
        more than one episode of anal intercourse or penetration by a
        blunt object. Hogan later reported to police that, on September 15,
        2010, while Vorndran was at the hospital, she saw Combs having what
        appeared to be anal intercourse with M.D.


Combs v. State, No. 02A03-1209-CR-393 (Ind. Ct. App. Mar. 13, 2013)

(emphasis added), trans. denied. The State charged Combs with Class A felony

child molesting of M.D., Class B felony neglect of dependent D.D., Class B

felony neglect of dependent M.D., and Class D felony battery of M.D. The jury

found Combs guilty as charged, and the trial court sentenced him to an

aggregate term of sixty-one-and-a-half years.




Court of Appeals of Indiana | Memorandum Decision 02A03-1602-PC-343 | September 21, 2016   Page 3 of 11
[3]   Combs appealed, raising insufficiency of the evidence for neglect of dependent

      D.D. and inappropriate sentence, and we affirmed. See id. In 2013, Combs,

      pro se, filed a petition for post-conviction relief, which he later amended. In

      response, the State filed a motion to require Combs to submit his case by

      affidavit pursuant to Indiana Post-Conviction Rule 1(9)(b). The post-conviction

      court granted the State’s motion. Combs then filed “affidavits” from Rebecca

      Schatzman, Imogene Combs, and Kathy Holland in order to prove that the

      State coerced Hogan into falsely testifying at trial that she saw Combs having

      what appeared to be anal intercourse with M.D. See Trial Tr. p. 434-36. The

      post-conviction court entered findings of fact and conclusions of law denying

      relief. Specifically, the court found that Rebecca’s statement had “no tendency

      to establish that Anna Hogan later recanted her testimony at trial” and that

      Imogene’s and Kathy’s statements, which were not sworn under penalties of

      perjury, did “not assert that Anna Hogan [had] recanted her testimony at trial.”

      See “Findings of Fact and Conclusions of Law” p. 4 (attached to the end of

      Appellant’s Brief).

[4]   Combs now appeals.



                                 Discussion and Decision
[5]   Combs contends that the post-conviction court erred in denying relief.

      Defendants who have exhausted the direct-appeal process may challenge the

      correctness of their convictions and sentences by filing a post-conviction

      petition. Stevens v. State, 770 N.E.2d 739, 745 (Ind. 2002), reh’g denied. Post-

      Court of Appeals of Indiana | Memorandum Decision 02A03-1602-PC-343 | September 21, 2016   Page 4 of 11
      conviction proceedings are not an opportunity for a “super-appeal.” Timberlake

      v. State, 753 N.E.2d 591, 597 (Ind. 2001), reh’g denied. Rather, they create a

      narrow remedy for subsequent collateral challenges to convictions that must be

      based on grounds enumerated in the post-conviction rules. Ind. Post-

      Conviction Rule 1(1); Timberlake, 753 N.E.2d at 597. In post-conviction

      proceedings, complaints that something went awry at trial are cognizable only

      when they show deprivation of the right to effective counsel or issues

      demonstrably unavailable at the time of trial or direct appeal. Sanders v. State,

      765 N.E.2d 591, 592 (Ind. 2002). Thus, if an issue was known and available

      but not raised on direct appeal, the issue is procedurally foreclosed. Stephenson

      v. State, 864 N.E.2d 1022, 1028 (Ind. 2007), reh’g denied.1


[6]   Post-conviction proceedings are civil proceedings, requiring the petitioner to

      prove his claims by a preponderance of the evidence. Stevens, 770 N.E.2d at

      745. We review the post-conviction court’s legal conclusions de novo but

      accept its factual findings unless they are clearly erroneous. Id. at 746. The

      petitioner must establish that the evidence as a whole leads unerringly and

      unmistakably to a decision opposite that reached by the post-conviction court.

      Smith v. State, 770 N.E.2d 290, 295 (Ind. 2002).




      1
       Combs raises as freestanding claims prosecutorial misconduct and insufficiency of the evidence for the
      child-molesting conviction. Because these issues were known and available on direct appeal, they are
      procedurally foreclosed. To the extent Combs raises these issues under ineffective assistance of counsel, we
      address them there.

      Court of Appeals of Indiana | Memorandum Decision 02A03-1602-PC-343 | September 21, 2016         Page 5 of 11
                                              I. Discovery
[7]   Combs first contends that the post-conviction court erred in denying his motion

      to compel the State to provide him with “missing discovery documents.”

      Appellant’s Br. p. 4. The record shows that in June 2014, Combs filed a motion

      asking the post-conviction court to “requir[e] [his trial] counsel to produce [his]

      attorney-client file” so that he could use it in seeking post-conviction relief.

      Appellant’s App. p. 131. The court ordered the “Public Defender of Allen

      County to provide [Combs] all discoverable Portions of the file, excluding

      police reports, medical records, and work product.” Id. at 129. In July 2014,

      the Public Defender’s Office filed the following affidavit with the court: “All

      discoverable portions regarding Michael A. Combs’ file . . . were sent to the

      defendant at the Wabash Valley Correctional Facility, via certified mail, July

      15, 2014.” Id. at 130 (emphasis added). Several months later, in December

      2014, Combs filed a “Motion to Compel,” asking the court to compel the

      State—not defense counsel—to provide him with items that he claims were

      missing from the file. Id. at 99. The post-conviction court denied this motion.

      Id. at 147.


[8]   Trial and post-conviction proceedings are governed by the same rules

      “‘applicable in civil proceedings including pre-trial and discovery procedures.’”

      Wilkes v. State, 984 N.E.2d 1236, 1251 (Ind. 2013) (quoting Ind. Post-

      Conviction Rule 1(5)). That is, parties may obtain discovery regarding any

      matter, not privileged, which is relevant to the subject matter. Ind. Trial Rule

      26(B). Trial and post-conviction courts are accorded broad discretion in ruling

      Court of Appeals of Indiana | Memorandum Decision 02A03-1602-PC-343 | September 21, 2016   Page 6 of 11
      on discovery matters, and we will affirm their determinations absent a showing

      of clear error and resulting prejudice. Wilkes, 984 N.E.2d at 1251.


[9]   Here, Combs sought his attorney-client file from his trial counsel. After

      receiving the discoverable portion of his file from the Allen County Public

      Defender’s Office, Combs claimed that items were missing. See Appellant’s Br.

      p. 4 (“The documents that were sent to the defendant were missing specific

      pages . . . .”). Combs then sought to compel the State—not the public

      defender—to remedy this deficiency. Combs, however, first should have sought

      to compel the public defender to account for items he claims are missing. If

      that was not successful, then Combs should have sent a discovery request to the

      State for those items pursuant to Indiana Trial Rule 34, which governs the

      production of documents and electronically stored information.2 If the State

      failed to respond to this discovery request, then Combs could have applied for

      an order compelling discovery pursuant to Indiana Trial Rule 37(A) (“[I]f a

      party or witness or other person, in response to a request submitted under Rule

      34, fails to respond that inspection will be permitted as requested or fails to

      permit inspection as requested, the discovering party may move for . . . an order

      compelling inspection in accordance with the request.”). But here, Combs




      2
       In his motion to compel, Combs claimed that he, in fact, requested “the material” from the State.
      Appellant’s App. p. 100. As support, he cites two letters from the prosecutor, dated January 20, 2012, and
      June 19, 2012. Id. However, these letters are dated before his jury trial, are addressed to his trial counsel,
      and do not specifically reference the missing items. See id. at 136, 137. Accordingly, they do not support
      Combs’ claim that he asked the State for the missing items before he filed the motion to compel.

      Court of Appeals of Indiana | Memorandum Decision 02A03-1602-PC-343 | September 21, 2016            Page 7 of 11
       skipped these steps entirely. Accordingly, the post-conviction court acted

       within its discretion in denying Combs’ motion to compel.


                             II. Cause Submitted by Affidavit
[10]   Combs next contends that the post-conviction court erred in ordering the cause

       to be submitted by affidavit and not holding an evidentiary hearing. Indiana

       Post-Conviction Rule 1(9)(b) governs this procedure:

               In the event petitioner elects to proceed pro se, the court at its
               discretion may order the cause submitted upon affidavit. It need
               not order the personal presence of the petitioner unless his
               presence is required for a full and fair determination of the issues
               raised at an evidentiary hearing.


       The purpose of Post-Conviction Rule 1(9)(b) is to allow for more flexibility in

       both the presentation of evidence and the review of post-conviction claims

       where the petitioner proceeds pro se. Smith v. State, 822 N.E.2d 193, 201 (Ind.

       Ct. App. 2005), trans. denied. Accordingly, if the post-conviction court orders

       the cause submitted by affidavit under Rule 1(9)(b), it is the court’s prerogative

       to determine whether an evidentiary hearing is required, along with the

       petitioner’s personal presence, to achieve a full and fair determination of the

       issues raised. Id.


[11]   Combs claims that the affidavits he submitted create an issue of fact concerning

       whether the State coerced his sister, Hogan, into falsely testifying at trial that

       she saw Combs having what appeared to be anal intercourse with M.D., see

       Trial Tr. p. 434-36, and therefore an evidentiary hearing was required under a

       Court of Appeals of Indiana | Memorandum Decision 02A03-1602-PC-343 | September 21, 2016   Page 8 of 11
       different post-conviction rule, Post-Conviction Rule 1(4)(g) (“If an issue of

       material fact is raised, then the court shall hold an evidentiary hearing as soon

       as reasonably possible.”). This Court has already addressed this precise

       question. That is, factual statements in affidavits often raise issues of fact;

       accordingly, to require a full evidentiary hearing any time affidavits submitted

       under Rule 1(9)(b) create issues of fact would defeat the purpose of Rule 1(9)(b).

       Smith, 822 N.E.2d at 201. Accordingly, the decision whether to hold an

       evidentiary hearing for “a full and fair determination of issues raised,” like the

       decision to proceed by affidavit, is best left to the post-conviction court’s

       discretion; “Rule 1(4)(g), concerning summary disposition, has no bearing on

       the matter.” Id.


[12]   Here, the post-conviction court determined that Combs’ affidavits did not create

       an issue of fact as to whether the State had coerced Hogan to testify falsely at

       trial. Accordingly, the post-conviction court did not abuse its discretion in

       ordering the cause to be submitted by affidavit and not holding an evidentiary

       hearing.3




       3
        Combs argues, in a different section of his brief, that because the post-conviction court did not hold an
       evidentiary hearing, he could not subpoena his trial counsel. Appellant’s Br. p. 17. Combs does not allege
       how testimony from his trial counsel would have aided him. In any event, Combs could have secured an
       affidavit from his trial counsel.

       Court of Appeals of Indiana | Memorandum Decision 02A03-1602-PC-343 | September 21, 2016        Page 9 of 11
                           III. Ineffective Assistance of Counsel
[13]   Finally, Combs contends that his trial counsel was ineffective. A defendant

       claiming that his attorney was ineffective at trial must show by a preponderance

       of the evidence that (1) counsel’s performance fell below the objective standard

       of reasonableness based on “prevailing” professional norms and (2) the

       defendant was prejudiced by this substandard performance, i.e., there is a

       “reasonable probability” that, but for counsel’s errors or omissions, the

       outcome of the trial would have been different. Stephenson, 864 N.E.2d at 1031.

       “We afford great deference to counsel’s discretion to choose strategy and

       tactics, and strongly presume that counsel provided adequate assistance and

       exercised reasonable professional judgment in all significant decisions.”

       McCary v. State, 761 N.E.2d 389, 392 (Ind. 2002), reh’g denied.


[14]   Combs’ arguments listed under this section of his brief are very difficult to

       decipher. Combs appears to argue that his trial counsel was ineffective for

       failing to object when the State committed prosecutorial misconduct.4 In order

       to prevail on an ineffective-assistance-of-counsel claim because of prosecutorial

       misconduct, a petitioner must first establish that prosecutorial misconduct

       occurred. Laux v. State, 985 N.E.2d 739, 750 (Ind. Ct. App. 2013), trans. denied.

       Combs claims that the State committed misconduct by using false testimony

       from Hogan to convict him. See Smith v. State, 34 N.E.3d 1211, 1220 (Ind.




       4
        Even if we framed the issue as ineffective assistance of appellate counsel for failing to raise prosecutorial
       misconduct on direct appeal (as a claim of fundamental error), our conclusion would be the same.

       Court of Appeals of Indiana | Memorandum Decision 02A03-1602-PC-343 | September 21, 2016             Page 10 of 11
       2015). As support, Combs claims that Hogan, in a pretrial deposition, made two

       conflicting statements, one of which was necessarily false. In the first

       statement, Hogan said that she saw Combs having anal intercourse with M.D.

       In the second statement, Hogan indicated that she did not see penetration but

       that the circumstances, e.g., the position of Combs and M.D. and the fact that

       both of their pants were down, led her to believe that Combs was having anal

       intercourse with M.D. See Appellant’s App. p. 82, 90 (Hogan’s deposition

       excerpts). These two statements are not inconsistent. Moreover, Combs does

       not cite to any false evidence that the prosecutor presented at trial. Accordingly,

       his ineffective-assistance claim fails.

[15]   Affirmed.

       Baker, J., and Najam, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 02A03-1602-PC-343 | September 21, 2016   Page 11 of 11
