Daniel P. Brewington v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), Jul 10 2018, 7:48 am
this Memorandum Decision shall not be CLERK
regarded as precedent or cited before any Indiana Supreme Court
Court of Appeals
court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
Daniel P. Brewington Curtis T. Hill, Jr.
Dublin, Ohio Attorney General
Stephen R. Creason
Chief Counsel
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Daniel P. Brewington, July 10, 2018
Appellant-Petitioner, Court of Appeals Case No.
15A04-1712-PC-2889
v. Appeal from the Dearborn
Superior Court
State of Indiana, The Honorable W. Gregory Coy,
Appellee-Respondent Special Judge
Trial Court Cause No.
15D02-1702-PC-3
Crone, Judge.
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Case Summary
[1] A jury convicted Daniel Brewington of class D felony intimidation, class D
felony attempted obstruction of justice, class D felony perjury, and two class A
misdemeanor counts of intimidation, all stemming from his threats against the
trial judge, the judge’s wife, and a psychologist involved in his marital
dissolution. His convictions were ultimately affirmed on direct appeal. He
filed a pro se petition for post-conviction relief (“PCR”) and now appeals, pro
se, the post-conviction court’s summary denial of that petition. He raises
several issues, including judicial bias, prosecutorial and judicial misconduct,
ineffective assistance of trial and appellate counsel, and error in denying his
PCR petition without a hearing. Because we find that the post-conviction court
erred in summarily denying his PCR petition, we need not address the
remaining issues. As such, we reverse and remand for a hearing on his PCR
petition.
Fact and Procedural History
[2] The underlying facts are as follows:1 Around 2007, when Brewington was
involved in a contentious child-custody battle, he began a protracted campaign
against the trial judge and the psychologist appointed as custody evaluator in
his case. Having received an unfavorable report from the psychologist
concerning his mental health and potential for successful parenting, he
1
For a more in-depth recitation of the underlying facts, as summarized by our supreme court on transfer of
his direct appeal, see Brewington v. State, 7 N.E.3d 946, 955-58 (Ind. 2014), cert. denied (2015).
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repeatedly barraged the psychologist and judge with faxes and pro se motions,
posted accusatory materials about both of them online, and threatened them
with lawsuits and professional discipline. The trial judge eventually recused
himself, and a special judge was appointed. At his final divorce hearing,
Brewington engaged in volatile, angry outbursts that required the services of an
additional law enforcement officer. He also attempted to intimidate his wife’s
counsel. Meanwhile, he continued to post information online referencing his
divorce with terms such as gas and fire and himself as a pyromaniac. His
rhetoric escalated after the divorce, and he posted the trial judge’s home address
online and made remarks so intimidating that the judge’s wife had to have a
police escort to go to work. He also posted personal information and
photographs of the psychologist and suggested that he might be a pervert.
Brewington’s actions prompted both the judge and the psychologist to take
protective measures for themselves and their families.
[3] A grand jury indicted Brewington on six counts: class D felony intimidation (of
the trial judge), class D felony attempted obstruction of justice, class D felony
perjury before the grand jury, two counts of class A misdemeanor intimidation
(of the judge’s wife and the psychologist); and class B misdemeanor unlawful
disclosure of grand jury proceedings. A jury acquitted him on the class B
misdemeanor disclosure count and convicted him on the remaining counts.
Brewington appealed, raising several issues including sufficiency of the
evidence, ineffective assistance of trial counsel, and a double jeopardy
challenge. Another panel of this Court affirmed his three felony convictions
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and reversed his two misdemeanor convictions. Our supreme court accepted
transfer and affirmed Brewington’s convictions on all five counts.
[4] Brewington filed a pro se petition for post-conviction relief, raising twenty
claims, including unlawful alteration of the grand jury transcripts and audio by
the trial court, judicial and prosecutorial misconduct associated with the grand
jury proceedings and his jury trial, violation of his free speech rights, ineffective
assistance of counsel, and judicial bias by the trial and post-conviction courts.
He filed a motion for change of judge, and a special judge was appointed. He
filed a motion for summary judgment and a supporting memorandum. The
State filed a response and an opposing memorandum, claiming that summary
judgment is not available in PCR actions but that summary disposition was
available pursuant to Indiana Post-Conviction Rule 1(4)(g). Brewington filed
his reply and moved to strike certain portions of the State’s materials. The post-
conviction court dispensed with a hearing and issued an order summarily
denying Brewington’s motion to strike, motion for summary judgment, and
PCR petition. Brewington filed a motion to correct error, which the court also
denied. Brewington now appeals, claiming that the post-conviction court
demonstrated bias against him and erred in summarily denied his PCR petition.
Discussion and Decision
[5] Brewington contends that the post-conviction court erred in summarily denying
his PCR petition. Post-conviction relief does not offer the petitioner a super
appeal; rather, subsequent collateral challenges must be based on grounds
enumerated in the post-conviction rules. McKnight v. State, 1 N.E.3d 193, 199
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(Ind. Ct. App. 2013), trans. denied (2014). These rules limit the scope of relief to
issues unknown or unavailable to the petitioner on direct appeal. Id. The
petitioner in a post-conviction proceeding “bears the burden of establishing
grounds for relief by a preponderance of the evidence.” Ind. Post-Conviction
Rule 1(5); Passwater v. State, 989 N.E.2d 766, 770 (Ind. 2013). When issuing its
decision to grant or deny relief, the post-conviction court must make findings of
fact and conclusions of law on all issues presented, whether or not a hearing is
held. Ind. Post-Conviction Rule 1(6).
[6] As a preliminary matter, we note that Brewington has chosen to proceed pro se,
both below and in this appeal. It is well settled that pro se litigants are held to
the same legal standards as licensed attorneys. Lowrance v. State, 64 N.E.3d 935,
938 (Ind. Ct. App. 2016). This means that they must follow our established
rules of procedure and accept the consequences when they fail to do so. Id. It
is not the court’s role to become an “advocate for a party, or address arguments
that are inappropriate or too poorly developed or expressed to be understood.”
Id.
[7] Brewington contends that the post-conviction court erred in summarily
disposing of his PCR action. Ordinarily, a petitioner who appeals the denial of
his post-conviction petition faces a rigorous standard of review, that of
demonstrating that the post-conviction court’s decision was clearly erroneous.
Massey v. State, 955 N.E.2d 247, 253 (Ind. 2011). Here, however, the post-
conviction court entered a summary disposition denying Brewington’s PCR
petition. Indiana Post-Conviction Rule 1(4)(g) reads:
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The 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. The court may ask for oral
argument on the legal issue raised. If an issue of material fact is
raised, then the court shall hold an evidentiary hearing as soon as
reasonably possible.
[8] “[W]hen a court disposes of a petition under subsection (g), we review the
lower court’s decision as we would a motion for summary judgment.” Binkley
v. State, 993 N.E.2d 645, 650 (Ind. Ct. App. 2013). Like summary judgment,
we review a summary disposition de novo, applying the same standard as the
trial court. Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014). In conducting
our review, we consider only those matters that were designated at the
summary judgment stage. Haegert v. McMullan, 953 N.E.2d 1223, 1229 (Ind.
Ct. App. 2011). A trial court’s grant of summary judgment arrives on appeal
clothed with a presumption of validity. Williams v. Tharp, 914 N.E.2d 756, 762
(Ind. 2009). We may affirm on any legal basis supported by the designated
evidence. Harness v. Schmitt, 924 N.E.2d 162, 165 (Ind. Ct. App. 2010).
[9] Here, Brewington filed a motion for summary judgment, essentially asking the
post-conviction court to dispense with a hearing and find in his favor as a
matter of law. The State filed a memorandum in opposition to Brewington’s
summary judgment motion that concluded as follows:
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It is plain to see from the evidence provided that issues of
material fact exist which necessitate a hearing on Brewington’s
Petition, and that Brewington’s Motion for Summary Judgment
therefore fails. Similarly, because this Motion is required to be
made under Ind. R. P. Post-Conviction Remedies 4(g) as
opposed to Ind. R. Trial P. 56, the State must only show, and has
raised, an issue of material fact.
Appellant’s App. Vol. 3 at 10-11.
[10] In his PCR petition, Brewington raised twenty allegations of error, including
ineffective assistance of trial and appellate counsel and freestanding claims of
error, all of which centered around judicial bias, prosecutorial and judicial
misconduct surrounding the grand jury proceedings, and an alleged conspiracy
against him. In its order summarily denying Brewington’s PCR petition, the
post-conviction court found that pursuant to Post-Conviction Rule 1(4)(g),2 it
could grant a motion for summary disposition where the pleadings and
responses, motions, and responses show that there is no genuine issue of
material fact. The court found, in relevant part,
13. Brewington alleges that various parties involved in his
prosecution acted conspiratorially, this is, they acted together to
alter grand jury transcripts; that the special judge and the
prosecutors committed various acts of misconduct; that he was
denied effective assistance of counsel, that the trial judge was not
2
To the extent that there is confusion as to whether the post-conviction court entered summary disposition
pursuant to subsection (g) as opposed to subsection (f), which provides that the court may deny a petition
without further proceedings “[i]f the pleadings conclusively show that petitioner is entitled to no relief,” we
note that the court specifically cited subsection (g) in its order and made no reference to subsection (f).
Appellant’s App. Vol. 2 at 11.
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impartial, and that his appellate counsel was also ineffective.
….
16. There is no factual basis to support any of Brewington’s
claims and/or allegations against the judges and attorneys
involved in his case.
17. There is no need for a hearing.
18. Even though the State did not move for summary judgment,
based on the undersigned judge’s reading of the pleadings and
[Brewington’s appellate cases],3 judgment should be entered
without a hearing.
19. Brewington’s petition should be denied.
Appellant’s App. Vol. 2 at 11-12.
[11] In conducting our de novo review of the court’s summary denial of
Brewington’s petition, we find that we have a vacuum of information. The
post-conviction court’s findings do not specifically address each of Brewington’s
allegations, and the parties’ memoranda for and against summary judgment
leave us with more questions than answers concerning the viability and merit of
his various claims. Absent a developed factual record, we cannot adequately
review the merits or even discern which of his claims remain viable as
“unknown or unavailable on direct appeal,” McKnight, 1 N.E.3d at 199, and
3
Brewington v. State, 7 N.E.3d 946 (Ind. 2014), cert. denied (2015); Brewington v. State, 981 N.E.2d 585 (Ind.
Ct. App. 2013), aff’d in part, vac. in part (2014).
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which are subject to waiver, res judicata, or other procedural default. See
Timberlake v. State, 753 N.E.2d 591, 597-98 (Ind. 2001) (“As a general rule, most
free-standing claims of error are not available in a post-conviction proceeding
because of the doctrines of waiver and res judicata.”), cert. denied (2002). See
also Brewington, 7 N.E.3d at 978 (“Raising ineffectiveness [of counsel] on direct
appeal without the benefit of an additional postconviction record is permissible,
but the issue becomes res judicata and therefore unavailable for collateral
review.”); Reed v. State, 856 N.E.2d 1189, 1195 (Ind. 2006) (PCR petitioner
cannot escape effect of claim preclusion by re-designating or re-packaging
claim). We therefore reverse the summary denial of Brewington’s PCR petition
and remand for a factfinding hearing and a decision on the merits of any claims
that remain viable.
[12] Reversed and remanded.
Bailey, J., and Brown, J., concur.
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