BROWN, Judge.
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.
The relevant facts as discussed in Hubbell's direct appeal follow:
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.
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.
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:
Chronological Case Summary, Case No. 03S00-9912-CR-00714, Hubbell v. State, entry dated 03/30/2006 (capitalization removed).
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:
Id., entry dated 06/03/2013 (capitalization removed).
The "Standing Order" to which the Court referred provides:
Standing Order issued 03/08/2001, Cause No. 94S00-0103-MS-152 (capitalization removed).
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.
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, 2014, Teverbaugh filed an appearance on behalf of Hubbell, and on September 23, 2014, he filed a motion to withdraw, which the court granted.
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.
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.
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 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.
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
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 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:
Id. at 73. The prosecutor then responded:
Id. The court sustained the prosecutor's objection.
Hubbell then attempted to ask his direct appeal counsel a hypothetical question about double jeopardy:
Id. at 75-76. Again, the prosecutor objected:
Id. at 76. The court again sustained the prosecutor's objection.
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.
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
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.
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.
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 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."
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:
941 N.E.2d at 1097 n. 2.
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 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.
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.
The Court stated:
Id. at 1160-1161. The Court observed:
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.
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
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 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.
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.
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....").
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).
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
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.
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.
Reversed and remanded.
BAKER, J., and MAY, J., concur.
