MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                             FILED
regarded as precedent or cited before any                               Jan 02 2020, 8:53 am

court except for the purpose of establishing                                 CLERK
                                                                         Indiana Supreme Court
the defense of res judicata, collateral                                     Court of Appeals
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estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Thomas C. Allen                                          Curtis T. Hill, Jr.
Fort Wayne, Indiana                                      Attorney General of Indiana
                                                         J.T. Whitehead
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Zao G. Burrell,                                          January 2, 2020
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         19A-PC-870
        v.                                               Appeal from the Steuben Superior
                                                         Court
State of Indiana,                                        The Honorable William C. Fee,
Appellee-Respondent.                                     Judge
                                                         Trial Court Cause No.
                                                         76D01-1708-PC-2



Tavitas, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-PC-870 | January 2, 2020                   Page 1 of 13
                                               Case Summary

[1]   Xao Burrell appeals the post-conviction court’s (“PC Court”) denial of his

      petition for post-conviction relief (“PCR”). We reverse and remand.


                                                      Issue

[2]   Burrell raises two issues on appeal; however, we find one issue dispositive,

      which we restate as whether the PC Court erred in failing to hold a hearing on

      Burrell’s petition for PCR.


                                                      Facts

[3]   In 2013, Burrell was convicted of Count I, murder; Count II, felony murder;

      Count III, attempted murder, a Class A felony; and Count IV, carrying a

      handgun without a license, a Class C felony, after a dispute between Burrell and

      another individual led to Burrell shooting and killing that individual after

      manufacturing methamphetamine. Burrell filed a direct appeal to our Court,

      arguing that his 105-year sentence was inappropriate in light of the nature of

      offense and Burrell’s character. Our Court affirmed the trial court’s sentence.

      See Burrell v. State, No. 76A03-1305-CR-165 (Ind. Ct. App. Mar. 6, 2014).


[4]   On September 17, 2014, Burrell filed a petition for PCR, which was

      subsequently dismissed, without prejudice, due to his inability to investigate.

      On August 25, 2017, Burrell filed his second petition for PCR alleging that

      Burrell received ineffective assistance of counsel in several areas, including, but

      not limited to:



      Court of Appeals of Indiana | Memorandum Decision 19A-PC-870 | January 2, 2020   Page 2 of 13
              [F]ailing to properly conduct the hearing on the motion for
              change of venue, missing a deadline for disclosing alibi witnesses,
              failing to adequately argue evidentiary objections, introducing
              evidence of criminal activity on the part of Petitioner, failing to
              properly prepare witnesses to testify, failing to prepare a closing
              statement and/or giving a wholly inadequate closing statement,
              failing to offer any evidence or argument at sentencing, and
              failing to professionally conduct herself during trial.


      Appellant’s App. Vol. II p. 43. Burrell was represented by counsel. The State

      sought dismissal of Burrell’s petition pursuant to Indiana Post-Conviction Rule

      1(3)(a), arguing that Burrell’s petition was merely “generalized and

      conclusory.” Id. at 57. The PC Court denied the State’s motion.


[5]   On September 22, 2017, Burrell filed an amended petition for PCR, adding

      specific allegations of ineffective assistance of trial counsel as follows:


              Motion for change of venue - rather than present evidence of
              community-wide prejudice, trial counsel presented only the
              idiosyncratic opinions of a handful of individuals. When she
              attempted to introduce evidence from local media, she seemed
              entirely unclear on the procedure for doing so, resulting in that
              evidence not being admitted. Finally, it apparently did not occur
              to trial counsel to obtain the evidence she needed, a
              comprehensive canvasing of the local area, until after her motion
              and a motion to reconsider had been denied. At this point, the
              Court denied her the funds to conduct such a study, as the
              request was far too late.


              Alibi witness - this Court found that trial counsel attempted to
              disclose an alibi witness well after the dates set forth in the
              controlling scheduling order. This led trial counsel to opine, on


      Court of Appeals of Indiana | Memorandum Decision 19A-PC-870 | January 2, 2020   Page 3 of 13
        the record[,] that she had rendered ineffective assistance of
        counsel.


        Evidentiary objections - In instances too numerous to list
        individually, trial counsel repeatedly failed to adequately raise or
        argue evidentiary objections. Her performance in this regard was
        sufficiently poor that this Court stated its frustration with trial
        counsel on the record.


        Burrell’s criminal activity - inexplicably, trial counsel introduced
        evidence that Burrell manufactured and distributed
        methamphetamine. This is evidence that could not have been
        introduced any other way, and plainly prejudiced Burrell in the
        eyes of the jury.


        Witness preparation - this is seen most acutely in the testimony of
        Burrell’s father. Despite being called by Burrell, it was clear that
        he did not understand the questions posed by trial counsel. This
        demonstrated that Burrell’s most significant exculpatory witness
        had not been prepared at all for his testimony.


        Jury instructions - trial counsel was wholly unprepared to argue
        the jury instructions. She could not discuss the legal basis for her
        tendered instructions, instead requesting time to conduct
        research. In nearly every instance, she simply withdrew her
        tendered instructions due to her apparent lack of preparation and
        knowledge.


        Closing statement - the transcript in this case is more than 1800
        pages long. One would think, then, that trial counsel’s closing
        statement would need to be a sufficient length to address the key
        points raised during those proceedings. Instead, trial counsel
        gave a perfunctory closing, which was little more than a plea for
        a not guilty verdict. This stood in stark contrast to the well-
        prepared and thorough argument of the state.

Court of Appeals of Indiana | Memorandum Decision 19A-PC-870 | January 2, 2020   Page 4 of 13
              Sentencing - Trial counsel did not present evidence, witnesses, or
              argument at sentencing, despite character witnesses that were
              willing to testify, and mitigating factors that could have been
              identified.


              Professionalism - In the most striking example, trial counsel
              arrived significantly late for one day of trial, which calls into
              question her state during the remaining proceedings.


      Id. at 71-72. On September 27, 2017, the PC Court issued an order setting a

      hearing for October 30, 2017, to discuss the issue of Burrell’s transport to the

      PCR hearing.


[6]   On October 30, 2017, the PC Court held a hearing which, according to the

      chronological case summary (“CCS”), was a status hearing on the “case

      management PCR-2 and issue of transport.” Id. at 25. The following day, on

      October 31, 2017, the PC Court entered a hearing journal entry on the CCS,

      which stated:


              State appears. Counsel for [defendant] appears telephonically.
              Hearing held. By stipulation of parties, hearing on Post-
              Conviction Relief continued. To be reset upon motion. Parties
              stipulate to filing written briefs on said motion and will agree
              upon timeline for submittal to Court for review. Transport Order
              is moot but request may be revived upon motion for future
              hearings.


      Id. The PC Court’s written order regarding the hearing is nearly identical.

      Subsequently, the parties agreed to a briefing schedule, which the PC Court

      accepted, and submitted their briefs regarding Burrell’s petition for PCR. On

      Court of Appeals of Indiana | Memorandum Decision 19A-PC-870 | January 2, 2020   Page 5 of 13
      November 13, 2017, the CCS indicates that the PCR hearing was cancelled

      pursuant to the “[a]greement of [p]arties.” Id. at 25.


[7]   On February 28, 2018, Burrell submitted his brief in support of his petition for

      PCR, alleging he received ineffective assistance of counsel in several respects.

      After an extension of time, the State filed its response on April 16, 2018. On

      April 30, 2018, Burrell filed his reply brief in support of his petition for PCR.

      No evidence or exhibits were attached to any of the briefs; moreover, no request

      for a hearing was made by either party. Each party, however, did cite to the

      record from the underlying trial as support for their positions regarding the

      petition for PCR.


[8]   On September 13, 2018, Burrell’s attorney filed a motion to withdraw his

      appearance due to new employment, which the PC Court granted the same

      day. Another attorney stepped in on Burrell’s behalf. On March 25, 2019, the

      PC Court entered findings of facts and conclusions of law denying Burrell’s

      petition for PCR. The order did not address the reason the PC Court ruled on

      the petition for PCR based only on the briefs.


[9]   The PC Court concluded that Burrell did not receive ineffective assistance of

      counsel and, thus, denied Burrell’s request for PCR. The PC Court did find,

      however, one area in which counsel’s performance was deficient. The PC

      Court found that, at the motion for change of venue hearing, “counsel’s

      performance was indeed deficient in the manner in which the hearing was

      conducted. However, the Petitioner has failed to prove that this ineffectiveness


      Court of Appeals of Indiana | Memorandum Decision 19A-PC-870 | January 2, 2020   Page 6 of 13
       had any impact upon the ultimate outcome of the trial.” Id. at 162. The PC

       Court’s order concluded:


               It is the Petitioner’s burden to prove that his representation, when
               taken as a whole, was deficient. It is the Petitioner’s burden to
               prove that trial counsel’s cumulative deficiencies rose to the level
               of ineffective assistance of counsel and, finally, it is the
               Petitioner’s burden to prove that any such overall trial counsel
               ineffectiveness changed the outcome of the trial. The Petitioner
               has not met this burden.


       Id. at 168. Burrell now appeals.


                                                     Analysis

[10]   In its brief, the State’s Statement of Facts indicates that the parties agreed to

       briefing “in lieu of an evidentiary hearing.” Appellee’s Br. p. 8. The State

       mentions this several times in its argument. This statement is not supported by

       the pages in the appendix the State directs us to review. Moreover, later in the

       argument portion of its brief, the State argues that Burrell “asked to have the

       hearing cancelled and asked to proceed by briefing instead.” Id. at 15. The

       State then directs us to Appellant’s Appendix Vol. II p. 50, which is the “State’s

       Response to Petition for Transport,” and nowhere indicates that Burrell

       requested the PC court to cancel the hearing and instead requested the PC

       Court to rule on his petition for PCR based on the briefs. Again, we have found

       no support for this contention in the record. It is clear that the parties agreed to

       brief the matter; however, there is no evidence that this was intended to replace

       the hearing. We caution the State to adequately state the facts as related in the


       Court of Appeals of Indiana | Memorandum Decision 19A-PC-870 | January 2, 2020   Page 7 of 13
       record and to direct us to the proper pages in the record to support the State’s

       contentions. See Indiana App. R. 46(B).


[11]   At the outset, we note that our standard of review on the denial of a petition for

       PCR is determined by how the PC Court arrived at its conclusion pursuant to

       Indiana’s Post-Conviction Rules (“PCR Rules”). Generally, a petition for PCR

       is heard, pursuant to Indiana Post-Conviction Rule 1(5), with a hearing. This

       rule states:


               The petition shall be heard without a jury. A record of the
               proceedings shall be made and preserved. All rules and statutes
               applicable in civil proceedings including pre-trial and discovery
               procedures are available to the parties, except as provided above
               in Section 4(b). The court may receive affidavits, depositions,
               oral testimony, or other evidence and may at its discretion order
               the applicant brought before it for the hearing. The petitioner has
               the burden of establishing his grounds for relief by a
               preponderance of the evidence.


       Ind. Post-Conviction Rule 1(5).


[12]   In limited circumstances, a PC Court is not required to conduct a hearing in

       order to decide a petitioner’s petition for PCR. As the PC Court here did not

       have a hearing before ruling on Burrell’s petition, we will analyze each of the

       circumstances in which a hearing is not required in order to determine whether

       the PC Court erred in ruling on Burrell’s petition for PCR without a hearing.




       Court of Appeals of Indiana | Memorandum Decision 19A-PC-870 | January 2, 2020   Page 8 of 13
                                                   I.       Section 4(f)

[13]   Indiana Post-Conviction Rule 1(4)(f) (“Section 4(f)”) states: “[I]f the pleadings

       conclusively show that petitioner is entitled to no relief, the court may deny the

       petition without further proceedings.” Typically, in Section 4(f) cases:


               When a court disposes of a petition under subsection f, we
               essentially review the lower court’s decision as we would a
               motion for judgment on the pleadings. The court errs in
               disposing of a petition in this manner unless “the pleadings
               conclusively show that petitioner is entitled to no relief.” P.-C.R.
               1 § 4(f). If the petition alleges only errors of law, then the court
               may determine without a hearing whether the petitioner is
               entitled to relief on those questions. However, if the facts pled
               raise an issue of possible merit, then the petition should not be
               disposed of under section 4(f). This is true even though the
               petitioner has only a remote chance of establishing his claim.


       Allen v. State, 791 N.E.2d 748, 752-53 (Ind. Ct. App. 2003), trans. denied.


[14]   Section 4(f) is inapplicable here, because, importantly, Section 4(f) cases require

       that the PC Court make its decision only on the pleadings. Here, the PC Court

       did not rely merely on the pleadings, and instead, the PC Court received

       argument in the form of briefs and reviewed the record from the trial. Even if

       the PC Court was attempting to rule on Burrell’s petition for PCR under

       Section 4(f), we note that issues of ineffective assistance of trial counsel are

       particularly fact sensitive, and, “‘when a petitioner alleges ineffective assistance

       of counsel, and the facts pled raise an issue of possible merit, the petition should

       not be summarily denied.’” Binkley v. State, 993 N.E.2d 645, 650 (Ind. Ct. App.



       Court of Appeals of Indiana | Memorandum Decision 19A-PC-870 | January 2, 2020   Page 9 of 13
       2013) (quoting Kelly v. State, 952 N.E.2d 297, 300 (Ind. Ct. App. 2011))

       (emphasis supplied). Section 4(f) is inapplicable here.


                                                   II.      Section 4(g)

[15]   Indiana Post-Conviction Rule 1(4)(g) (“Section 4(g)”) states:


               The court may grant a motion by either party for summary
               disposition of the petition when it appears from the pleadings,
               depositions, answers to interrogatories, admissions, stipulations
               of fact, and any affidavits submitted, that there is no genuine
               issue of material fact and the moving party is entitled to
               judgment as a matter of law.


       The plain language of this rule requires “a motion by either party” and

       consideration of the pleadings and the evidence outlined above.


[16]   When we review a petition under Section 4(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.” P-C.R. 1 § 4(g). 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.


       Allen, 791 N.E.2d at 753.


[17]   First, we note that there is no indication on the CCS that Burrell or the State

       moved for summary disposition as required by Section 4(g). In response, the

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-870 | January 2, 2020   Page 10 of 13
       State invites us to conclude that the State’s opposition to Burrell’s transport

       demonstrates the “State’s procedural posture.” Appellee’s Br. p. 12. The

       State’s opposition to transport cites Indiana-Post Conviction Rule 1(5), which

       states that: “The Court may receive affidavits, depositions, oral testimony, or

       other evidence and may at its discretion order the applicant brought before it for

       the hearing.” This statement, however, falls short of moving for summary

       disposition; in fact, the State requested that Burrell not be transported, but

       instead, “appear via video teleconference equipment.” Appellant’s App. Vol. II

       p. 50. The State cannot now convince us that this opposition of transport order

       should be interpreted as the State’s motion for summary disposition.


[18]   The State also argues that agreement for summary disposition was implicit

       based on the CCS entries that: (1) the PCR hearing would be re-scheduled

       pursuant to the “[a]greement of [p]arties”; and (2) “[b]y stipulation of parties,

       hearing on Post-Conviction Relief [is] continued. To be reset upon motion.

       Parties stipulate to filing written briefs on said motion and will agree upon a

       timeline for submittal to Court for review.” Appellant’s App. Vol. II p. 25. We

       decline to infer this from the record. The record reveals the parties agreed to

       brief the issue. No support, however, exists for the contention that the parties

       agreed to do so in lieu of a hearing. The State does not point us to any hearing

       transcript or motion in which the State or Burrell agreed to summary

       disposition. The State’s argument fails. Accordingly, Section 4(g) is

       inapplicable.




       Court of Appeals of Indiana | Memorandum Decision 19A-PC-870 | January 2, 2020   Page 11 of 13
                                                   III.     Section 9(b)

[19]   Finally, in response to Burrell’s argument that he was entitled to a hearing, the

       State argues that, “in the case of pro se petitioners, [the rules] do not mandate a

       hearing.” Appellee’s Br. p. 12. Pursuant to Indiana Post-Conviction Rule 1(9)

       (b) (“Section 9(b)”), “[i]n the event petitioner elects to proceed pro se, the court

       at its discretion may order the cause submitted upon affidavit.” Burrell was

       represented by counsel at the time of the filing of his August 2017 petition for

       PCR. At the same time his attorney withdrew on September 13, 2018, another

       attorney stepped in to represent Burrell. The record is devoid of any request or

       PC Court order indicating that the trial court ordered the case to be submitted

       upon affidavit. Additionally, neither the State nor Burrell included any

       affidavits with their briefs. Any argument by the State that Burrell should have

       submitted an affidavit because he was not precluded from doing so fails, as the

       PC Court never ordered Burrell to do as much. Accordingly, Section 9(b) is

       inapplicable.


[20]   Based on the foregoing, the State, Burrell, and the PC Court did not proceed

       according to the PCR Rules. Accordingly, Burrell was entitled to an

       evidentiary hearing on his petition for PCR.


                                                   Conclusion

[21]   Based on the record before us, Burrell was entitled to a hearing on his petition

       for PCR pursuant to Indiana’s Post-Conviction Rules. We reverse and remand.


[22]   Reversed and remanded.

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-870 | January 2, 2020   Page 12 of 13
Altice, J., concurs.


Brown, J., concurs in result without opinion.




Court of Appeals of Indiana | Memorandum Decision 19A-PC-870 | January 2, 2020   Page 13 of 13
