COMBS v. STATE (2024)

MEMORANDUM DECISION

Case Summary

[1] Gavin Combs, pro-se, appeals the denial of his petition for post-conviction relief, which challenged his conviction for Possession of a Narcotic Drug, as a Level 3 felony.¹ He presents the following dispositive issue for review: whether the post-conviction court erred by denying the petition upon review of the pleadings although Combs alleged facts pertaining to ineffectiveness of counsel, presenting a factual issue. We reverse and remand for further proceedings.

Facts and Procedural History

[2] The underlying facts were recited in the decision of this Court in Combs's direct appeal, with the decision providing in its entirety:

In August 2021, Gavin Christopher Combs was charged with level 2 felony dealing in a narcotic drug and level 3 felony possession of a narcotic drug after police found over 59 grams of a substance containing heroin in his car. During the State's case-in-chief at his March 2023 jury trial, Combs objected to evidence regarding the heroin on the basis that the search of his car was unconstitutional. The trial court overruled his objections. Combs then testified that he purchased the heroin for personal use and not for dealing to others. The jury acquitted him of the dealing charge and found him guilty of the possession charge. The trial court sentenced him to nine years.

Combs now appeals his possession conviction and argues that the trial court erred in admitting the evidence that he objected to at trial. “The improper admission of evidence is harmless error when the erroneously admitted evidence is merely cumulative of other evidence before the trier of fact.” Hunter v. State, 72 N.E.3d 928, 932 (Ind. Ct. App. 2017), trans. denied.

The evidence in the State's case-in-chief that Combs possessed heroin is merely cumulative of Combs's testimony that he possessed heroin, so any error in the admission of the State's evidence is harmless. Therefore, we affirm Combs's conviction.

Combs v. State, 2023 WL 8665012, No. 23A-CR-1756, slip op. at 1-2, No. (Ind. Ct. App. Dec. 15, 2023).

[3] On January 10, 2024, Combs filed a petition for post-conviction relief, which was amended on February 29. He alleged that he had received ineffective assistance of both trial and appellate counsel.² The State filed a motion for summary disposition, and Combs filed an objection. On April 15, 2024, the post-conviction court issued an order as follows:

The Court has received and reviewed the State's Motion for Summary Disposition of Petitioner's Amended Petition for Post-Conviction Relief. Granted. The Court rules against the Defendant. Further, the Defendant shall file any future petitions for post-conviction relief under a PC cause number with the Hendricks County Clerk. Defendant may not file his petition for post-conviction relief in the original criminal case. Hearing set for June 11, 2024 is vacated.

(Appealed Order at 1.) Combs now appeals.

Discussion and Decision

[4] The petitioner in a postconviction 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). Rule 1(9)(b) provides that, when a petitioner elects to proceed pro-se, the post-conviction court may order the cause submitted by affidavit.

[5] Post-Conviction Rule 1(4) “contains two subsections indicating that a court may deny a petition without a hearing Allen v. State, 791 N.E.2d 748, 752 (Ind. Ct. App. 2003), trans. denied. Here, the State moved for summary disposition pursuant to Indiana Post-Conviction Rule 1(4)(g), which provides:

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.

[6] The record herein does not suggest that the cause was submitted by affidavit or that the parties engaged in discovery. The post-conviction court's order indicates only that it reviewed the State's motion and the amended petition for post-conviction relief. Thus, the governing rule is Post-Conviction Rule 1(4)(f), which provides in relevant part: “If the pleadings conclusively show that petitioner is entitled to no relief, the court may deny the petition without further proceedings.” 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. Tyson v. State, 868 N.E.2d 855, 857 (Ind. Ct. App. 2007), trans. denied.

[7] The court errs in disposing of a petition in this manner unless the pleadings conclusively show that petitioner is entitled to no relief. Id. (citing Ind. Post-Conviction Rule 1(4)(f)). If the petition alleges only errors of law, then the court may determine without a hearing whether the petitioner is entitled to relief on those questions. Id. 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. The trial court should accept the well-pled facts as true and determine whether the petition raises an issue of possible merit. Id.

[8] In his petition, Combs alleged ineffectiveness of both trial and appellate counsel. Indiana courts have previously considered whether a petitioner's claim of ineffective assistance of counsel could survive dismissal on the pleadings. The issue of the effectiveness of counsel is an evidentiary question. Sherwood v. State, 453 N.E.2d 187, 189 (Ind. 1983); Allen, 791 N.E.2d at 756; Clayton v. State, 673 N.E.2d 783, 786 (Ind. Ct. App. 1996). Resolution of the issue revolves around the particular facts of each case. Sherwood, 453 N.E.2d at 189. “Thus some factual determinations must be made.” Id. 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. Allen, 791 N.E.2d at 756.

[9] Combs contended that, when it became known that his traffic stop had not been random but rather a result of surveillance, his counsel should have alleged that insufficient probable cause supported the warrant for installation of a GPS tracking device. He also claimed that counsel should have challenged omissions and irregularities in the course of discovery, including the withholding of exculpatory evidence. As for appellate counsel, Combs claimed that counsel wholly failed to communicate with him and should not have foregone the options of a petition for rehearing or petition for transfer. The facts pled raise an issue of possible merit.

[10] Additionally, we observe that Post-Conviction Rule 1(6) requires a post-conviction court to “make specific findings of fact and conclusions of law on all issues presented, whether or not a hearing is held.” The court here failed to comply with this rule in purportedly granting summary dismissal. The judgment on the pleadings without any findings precludes this court from reaching an informed conclusion.

Conclusion

[11] The post-conviction court erred in denying the petition for post-conviction relief based solely upon its examination of the pleadings.

[12] Reversed and remanded for further proceedings.

FOOTNOTES

1.   Ind. Code § 35-48-4-6(a).

2.   Combs also alleged prosecutorial misconduct but has stated on appeal that he will not pursue this particular contention.

Bailey, Judge.

Bradford, J., and Foley, J., concur.