Jason Dean Hubbell v. State of Indiana , 2016 Ind. App. LEXIS 283 ( 2016 )


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  •                                                                    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.
    Court of Appeals of Indiana | Opinion 03A01-1511-PC-1927 | August 5, 2016                Page 1 of 20
    [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.
    Court of Appeals of Indiana | Opinion 03A01-1511-PC-1927 | August 5, 2016   Page 2 of 20
    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.
    Court of Appeals of Indiana | Opinion 03A01-1511-PC-1927 | August 5, 2016   Page 3 of 20
    [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).
    Court of Appeals of Indiana | Opinion 03A01-1511-PC-1927 | August 5, 2016   Page 4 of 20
    [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
    Court of Appeals of Indiana | Opinion 03A01-1511-PC-1927 | August 5, 2016   Page 5 of 20
    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,
    Court of Appeals of Indiana | Opinion 03A01-1511-PC-1927 | August 5, 2016    Page 6 of 20
    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
    Court of Appeals of Indiana | Opinion 03A01-1511-PC-1927 | August 5, 2016   Page 7 of 20
    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
    Court of Appeals of Indiana | Opinion 03A01-1511-PC-1927 | August 5, 2016   Page 8 of 20
    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?
    Court of Appeals of Indiana | Opinion 03A01-1511-PC-1927 | August 5, 2016    Page 9 of 20
    
    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
    Court of Appeals of Indiana | Opinion 03A01-1511-PC-1927 | August 5, 2016   Page 10 of 20
    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
    Court of Appeals of Indiana | Opinion 03A01-1511-PC-1927 | August 5, 2016   Page 11 of 20
    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
    Court of Appeals of Indiana | Opinion 03A01-1511-PC-1927 | August 5, 2016   Page 12 of 20
    
    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,”
    Court of Appeals of Indiana | Opinion 03A01-1511-PC-1927 | August 5, 2016   Page 13 of 20
    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
    Court of Appeals of Indiana | Opinion 03A01-1511-PC-1927 | August 5, 2016   Page 17 of 20
    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.
    Court of Appeals of Indiana | Opinion 03A01-1511-PC-1927 | August 5, 2016                      Page 18 of 20
    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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