The opinion
FILED
Aug 05 2016, 6:08 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
Jason Dean Hubbell Gregory F. Zoeller
Pendleton, Indiana Attorney General of Indiana
James B. Martin
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jason Dean Hubbell, August 5, 2016
Appellant-Petitioner, Court of Appeals Case No.
03A01-1511-PC-1927
v. Appeal from the Bartholomew
Circuit Court
State of Indiana, The Honorable Stephen R.
Appellee-Respondent. Heimann, Judge
Trial Court Cause No.
03C01-1504-PC-1915
Brown, Judge.
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[1] 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.
Facts and Procedural History
[2] The relevant facts as discussed in Hubbell’s direct appeal follow:
Sharon Myers left for work at the Arvin plant early on the
morning of May 13, 1997. She never arrived. Another employee
of Arvin, Sherry Young, saw a man and a woman leaving the
Arvin plant as she arrived at work that same morning. The
woman looked similar to Myers. The man had one hand on the
woman’s neck or back, and the two entered a white van and
drove away.
The police came to the plant later that morning to look for
Myers. Young had “mentally” made note of the license plate
number and gave the police the number and a description of the
van. The police traced the license plate number to a white van
owned by Hubbell. Hubbell worked at the Arvin plant with
Myers and had called in sick on May 13. Young then identified
a picture of the van as the one she had seen that morning, and
later that day identified Hubbell when police presented him to
her.
In November 1997, skeletal remains were found in a marsh area
in Johnson County and identified as Myers’ through dental
records. An autopsy showed a fracture in the hyoid bone which,
together with the size of a ligature found around Myers’ neck,
indicated that the cause of death was manual strangulation.
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Acrylic fibers found near the body were consistent with fibers
found in Hubbell’s van. Grass fragments found in the search of
the van were consistent with grass samples from the marsh. The
FBI obtained fingerprints from the van and also shot several rolls
of film of fingerprints that might or might not be different from
the fingerprints taken. No prints from Myers were identified, and
the authorities lost the rolls of film.
On August 31, 1998, Hubbell was indicted by a grand jury on the
charges of murder and criminal confinement. On September 28,
Hubbell filed a notice of alibi, which he amended on October 15.
The State did not respond. At trial, the State introduced parts of
Hubbell’s statements made following a polygraph examination.
The State also introduced testimony from a jail inmate that
Hubbell admitted the killing to him. Hubbell was convicted of
both charges after a four-week jury trial in October and
November of 1999. The trial court sentenced him to sixty-five
years for murder and ten years for confinement, to be served
consecutively.
Hubbell v. State, 754 N.E.2d 884, 887-888 (Ind. 2001) (footnote omitted). On
direct appeal, Hubbell raised ten issues, and the Indiana Supreme Court
affirmed the judgment of the trial court. Id. at 887.
[3] On May 24, 2002, Hubbell filed a pro se petition for post-conviction relief under
cause number 03C01-1504-PC-1915 (“Cause No. 1915”). On May 28, 2002,
the court forwarded a copy of the petition to the State Public Defender. The
public defender filed an appearance on behalf of Hubbell and later filed a
motion to withdraw appearance. In February 2004, Daniel M. Grove filed an
appearance on behalf of Hubbell.
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[4] Meanwhile, an entry dated September 22, 2003, under the direct appeal cause
number indicates that the transcript was released to the public defender’s office
per request, and an entry dated March 9, 2004, indicates that the transcript was
returned. An entry dated March 22, 2006, indicates that Hubbell filed a petition
to withdraw the record of proceedings. In an entry dated March 30, 2006, the
Indiana Supreme Court issued an order that stated:
The Court finds it is not presently in need of the Record,
accordingly, the Court grants the petition and directs the Clerk of
the Supreme Court, Court of Appeals and Tax Court (“Clerk”) to
release the Record to attorney Daniel M. Grove. Unless and
until admitted as an exhibit in post-conviction proceedings, the
Record is to remain under the attorney’s control at all times.
Even if admitted as an exhibit in post-conviction proceedings, the
Record shall be maintained intact. The attorney shall return the
Record to the Clerk . . . within six months from the date of this
order or sixty (60) days from the entry of the final post-conviction
judgment, whichever occurs first. If the Record is not returned
within six months from the date of this order, the attorney shall
petition the Court for additional time to return the Record,
explaining why additional time is needed. In the event the
Record is admitted as an exhibit in post-conviction proceedings
and an appeal is taken from the post-conviction judgment, the
Record shall be returned to the Clerk . . . . The Court grants
leave for the Clerk to then transfer the Record to the Court of
Appeals for use as a separately filed exhibit in that appeal. Once
the decision in the post-conviction appeal has been certified as
final, the Record shall return to the custodial care of the Clerk for
handling consistent with usual practice.
Chronological Case Summary, Case No. 03S00-9912-CR-00714, Hubbell v.
State, entry dated 03/30/2006 (capitalization removed).
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[5] In May 2013, Hubbell sent a pro se motion to the Indiana Supreme Court
requesting a copy of the Record of Proceedings from his direct appeal. Id.,
entry dated 05/22/2013. In response, the Supreme Court issued the following
letter:
This letter is sent pursuant to the Supreme Court’s “Standing
Order Governing the Release of Appellate Records for Copying”
issued March 8, 2001. See, Cause No. 94S00-0103-MS-152.
This letter pertains to the cause and moving party noted above, in
accordance with the procedures prescribed in the standing order,
please file-mark this letter, make an entry on the chronological
case summary, and forward file-marked copies of this letter to the
Indiana Public Defender, the Indiana Attorney General, to the
moving party, and to any counsel of record. As further provided
in the Standing Order, you are authorized to release the
Appellate Record of Proceedings or Record on Appeal
(“Record”) to representatives of the Indiana Public Defender
who shall be responsible for returning it to you intact within 18
weeks of the date of this letter. Within that time period, the
Public Defender’s Office will make arrangements to provide a
copy of the record to the moving party. However as the Standing
Order further provides, if the Office of the Public Defender has
agreed to serve as Appellant’s Counsel and Appellant wishes that
representation to continue, then the Appellant is not entitled to a
copy of the Record, notwithstanding any language in this letter to
the contrary.
Id., entry dated 06/03/2013 (capitalization removed).
[6] The “Standing Order” to which the Court referred provides:
This Order shall govern the procedures by which copies of
Records of Proceedings or Records on Appeal shall be provided
to indigent and individuals who have taken direct appeals of their
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criminal convictions to the Indiana Supreme Court, either
through the exercise of direct appellate jurisdiction or by the
court having granted transfer. Effective immediately and until
further order, whenever the Court receives a motion requesting a
copy of the Record of Proceedings or Record on Appeal at public
expense that is appropriately within the Court’s jurisdiction, the
Office of Supreme Court Administration may, without further
order of this Court, issue a letter directing the Clerk to release the
Record to the Public Defender for photocopying and
transmission to the appellant. The letter will be transmitted to
the Clerk of the Court, who shall file-mark it, make an entry on
the appropriate docket noting that a letter has been issued
pursuant to this standing order, and then transmit file-marked
copies of the letter to the Indiana Public Defender, the Indiana
Attorney General, any counsel of record, and the moving party.
If the Record of Proceedings or Record on Appeal is released to
the Public Defender, the Record is at all times to be under the
supervision of the Public Defender and is to be returned intact to
the Records Department of the Clerk . . . no later than 18 weeks
from the date of the letter. Within that time period, the Public
Defender is to provide a copy of the Record to the individual at
the address indicated in the letter.
Standing Order issued 03/08/2001, Cause No. 94S00-0103-MS-152
(capitalization removed).
[7] Meanwhile, in May 2013, Hubbell filed a pro se motion to dismiss his post-
conviction counsel under Cause No. 1915. In July 2013, the court granted the
motion to dismiss counsel and withdrew Grove’s appearance.
[8] On November 11, 2013, Steven Teverbaugh, who had not yet filed an
appearance on behalf of Hubbell, filed for voir dire transcripts of Hubbell’s case.
On February 19, 2014, Teverbaugh received these transcripts. On April 14,
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2014, Teverbaugh filed an appearance on behalf of Hubbell, and on September
23, 2014, he filed a motion to withdraw, which the court granted.
[9] On December 15, 2014, Hubbell, pro se, filed a Motion for Post-Conviction
Court to Take Judicial Notice of Own Records. On December 17, 2014, the
court entered an order which stated that the court was unclear what Hubbell
sought and would rule on the motion at the post-conviction hearing. On
December 30, 2014, Hubbell filed a Motion to Clarify to Take Judicial Notice
of Own Records and moved the court to “take judicial notice of all records in
relation to the jury trial, to make the trial record AND voir dire record an
exhibit in the post-conviction proceedings, and for all other just and proper
relief.” Appellant’s Appendix at 146.
[10] On January 7, 2015, the court entered an order indicating that it would follow
the precedent of Graham v. State, 941 N.E.2d 1091, 1097 (Ind. Ct. App. 2011),
aff’d on reh’g, 947 N.E.2d 962, and that the court would not take blanket judicial
notice of any and all records of the court as requested by Hubbell nor would the
court secure records on his behalf. On April 28, 2015, Hubbell filed an
amended petition for post-conviction relief and asserted that he was deprived of
the effective assistance of counsel.
[11] On June 26, 2015, the court held an evidentiary hearing. During the testimony
of Hubbell’s trial counsel who also served as his appellate counsel, Hubbell
stated that he would be referring to the trial transcripts and voir dire transcripts
and that he “would probably . . . is going to need to probably ask for a
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continuance until the Court is able to obtain such documents . . . .” Post-
Conviction Transcript at 17. He also stated that the copies that he had were not
certified and that “it would not be able to be admitted into evidence or
exhibits.” Id. After Hubbell indicated that he was not requesting the court to
enter a ruling at that time, Hubbell’s trial counsel testified that he gave Hubbell
the volumes of his transcripts years ago.
[12] After some further direct examination of trial counsel, Hubbell stated that he
was in a predicament because “we do not have trial transcripts for me to be able
to help my witness refer to . . . .” Id. at 22. He also stated that he “may have to
ask for a continuance until such time the Court can obtain these documents.”
Id. The court informed Hubbell that he had the affirmative duty to deliver the
record to the post-conviction court. Hubbell stated that the trial transcript was
6,500 pages, that it was uncertified, and that “for my part and being DOC, there
is no way for me to be able to transport that. They just would not allow me to
do such.” Id. at 27. He also stated that “they’ve been probably marked and
written on with pen or highlighter or whatever to . . . for my own personal use
just because the Court has their own records . . . .” Id. After further discussion,
Hubbell withdrew his request to continue.
[13] Hubbell questioned his direct appeal counsel about why he had not raised a
double jeopardy argument on appeal. To refresh counsel’s recollection,
Hubbell handed counsel a document and asked counsel to state the page
number on the bottom. Before counsel could answer, the prosecutor
interrupted to ask if the document was certified. Counsel answered that it did
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not appear to be a certified document, and the prosecutor objected to referring
to it. The court asked Hubbell if he had a response, and Hubbell said:
My response is part of the trial . . . trial record that I asked and
requested to . . . be here, that would have been certified, it is part
of the closing arguments of Kathleen Burns, of which she has
stated and I am not in possession nor have I ever been in
possession of a trial record that was certified. So even if I wanted
to bring it here, I couldn’t, because I’m not in possession of one.
Id. at 73. The prosecutor then responded:
Your Honor, the State reiterates its . . . its objection. I believe the
Court tried to afford Mr. Hubbell every opportunity to obtain a
certified transcript and I believe this Court attempted to suggest
to him that it might be against his best interests to attempt to
proceed without it.
Id. The court sustained the prosecutor’s objection.
[14] Hubbell then attempted to ask his direct appeal counsel a hypothetical question
about double jeopardy:
This is a hypothetical. You were raising the double jeopardy
claim within the appeal and you were aware of a statement in
closing arguments that you could cite page, volume number, line
to line, and let’s just say hypothetically, if that statement was to
state with . . . without her consent or did remove Sharon Myers
by fraud, enticement, force, threat of force from the place . . .
from one place to another, which resulted in serious bodily injury
to Sharon Myers, specifically her death, wouldn’t that in your
judgment qualify as a double jeopardy, if you was [sic] to be able
to use a quote of that nature within the appeal?
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Id. at 75-76. Again, the prosecutor objected:
Objection, Your Honor. Number one, the question calls for
speculation. Secondly, even if this is a hypothetical question to
an expert witness, those facts are not in evidence. He cannot
render an opinion based upon a hypothetical when the evidence
is not in the record. The evidence is not in the record because
Mr. Hubbell has failed to produce it.
Id. at 76. The court again sustained the prosecutor’s objection.
[15] On October 15, 2015, the court denied Hubbell’s petition for post-conviction
relief. In its order, the court stated it had not taken judicial notice of the
transcripts of the hearings and trial because it did not have those documents.
Discussion
[16] Before discussing Hubbell’s allegations of error, we note the general standard
under which we review a post-conviction court’s denial of a petition for post-
conviction relief. 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); Ind. Post-Conviction Rule 1(5).
When appealing from the denial of post-conviction relief, the petitioner stands
in the position of one appealing from a negative judgment. Fisher, 810 N.E.2d
at 679. On review, we will not reverse the judgment unless the evidence as a
whole unerringly and unmistakably leads to a conclusion opposite that reached
by the post-conviction court. Id. “A post-conviction court’s findings and
judgment will be reversed only upon a showing of clear error – that which
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leaves us with a definite and firm conviction that a mistake has been made.” Id.
In this review, we accept findings of fact unless clearly erroneous, but we
accord no deference to conclusions of law. Id. The post-conviction court is the
sole judge of the weight of the evidence and the credibility of witnesses. Id.
[17] Hubbell argues that the court abused its discretion and denied him a fair
hearing when it declined to take judicial notice of the record and voir dire
transcripts. Hubbell argues that Ind. Evidence Rule 201(c)(2) required the court
to take judicial notice of the particular documents. Hubbell contends that the
court “abused its discretion against Indian[a] Evidence Rule 201(c)(2) when it
denied [him] the ability to refer to, use, and admit into evidence, uncertified
photo copied documents of the Record of Proceedings/Trial Transcripts and
Voir Dire transcripts and make them part of the record of the PCR
proceedings.” Appellant’s Brief at 15.
[18] The State argues that the post-conviction court was not required to take judicial
notice of the record. The State also asserts that any material relied upon by a
trial court in deciding a case should be made part of the record for purposes of
appeal, that Hubbell was not misled about his obligation to produce the record,
and that it remained Hubbell’s burden to secure the trial record to admit it as an
exhibit.
[19] Ind. Evidence Rule 201(a) governs the kinds of facts that may be judicially
noticed and provides that “[t]he court may judicially notice . . . the existence of
. . . records of a court of this state.” Ind. Rule 201(b) governs the kinds of laws
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that may be judicially noticed and provides that “[a] court may judicially notice
a law, which includes . . . records of a court of this state . . . .” Ind. Evidence
Rule 201(c) provides that “[t]he court . . . (1) may take judicial notice on its
own; or (2) must take judicial notice if a party requests it and the court is
supplied with the necessary information.”
[20] In Graham v. State, 941 N.E.2d 1091, 1097 (Ind. Ct. App. 2011), aff’d on reh’g,
947 N.E.2d 962, we held that there was longstanding precedent that the record
of proceedings from the original trial must be admitted into evidence at a post-
conviction hearing, just like any other exhibit, and a post-conviction court may
not take judicial notice of that record. We then noted:
It remains to be seen whether this will still be the rule following
an amendment to Indiana Evidence Rule 201, effective January
1, 2010, which permits a court to take judicial notice of “records
of a court of this state.” Ind. Evidence Rule 201(b)(5); see also In
the Matter of the Paternity of P.R., 940 N.E.2d 346 (Ind. Ct. App.
2010). We need not decide whether this amendment would
apply here, given that Graham’s PCR hearing was held before its
effective date. We would emphasize that, regardless of the rules
regarding judicial notice, any material relied upon by a trial court
in deciding a case should be made part of the record for appeal
purposes.
941 N.E.2d at 1097 n.2.
[21] On rehearing, the State argued that the statements effectively placed the burden
on the post-conviction court to track down and retrieve evidence mentioned by
a litigant, but not actually supplied to the court, and then to enter it into the
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record. 947 N.E.2d at 964. We emphatically disagreed and stated that its
holding did not require a post-conviction court “to go searching for records in
support of either party’s position or to become an advocate or investigator for
either party.” Id. We also emphasized that “if a PCR court purports to take
judicial notice of other court records and relies upon those records in ruling
upon a PCR petition, but those records are not made part of the PCR record, it
places a substantial burden upon this court on appeal to either track down those
records and have them transmitted to this court, or to attempt to decide the case
without benefit of those records.” Id. at 965.
[22] Recently, the Indiana Supreme Court discussed Rule 201. In Horton v. State, 51
N.E.3d 1154, 1160 (Ind. 2016), the Court held that the failure to confirm
Horton’s personal waiver before proceeding to a bench trial was fundamental
error and was dispositive of the appeal, but exercised its discretion to address
another issue “for guidance purposes only – whether an unsigned sentencing
order and a judicially noticed case file not included in the record are sufficient
to support the D-felony domestic battery conviction.” The Court titled the
second issue as: “It May Be Enough Under Indiana Evidence Rule 201(b)(5) to
Unambiguously Identify the Publicly Available Court Records Being Noticed,
but the Best Practice Is to Enter the Particular Documents into the Record.” 51
N.E.3d at 1160.
[23] The Court stated:
Effective January 1, 2010, amended Rule 201(b)(5) now permits
courts to take judicial notice of “records of a court of this state,”
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precisely as the trial court did here. But that Rule is silent on
whether a court must enter that document into the record.
On one hand, it is vital for the parties to know the exact
evidentiary basis on which the judgment turned—and for
appellate courts to know likewise to facilitate review. On the
other hand, the ultimate purpose of judicial notice is efficient
consideration of uncontroversial facts, see Baran v. State, 639
N.E.2d 642, 647 (Ind. 1994)—efficiency that would be
undermined to the point of uselessness for judicial records if
simply “tak[ing] judicial notice of the court’s own records . . . [in]
the 0201-CM-195 case” obligated the court to physically
incorporate that entire file into the record in the present case.
Judicial notice “encompasses facts ascertainable from sources
that cannot reasonably be questioned, and presumably court
records are such sources,” in the absence of evidence tending to
rebut that presumption. Brown v. Jones, 804 N.E.2d 1197, 1202
(Ind. Ct. App. 2004) (addressing judicial notice of the court’s file
in the same proceeding, before enactment of Evidence Rule
201(b)(5), for similar notice of other court records), trans. denied.
But as the Court of Appeals has emphasized, failing to
incorporate noticed court records into the record on appeal
hinders appellate review. In Graham v. State, 947 N.E.2d 962
(Ind. Ct. App. 2011), a post-conviction court took judicial notice
of the record in the underlying criminal trial but did not make it
part of the post-conviction record on appeal. The Court of
Appeals noted,
[I]f a PCR court purports to take judicial notice of
other court records and relies upon those records in
ruling upon a PCR petition, but those records are not
made part of the PCR record, it places a substantial
burden upon this court on appeal to either track
down those records and have them transmitted to this
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court, or to attempt to decide the case without benefit
of those records.
Graham, 947 N.E.2d at 965. For those same reasons, the absence
of the noticed records has impeded our review.
In spite of that impediment, though, we find no error here. Even
when copies of court records to be noticed are not available,
“sufficient or accurate information that would allow the Court to
readily locate the documents in its records” may be adequate.
Love v. The Mail on Sunday, 489 F.Supp.2d 1100, 1105 n.3 (C.D.
Cal. 2007) (denying request for judicial notice of court records
under Federal Rule of Evidence 201 because proponent “did not
submit copies of these documents” or provide sufficient
information for the court to readily locate them). . . .
Id. at 1160-1161. The Court observed:
Indiana Appellate Rule 27 provides that the Record on Appeal
includes “all proceedings before the trial court . . ., whether or
not . . . transmitted to the Court on Appeal.” Accordingly, even
though the usual practice under Appellate Rule 12(A) is for trial
court clerks to “retain the Clerk’s Record throughout the appeal,”
the judicially noticed case file in CM-195 is part of the record in
this case. We therefore procured copies of several documents
from the CM195 file from the trial-court clerk—much as the
parties could have done under Appellate Rule 32 to resolve
disagreements as to the accuracy (including the completeness) of
the Clerk’s Record. . . .
We emphasize that we were under no duty to request these
additional materials—as Graham noted, we also would have been
well within our discretion “to attempt to decide the case without
benefit of those records.” 947 N.E.2d at 965. Indeed, we would
not have made the request if we had not already determined that
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the evidence was sufficient as discussed above—since “it is not
our responsibility to develop arguments for either party.” In re
Riddle, 946 N.E.2d 61, 70 (Ind. Ct. App. 2011). Rather, we made
that request only to illustrate the availability of procedures best
employed by the affected parties when a court takes judicial notice
without following Graham’s best-practices guidance—and before
a unified statewide [electronic case management system] largely
moots these concerns.
Id. at 1162. The Court ultimately concluded that “[s]ince the prior case file was
readily and publicly available, and its cause number was repeatedly and
unambiguously identified in the record to enable investigation and objection if
warranted, the failure to formally enter the relevant documents from CM-195
into this record was not an abuse of discretion.” Id. at 1163. The Court also
echoed Graham’s “explanation of why it is by far the preferable practice to enter
into the record the particular documents of which the court is taking notice.”
Id.
[24] For all these reasons, we decline to hold the court abused its discretion when it
refused to take judicial notice of documents that were not before the court.
That, however, is not the end of our analysis because Hubbell also asserts the
court’s refusal to obtain the certified copy of his direct appeal record denied him
a fair hearing.
[25] Although the process due to a petitioner in a post-conviction proceeding does
not rise to the level of process due to a citizen prior to being convicted, fairness
and justice require that the opportunity to obtain post-conviction relief be more
than illusory. Hubbell’s inability to produce a certified copy of his Record of
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Proceedings from his direct appeal occurred through no fault of his own, and it
precluded him from presenting the evidence he needed to assert his claims.
[26] The post-conviction court’s order acknowledges Hubbell asked the court to
“order the clerk of this court to obtain the trial records on Hubbell’s behalf from
the Indiana Supreme Court for use at the PCR hearing.” Order Denying
Amended Verified Petition for Post-Conviction Relief at 7-8. Evidence Rule
201 and the case law do not require the post-conviction court to obtain the
Record requested by Hubbell. However, neither do they prohibit a post-
conviction court from obtaining them.
[27] We believe issuing an order requesting the Appellate Courts Clerk to transmit
the certified Record of Proceedings from a defendant’s direct appeal does not
require Hubbell’s post-conviction court to “go searching for records” or to
become his “advocate or investigator” as was discouraged by Graham. Graham,
947 N.E.2d at 964. It is a simple request for the post-conviction court to
subpoena a designated document. See Ind. Trial Rule 45(B) (“A subpoena may
also command the person to whom it is directed to produce the books, papers,
documents, or tangible things designated therein . . . .”).
[28] 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
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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, 887-888 (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).
[29] We see no reason we ought not reach the same result when a petitioner raises
issues—such as ineffective assistance of counsel and double jeopardy 1—that
cannot be addressed on their merits without access to the Record of
Proceedings. Declining to obtain the direct appeal transcript in such
circumstances is reversible error. See id.
[30] 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
1
Simultaneous convictions of murder and criminal confinement can violate the prohibition against double
jeopardy. See Lowrimore v. State, 728 N.E.2d 860, 868 (Ind. 2000) (vacating conviction for confinement where
jury was presented “the same evidentiary facts—the suffocation and choking of Lawyer—to prove both the
murder charge and the criminal confinement charge”), reh’g denied; Newgent v. State, 897 N.E.2d 520, 529
(Ind. Ct. App. 2008) (vacating confinement conviction to eliminate double jeopardy with murder conviction).
Because Hubbell had no way to obtain the certified copy of his Record of Proceedings for his post-conviction
hearing, he could not present evidence that would permit us to review whether his appellate counsel’s failure
to raise double jeopardy on appeal constituted ineffective assistance.
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licensed lawyer, he is proceeding pro se, and he is indigent. Nor does there
appear to be a published procedure that allows him to do so.
[31] 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.”
[32] 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.
[33] 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.
[34] 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
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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.
[35] 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.
Conclusion
[36] 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.
[37] Reversed and remanded.
Baker, J., and May, J., concur.
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