PCR hearing in Indiana

2017Strickland, 466 U.S. at 690-91 . [12] Because success on the prejudice prong of an ineffective assistance claim requires a showing of a reasonable probability of a different result, establishing failure to investigate as a ground for ineffectiveness “requires going beyond the trial record to show what investigation, if undertaken, would have produced.” McKnight, 1 N.E.3d at 201 (citing Woods v. State, 701 N.E.2d 1208, 1214 (Ind. 1998), cert. denied (1999)). [13] Here, Bonds neither called Counsel as a witness to testify at the PCR hearing nor introduced any evidence from Counsel by affidavit o

2017Strickland, 466 U.S. at 690-91 . [12] Because success on the prejudice prong of an ineffective assistance claim requires a showing of a reasonable probability of a different result, establishing failure to investigate as a ground for ineffectiveness “requires going beyond the trial record to show what investigation, if undertaken, would have produced.” McKnight, 1 N.E.3d at 201 (citing Woods v. State, 701 N.E.2d 1208, 1214 (Ind. 1998), cert. denied (1999)). [13] Here, Bonds neither called Counsel as a witness to testify at the PCR hearing nor introduced any evidence from Counsel by affidavit o

1995The court approvingly cited Court of Appeals cases: "The court of appeals recently stated in Alston v. State (1988), Ind.App., 521 N.E.2d 18231 , 1835, that they would not 'take a step backward and create a new vehicle by which a defendant could use a PCR to attack a previous PCR on the grounds of incompetency of counsel in that PCR hearing, and then use yet a third PCR to attack the competency of counsel of the second PCR and so on in perpetuity' In Lane v. State (1988), Ind., 521 N.E.2d 947 , this Court noted that ineffective assistance of trial counsel would have been an issue available in

1989“Lane’s allegation of ineffective assistance is clearly an attempt to circumvent Rule PC 1, section 8, in order to present evidence on issues that had been waived.” We stated further, “Lane cannot evade PC Rule 1, section 8, just by typing the words ‘ineffective assistance of counsel.’ ” Id. 521 N.E.2d at 949.

1990Ind.App., 521 N.E.2d 1881 , with approval for the following proposition: "'The court of appeals recently stated in Alston v. State (1988), Ind.App., 521 N.E.2d 1331, 1335 , that they would not 'take a step backward and create a new vehicle by which a defendant could use a PCR to attack a previous PCR on the grounds of incompetency of counsel in that PCR hearing, and then use yet a third PCR to attack the competency of counsel in the second PCR and so on in perpetuity.'" Schiro, supra, at 1205.

1990Ind. App., 521 N.E.2d 1331 , with approval for the following proposition: "The court of appeals recently stated in Alston v. State (1988), Ind. App., 521 N.E.2d 1331, 1335 , that they would not `take a step backward and create a new vehicle by which a defendant could use a PCR to attack a previous PCR on the grounds of incompetency of counsel in that PCR hearing, and then use yet a third PCR to attack the competency of counsel in the second PCR and so on in perpetuity.'" Schiro, supra, at 1205.

2017See Mitchell v. State, 946 N.E.2d 640, 644-45 (Ind. Ct. App. 2011) (petitioner who 2 In Mitchell v. State, we emphasized the importance of the petitioner offering his original trial record into evidence during the PCR hearing, and concluded that where the petitioner fails to offer it into evidence, the 2010 amendment to Indiana Evidence Rule 201(b)(5) allows the postconviction court, on petitioner’s motion or sua sponte, to judicially notice the transcript of evidence from the petitioner’s underlying criminal proceedings to evaluate ineffective assistance claims. 946 N.E.2d 640, 644-45 (Ind. C

2017See Mitchell v. State, 946 N.E.2d 640, 644-45 (Ind. Ct. App. 2011) (petitioner who 2 In Mitchell v. State, we emphasized the importance of the petitioner offering his original trial record into evidence during the PCR hearing, and concluded that where the petitioner fails to offer it into evidence, the 2010 amendment to Indiana Evidence Rule 201(b)(5) allows the postconviction court, on petitioner’s motion or sua sponte, to judicially notice the transcript of evidence from the petitioner’s underlying criminal proceedings to evaluate ineffective assistance claims. 946 N.E.2d 640, 644-45 (Ind. C

2011It is true that there is longstanding precedent holding that the record of proceedings from the original trial must be admitted into evidence at a PCR hearing, just like any other exhibit, and a PCR court may not take judicial notice of that record. 2 Douglas v. State, 800 N.E.2d 599 , 605 n. 4 (Ind.Ct.App.2003), trans. denied.

2011It is true that there is longstanding precedent holding that the record of proceedings from the original trial must be admitted into evidence at a PCR hearing, just like any other exhibit, and a PCR court may not take judicial notice of that record. 2 Douglas v. State, 800 N.E.2d 599 , 605 n. 4 (Ind.Ct.App.2003), trans. denied.

2026Although in bench trials, “courts have considerable discretion to question witnesses sua sponte ‘to aid in the fact-finding process,’” J.K., 30 N.E.3d at 698 (quoting Taylor v. State, 530 N.E.2d 1185, 1187 (Ind. 1988)), a judge is not permitted to “act[] as an advocate for either party,” id. at 699. [15] Schaffer specifically argues that the “cumulative effect” of the PCR court’s comments and questions demonstrates “partiality that undermines the fairness of the PCR hearing.” PCR Appellant’s Br. at 31.

2026See S.E., 929 N.E.2d at 1291 (concluding that the “cumulative result” of the trial court’s comments and demeanor toward the defense “demonstrate[d] a lack of impartiality” necessitating a new criminal trial).

2026See S.E., 929 N.E.2d at 1291 (concluding that the “cumulative result” of the trial court’s comments and demeanor toward the defense “demonstrate[d] a lack of impartiality” necessitating a new criminal trial).

2023Id. at 1007 (brackets in original).

2020Id. (citing Hill v. State, 960 N.E.2d 141, 148 (Ind. 2012), and Howard v. State, 653 N.E.2d 1389, 1390 (Ind. 1995)).

2020Hawkins v. State, 884 N.E.2d 939, 947 (Ind. Ct. App. 2008). [46] At the evidentiary PCR hearing, Attorney Bauder testified that: (1) she cautioned Lowder and his family that the State was monitoring and recording Lowder’s jailhouse calls; (2) the State played portions of the recorded calls for the jury; (3) Attorney Bauder and the State “[reached] an agreement about [ ] what [portion] of the jailhouse calls would be redacted and not”; (4) “[t]here were things that were not favorable for both sides on the calls” and the parties agreed on redactions; and (5) Attorney Bauder did not seek, pursuan

2020Id. (citing Hill v. State, 960 N.E.2d 141, 148 (Ind. 2012), and Howard v. State, 653 N.E.2d 1389, 1390 (Ind. 1995)).

2020See Lee, 694 N.E.2d at 722 .

2020See Lee, 694 N.E.2d at 722 .

2020That makes this case different than, for instance, Marshall v. State, 832 N.E.2d 615, 622 (Ind. Ct. App. 2005), trans. denied, wherein we held three convictions for Class A felony child molesting committed with the same knife did not constitute double jeopardy because the defendant had the knife during each act, or Sallee, 777 N.E.2d at 1213 , wherein we held Class A felony enhancements for both rape and criminal deviate conduct did not constitute double jeopardy because when the defendant repeatedly told the victim while forcing her to perform or submit to various sexual acts that she would b

2020That makes this case different than, for instance, Marshall v. State, 832 N.E.2d 615, 622 (Ind. Ct. App. 2005), trans. denied, wherein we held three convictions for Class A felony child molesting committed with the same knife did not constitute double jeopardy because the defendant had the knife during each act, or Sallee, 777 N.E.2d at 1213 , wherein we held Class A felony enhancements for both rape and criminal deviate conduct did not constitute double jeopardy because when the defendant repeatedly told the victim while forcing her to perform or submit to various sexual acts that she would b

2019For the defense of abandonment to apply, there are several “temporal prerequisites” that must be met; moreover, the abandonment must be both “voluntary and complete, and the defendant must successfully and voluntarily prevent commission of the underlying crime.” Jones v. State, 87 N.E.3d 450, 457 (Ind. 2017).

2019For the defense of abandonment to apply, there are several “temporal prerequisites” that must be met; moreover, the abandonment must be both “voluntary and complete, and the defendant must successfully and voluntarily prevent commission of the underlying crime.” Jones v. State, 87 N.E.3d 450, 457 (Ind. 2017).

2019“The decision of whether or not to present a defense can be considered a matter of trial strategy and will not be lightly second guessed.” Whitener v. State, 696 N.E.2d 40, 43 (Ind. 1998). [14] At the PCR hearing, Strickland’s trial counsel indicated that he did not offer an abandonment defense because Strickland claimed to have abandoned the act, at least in part, because he felt he was unable to complete the act due to C.C.’s size.

2019“The decision of whether or not to present a defense can be considered a matter of trial strategy and will not be lightly second guessed.” Whitener v. State, 696 N.E.2d 40, 43 (Ind. 1998). [14] At the PCR hearing, Strickland’s trial counsel indicated that he did not offer an abandonment defense because Strickland claimed to have abandoned the act, at least in part, because he felt he was unable to complete the act due to C.C.’s size.

2019See Plank v. Community Hospitals of Indiana, Inc., 981 N.E.2d 49, 53 (Ind. 2013) (“Declining to review an issue not properly preserved for review is essentially a cardinal principal of sound judicial administration.”) (internal citations omitted).

2019See Plank v. Community Hospitals of Indiana, Inc., 981 N.E.2d 49, 53 (Ind. 2013) (“Declining to review an issue not properly preserved for review is essentially a cardinal principal of sound judicial administration.”) (internal citations omitted).

2018See Culvahouse v. State, 819 N.E.2d 857, 863 (Ind. Ct. App. 2004), trans. denied (finding that “[w]hen counsel is not called as a witness to testify in support of a petitioner’s arguments, the post-conviction court may infer that counsel would not have corroborated the petitioner’s allegations.”).

2018Based on this record, we cannot say that Pierce made a knowing and voluntary waiver of the right to counsel. [14] Generally, “[t]he right to the assistance of counsel is so essential that prejudice is presumed when there is actual or [constructive] denial of the assistance of counsel; however, ‘denial of this constitutional right is subject to harmless error analysis unless the deprivation, by its very nature, cannot be harmless.’” Black v. State, 79 N.E.3d 965, 971 (Ind. Ct. App. 2017) (citing Hernandez v. State, 761 N.E.2d 845, 849 (Ind. 2002)), trans. denied.

2018Based on this record, we cannot say that Pierce made a knowing and voluntary waiver of the right to counsel. [14] Generally, “[t]he right to the assistance of counsel is so essential that prejudice is presumed when there is actual or [constructive] denial of the assistance of counsel; however, ‘denial of this constitutional right is subject to harmless error analysis unless the deprivation, by its very nature, cannot be harmless.’” Black v. State, 79 N.E.3d 965, 971 (Ind. Ct. App. 2017) (citing Hernandez v. State, 761 N.E.2d 845, 849 (Ind. 2002)), trans. denied.

2018See Ben-Yisrayl, 738 N.E.2d at 258-59 . [20] The PC court’s finding that Zuniga understood and waived his Boykin rights is not clearly erroneous.

2018See Ben-Yisrayl, 738 N.E.2d at 258-59 . [20] The PC court’s finding that Zuniga understood and waived his Boykin rights is not clearly erroneous.