James E. Hinkle v. State of Indiana , 97 N.E.3d 654 ( 2018 )

FILED
Mar 26 2018, 9:54 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Richard J. Thonert Curtis T. Hill, Jr.
Fort Wayne, Indiana Attorney General of Indiana
ATTORNEYS FOR AMICUS CURIAE Tyler G. Banks
PUBLIC DEFENDER OF INDIANA Deputy Attorney General
Indianapolis, Indiana
Stephen T. Owens
Public Defender of Indiana
J. Michael Sauer
Deputy Public Defender
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
James E. Hinkle, March 26, 2018
Appellant-Defendant, Court of Appeals Case No.
20A03-1703-PC-690
v. Appeal from the Elkhart Superior
Court
State of Indiana, The Honorable Teresa L. Cataldo,
Appellee-Plaintiff. Judge
Trial Court Cause No.
20D03-0812-FB-61
20D03-1312-PC-81
Najam, Judge.
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Statement of the Case
[1] Employing the Davis-Hatton procedure,1 James E. Hinkle appeals his
convictions for child molesting, as a Class A felony, and sexual misconduct
with a minor, as a Class D felony; his adjudication for being a repeat sexual
offender; and the post-conviction court’s denial of his petition for post-
conviction relief. Hinkle raises the following four issues2 for our review:
1. Whether the trial court abused its discretion when it
excluded evidence of the victim’s prior drug use.
2. Whether the post-conviction court abused its discretion
when it prohibited Hinkle from obtaining, in the course of
discovery on his post-conviction claim of ineffective assistance of
trial counsel, all documents, records, and videos that his trial
counsel had access to in preparing for Hinkle’s trial.
3. Whether Hinkle’s trial counsel rendered ineffective
assistance.
4. Whether the post-conviction court’s judgment is consistent
with the requirement that such judgments be supported by
findings of fact and conclusions of law.
1
The Davis-Hatton procedure results in the termination or suspension of an already initiated direct appeal to
allow the appellant to pursue a petition for post-conviction relief. See, e.g., White v. State, 25 N.E.3d 107, 121
(Ind. Ct. App. 2014), trans. denied. Where, as here, the petition for post-conviction relief is denied, the direct
appeal may be reinstated. Id. This procedure permits an appellant to simultaneously raise his direct-appeal
issues as well as issues on appeal from the denial of his petition for post-conviction relief. Id. “In other
words, the direct appeal and the appeal of the denial of post-conviction relief are consolidated.” Id.
2
The Public Defender of Indiana has filed a brief of amicus curiae in support of Hinkle on the second issue.
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[2] We affirm.
Facts and Procedural History
[3] In the summer of 2004, S.B., who lived in Michigan with his mother, visited
family in Elkhart County, Indiana. At the time, S.B. was thirteen years old.
While S.B. was in Elkhart County for a few weeks, his mother returned to
Michigan.
[4] Hinkle is part of S.B.’s extended family in Elkhart County, and S.B. spent some
of the nights he was in Elkhart County at Hinkle’s residence. On at least one
occasion while S.B. was with Hinkle at Hinkle’s residence, Hinkle isolated S.B.
and performed oral sex on S.B. Hinkle then had S.B. manually stimulate him.
[5] In the summer of 2005, when S.B. was fourteen years old, he again spent some
time over the summer at Hinkle’s residence. On at least one occasion during
that time, Hinkle again isolated S.B. and performed oral sex on him. And
Hinkle again had S.B. manually stimulate him.
[6] Over the next few years, S.B. began using illegal drugs. In the summer of 2008,
when S.B. was seventeen years old, he used opiates and marijuana on a nearly
daily basis. He was also experimenting with other drugs, and he had tried
heroin a handful of times. His mother became concerned about changes in
S.B.’s behavior, and when he again stayed with his family in Elkhart County
that summer, his grandmother suspected drug use. S.B.’s family eventually
discovered that S.B. had been using drugs and confronted him. During their
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discussion, S.B. admitted to his drug use and also revealed that Hinkle had been
molesting him.
[7] S.B.’s family reported Hinkle’s molestations to local police. On August 13,
2008, S.B. participated in a video-recorded interview at the Child and Family
Advocacy Center (“CFAC”). That interview was conducted by a CFAC
employee and attended by Elkhart City Police Department Detective Carlton
Conway as well as a representative of the Indiana Department of Child
Services. A few days after that interview, Detective Conway conducted his
own interview with S.B., and he separately interviewed P.B. and S.M., S.B.’s
grandmother and uncle, respectively. Those interviews were also video-
recorded. Susan Snyder, the deputy prosecuting attorney, conducted a third,
unrecorded interview of S.B. in November.
[8] In December, the State charged Hinkle with two counts of incest, each as a
Class B felony; two counts of sexual misconduct with a minor, each as a Class
D felony; and for being a repeat sexual offender. Marielena Duerring entered
her appearance as Hinkle’s trial counsel. In January of 2009, Snyder wrote
Duerring a letter in which Snyder invited Duerring to view S.B.’s two video-
recorded interviews from August of 2008 along with police reports that
summarized the State’s investigation. Snyder further informed Duerring that
Snyder had “an open file policy meaning you may schedule a time to view my
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entire un-redacted file.” Ex. Vol. III at 121.3 However, to view the recordings
or documents held by Snyder, Duerring was required to execute a “Discovery
Compliance Agreement” in which Duerring “agreed that any privileged
information would not be disclosed by counsel to anyone,” which apparently
included Hinkle.4 Appellant’s App. Vol. IV at 58.
[9] After numerous continuances, the court held Hinkle’s jury trial in August of
2013. The morning of trial, the State moved to amend the charging information
such that the State charged Hinkle with child molesting, as a Class A felony;
sexual misconduct with a minor, as a Class D felony; and for being a repeat
sexual offender. Duerring, who had had discussions with the State about
amending the charging information for the preceding three months and had
prepared for the new Class A felony allegation, did not object in order to avoid
having Hinkle subjected to a new cause on the Class A felony.
3
Our pagination of the exhibits refers to the .pdf pagination.
4
The parties repeatedly refer to the Discovery Compliance Agreement executed by Duerring, but that
document is not in the record on appeal. In 2013, Hinkle’s post-conviction counsel executed an
“Acknowledgement of State’s Discovery Compliance,” which states, among other things:
the undersigned shall make no photocopies of the criminal offense report nor shall
photocopies of the criminal offense report be made by any other person for any other
purpose without the express written consent of the deputy prosecuting attorney, nor shall
counsel for defendant permit the criminal offense report or the contents therein[] to be
disclosed to any oth[e]r persons other than the defendant or agents of defendant’s
counsel. Further, while the undersigned shall be permitted to discuss the contents of the
criminal offense report with the defendant, the undersigned shall not permit any
defendant or any other person acting for or on behalf of the defendant to copy verbatim
or substantially verbatim any parts of said criminal offense report . . . .
Appellant’s App. Vol. IV at 3-4. The Brief of Amicus Curiae assumes that the Discovery Compliance
Agreement executed by Duerring and the Acknowledgement of State’s Discovery Compliance executed at
least four years later by the post-conviction counsel are the same document. See Amicus Curiae Br. at 7.
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[10] During the ensuing trial, the State called S.B. as a witness, and he recounted
Hinkle’s molestations of him. On cross-examination, Duerring made an offer
of proof outside the presence of the jury. During that offer, Duerring examined
S.B. on his prior drug use on the theory that S.B. had made up Hinkle’s
molestations of him to avoid facing consequences from his family for his drug
use. However, the trial court excluded S.B.’s drug use on the grounds that the
court saw “no connection between this family meeting and the establishment of
a motive to falsely accuse [Hinkle] of molestation.” Tr. Vol. III at 187. The
jury found Hinkle guilty on the child molesting counts, and he then admitted to
being a repeat sexual offender. The trial court entered its judgment of
conviction and sentence accordingly.
[11] Thereafter, Hinkle filed a petition for post-conviction relief and alleged
ineffective assistance of trial counsel. Richard Thonert, Hinkle’s post-
conviction counsel (and Hinkle’s counsel in this appeal), requested that
Duerring provide to him “the discovery . . . as it relates to this case,” but
Duerring stated that “she [wa]s unable to provide . . . the discovery without
permission from” the Elkhart County Prosecutor’s office. Appellant’s App.
Vol. IV at 71. And when Thonert requested the prosecutor’s office grant that
permission to Duerring or otherwise “provide . . . a complete copy of the
discovery in this matter,” a representative of the prosecutor declined. Id. at 28.
[12] Accordingly, Thonert filed a motion to compel with the post-conviction court.
In that motion, Thonert specified that he sought “all information upon which
[the State] relied in bringing the charges against [Hinkle] in this cause, whether
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or not such information was used during the trial, including the identity of any
and all persons contacted, information received from such person whether in
writing, audio or video recording, or otherwise documented, which was either
disclosed or not disclosed to trial counsel as it relates to the investigation [or]
preparation of filing of charges in this cause against [Hinkle].” Id. at 25. On
November 18, 2014, the post-conviction court entered its order denying the
motion to compel. In that order, the court stated as follows:
20. In the instant case, Petitioner requests that the court
compel the State to produce any and all documents, reports,
affidavits, memorandum, police reports, audio/videos, or other
items otherwise designated as discovery material previously
produced or not produced to trial counsel in the underlying
criminal case. Petitioner also requests that the State be
compelled to answer interrogatories identifying any discovery
materials in its possession and control that were or were not
produced to trial counsel as the same relates to the basis upon
which the charges made against Petitioner were made.
21. Although the post conviction rules provide for discovery, a
post conviction proceeding is not a normal civil action. A post
conviction proceeding is a special quasi-civil remedy designed for
the presentation of errors unknown or unavailable at the time of
trial or direct appeal. Sewell v. State, 592 N.E.2d 705, 707 (Ind.
Ct. App. 1992). Because post conviction proceedings take place
after trial or a guilty plea hearing, the convicted individual
typically has discovered particular items of State evidence or
foregone the opportunity to do so. Discovery is not required
under the Due Process Clause of the Constitution; therefore, a
defendant may waive pre-trial discovery rights by failing to
exercise them. Id[.] A second opportunity to discover the same
evidence will typically be precluded. Id.
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22. The State has an affirmative duty to disclose evidence
favorable to a criminal defendant. Thus, . . . such evidence is
discoverable . . . .
23. The post conviction relief process is not, however, a device
for investigating possible claims, but a means for vindicating
actual claims and there is no post conviction right to fish through
official files for belated grounds of attack on the judgment or to
confirm mere speculation or hope that a basis for collateral relief
may exist. Brown v. State, 698 N.E.2d 1132, 1139 (Ind. 1998). To
the extent a petitioner does not contend that there is any specific
information in official files that support his or her claims to post
conviction relief, no rule of constitutional law or state procedure
mandates unfettered access to those files in hopes of uncovering
such information. [Id.] Any post conviction discovery order
should be appropriately narrow and limited. Only where a
petitioner presents the post conviction court with good cause to
order the [S]tate to supply the petitioner with discovery that is
relevant to the petitioner’s case and is not privileged does the
court have discretionary authority to grant relief. Roche v. State,
690 N.E.2d 1115, 1132 (Ind. 1997), aff’d in part, vacated in part on
other grounds, Roche v. Davis, 291 F.3d 473[ ](7th Cir[. 2]002).
24. Further, where a timely work product objection has been
made, a trial court’s authority to control discovery does not
extend to compelling production of verbatim copies of police
reports because such reports are the work product of the
prosecuting attorney, having been prepared for the prosecuting
attorney by the police officer as the prosecuting attorney’s agent.
Gault v. State, 878 N.E.2d 1260, 1266 (Ind. 2008) (citing State ex
rel. Keaton v. Circuit Court of Rush County, 475 N.E.2d 1146, 1148
(Ind. 1985)[)].
25. In the instant case, the record establishes that . . . the court
directed the State to produce for Petitioner all exculpatory
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evidence in its possession and control. Additionally, the record
reveals that the State disclosed discoverable materials to trial
counsel in accordance with discovery procedures, including the
execution of a Discovery Compliance Agreement whereby it was
agreed that any privileged information would not be disclosed by
counsel to anyone. . . . Moreover, a thorough review of
Petitioner’s MOTION reveals that Petitioner’s discovery request
is over broad in that Petitioner seeks “any and all” information in
order to determine whether trial counsel may have been
ineffective. This request is clearly a prohibited “fishing
expedition” to determine if a claim for post conviction relief may
exist rather than a request for specific information to support an
actual claim for post conviction relief. Unfettered access of this
kind is not authorized.
Id. at 56-59 (citations to the record omitted). Despite that order, on two
subsequent occasions Thonert attempted to issue subpoenas duces tecum to the
State for the same information he had attempted to obtain by way of his motion
to compel, but the post-conviction court prohibited those subpoenas.
[13] Following the post-conviction court’s denial of the motion to compel, Thonert
deposed Snyder and Duerring. In her deposition, Snyder testified that she had
informed Duerring of Snyder’s “open file” policy and that Snyder’s notes stated
that she had “notif[ied her] staff [Duerring] was coming . . . to . . . look” at the
evidence in the State’s possession and “to let her do it.” Appellant’s App. Vol.
V at 34-36. Similarly, when asked whether she had taken advantage of Snyder’s
open-file policy, Duerring testified, “I believe so,” and stated that, while she
had no independent recollection of having reviewed the State’s recordings and
records as they related to Hinkle, it was her “general policy . . . to go over [to
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the prosecutor’s office] and review anything” that was available. Id. at 67, 95.
Duerring specifically testified that she “believe[d she] viewed the videos, yes,”
when asked, and she then described both the CFAC video and the video of the
interview conducted by Detective Conway. Id. at 70.
[14] During her deposition, Duerring stated that “summaries” of the videos were “in
the discovery” that she had in her possession. Id. at 71. She then gave her file
and notes on Hinkle’s case, which included police reports Duerring had
obtained from Snyder, to Thonert. Id. at 55. Duerring described the documents
she gave to Thonert during her deposition as “the extent of the discovery that
was sent to me” by Snyder. Id. at 58. There was no discussion of the Discovery
Compliance Agreement when Duerring handed over her file to Thonert.
[15] In May and June of 2016, the post-conviction court held an evidentiary hearing
on Hinkle’s petition for post-conviction relief. Following that hearing, the court
entered findings of facts and conclusions of law and denied Hinkle’s petition.
This appeal ensued.
Discussion and Decision
Issue One: Whether the Trial Court
Abused its Discretion in the Admission of Evidence
[16] The first issue in this Davis-Hatton appeal is whether, on direct appeal, the trial
court abused its discretion when it prohibited Hinkle from having S.B.’s drug
use admitted into evidence. The trial court has “inherent discretionary power
on the admission of evidence, and its decisions are reviewed only for an abuse
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of that discretion.” McManus v. State, 814 N.E.2d 253, 264 (Ind. 2004) (internal
quotation marks omitted). An abuse of discretion occurs when the trial court’s
judgment “is clearly against the logic and effect of the facts and circumstances
and the error affects a party’s substantial rights.” Guilmette v. State, 14 N.E.3d
38, 40 (Ind. 2014).
[17] Hinkle asserts that S.B.’s drug use was relevant to Hinkle’s theory that S.B. had
fabricated the molestation allegations in order to avoid facing consequences
from his family for his drug use. In particular, Hinkle contends that he made
his offer of proof under Indiana Evidence Rule 616, which permits “[e]vidence
that a witness has a bias, prejudice, or interest for or against any party” when
that evidence is “used to attack the credibility of the witness.” In denying
Hinkle’s proffered evidence, the trial court concluded that Hinkle had not
demonstrated a connection between S.B.’s family discussion on his drug use
and a motive for S.B. to falsely accuse Hinkle of molestation.
[18] In his brief, Hinkle principally relies on this Court’s recent opinion in Hyser v.
State, 996 N.E.2d 443 (Ind. Ct. App. 2013). In Hyser, we stated:
Hyser attempted to present a defense that the allegations and
testimony against him were fabricated as a retaliatory act in
response to the report [Hyser] made to DCS that he believed J.M.
was being abused by Marner. Hyser wished to elicit testimony
from Collins, as presented in his offer to prove, which
demonstrated that the allegations against Hyser were first raised
a short time after Collins threatened to report Marner. Hyser
also wished to elicit testimony from Key that he witnessed
Marner strike J.M., and from Detective Osterday that the report
to DCS on December 27, 2011, was made by Hyser and that the
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report prompted J.M.’s allegations that Hyser had molested him.
In addition, Hyser wished to present evidence to the jury that
Marner was a registered sex offender in support of his defense
that the allegations against him were fabricated.
The testimony which Hyser wished to elicit from Collins, Key,
and Detective Osterday and the evidence that Marner was a
registered sex offender was relevant as the evidence had, at a
minimum, the tendency to show that the molestation allegations
against Hyser were untrue and were made, or caused to be made
by J.M. through the influence of Marner, in retaliation or in
response to Hyser’s action of making a child abuse report
regarding Marner. See Smith v. State, 982 N.E.2d 393, 402 (Ind.
Ct. App. 2013) (“In order to be relevant, the evidence at issue
need only have some tendency, however slight, to make the
existence of a material fact more or less probable, or tend to shed
any light upon the guilt or innocence of the accused.”) (citation
and internal quotation marks omitted), trans. denied. In addition,
we note that the testimony Hyser wished to elicit regarding his
report to DCS was not inadmissible hearsay because Hyser did
not wish to present it to prove the truth of the matter asserted, but
instead to demonstrate that he had made the report against
Marner a few days prior to the time he was first accused of the
molestations, and the report provided a motive for Marner to
retaliate against him by fabricating the molestation allegations
and influencing J.M. to testify against Hyser. See Dyson v. State,
692 N.E.2d 1374, 1376 (Ind. Ct. App. 1998) (holding that the
trial court erred in excluding certain testimony as hearsay
because the defendant introduced the testimony not to prove the
fact of the matter asserted but to demonstrate that the victim was
biased and prejudiced against him) (citing Shanholt v. State, 448
N.E.2d 308, 316 (Ind. Ct. App. 1983) (“A witness’s bias,
prejudice or ulterior motives are always relevant at trial in that
they may discredit her or affect the weight of her
testimony.”)). . . .
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Id. at 448-49 (emphasis added). According to Hinkle, the facts in Hyser are
comparable to those here because, by showing that S.B. had used drugs and
was being confronted by his family about his drug use at the time S.B. revealed
Hinkle’s molestations, Hinkle sought to demonstrate that S.B.’s ulterior motive
for accusing Hinkle of the molestations was S.B.’s desire to avoid facing
consequences from his family for his use of drugs.
[19] But we cannot say that the trial court abused its discretion on this issue. In
Hyser, the defendant established a foundation for his theory that the witnesses
against him may have acted in retaliation. Here, unlike in Hyser, there is no
question of retaliation and Hinkle did not present any basis, other than
speculation, to support his assumption that S.B. had invented the allegations of
molestation against Hinkle. Rather, as the State correctly observes, Hinkle’s
theory that S.B. falsely accused Hinkle to avoid facing consequences for his
own drug use “is factually misplaced. S.B. testified that he . . . did not know”
his family was considering consequences for his behavior, and, instead, he
thought “[i]t was just an open . . . discussion” with his family about his use of
drugs. Appellee’s Br. at 24 (citing Tr. Vol. III at 181). As such, we cannot say
that the trial court abused its discretion when it excluded evidence of S.B.’s
drug use.
Issue Two: Post-Conviction Discovery
[20] Hinkle next asserts that the post-conviction court abused its discretion when it
limited Hinkle’s ability to discover potential acts of ineffective assistance of trial
counsel. The Public Defender of Indiana joins Hinkle on this issue in its Brief
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of Amicus Curiae. Our trial and post-conviction courts are vested with “broad
discretion” in ruling on discovery issues, and we will reverse only upon a
showing of an abuse of that discretion. Mut. Sec. Life Ins. Co. v. Fid. & Deposit
Co., 659 N.E.2d 1096, 1103 (Ind. Ct. App. 1995), trans. denied. “Due to the fact-
sensitive nature of discovery matters, the ruling of the trial court is cloaked in a
strong presumption of correctness on appeal,” and “[d]iscovery, like all matters
of procedure, has ultimate and necessary boundaries.” Id.
[21] According to Hinkle, the post-conviction process entitles him to the same access
to the State’s records that the State had made available to his trial counsel prior
to trial. Hinkle asserts that merely alleging a Brady violation or ineffective
assistance of counsel in his petition for post-conviction relief is sufficient to
require this equality of access.
[22] The Indiana Supreme Court disagrees and has squarely rejected the same
argument that Hinkle and the amicus now present to this Court. As our
Supreme Court has explained:
Roche’s claim is similar to that recently considered by the New
Jersey Supreme Court in an analogous proceeding. State v.
Marshall, 148 N.J. 89, 690 A.2d 1 (1997), cert. denied, 522 U.S.
850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). . . . On appeal from
the denial of post-conviction relief, Marshall contended (as
Roche does here) that the post-conviction court’s decision not to
order the State to allow him to inspect the State’s entire file
“denied him his right to a full and fair PCR hearing.” Id., 690
A.2d at 91.
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The New Jersey high court . . . proceeded to enunciate the
following principles concerning discovery in post-conviction
proceedings:
We anticipate that only in the unusual case will a
PCR court invoke its inherent right to compel
discovery. In most cases, a post-conviction
petitioner will be fully informed of the documentary
source of the errors that he brings to the PCR
court’s attention. Moreover, we note that PCR “is
not a device for investigating possible claims, but a
means for vindicating actual claims.” People v.
Gonzalez, 51 Cal. 3d 1179, 275 Cal. Rptr. 729, 776,
800 P.2d 1159, 1206 (1990), cert. denied, 502 U.S.
835, 112 S. Ct. 117, 116 L. Ed. 2d 85 (1991). The
filing of a petition for PCR is not a license to obtain
unlimited information from the State, but a means
through which a defendant may demonstrate to a
reviewing court that he was convicted or sentenced
in violation of his rights.
Moreover, consistent with our prior discovery
jurisprudence, any PCR discovery order should be
appropriately narrow and limited. “[T]here is no
postconviction right to ‘fish’ through official files for
belated grounds of attack on the judgment, or to
confirm mere speculation or hope that a basis for
collateral relief may exist.” Gonzalez, supra, 275 Cal.
Rptr. at 775, 800 P.2d at 1205; see Deputy v. Taylor,
19 F.3d 1485, 1493 (3d Cir.), cert. denied, 512 U.S.
1230, 114 S. Ct. 2730, 129 L. Ed. 2d 853 (1994);
State v. Thomas, 236 Neb. 553, 462 N.W.2d 862,
867-68 (1990). However, where a defendant
presents the PCR court with good cause to order the
State to supply the defendant with discovery that is
relevant to the defendant’s case and not privileged,
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the court has discretionary authority to grant relief.
See Rules Governing Section 2254 Cases in the
United States District Courts, 28 U.S.C.A. § 2254
Rule 6(a); [State v.] Lewis, [ ] 656 So. 2d [1248,]
1250; [People ex rel. Daley v.] Fitzgerald, [123 Ill. 2d
175, 183] 121 Ill. Dec. [937,] 941, 526 N.E.2d [131,]
135 [(1988)] (noting that “good cause” standard
guards against potential abuse of PCR discovery
process).
Marshall, 690 A.2d at 91-92 (citations to New Jersey authority
omitted) [(alterations original to Roche)].
Roche contends that the post-conviction court abused its
discretion because his inability to have full access to the State’s
files “improperly” denied him the opportunity to litigate fully (i)
claims arising under Brady v. Maryland and (ii) claims regarding
ineffective assistance of counsel. Brady v. Maryland, 373 U.S. 83,
83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), and its progeny (notably
United States v. Bagley, 473 U.S. 667, 105 S. Ct. 3375, 87 L. Ed. 2d
481 (1985), and Kyles v. Whitley, 514 U.S. 419, 115 S. Ct. 1555,
131 L. Ed. 2d 490 (1995)), impose an affirmative duty on the
prosecution to disclose to a criminal defendant known favorable
evidence that rises to a material level of importance. Roche does
not claim a Brady violation. Rather, he argues that had he been
provided all of the prosecutor’s files from his trial and all of the
prosecutor’s files on each of his co-defendants and all of the
prosecutor’s files on each of the key witnesses in his and their
cases, he might have found a Brady violation that he could have
litigated in his post-conviction proceeding. But, as the New
Jersey court pointed out in Marshall, discussed supra, no rule of
constitutional law or state procedure mandates unfettered access
to the prosecution’s files in the hopes that a violation of the
prosecutor’s duty under Brady will be uncovered. See Kyles, 514
U.S. at 437, 115 S. Ct. at 1567 (“We have never held that the
Constitution demands an open file policy (however such a policy
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might work out in practice), and the rule in Bagley (and hence in
Brady) requires less of the prosecution than the ABA Standards
for Criminal Justice, which call generally for prosecutorial
disclosures of any evidence tending to exculpate or mitigate”).
Our analysis of Roche’s ineffective assistance of counsel
argument is essentially the same. He does not contend that there
is any specific information in the State’s files that supports his
claims of ineffective assistance of counsel, only that if he had
been able to examine the files he sought, he might have found
instances of ineffective assistance of counsel that he could have
litigated in his post-conviction proceeding. This appears to us to
be no more than an assertion of a post-conviction right to
investigate possible claims, not vindicate actual claims. See
Marshall, 690 A.2d at 91 (citing Gonzalez, 275 Cal. Rptr. at 776,
800 P.2d at 1206). The post-conviction court acted within its
discretion in denying the motion to compel this discovery.
Roche v. State, 690 N.E.2d 1115, 1132-33 (Ind. 1997).5
[23] Contrary to the argument of the amicus,6 we conclude that Hinkle’s argument
on appeal is identical to the argument considered and rejected by our Supreme
Court in Roche. That is, Hinkle “does not contend that there is any specific
information in the State’s files that supports his claims of ineffective assistance
of counsel,” or his claims under Brady. Id. at 1133. Rather, he claims “only
that if he had been able to examine the files he sought, he might have found
instances” of error “that he could have litigated in his post-conviction
5
We note that the State does not materially rely on Roche in its brief on appeal.
6
Hinkle does not cite Roche, let alone distinguish it, in his brief on appeal.
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proceeding.” Id. As such, Hinkle’s discovery requests in the post-conviction
process were improper fishing expeditions, not attempts to vindicate actual
claims. Id. at 1132 (quoting Marshall, 690 A.2d at 91-92).
[24] That said, we are not unsympathetic with the position of Hinkle and the amicus
on this issue. The dichotomy adopted by the Indiana Supreme Court in Roche
between “investigating possible claims” and “vindicating actual claims” does
not fully take into account the fact that post-conviction counsel needs to walk in
the shoes of trial counsel to determine whether trial counsel’s decisions created
actual claims that deserve vindicating. This often requires an investigation into
territory outside the trial record. As the Supreme Court of the United States has
put it, “[a] fair assessment of attorney performance requires that every effort be
made to . . . reconstruct the circumstances of counsel’s challenged conduct[]
and to evaluate the conduct from counsel’s perspective at the time.” Strickland
v. Washington, 466 U.S. 668, 689 (1984). Indeed, “[i]n any case presenting an
ineffectiveness claim, the performance inquiry must be whether counsel’s assistance
was reasonable considering all the circumstances.” Id. at 688 (emphases added).
After all, “the purpose of the effective assistance guarantee of the Sixth
Amendment . . . is simply to ensure that criminal defendants receive a fair
trial.” Id. To prohibit an investigation into possible claims, which after an
investigation turn out to be actual claims, does not meet those Sixth
Amendment standards.
[25] Nonetheless, we are in no position to reconsider the opinions of the Indiana
Supreme Court. Horn v. Hendrickson, 824 N.E.2d 690, 694 (Ind. Ct. App. 2005).
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Following Roche, as we must, we conclude that the post-conviction court did
not abuse its discretion when it denied Hinkle’s motion to compel.7
Issue Three: Hinkle’s Claims of Ineffective Assistance
[26] We thus turn to Hinkle’s numerous claims of ineffective assistance of trial
counsel. Our standard of review in such appeals is clear:
“The petitioner in a post-conviction proceeding bears the burden
of establishing grounds for relief by a preponderance of the
evidence.” Campbell v. State, 19 N.E.3d 271, 273-74 (Ind. 2014).
“When appealing the denial of post-conviction relief, the
petitioner stands in the position of one appealing from a negative
judgment.” Id. at 274. In order to prevail on an appeal from the
denial of post-conviction relief, a petitioner must show that the
evidence leads unerringly and unmistakably to a conclusion
opposite that reached by the post-conviction court. Weatherford v.
State, 619 N.E.2d 915, 917 (Ind. 1993). Further, the post-
conviction court in this case entered findings of fact and
conclusions of law in accordance with Indiana Post-Conviction
Rule 1(6). Although we do not defer to the post-conviction
court’s legal conclusions, “[a] post-conviction court’s findings
and judgment will be reversed only upon a showing of clear
error—that which leaves us with a definite and firm conviction
that a mistake has been made.” Ben-Yisrayl v. State, 729 N.E.2d
102, 106 (Ind. 2000) (internal quotation omitted).
Humphrey v. State, 73 N.E.3d 677, 681-82 (Ind. 2017). Further:
7
We note that Hinkle does not address in his brief on appeal the post-conviction court’s alternative bases for
denying his motion to compel, namely, that his discovery request was overbroad and that the work-product
privilege applied to at least some of the records Hinkle sought. Neither does Hinkle address whether
Duerring’s production of her file to Thonert during her post-conviction deposition, which included discovery
given to Duerring by Snyder, related to Hinkle’s discovery requests in his motion to compel.
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When evaluating an ineffective assistance of counsel claim, we
apply the two-part test articulated in Strickland v. Washington, 466
U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). See Helton v.
State, 907 N.E.2d 1020, 1023 (Ind. 2009). To satisfy the first
prong, “the defendant must show deficient performance:
representation that fell below an objective standard of
reasonableness, committing errors so serious that the defendant
did not have the ‘counsel’ guaranteed by the Sixth Amendment.”
McCary v. State, 761 N.E.2d 389, 392 (Ind. 2002) (citing
Strickland, 466 U.S. at 687-88, 104 S. Ct. 2052). To satisfy the
second prong, “the defendant must show prejudice: a reasonable
probability (i.e. a probability sufficient to undermine confidence
in the outcome) that, but for counsel’s errors, the result of the
proceeding would have been different.” Id. (citing Strickland, 466
U.S. at 694, 104 S. Ct. 2052).
Id. at 682.
[27] Here, Hinkle contends that Duerring rendered ineffective assistance for each of
the following reasons: (1) she did not object to the State’s day-of-trial
amendment to the charging information; (2) she did not call witnesses who
would have called S.B.’s credibility into doubt; (3) she did not object to S.B.’s
testimony at trial of uncharged acts of molestation Hinkle had allegedly
committed; (4) she did not present an objection under Criminal Rule 4 for a
denial of Hinkle’s speedy-trial rights; (5) she failed to properly investigate
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Hinkle’s case; and (6) she failed to request a jury instruction on unanimity. 8 We
address each argument in turn.
Amendment to the Charging Information
[28] First, Hinkle asserts that Duerring rendered ineffective assistance when she
failed to object to the State’s amendment of the charging information the day of
his trial. But we conclude that Hinkle cannot demonstrate that Duerring’s
performance on this issue fell below an objective standard of reasonableness.
See id. Duerring testified that she had known of the State’s anticipated
amendment for three months before it happened; that she had prepared a
defense for it; and that she had strategically declined to object to avoid having
the State simply charge the Class A felony allegation under a new cause
number. Duerring’s failure to object to the State’s amendment of the charging
information was not ineffective assistance of counsel.
Other Witnesses
[29] Second, Hinkle asserts that he had provided Duerring with a list of potential
witnesses who would have testified that Hinkle was never alone with S.B.,
contrary to S.B.’s allegations. However, Hinkle does not support his assertions
with cogent reasoning, and he does not direct this Court to parts of the record
on appeal that might support his assertion aside from a general citation to a
8
Hinkle’s assertion that the purported error in the jury instructions is fundamental error is not available to
him. See Lindsey v. State, 888 N.E.2d 319, 325 (Ind. Ct. App. 2008), trans. denied.
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thirty-four page block of one volume of the transcript. See Appellant’s Br. at 43.
As such, he has not carried his burden to show error on this issue. See Ind.
Appellate Rule 46(A)(8)(a). His failure notwithstanding, insofar as Hinkle’s
argument is that Duerring should have called his children as witnesses,
Duerring testified that she did not do so because one child was too young to
have a specific recollection of any relevant events and another child displayed
evidence of having been “coach[ed] . . . to say something contrary to what had
happened,” and Duerring felt that calling that child as a witness would not be
“prudent.” Tr. Vol. VI at 130-31. We cannot say that the post-conviction court
erred when it rejected Hinkle’s claim on this issue.
Uncharged Acts
[30] Third, Hinkle asserts that Duerring rendered ineffective assistance when she did
not object to S.B.’s testimony of uncharged acts of molestation. But while
Duerring did not object, the trial court did interrupt S.B.’s testimony and
admonished Snyder to “confine your evidence” to the acts charged and
informed her that she “may not put in evidence of multiple acts over a period of
time.” Tr. Vol. III at 143-44. As such, Hinkle’s real issue here is that Duerring
did not additionally seek an admonishment to the jury. But Duerring testified
that she did not seek such an admonishment because she did not want to draw
the jury’s attention to the uncharged acts. Tr. Vol. VI at 62. As such, we
cannot say that the post-conviction court erred when it rejected Hinkle’s claim
on this issue.
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Speedy Trial
[31] Fourth, Hinkle asserts that Duerring rendered ineffective assistance when she
did not seek Hinkle’s discharge under Indiana Criminal Rule 4(C), which
directs that no person shall be subject to a criminal prosecution more than one
year after the charges are filed unless such delay is attributable to the defendant
or court congestion. Here, the State filed its original charges against Hinkle on
December 31, 2008, and the court held his jury trial in August of 2013.
However, despite Hinkle’s bald assertions on appeal, each continuance between
those two occurrences was attributable either to Hinkle or to court congestion.
And Hinkle does not suggest on appeal that Duerring’s requests for or
acquiescence in those continuances were deficient performance.9 As such,
Hinkle has not demonstrated ineffective assistance of counsel under Criminal
Rule 4(C).10
Duerring’s Investigation
[32] Fifth, Hinkle asserts that Duerring rendered ineffective assistance of counsel
when she allegedly did not sufficiently investigate his case. Hinkle’s argument
on this issue seems to suggest that, because Duerring testified during the post-
9
Hinkle seems to suggest that the court’s April 8, 2013, finding of congestion was erroneous because the
case that prevailed over his was not ultimately tried on that date. But Hinkle does not demonstrate on appeal
that the trial court should have known at the time it vacated Hinkle’s trial date due to congestion that the
other case would be delayed.
10
Although the State diligently addresses whether Hinkle was denied his constitutional right to a speedy
trial, we conclude that Hinkle has not supported any such argument with cogent reasoning, and therefore we
do not consider it. See App. R. 46(A)(8)(a).
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conviction proceedings that she did not specifically recall various aspects of her
investigation, she must not have investigated. However, Duerring did not
testify that she did not investigate Hinkle’s case; she testified that she did do so,
but she simply could not specifically recall various aspects of having done so.
Hinkle has not carried his burden on this issue.
[33] The State interprets Hinkle’s argument to be that Duerring should have insisted
on going to trial in June of 2013, before the State learned that Hinkle was not
biologically related to S.B. and, as such, when Hinkle had a complete defense to
the incest allegations.11 But, as the State points out, Duerring testified that,
prior to June of 2013, she knew that the State had discovered the lack of a
biological relationship between Hinkle and S.B. and that the State had already
intended to amend the information accordingly. As such, Hinkle has not
demonstrated any error with respect to Duerring’s performance on this issue.
Jury Instruction
[34] Sixth, and last, Hinkle asserts that Duerring rendered ineffective assistance of
counsel when she did not object to the lack of a jury instruction on unanimity.
In support of this argument, Hinkle relies on Baker v. State, 948 N.E.2d 1169
(Ind. 2011). But while our Supreme Court in Baker discusses jury instructions
on unanimity, the Court also held that, even if there is an error in the giving of
11
Insofar as Hinkle asserts that Duerring rendered ineffective assistance by not seeking another continuance
in August of 2013 to do further investigation, we agree with the State that this claim is based on “mere
speculation.” Appellee’s Br. at 40.
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such an instruction, such errors are harmless where “the only issue was the
credibility of the alleged victims.” Id. at 1179. As our Supreme Court stated:
“Ultimately the jury resolved the basic credibility dispute against [the
defendant] and would have convicted [him] of any of the various offenses
shown by the evidence to have been committed.” Id. (quotation marks omitted;
emphasis in original). Here, assuming without deciding that a unanimity
instruction would have been included at Hinkle’s request, the lack of such an
instruction is harmless error because the only issue at trial was S.B.’s credibility.
Accordingly, Hinkle cannot show that, had Duerring requested such an
instruction, the result of his trial would have been different.
Issue Four: Post-Conviction Rule 1(6)
[35] Finally, Hinkle asserts that the post-conviction court failed to enter findings of
fact and conclusions of law as required by Indiana Post-Conviction Rule 1(6).
But we agree with the State that this lengthy portion of Hinkle’s brief on appeal
is simply a “repetition of his own claims,” which we have already rejected
above, and “does not show clear error; they simply explain that Hinkle is
displeased with the lower court’s ultimate conclusion.” Appellee’s Br. at 56.
[36] Moreover, we note that, under P-C Rule 1(6):
The [post-conviction] court is required to make findings of fact
which are sufficient to enable this Court to dispose of the issues
upon appeal. However, the post-conviction judge is not required
to recite the evidence but only the substantive facts which compel
the conclusions reached. These findings must communicate the
basis upon which the petition is granted or denied.
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Shackelford v. State, 486 N.E.2d 1014, 1018 (Ind. 1986). The post-conviction
court’s order denying Hinkle’s petition for relief meets that burden. As such,
Hinkle has not demonstrated any error on this issue.
Conclusion
[37] In sum, we affirm Hinkle’s convictions, and we affirm the post-conviction
court’s denial of his petition for post-conviction relief.
[38] Affirmed.
Baker, J., and Mathias, J., concur.
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