Abdullatip Osmanov v. State of Indiana , 2015 Ind. App. LEXIS 533 ( 2015 )

Jul 22 2015, 9:56 am
Jul 22 2015, 9:56 am
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Rodolfo S. Monterrosa, Jr. Gregory F. Zoeller
South Bend, Indiana Attorney General of Indiana
James B. Martin
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Abdullatip Osmanov, July 22, 2015
Appellant-Defendant, Court of Appeals Case No.
35A04-1412-PC-568
v. Appeal from the Huntington Superior
Court
State of Indiana, Lower Court Cause No.
35D01-1410-PC-14
Appellee-Plaintiff.
The Honorable Jeffrey R.
Heffelfinger, Judge
Pyle, Judge.
Statement of the Case
[1] Abdullatip Osmanov (“Osmanov”), a United States permanent resident who
pled guilty to a felony and a misdemeanor, filed a petition for post-conviction
relief, in which he claimed that his plea was entered unknowingly and that his
trial counsel was ineffective, with both claims dependent on his contention that
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he had not been advised of the risk of deportation. Before the State filed a
response to the petition, the post-conviction court—relying on a written
advisement and waiver of rights form and the transcript from Osmanov’s guilty
plea—summarily denied Osmanov’s post-conviction petition because the
advisement/waiver form contained an advisement that a felony conviction
could result in the possibility of deportation and because Osmanov stated
during the guilty plea hearing that he had read the advisement and discussed it
with his attorney. On appeal, Osmanov challenges both the propriety of the
post-conviction court’s entry of a summary denial and the denial of his two
post-conviction claims. We find Osmanov’s issue regarding the summary
disposition to be dispositive and conclude that the post-conviction court erred
by summarily denying Osmanov’s post-conviction petition. Accordingly, we
reverse the post-conviction court’s judgment and remand for further
proceedings.
[2] We reverse and remand.
Issue1
Whether the post-conviction court erred by summarily denying
Osmanov’s post-conviction petition.
1
Osmanov raises three issues on appeal. Because we find the first one dispositive, we will not address the
remaining two.
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Facts
[3] In April 2013, the State charged Osmanov, who was a United States permanent
resident, with Class D felony theft2 and Class B misdemeanor failure to stop
after an accident resulting in non-vehicle damage.3 In May 2013, Osmanov
pled guilty, pursuant to a written plea agreement, to the crimes as charged.
When doing so, he filed a “Written Advisement and Waiver of Rights” form
with the trial court. (App. 4). The trial court sentenced Osmanov to three (3)
years, with two (2) years and 357 days suspended to probation, for Osmanov’s
Class D felony conviction and to 180 days, with 172 days suspended to
probation, for his Class B misdemeanor conviction, and it ordered that these
sentences be served concurrently.
[4] On October 29, 2014, Osmanov, by counsel, filed a petition for post-conviction
relief.4 In his petition he raised the following claims: (1) his guilty plea was not
entered knowingly because he was “unaware of the immigration consequences
that a criminal conviction would have on his legal permanent resident status[;]”
and (2) he had received ineffective assistance of trial counsel in regard to his
2
IND. CODE § 35-43-4-2.
3
I.C. § 9-26-1-4. This statute was repealed effective January 1, 2015.
4
In between Osmanov’s sentencing and the filing of his post-conviction petition, he admitted that he had
violated the terms of his probation, and the trial court ordered him to serve an additional 180 days of his
original sentence and modified the terms of his probation to include drug testing.
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guilty plea, pursuant to Padilla v. Kentucky, 559 U.S. 356 (2010), because his
counsel had failed to advise him of the risk of deportation. (App. 9).
[5] Twelve days later and before the State had filed an answer, the post-conviction
court issued an order, summarily denying Osmanov’s petition for post-
conviction relief. In its order, the post-conviction court quoted Osmanov’s two
claims from his post-conviction petition and gave its reasons for denying relief
as follows:
The Court would note that at the time defendant entered his
written Motion to Enter a Plea of Guilty that the defendant also
filed with the Court a Written Advisement and Waiver of Rights,
which he and his attorney signed. The defendant represented to
the Court that he had read the advisement, that he had discussed
it with his attorney and that he understood it.
Paragraph 7 of his Written Advisement and Waiver of Rights
states: “If you are not a citizen of the United States of America,
a felony conviction may have severed [sic] adverse consequences
on your immigration status, including the possibility of
deportation.”
(App. 12). Thus, when ruling on Osmanov’s post-conviction petition, the post-
conviction court apparently took judicial notice of and relied upon documents
outside of the post-conviction proceeding—i.e., Osmanov’s Written
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Advisement and Waiver of Rights form and guilty plea transcript from his
criminal proceeding.5 Osmanov now appeals.
Decision
[6] Osmanov appeals from the post-conviction court’s order summarily denying
post-conviction relief on his claims of an unknowing guilty plea and ineffective
assistance of trial counsel.
[7] Our standard of review in post-conviction proceedings is well settled. “Post-
conviction procedures . . . create a narrow remedy for subsequent collateral
challenges to convictions, challenges which must be based on grounds
enumerated in the post-conviction rules.” Williams v. State, 706 N.E.2d 149,
153 (Ind. 1999), reh’g denied, cert. denied. “Petitioners bear the burden of
establishing their grounds for relief by a preponderance of the evidence.” Id.However, “[w]hen one appeals the negative judgment of a post-conviction
court, the standard is even more rigorous[,]” and such petitioners “must show
that the evidence as a whole, ‘leads unerringly and unmistakably to a
conclusion opposite to that reached by the trial court.’” Id. at 154 (quoting
Weatherford v. State, 619 N.E.2d 915, 917 (Ind. 1993), reh’g denied).
5
Our review of the record on appeal reveals that the post-conviction court did not include the written
advisement/waiver form in the post-conviction record; nor did Osmanov include it in his Appellant’s
Appendix. The guilty plea transcript is also not part of the appellate record.
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[8] Osmanov argues that the post-conviction court erred by: (1) summarily
denying his petition for post-conviction relief without holding a hearing; and (2)
denying post-conviction relief on his two post-conviction claims. We find that
Osmanov’s first issue is dispositive and will only address that issue.
[9] In regard to Osmanov’s summary disposition argument, he contends that the
post-conviction court erred by summarily denying his post-conviction relief
without holding an evidentiary hearing. Osmanov asserts that the post-
conviction court’s summary denial was erroneous because his claims raised
issues of fact that were inappropriate for such a summary disposition.
Additionally, Osmanov argues that the post-conviction court erred because it
“referred to his guilty plea hearing in making its decision” but did not enter the
guilty plea court records into evidence. (Osmanov’s Br. 6). More specifically,
he contends that the post-conviction court erred by taking judicial notice of the
guilty plea records from his original criminal proceeding and cites to Armstead v.
State, 596 N.E.2d 291 (Ind. Ct. App. 1992), to support his contention.
[10] The State does not address the propriety of the post-conviction court’s
introduction of or reliance upon evidence from Osmanov’s guilty plea
proceeding; nor does it directly respond to Osmanov’s contention that the post-
conviction court erred by taking judicial notice of these underlying records.
Instead, the State asserts that the post-conviction court properly entered a
summary denial on Osmanov’s post-conviction claims under Post-Conviction
Rule 1(4)(g) and properly denied his claims because Osmanov’s “conduct at his
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guilty plea hearing and the Written Advisement and Waiver of Rights he
endorsed” “refuted” his post-conviction claims.6 (State’s Br. 10).
[11] Turning to Osmanov’s general contention that the post-conviction court erred
by summarily denying his petition without a hearing, we have previously
explained that Post-Conviction Rule 1(4) provides two different subsections
under which a post-conviction court may deny a petition without a hearing—
subsection (f) and subsection (g)—and that each one has a different applicable
standard of review. See Binkley v. State, 993 N.E.2d 645, 649-50 (Ind. Ct. App.
2013) (citing Allen v. State, 791 N.E.2d 748, 752-53 (Ind. Ct. App. 2003), trans.
denied). Subsection (f) provides that a post-conviction court “may deny the
6
The State also contends that Osmanov waived review of this issue, arguing that he did so because he: (1)
failed to make “any effort . . . to subpoena any witnesses, to present his evidence through affidavit, or to have
an evidentiary hearing[;]” (2) failed to provide an adequate record on appeal because his appendix does not
include the Written Advisement and Waiver of Rights form referenced by the post-conviction court; and (3)
failed to provide cogent argument regarding the post-conviction court’s disposition of his case without an
evidentiary hearing. (State’s Br. 6).
We disagree with the State’s assertions of waiver. First, Osmanov did not waive appellate review of his
challenge to the post-conviction court’s summary disposition of his case by failing to subpoena witnesses,
present affidavits, or request a hearing. The post-conviction court summarily denied Osmanov’s post-
conviction petition a mere twelve days after he filed it. Indeed, the rapid denial of his petition—which is
exactly what he is challenging on appeal—did not leave time for Osmanov to do any of the acts that the State
now faults him for not doing.
Second, Osmanov also did not waive review of this issue due to his failure to include the Written Advisement
and Waiver of Rights form in his Appellant’s Appendix. Appellate Rule 49(B) provides that a party’s “failure
to include any item in an Appendix shall not waive any issue or argument.” Furthermore, it does not appear,
from our review of the record on appeal, that the post-conviction court included this form in the record.
Moreover, as explained later in the opinion, the post-conviction court’s reliance on this form and the guilty
plea transcript was not proper where, as here, the court’s summarily denial of Osmanov’s was based on Post-
Conviction Rule 1(4)(f).
Third and lastly, we disagree with the State’s contention that Osmanov has waived his summary disposition
argument based on a failure to provide a cogent argument. Osmanov clearly argues that the post-conviction
court erred by summarily denying his post-conviction petition and provides citation to case law to support his
argument.
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petition without further proceedings” if “the pleadings conclusively show that
[the] petitioner is entitled to no relief[.]” Ind. Post-Conviction Rule 1(4)(f)
(emphasis added). Subsection (g) provides that a post-conviction court:
may grant a motion by either party for summary disposition of
the petition when it appears from the pleadings, depositions,
answers to interrogatories, admissions, stipulations of fact, and
any affidavits submitted, that there is no genuine issue of
material fact and the moving party is entitled to judgment as a
matter of law.
P-C.R. 1(4)(g).
[12] Here, the record on appeal reveals that neither party filed a motion for
summary disposition or submitted affidavits or other evidence. Indeed, the
parties did not even have time to do so as the post-conviction court denied
Osmanov’s petition less than two weeks after he filed it and before the State had
a chance to file an answer within the thirty-day response period. See P-C.R.
1(4)(a). Because neither party filed a motion for summary disposition or
submitted any sort of evidence, the post-conviction court’s summary denial
would not have been based on Indiana Post-Conviction Rule 1(4)(g). See
Binkley, 993 N.E.2d at 650 (clarifying that subsection (g) is “triggered” only
when the parties have submitted affidavits, referred to evidence, or filed a
motion for summary disposition) (emphasis added); Allen, 791 N.E.2d at 753(explaining that “[u]nder the plain language” of subsection (g), a post-
conviction court “may grant summary disposition after ‘a motion by either
party’ and after considering the pleadings and other evidence submitted” by the
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parties) (quoting P-C.R. 1(4)(g)). Instead, the post-conviction court’s summary
disposition would have been based on subsection (f).
[13] “When a court disposes of a petition under subsection f, we essentially review
the lower court’s decision as we would a motion for judgment on the
pleadings.” Allen, 791 N.E.2d at 752. “The [post-conviction] court errs in
disposing of a petition in this manner unless ‘the pleadings conclusively show
that petitioner is entitled to no relief.’” Id. at 752-53 (quoting P-C.R. 1(4)(f))
(emphasis added). If a post-conviction petition contains claims that allege only
“errors of law,” then the post-conviction court may determine, without a
hearing, whether the petitioner is entitled to relief on those claims. Id. at 753.
See also Clayton v. State, 673 N.E.2d 783, 785 (Ind. Ct. App. 1996). “However, if
the facts pled raise an issue of possible merit, then the petition should not be
disposed of under section 4(f).” Id. “‘This is true even though the petitioner
has only a remote chance of establishing his claim.” Id. (quoting Clayton, 673
N.E.2d at 785). The post-conviction court “should accept the well-pled facts as
true and determine whether the post-conviction petition raises an issue of
possible merit.” Id. at 756.
[14] Osmanov alleged in his post-conviction petition that his guilty plea was
unknowingly entered because he was “unaware of the immigration
consequences that a criminal conviction would have on his legal permanent
resident status” and that he had received ineffective assistance of trial counsel in
regard to his guilty plea, pursuant to Padilla v. Kentucky, 559 U.S. 356 (2010),
because his counsel failed to advise him of the risk of deportation. (App. 9).
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Both of Osmanov’s claims are based on questions of fact, not law, in regard to
his awareness of the risk of deportation. Indeed, we have repeatedly held that
the “issue of the effectiveness of counsel is an evidentiary question” and that the
resolution of such an issue “revolves around the particular facts of each case.”
Kelly v. State, 952 N.E.2d 297, 300 (Ind. Ct. App. 2011). See also Binkley, 993
N.E.2d at 650 (explaining that the issue of ineffective assistance of counsel is
“fact sensitive”); Allen, 791 N.E.2d at 756; Evolga v. State, 722 N.E.2d 370, 372
(Ind. Ct. App. 2000); Clayton, 673 N.E.2d at 786. “Consequently, when a
petitioner alleges ineffective assistance of counsel, and the facts pled raise an
issue of possible merit, the petition should not be summarily denied.” Kelly, 952
N.E.2d at 300 (emphasis added). Additionally, we have found that the issue of
voluntariness of a guilty plea involve issues of fact not appropriate for summary
disposition. See Hamner v. State, 739 N.E.2d 157, 161 (Ind. Ct. App. 2000).
[15] Again, Osmanov’s post-conviction petition alleged that his trial counsel was
ineffective and that his plea was unknowingly entered because he was not
aware or advised of the risk of deportation. The post-conviction court
summarily denied the petition before the State had the opportunity to respond.
In its order, the post-conviction court referred to and relied upon documents
outside of the post-conviction proceeding—i.e., Osmanov’s Written
Advisement and Waiver of Rights form and guilty plea transcript from his
criminal proceeding—when denying post-conviction relief. This apparent
judicial notice by the post-conviction court suggests that it applied an
inappropriate standard when reviewing Osmanov’s claims. See Allen, 791
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N.E.2d at 755-756 (holding that the post-conviction court’s language that the
petitioner’s ineffective assistance of counsel claim was without merit because
“the evidence of record” and the petitioner’s contentions “suggested no good
faith reasons for the Court to conclude otherwise” suggested that the post-
conviction court applied an inappropriate standard when reviewing the
petitioner’s claim). “At this stage of the [post-conviction] proceedings, we have
only the pleadings[.]” Id. at 756. As a result, the post-conviction court’s
consideration of the advisement/waiver form and the transcript from
Osmanov’s guilty plea hearing, when it was summarily disposing of his petition
under Post-Conviction Rule 1(4)(f), was not appropriate in this specific
instance.7 See id. “Rather, the [post-conviction] court should [have] accept[ed]
the well-pled facts as true and determine[d] whether the petition raise[d] an
issue of possible merit.” Id.
[16] Osmanov’s petition—when reviewed without considering documents outside
the pleadings—pled facts that raised issues of possible merit. Thus, the post-
conviction court erred by summarily denying relief on his post-conviction
7
We clarify that the impropriety of the post-conviction court’s act of taking judicial notice is specifically
limited to the precise facts involved in this case. Indeed, we reject Osmanov’s suggestion that the post-
conviction court cannot, in any circumstance, take judicial notice in a post-conviction proceeding, as well as,
his reliance on Armstead to support his suggestion. We note that Armstead was issued before the effective date
of Indiana Evidence Rule 201, which provides that courts, including a post-conviction court, may take
judicial notice of “records of a court of this state” and of facts that “can be accurately and readily determined
from sources whose accuracy cannot reasonably be questioned.” See Evid. R. 201(b)(5), 201(a)(1)(B),
respectively. Additionally, Indiana Post-Conviction Rule 1(4)(d) provides that when a post-conviction
“petition is challenging a sentence imposed following a plea of guilty, the court shall make a part of the
record the certified transcript made pursuant to [Criminal Rule] 10.” However, because the post-conviction
proceeding before us was at the summary disposition stage under Post-Conviction Rule 1(4)(f), consideration
of judicially-noticed records or documents was not appropriate at this specific stage.
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petition under Post–Conviction Rule 1(4)(f). Accordingly, we must reverse the
post-conviction court’s summary denial and remand for further proceedings on
his ineffective assistance of counsel and unknowing guilty plea claims. See, e.g.,
Binkley, 993 N.E.2d at 651 (reversing the post-conviction court’s summary
denial under Post–Conviction Rule 1(4)(f) where the petitioner’s claim of
ineffective assistance of counsel raised an issue of possible merit); Kelly, 952
N.E.2d at 300-01 (holding that the post-conviction court’s summary denial of a
post-conviction petition was erroneous and remanding for a hearing on the
petitioner’s ineffective assistance of counsel claim); Allen, 791 N.E.2d at 756(reversing the post-conviction court’s summary denial under Post–Conviction
Rule 1(4)(f) where the post-conviction court inappropriately considered matters
outside the pleadings); Hamner, 739 N.E.2d at 161 (remanding for an
evidentiary hearing where fact issues were involved in the petitioner’s claims of
voluntariness of a guilty plea and effectiveness of counsel); Armstead v. State, 596
N.E.2d 291, 293-94 (Ind. Ct. App. 1992) (reversing a post-conviction court’s
summary denial of a petitioner’s claims of unknowing guilty plea and
ineffective assistance of counsel and remanding for a hearing).
[17] Reversed and remanded.
Crone, J., and Brown, J., concur.
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