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Friday, August 05, 2016

Ind. Decisions - Court of Appeals issues 3 opinion(s) today (and 8 NFP memorandum decision(s))

For publication opinions today (3):

In Jason Dean Hubbell v. State of Indiana, a 20-page opinion involving a pro se appellant, Judge Brown writes:

Jason Dean Hubbell appeals the denial of his petition for post-conviction relief. Hubbell raises three issues which we consolidate and restate as whether the trial court abused its discretion when it declined to take judicial notice of the record and whether the court denied Hubbell a fair hearing by refusing to obtain his direct appeal record from the Supreme Court Clerk. We reverse and remand. * * *

Rather than obtaining the Record of Proceedings for Hubbell, the post-conviction court imposed on Hubbell “the affirmative duty to get the [R]ecord [of Proceedings] to the PCR Court.” Post-Conviction Transcript at 25. It is not apparent how Hubbell could have accomplished that task when he is not a licensed lawyer, he is proceeding pro se, and he is indigent. Nor does there

None of the Indiana Supreme Court orders entered under the direct appeal or the Standing Order referenced above explicitly prohibit releasing the Record of Proceedings from a direct appeal to persons who are not licensed attorneys or employees of the Public Defender’s office, but that is a fair inference, as neither the Public Defender nor a petitioner’s lawyer is permitted to allow the Record of Proceedings out of his “supervision” or “control.”

Hubbell is not represented by the State’s Public Defender, who presumably would be responsible for bringing the Record of Proceedings to a post-conviction hearing. Hubbell is not a licensed lawyer, so he cannot check out the Record of Proceedings himself. Neither can he send a friend or relative, unless such person happens to be a licensed attorney.

Hubbell is proceeding as an indigent. Therefore, he presumably cannot afford to hire licensed counsel for the sole purpose of transmitting the Record of Proceedings from the Supreme Court to the post-conviction court. Nor should we presume he has the funds to purchase from the trial court reporter a new certified copy of the proceedings, which the post-conviction court acknowledges included a 28-volume transcript. See Order Denying Amended Verified Petition for Post-Conviction Relief at 1.

Hubbell acknowledges he once received the copy of his Record of Proceedings to which he was entitled. See Post-Conviction Rule 1(9)(b) (“Petitioners who are indigent and proceeding in forma pauperis shall be entitled to production of guilty plea and sentencing transcripts at public expense, prior to a hearing, if the petition is not dismissed.”). But he asserted in his December 30, 2014 motion that his copy is not certified and “may not be to the standard required by the court through damage occurring through shake downs . . . .” Appellant’s Appendix at 146.

Under these facts, it is difficult to see what more could be expected of Hubbell as he was attempting to present his post-conviction arguments. Until such time as electronic transcripts and records make this issue moot for all petitioners, pro se petitioners need to know how they may ensure the Records of Proceedings from their direct appeals are available for a post-conviction hearing. [ILB emphasis]

For the foregoing reasons, we reverse the post-conviction court’s denial of Hubbell’s petition for post-conviction relief, order the court to obtain the direct appeal Record, and permit Hubbell to question his witnesses and present his arguments with the benefit of a certified Record of Proceedings.

In Cory L. Montgomery v. State of Indiana, a 6-page opinion, Judge Najam writes:
Cory L. Montgomery appeals the trial court’s revocation of his probation. Montgomery raises a single issue for our review, namely, whether the trial court’s revocation of his probation, which followed the court’s revocation of his placement in a community transition program, violated the doctrine of res judicata. It did not. As such, we affirm.

Placement on probation and placement in a community transition program are not one and the same, and the court’s consideration of those options is not mutually exclusive. Rather, those options are two of many tools in the trial court’s toolbox for the court’s use in the administration and supervision of a defendant’s sentence, over which the court has continuing jurisdiction. We conclude that the trial court’s revocation of Montgomery’s probation was not barred by res judicata and was not otherwise an abuse of the trial court’s discretion. Accordingly, we affirm the trial court’s judgment.

In William J. Woodford v. State of Indiana, a 12-page opinion, Judge Bailey writes:
William J. Woodford (“Woodford”) appeals the trial court’s order modifying his sentence placement, arguing that the court abused its discretion by failing to grant the full relief he sought after he demonstrated exemplary rehabilitative efforts, including remaining free of conduct violations for the entirety of his nearly sixteen-year imprisonment. We remand.

[Issues] Woodford presents one issue: whether the trial court abused its discretion by ordering that the final twelve years of his sentence be served in community corrections, but not reducing his sentence.

We also address an issue raised by the State: whether the trial court had authority to modify Woodford’s sentence without the prosecutor’s consent. * * *

The trial court had authority to entertain Woodford’s first petition under the latest version of the sentence modification statute. We remand with instructions to hold a new hearing on Woodford’s petition and consider it under the revised statute, Indiana Code § 35-38-1-17 (Supp. 2015).

NFP civil decisions today (4):

In the Matter of: A.C. (Child Alleged to be in Need of Services) and K.R. (Mother); K.R. (Mother) v. The Indiana Department of Child Services (mem. dec.)

In the Matter of the Termination of the Parent-Child Relationship of M.S. and K.S. (Children) and D.S. (Mother); D.S. (Mother) v. The Indiana Department of Child Services (mem. dec.)

Castlewood Property Owners Association, Inc. v. Leticia Guerra-Danko (mem. dec.)

In the Matter of the Adoption of S.W.F., a Minor Child, S.D.F. v. M.C.T. (mem. dec.)

NFP criminal decisions today (4):

Darnell L. Parks v. State of Indiana (mem. dec.)

James Eubanks v. State of Indiana (mem. dec.)

Tony R. Brockway v. State of Indiana (mem. dec.)

Jesse Jones v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on August 5, 2016 11:24 AM
Posted to Ind. App.Ct. Decisions