MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                      FILED
this Memorandum Decision shall not be                                  Nov 28 2018, 9:31 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
Charles Gamble                                          Curtis T. Hill, Jr.
New Castle, Indiana                                     Attorney General of Indiana

                                                        Lyubov Gore
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Charles Gamble,                                         November 28, 2018
Appellant-Petitioner,                                   Court of Appeals Case No.
                                                        49A02-1707-PC-1811
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable Kurt M. Eisgruber,
Appellee-Respondent.                                    Judge
                                                        Trial Court Cause No.
                                                        49G01-1604-PC-14779



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1707-PC-1811 | November 28, 2018        Page 1 of 14
                                       Statement of the Case
[1]   Charles Gamble appeals from the post-conviction court’s denial of his petition

      for post-conviction relief. Gamble raises four issues for our review, which we

      revise and restate as the following three issues:


              1.      Whether the post-conviction court abused its discretion
                      when it denied Gamble’s request to subpoena his prison
                      record.

              2.      Whether he was denied the effective assistance of trial
                      counsel.

              3.      Whether Gamble can bring his claim that Indiana Code
                      Section 11-8-8-19 is an ex post facto law as applied to him in
                      a post-conviction proceeding.


[2]   We affirm.


                                 Facts and Procedural History
[3]   On March 7, 2003, Gamble pleaded guilty to one count of sexual battery, as a

      Class D felony, in Cause Number 36C01-0107-DF-222 (“DF-222”). At that

      time, the trial court sentenced Gamble to one and one-half years, with one year

      and three months suspended to supervised probation. The trial court also

      ordered “that [Gamble] shall register as a sex offender in accord with Indiana

      law.” Appellant’s App. Vol. II at 55. On May 24, 2004, the trial court found

      that Gamble had violated the terms of his probation and revoked the suspended

      portion of Gamble’s sentence. Gamble completed his sentence and was

      released from the Department of Correction on September 14, 2004.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1707-PC-1811 | November 28, 2018   Page 2 of 14
[4]   After he was released, Gamble was convicted of failing to register as a sex

      offender in three counties. At some point, Gamble was again incarcerated.

      When Gamble was released from the Department of Correction on October 19,

      2011, prison officials completed a “release checklist.” Id. at 43. In that

      checklist, prison officials indicated that Gamble was a sex offender, but the

      officials noted that he is “NOT REQ[.] TO REGISTER.” Nonetheless, in

      October of 2013, Gamble registered as a sex offender in Hendricks County. On

      March 26, 2014, Gamble requested that he be removed from the sex offender

      registry, but the trial court denied that request. Then, in February of 2015,

      Gamble registered as a sex offender in Marion County. On July 2, officers

      arrested Gamble for impersonating a law enforcement officer. After officers

      arrested him, Gamble informed the officers that he had not lived at his

      registered address in Marion County for approximately one week. However,

      Gamble’s former landlord informed officers that Gamble had not lived at that

      address for approximately one month.


[5]   The State charged Gamble with one count of impersonating a public servant, as

      a Level 6 felony, in Cause Number 49G01-1507-F6-23579 (“F6-23579”). The

      State also charged Gamble with three counts of failing to register as a sex or

      violent offender, as Level 5 felonies, in Cause Number 49G01-1507-F5-24251

      (“F5-24251”). The parties entered into a plea agreement in which Gamble

      agreed to plead guilty as charged in F6-23579 and to one count of failing to

      register as a sex or violent offender, as a Level 5 felony, in F5-24251. In

      exchange for his guilty plea, the State agreed to dismiss the other two charges in


      Court of Appeals of Indiana | Memorandum Decision 49A02-1707-PC-1811 | November 28, 2018   Page 3 of 14
      F5-24251. The trial court accepted the plea agreement and entered judgment of

      conviction accordingly. The trial court sentenced Gamble to three years

      executed in the Department of Correction in F5-24251, which was to run

      consecutive to his sentence in F6-23579.1


[6]   On August 15, 2016, Gamble, pro se, filed an amended petition for post-

      conviction relief in which he alleged: (1) that he had been denied the effective

      assistance of trial counsel; (2) that his rights under the Fourth Amendment to

      the United States Constitution had been violated; (3) that his convictions

      violated double jeopardy principles; and (4) that the requirement that he register

      as a sex offender is an ex post facto law as applied to him. Gamble filed with the

      post-conviction court a request that it issue a subpoena for his Department of

      Correction record. Specifically, Gamble asserted that his prison record would

      contain the Department of Correction release checklist that indicated that he

      was not required to register as a sex offender as well as “new evidence that

      [Gamble] is trying to obtain” in order to show that he was not required to

      register as a sex offender. Supp. App. at 4. The post-conviction court never

      ruled on Gamble’s request. Following a hearing on January 24, 2017, the post-

      conviction court entered detailed findings of fact and conclusions of law

      denying Gamble’s petition for relief. This appeal ensued.




      1
        It is unclear from the record what Gamble’s sentence was in F6-23579. However, the plea agreement
      provided that his sentence for that conviction would be one year executed, “with placement open to
      argument[.]” Appellant’s App. Vol II at 69.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1707-PC-1811 | November 28, 2018     Page 4 of 14
                                       Discussion and Decision
[7]   Gamble appeals the post-conviction court’s denial of his petition for post-

      conviction relief.2 Our standard of review is clear:


              The petitioner in a post-conviction proceeding bears the burden
              of establishing grounds for relief by a preponderance of the
              evidence. Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004)
              (citations omitted). When appealing the denial of post-
              conviction relief, the petitioner stands in the position of one
              appealing from a negative judgment. Id. To prevail on appeal
              from the denial of post-conviction relief, a petitioner must show
              that the evidence as a whole leads unerringly and unmistakably
              to a conclusion opposite that reached by the post-conviction
              court. Weatherford v. State, 619 N.E.2d 915, 917 (Ind. 1993).
              Further, the post-conviction court in this case made findings of
              fact and conclusions of law in accordance with Indiana Post-
              Conviction Rule 1(6). Although we do not defer to the post-
              conviction court’s legal conclusions, “[a] post-conviction court’s
              findings and judgment will be reversed only upon a showing of
              clear error—that which leaves us with a definite and firm
              conviction that a mistake has been made.” Ben-Yisrayl v. State,
              729 N.E.2d 102, 106 (Ind. 2000) (internal quotation omitted).


      Campbell v. State, 19 N.E.3d 271, 273-74 (Ind. 2014) (alteration original to

      Campbell).




      2
       In its findings of fact and conclusions of law, the post-conviction court found that Gamble had waived his
      Fourth Amendment and double jeopardy claims. Gamble does not appeal those findings.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1707-PC-1811 | November 28, 2018        Page 5 of 14
                               Issue One: Denial of Subpoena Request

[8]   Gamble first contends that the post-conviction court abused its discretion when

      it denied his request to subpoena his prison record. To determine whether to

      issue subpoenas, the post-conviction court has broad discretion. Johnson v.

      State, 832 N.E.2d 985, 994 (Ind. Ct. App. 2005), trans. denied. “An abuse of

      discretion has occurred if the court’s decision is against the logic and effect of

      the facts and circumstances before the court.” Id.


[9]   As this court has previously stated:


              The post-conviction rules do not establish a procedure for a pro se
              petitioner to subpoena a document, but they do explain the
              procedure if a pro se petitioner wishes to subpoena a witness. See
              Post-Conviction Rule 1(9)(b). The post-conviction court must
              subpoena witnesses for a pro se petitioner “[i]f the court finds the
              witness’ testimony would be relevant and probative.” Id. We
              have found reversible error in the failure to subpoena a witness
              when a petitioner’s claims could not be presented without the
              presence of that specific witness. See Medlock v. State, 547 N.E.2d
              884, 887 (Ind. Ct. App. 1989) (clerk’s failure to subpoena
              witnesses for post-conviction proceeding following petitioner’s
              pro se request for subpoenas was not harmless error where
              petitioner could not prove claim without witness’s testimony
              about alleged promises witness made to induce petitioner’s guilty
              plea).


      Hubbell v. State, 58 N.E.3d 268, 277 (Ind. Ct. App. 2016). That court

      specifically held that “[w]e see no reason we ought not reach the same result

      when a petitioner raises issues—such as ineffective assistance of counsel and

      double jeopardy—that cannot be addressed on their merits without access to the

      Court of Appeals of Indiana | Memorandum Decision 49A02-1707-PC-1811 | November 28, 2018   Page 6 of 14
       Record of Proceedings.” Id. Similarly, here, we see no reason why we should

       not reach the same result when a petitioner raises an issue that cannot be

       addressed on its merits without access to a specific document. Accordingly, we

       will find that the post-conviction court abused its discretion when it failed to

       subpoena Gamble’s prison record only if Gamble’s claim could not be

       presented and addressed on its merits without access to his prison record.


[10]   To support his claim that he was denied the effective assistance of counsel,

       Gamble requested that the post-conviction court subpoena his prison record. In

       that request, Gamble asserted that he needed his prison record because it would

       contain the 2011 Department of Correction release checklist as well as

       unspecified “new evidence” that would show that he was no longer required to

       register as a sex offender. Suppl. App. at 4. The post-conviction court never

       ruled on that request, which, in effect, denied the request. Gamble contends

       that the court’s denial of his subpoena was improper because “he needs [those

       documents] to prove prejudice on the failure-to-investigate aspect of his

       Ineffective Assistance of Counsel claim[.]” Appellant’s Br. at 19. We cannot

       agree.


[11]   Gamble requested a subpoena for his prison record in part because that record

       would contain the 2011 Department of Correction release checklist, which

       indicated that he was not required to register a sex offender. But Gamble was

       still able to present the checklist as evidence at the hearing on his petition for




       Court of Appeals of Indiana | Memorandum Decision 49A02-1707-PC-1811 | November 28, 2018   Page 7 of 14
       post-conviction relief without the subpoena from the post-conviction court.3

       Because Gamble was able to present the checklist as evidence without the

       subpoena, he has not demonstrated that he was harmed by the post-conviction

       court’s denial of his subpoena request as it relates to the release checklist.


[12]   Gamble also requested the subpoena for his prison record because he contends

       that there would be “new evidence” in the record that would show that he is

       not required to register as a sex offender. Supp. App. at 4. But it is well-settled

       that “[t]here is no post-conviction right to ‘fish’ through official files for belated

       grounds of attack on the judgment, or to confirm mere speculation or hope that

       a basis for collateral relief may exist.” Hinkle v. State, 97 N.E.3d 654, 665 (Ind.

       Ct. App. 2018) (quoting Roche v. State, 690 N.E.2d 1115, 1132 (Ind. 1997)),

       trans. denied.


[13]   Gamble does not contend that there is any specific information in his prison

       record beyond the release checklist that supports his claim of ineffective

       assistance of counsel. Rather, Gamble requested his entire prison record simply

       because he believed that “there has to be something in there that caused the

       prison officials to conclude that Gamble was/is not required to register” as a

       sex offender. Appellant’s Br. at 20. In essence, Gamble contends that, had he

       been able to examine his entire prison record, he might have found an

       additional document that would support his claim that he was not required to

       register as a sex offender, which, in turn, would have supported his claim that


       3
           It is unclear from the record how Gamble was able to obtain a copy of the checklist.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1707-PC-1811 | November 28, 2018   Page 8 of 14
       his trial counsel, Jennifer Harrison, had failed to fully investigate the case when

       she did not review his entire prison record. As Gamble wanted the post-

       conviction court to subpoena his prison record based only on his speculation

       that an additional document there exists to support his claim, Gamble’s request

       for the subpoena was an improper fishing expedition, not an attempt to

       vindicate an actual claim. See Hinkle, 97 N.E.3d at 666. Accordingly, we

       cannot say that the post-conviction court abused its discretion when it denied

       Gamble’s request to subpoena his prison record.


                               Issue Two: Effectiveness of Trial Counsel

[14]   Gamble next contends that he received ineffective assistance from his trial

       counsel, Harrison.


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


       Campbell, 19 N.E.3d at 274.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1707-PC-1811 | November 28, 2018   Page 9 of 14
[15]   Gamble specifically contends that Harrison’s performance was deficient

       because she failed to adequately investigate the case when she did not obtain

       and review his prison record, which he asserts contained the 2011 Department

       of Correction release checklist as well as other documents that would show that

       he was not required to register as a sex offender. “Counsel is strongly presumed

       to have rendered adequate assistance and made all significant decisions in the

       exercise of reasonable professional judgment.” Strickland, 466 U.S. at 690.

       Further, “counsel has a duty to make reasonable investigations or to make a

       reasonable decision that makes particular investigations unnecessary. In any

       ineffectiveness case, a particular decision not to investigate must be directly

       assessed for reasonableness in all the circumstances, applying a heavy measure

       of deference to counsel’s judgments.” Id. at 691.


[16]   Here, “applying a heavy measure of deference” to Harrison’s particular

       decision not to review Gamble prison’s record, we cannot say that the post-

       conviction court erred when it determined that Gamble had failed to meet his

       evidentiary burden on this issue. Id. During the hearing on Gamble’s petition,

       Harrison testified that she had met with Gamble at the jail during the course of

       the proceedings and that she had had several discussions with Gamble about his

       case. And “Gamble’s uncontradicted testimony is that he informed Ms.

       Harrison during pre-trial discussions . . . that the Indiana Department of

       Correction officials informed him in 2011 . . . that he was no longer required to

       register as a sex offender[.]” Appellant’s Br. at 29. In addition to her

       discussions with Gamble, Harrison testified that she had “researched


       Court of Appeals of Indiana | Memorandum Decision 49A02-1707-PC-1811 | November 28, 2018   Page 10 of 14
       [Gamble’s] prior conviction [for sexual battery]. I also researched the times that

       you had been in custody and out of custody[.]” Tr. Vol. II at 12. She further

       testified that she did “legal research” and that she had read the relevant case

       law to determine if he was still required to register as a sex offender. Finally,

       Harrison testified that, “based upon [her] research,” she believed that he was

       still legally required to register as a sex offender. Id.


[17]   Accordingly, the record demonstrates that Harrison had several discussions

       with Gamble, during which he provided her with information about his case

       and the reasons why he believed he was no longer required to register as a sex

       offender. And the record also demonstrates that Harrison researched his case

       and the relevant law, and based on that research, she concluded that he was still

       required to register as a sex offender regardless of what the release checklist

       stated. As such, Gamble has not met his burden to show that he was denied the

       effective assistance of counsel.4


                                       Issue Three: Ex Post Facto Law

[18]   Finally, Gamble contends that the requirement that he register as a sex offender

       is an ex post facto law as applied to him. When Gamble was convicted of sexual

       battery in 2003, the sex offender registration statute provided that a sex

       offender’s duty to register expired ten years after the offender was released from




       4
         Gamble also asserts that the post-conviction court erred when it found that he had waived his claim of
       ineffective assistance of counsel. However, in light of our analysis on the merits of his ineffectiveness claim,
       we need not consider the waiver argument.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1707-PC-1811 | November 28, 2018           Page 11 of 14
       a penal facility or placed in a community transitions program, a community

       corrections program, on parole, or on probation, whichever occurred last. See

       Ind. Code § 5-2-12-13(a) (2003). The Indiana General Assembly repealed that

       statute in 2006 and replaced it with Indiana Code Section 11-8-8-19. That

       statute provides for the same ten-year registration requirement, but it also

       includes a tolling provision. Specifically, the new statute provides that the ten-

       year registration period “is tolled during any period that the sex or violent

       offender is incarcerated.” I.C. § 11-8-8-19(a) (2008).


[19]   On appeal, Gamble contends that the new statute that tolls his registration

       requirement is an ex post facto law as applied to him because it “significantly

       extended Gamble’s ten (10)[-]year registration period . . . since Gamble was

       arrested and was incarcerated for a great deal of time after the ten (10)[-]year

       registration period started under Ind[iana] Code [Section] 5-2-12-13(a).”

       Appellant’s Br. at 35. But we hold that Gamble cannot bring his ex post facto

       claim in a post-conviction proceeding.


[20]   In Kirby v. State, the Indiana Supreme Court considered whether Kirby, a

       serious sex offender, could bring a post-conviction claim that a new statute that

       prevented him from entering school property was an unconstitutional ex post

       facto law. 95 N.E.3d 518, 520 (Ind. 2018). That court stated that “[o]ne of the

       post-conviction rules’ central limitations is that relief is generally available only

       from a conviction or sentence.” Id. But “when the legislature imposes

       restrictions on people convicted of certain crimes, those restrictions are not part

       of a sentence, but are collateral consequences.” Id. Indeed, the court held that

       Court of Appeals of Indiana | Memorandum Decision 49A02-1707-PC-1811 | November 28, 2018   Page 12 of 14
       “[s]ex-offender registration itself is thus a collateral consequence.” Id. Further,

       the court stated that “[t]he legislature can, for example, impose a lifetime

       registration requirement even after a sentence has been fully served. Whether

       or not such a belated change is an ex post facto violation, it is not part of a

       sentence.” Id. at 520-21 (internal citations omitted). Accordingly, our Supreme

       Court held that Kirby’s ex post facto claim challenged a collateral consequence

       rather than his sentence or conviction and, thus, post-conviction review was

       unavailable to Kirby. Id.


[21]   Similarly, here, we hold that the requirement that Gamble register as a sex

       offender is a collateral consequence of his conviction in DF-222. Because

       Gamble’s ex post facto claim challenges a collateral consequence rather than his

       conviction or sentence, post-conviction review is unavailable.5


                                                      Conclusion

[22]   In sum, we hold that the post-conviction court did not abuse its discretion when

       it did not issue a subpoena for Gamble’s prison record, and Gamble was not

       denied the effective assistance of counsel. And we hold that Gamble cannot

       petition for post-conviction relief on his claim that Indiana’s sex offender




       5
         Even though Gamble cannot raise his ex post facto claim in a post-conviction proceeding, he may still be
       able to bring his claim in a declaratory-judgment action. See id. at 521-22.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1707-PC-1811 | November 28, 2018        Page 13 of 14
       registration statute is an ex post facto law as applied to him. Accordingly, we

       affirm the post-conviction court.6


[23]   Affirmed.


       Crone, J., and Pyle, J., concur.




       6
         In his reply brief, Gamble asks us to determine that he was never required to register as a sex offender
       because he did not agree to any registration requirement in his plea agreement in DF-222. But Gamble did
       not raise that issue in his initial brief. It is well settled that “grounds for error may only be framed in the
       appellant’s initial brief and[,] if addressed for the first time in the reply brief, they are waived.” Monroe Guar.
       Ins. Co. v. Magwerks Corp., 829 N.E.2d 968, 977 (Ind. 2005). Thus, Gamble has waived any purported claim
       on that issue.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1707-PC-1811 | November 28, 2018              Page 14 of 14
