Timothy Malott, Appellant-Petitioner v. State of Indiana, Appellee-Respondent (2025)

MEMORANDUM DECISION

Case Summary

[1] Following a visit to a bar in 2018, an intoxicated Timothy Malott crashed into another car at sixty-eight miles per hour, killing the driver. He was subsequently convicted of Operating While Intoxicated Causing Death and Reckless Homicide.  ¹ Malott was sentenced to an aggregate term of ten years and ordered to pay the victim's family restitution. In 2020, our court vacated Malott's conviction for reckless homicide on double jeopardy grounds but affirmed his other convictions. Malott then filed a pro se Petition for Post-Conviction Relief alleging several issues. After submitting his case by affidavit, the post-conviction court denied Malott's petition, which he now appeals. Finding no error, we affirm.

Facts and Procedural History

[2] On October 5, 2018, after consuming “two tall draft [ ] beers,” Malott got into his car and driving thirty-eight miles per hour over the speed limit, crashed into another vehicle killing the victim. Malott's blood alcohol content (“BAC”) was at .108 almost four hours and twenty minutes after the collision. Witnesses observed Malott at a red light just before the collision revving his engine, “squeal[ing] his tires and [ ] [taking] off really fast.” See Malott v. State, Case No. 19A-CR-2620, 2020 WL 2530224, at *1 (Ind. Ct. App. May 19, 2020). Although Malott later claimed he was involved in a road rage incident at that red light, no witness observed any vehicles following Malott.

[3] Malott was found guilty in 2019 on the five counts for which he was charged and received an aggregate executed sentence of ten years in the Indiana Department of Corrections (“DOC”). The trial court awarded Malott pretrial detention credit for 376 actual days served and 126 days of good time credit for a total of 502 days of pretrial credit applied to his sentence. Restitution was also ordered to be paid to the victim's family.

[4] On direct appeal, Malott challenged the admission of the blood alcohol evidence, the sufficiency of the evidence to support his convictions, and he alleged a double jeopardy violation had occurred. This Court vacated Malott's reckless homicide conviction on double jeopardy grounds and affirmed his other convictions.

[5] Malott filed a Petition for Post-Conviction Relief in August 2020 raising claims of ineffective assistance of counsel related to his trial and appellate counsel, to which the State filed a response. After Malott's public defender filed a Notice of Present Inability to Investigate on September 24, 2020, no further proceedings occurred until January 20, 2023, when the post-conviction court granted the public defender's motion to withdraw.

[6] Thereafter, Malott filed several pro se motions and amendments to his “Petition for Post-Conviction Relief.” Of relevance to this appeal are the following:

• May 8, 2023: Malott amended his post-conviction relief petition claiming an error in the application of his credit time following his appeal. He asserted that the pretrial detention credit and good time credit that had been awarded to him for the count vacated on appeal should have then been added to his credit time for the other four counts.

• May 10, 2023: Malott filed a “Motion Requesting Change of Venue from Judge/Court,” and accused the trial court of showing bias by excluding evidence that Malott was involved in a road rage incident with another driver immediately preceding the crash. Malott also claimed the trial court called him a liar at sentencing. The post-conviction court denied his request on May 23, 2023. Appellant's Appendix Vol. 2 at 114.

[7] May 15, 2023: Malott amended his petition alleging the Restitution Claim Form submitted by the State and entered as part of the Amended Sentencing Order by the trial court on October 17, 2019 contained a “fraudulent claim for property damage” that the trial court took at “face value without any substantiation.” Id. at 98. The State did not file a response to this amendment.

[8] July 14, 2023: In response to the post-conviction court's June 1, 2023 order requiring Malott's post-conviction petition be presented by affidavit pursuant to P-C.R.1(9)(b), Malott filed his “Verified Affidavit of Petitioner Pursuant to Order Date[d] June 1, 2023,” and claimed that the prosecutor and trial court suppressed exculpatory evidence of Malott's involvement in a road rage incident immediately before the fatal crash. He alleged his trial and appellate counsels were ineffective for failing to raise this issue at trial and on appeal.

• July 14, 2023: Malott filed a “Motion in Opposition to the State's Response to Petition for Post-Conviction Relief and Recusal of the Prosecuting Attorney.” He asserted that the Indiana Attorney General's Office, and not the LaPorte County Prosecutor's Office, should have entered its appearance on behalf of the DOC in addressing Malott's alleged credit time error and that the LaPorte County Prosecutor's Office should not be allowed to proceed on this claim.

[9] Malott's request for post-conviction relief was denied on May 27, 2024. Although Malott amended his petition to add his pretrial credit time issue, he did not raise the issue in his affidavit. Still, the post-conviction court addressed and then denied this claim in its order, characterizing it as a request for “double credit time.” Appellant's App. Vol. 3 at 181. The court pointed out Malott was properly given Class B credit ² for the pretrial time he served and was not entitled to double credit “simply because he was originally sentenced on two counts.” Id.

Discussion and Decision

[10] “Post-conviction proceedings are civil proceedings in which a defendant may present limited collateral challenges to a conviction and sentence.” Gibson v. State, 133 N.E.3d 673, 681 (Ind. 2019), reh'g. denied, cert. denied 141 S.Ct. 553 (Oct. 13, 2020). “The scope of potential relief is limited to issues unknown at trial or unavailable on direct appeal.” Id. “Issues available on direct appeal but not raised are waived, while issues litigated adversely to the defendant are res judicata.” Id. (emphasis in original). The petitioner bears the burden of establishing his claims by a preponderance of the evidence. Id.; P-C.R. 1(5).

[11] Malott is “appeal[ing] from a negative judgment denying post-conviction relief[.]” This requires him to “establish that the evidence, as a whole, unmistakably and unerringly points to a conclusion contrary to the post-conviction court's decision.” Gibson, 133 N.E.3d at 681 (quoting Ben-Yisrayl v. State, 738 N.E.2d 253, 258 (Ind. 2000), reh'g denied, cert. denied 534 U.S. 1164 (Feb. 25, 2002)). “When reviewing the post-conviction court's order denying relief, we will ‘not defer to the post-conviction court's legal conclusions,’ and the ‘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.’ Bobadilla v. State, 117 N.E.3d 1272, 1279 (Ind. 2019) (quoting Humphrey v. State, 73 N.E.3d 677, 682 (Ind. 2017)). When a petitioner “fails to meet this ‘rigorous standard of review,’ we will affirm the post-conviction court's denial of relief.” Gibson, 133 N.E.3d at 681 (quoting DeWitt v. State, 755 N.E.2d 167, 169-70 (Ind. 2001)).

1. Ineffective Assistance of Counsel

A. Trial Counsel

[12] Malott alleges his trial counsel was ineffective and raises three issues pertaining to trial counsel's performance.³ First, Malott argues that his counsel withheld plea offers and provided “erroneous advice” that led Malott to plead guilty on Counts III and IV.⁴ Appellant's Br. at 7. Second, Malott argues that his counsel “suppress[ed] favorable evidence [ ] negating the Appellant's guilt.” Appellant's Reply Br. at 9. Finally, Malott argues his trial counsel “fail[ed] to subpoena favorable witness testimony from [the man who allegedly engaged Malott in a road rage incident[.]” Id.

[13] To prevail on his ineffective assistance of counsel claims, a defendant must show that: (1) his counsel's performance fell short of prevailing professional norms; and (2) his counsel's deficient performance prejudiced his defense. Gibson, 133 N.E.3d at 682 (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984)). Counsel's performance is presumed effective. Stephenson v. State, 864 N.E.2d 1022, 1031 (Ind. 2007), reh'g denied. “[T]he defendant must overcome the strongest presumption of adequate assistance, and judicial scrutiny is highly deferential.” Ben-Yisrayl, 738 N.E.2d at 261.

[14] A decision regarding which witnesses to call is “the epitome of a strategic decision,” an appellate court will not second-guess. Johnson v. State, 832 N.E.2d 985, 1003 (Ind. Ct. App. 2005), reh'g denied, trans. denied (quoting Wrinkles v. State, 749 N.E.2d 1179, 1200 (Ind. 2001)). When ineffective assistance of counsel is alleged and premised on the attorney's failure to present witnesses, it is incumbent upon the petitioner to offer evidence as to who the witnesses were and what their testimony would have been. Lowery v. State, 640 N.E.2d 1031, 1047 (Ind. 1994), reh'g denied, cert. denied. We will not find counsel ineffective for failure to call a particular witness absent a clear showing of prejudice. Reeves v. State, 174 N.E.3d 1134, 1141 (Ind. Ct. App. 2021), trans. denied.

[15] Malott asserts that his counsel should have called as a witness the man who called police about a “road rage incident” with Malott. First, we note that Malott did not present evidence as to what this man's testimony would have been. Second, to the extent the record reflects that this man's involvement in the case was limited to hearsay evidence of a voicemail referenced within a police report in which the man claimed he had exchanged middle finger gestures with Malott, any testimony likely would have been irrelevant. Malott was convicted of operating while intoxicated causing death. There is no evidence in the record that this testimony would have negated Malott's intoxication, the fact he was operating a motor vehicle while intoxicated, or the fact that his intoxication resulted in an innocent man's death. Thus, Malott has failed to show that prejudice resulted to him by his counsel not calling this man as a witness.

[16] Malott also argued that his trial counsel erred in failing to preserve an objection to the trial court's granting of State's Motion in Limine No. 1. This Motion in Limine excluded the same voicemail left with police by the man who claimed he had been in the road rage incident with Malott moments before the fatal crash. This voicemail, along with any commentary on “any content provided by [the] anonymous caller” was excluded as hearsay. Appellant's App. Vol. 2 at 90.

[17] Malott argued that exclusion of evidence of a “road rage incident” was highly prejudicial to his case. However, the only evidence in the record of a “road rage incident” came from a police report which noted that a caller, later identified as “C. Hampton,” stated he had “sounded his horn” and exchanged middle finger gestures at a stoplight with Malott when the light turned green and Malott did not move. Appellant's App. Vol. 2 at 117. None of the witnesses saw any vehicle following Malott. Not only is this statement by the caller hearsay, but even if the incident had occurred, it would not have provided Malott with a defense to driving over thirty miles per hour over the speed limit while intoxicated and crashing into an innocent victim.

[18] As the post-conviction court pointed out, Malott alleged his trial counsel believed the road rage story was “BS.” Appellant's App. Vol. 3 at 178. If we take as true that trial counsel did not find the alleged road rage story credible, counsel, as an officer of the court, had a duty of candor toward the court. Coy v. State, 720 N.E.2d 370, 373 (Ind. 1999). Malott's trial counsel upheld his duty and did not fall short of prevailing professional norms by failing to preserve an objection to inadmissible evidence that would not have served as a defense to the crimes with which Malott was charged. Malott has failed to overcome the presumption of adequate assistance provided by his trial counsel. Because his counsel's performance was not deficient, we need not explore whether prejudice to Malott occurred. The post-conviction court did not clearly err when it denied Malott relief due to ineffective assistance of trial counsel.

B. Appellate Counsel

[19] Malott also argues that his appellate counsel was ineffective because she did not appeal his claims that exculpatory evidence existed and was excluded. Malott claims she maintained “minimal contact with” him and he believed that she should have filed “[m]otions [ ] during the [a]ppellate [b]riefing process to either [m]odify or [c]orrect the [r]ecord under Ind. App. R. 32A.⁵ ” Appellant's Br. at 9.

[20] The standard of review for a claim of ineffective assistance of appellate counsel is the same as for trial counsel in that the defendant must show appellate counsel was deficient in her performance and that the deficiency resulted in prejudice. Strickland, 466 U.S. at 686; Bieghler v. State, 690 N.E.2d 188, 192–93 (Ind. 1997). To show counsel's performance was deficient, Malott must prove his appellate attorney's representation fell below an objective standard of reasonableness and that counsel committed errors so serious that petitioner did not have the “counsel” guaranteed by the Sixth Amendment. McCary v. State, 761 N.E.2d 389, 392 (Ind. 2002). Then to show he was prejudiced, Malott must show a reasonable probability that but for counsel's errors the result of the proceeding would have been different. Reed v. State, 856 N.E.2d 1189, 1195 (Ind. 2006).

[21] We apply a two-part test when evaluating whether appellate counsel's performance was deficient for not raising an issue on appeal: (1) whether the unraised issue is significant and obvious from the face of the record, and (2) whether the unraised issue is “clearly stronger” than the raised issues. Id. (citing Timberlake v. State, 753 N.E.2d 591, 605-06 (Ind. 2001)). When evaluating whether the petitioner was prejudiced, we look to whether the issues appellate counsel failed to raise would have been more likely to result in reversal or an order for a new trial. Id.

[22] Ineffective assistance is rarely found where defendants assert appellate counsel failed to raise issues on direct appeal. Id. at 1196. This case is no exception. Counsel raised a sufficiency of the evidence claim related to the operating while intoxicated causing death conviction and an admissibility of the evidence claim related to the State's expert witness's methods for determining Malott's intoxication level at the time of the crash. Although these two arguments were unsuccessful on appeal, Malott's appellate counsel succeeded in having his conviction for reckless homicide vacated on double jeopardy grounds. While vacating one of his convictions did not result in a new trial, appellate counsel's success on this issue is a positive reflection of the arguments she asserted in Malott's appeal.

[23] Malott also contends his appellate attorney should have pursued on appeal the issues related to “exculpatory evidence” his trial counsel failed to raise at trial. According to Malott, not doing so made his appellate attorney's performance deficient. However, as we have previously found, the allegedly exculpatory evidence of a road rage incident that Malott believed would have changed the outcome of his appeal was inadmissible hearsay. Malott fails to support his claim of ineffective assistance of counsel with any evidence of how this issue was clearly stronger than those appellate counsel raised in Malott's direct appeal.

[24] Because Malott does not dispute his intoxication at the time of the fatal crash, even if evidence of a road rage incident had been presented at trial, it would not have provided Malott with a defense to his crimes. Presenting this issue on direct appeal would not have resulted in a new trial or a reversal of his convictions. Thus, the post-conviction court did not err in finding Malott's appellate attorney did not provide ineffective assistance of counsel to him as her performance did not fall below an objective standard of reasonableness. Because Malott's appellate counsel was not deficient in her performance, we need not explore whether Malott was prejudiced by her conduct.

2. Failure to Hold an Evidentiary Hearing

[25] Malott argues the post-conviction court “abused its discretion” by dismissing all his post-conviction claims without holding an evidentiary hearing. Appellee's Br. at 22.⁶ He maintains dismissal without an evidentiary hearing prevented him from “properly develop[ing] his claims” regarding the improper suppression of exculpatory evidence at his trial and the ineffective assistance of his trial and appellate counsel. Id. at 22. We disagree.

[26] Post-Conviction Rule 1(9)(b) provides a “distinct way for a [post-conviction court] to rule on a petition without an evidentiary hearing” when a petitioner proceeds pro se. Laboa v. State, 131 N.E.3d 660, 664 (Ind. Ct. App. 2019) (quoting Smith v. State, 822 N.E.2d 193, 201 (Ind. Ct. App. 2005), trans. denied). This rule allows the court the discretion ⁷ to require the cause to be submitted by affidavit. When a post-conviction court orders the parties to proceed by affidavit, “it is the court's prerogative to determine whether an evidentiary hearing is required.” Smith, 822 N.E.2d at 201. An evidentiary hearing is not required solely because an affidavit raises issues of fact. Id. In fact, requiring a full evidentiary hearing in all such circumstances “would defeat the purpose of Rule 1(9)(b), which is to allow for more flexibility in both the presentation of evidence and the review of post-conviction claims where the petitioner proceeds pro se.” Id. It is the post-conviction court's prerogative to deny a petition “without further proceedings” if “the pleadings conclusively show that petitioner is entitled to no relief.” P-C.R. 1(4)(f). A post-conviction court's decision to forgo an evidentiary hearing when affidavits have been submitted is reviewed under an abuse of discretion standard. Smith, 822 N.E.2d at 201.

[27] Malott claims the exculpatory evidence to which he refers is that, prior to his trial, an individual called the local police department and claimed he had been in a road rage incident with Malott immediately before the fatal crash. In his affidavit, Malott claimed this exculpatory evidence that was favorable to his case, and which should have been introduced at his trial, had been suppressed by the State and the trial court. He alleged that his trial counsel was ineffective for not preserving this issue and his appellate counsel was ineffective for not raising this issue during his direct appeal.

In his petition, Malott contends that these issues could not be properly evaluated by the post-conviction court through his affidavit and he maintains that an evidentiary hearing was required to allow him to question the trial deputy prosecutor, his trial attorney, and his appellate attorney.

[28] Contrary to his allegation, the post-conviction court did not prevent Malott from developing his claims. After the post-conviction court ordered the case to be heard by affidavit, Malott filed his affidavit referencing his other filings and addressing several of his issues. It was incumbent upon Malott to gather and submit additional evidence supporting his claims, but he did not. See Laboa, 131 N.E.3d at 664. Despite Malott's desire to have an evidentiary hearing, the court properly exercised its discretion under Post-Conviction Rule 1(9)(b) to do otherwise. The post-conviction court did not abuse its discretion in having Malott's case proceed by affidavit and Malott was not improperly denied the opportunity to develop his claims.

3. Application of Credit Time

[29] Malott's claims related to credit time are two-fold. First, he contends the post-conviction court erred by allowing the LaPorte County Prosecutor's Office, rather than the Indiana Attorney General, to represent the State against his claim that he was awarded the incorrect amount of pretrial detention credit time. Second, he alleges he should have been awarded “double” credit time after our court vacated Count V through his direct appeal. Neither of these claims have merit.

[30] In his petition, Malott contends the Indiana Attorney General must represent the DOC in his claim that he was awarded the incorrect amount of credit time. In a petition for post-conviction relief in a non-capital case, “the prosecuting attorney of the circuit in which the court of conviction is situated shall represent the State of Indiana in the court of conviction.” P-C.R. 1(9)(d). This rule allows the prosecutor with the “most familiar[ity] with the circumstances of the conviction and best [ability] to respond to a post-conviction attack to continue to represent the State.” Kindred v. State, 674 N.E.2d 570, 573 (Ind. Ct. App. 1996), reh'g denied, trans. denied.

[31] Malott incorrectly relies on Ind. Dept. of Corr. v. Haley, 928 N.E.2d 840 (Ind. Ct. App. 2010), a case in which Haley challenged the DOC's computation of educational time credits he received after being sentenced and incarcerated in the DOC. Id. at 842. Since educational time credits are governed by Indiana Code § 35-50-6-3.3 and the DOC is responsible for governing educational credit time, Haley's action was determined to be “a dispute between an inmate and DOC.” Indiana Code §§ 4-6-1-6 and 4-6-2-1 “confer to the attorney general the authority to represent the DOC [in] such an action,” whereas the prosecuting attorney “is not authorized by statute to represent the DOC in such an action.” Id. However, this case does not deal with educational time credit nor is this a dispute between an inmate and the DOC. Rather, this is a petition for post-conviction relief, where the prosecuting attorney, not the Attorney General, is the proper representative of the State of Indiana.

[32] While time spent in confinement before sentencing applies toward a prisoner's fixed term of imprisonment, the actual amount of additional credit or good time credit awarded is primarily determined by the prisoner's credit time classification. Robinson v. State, 805 N.E.2d 783, 789 (Ind. 2004). Pre-sentence jail time is a statutory right and trial courts have no discretion in awarding or denying that credit. Glover v. State, 177 N.E.3d 884, 886 (Ind. Ct. App. 2021), trans. denied. A trial court's judgment of conviction must include both the amount of time the defendant spent incarcerated before sentencing and the amount of credit time earned. Robinson, 805 N.E.2d at 789. See Ind. Code § 35-38-3-2(b)(4). Here, since Malott received concurrent sentences, Malott argues he should have received double credit for the time he spent incarcerated, as well as double good time credit. While a defendant “who is awaiting trials on different crimes during the same period of time and who is convicted and sentenced separately on each should have full credit applied on each sentence,” this is not the case here. Brown v. State, 907 N.E.2d 591, 595 (Ind. Ct. App. 2009). Malott simply had multiple counts for the same set of facts.

[33] The post-conviction court did not clearly err when it denied Malott's request for the Attorney General to represent the State in a pre-sentencing credit time challenge brought through a post-conviction relief motion or when it denied Malott's request for double credit time.

4. Claim of Fraudulent Restitution

[34] In his petition, Malott also makes two arguments related to his request for relief from the trial court's restitution order in the underlying case. Malott claims the State's failure to file a response to his restitution related amendment should prevent the State from presenting a counterargument ⁸ to his claim and the amount of restitution claimed by the victim's family is based on a fraudulent claim by the victim's mother and the victim's funeral home.

[35] Post-conviction proceedings allow a petitioner “to raise issues not known at the time of the original trial and appeal or for some reason not available to the defendant at that time.” Woods v. State, 701 N.E.2d 1208, 1213 (Ind. 1998), reh'g denied, cert. denied 528 U.S. 861 (Oct. 4, 1999) (quoting Schiro v. State, 533 N.E.2d 1201, 1204 (Ind. 1989), cert. denied 493 U.S. 910 (Oct. 10, 1989)). “[I]ssues that were or could have been raised on direct appeal are not available in postconviction proceedings.” Woods, 701 N.E.2d at 1213. The State filed the Restitution Claim Form with the trial court on November 16, 2018, which the trial court incorporated into its sentencing order. The restitution issue could have been presented to the trial court when the Amended Sentencing Order was entered or on direct appeal thereafter—but it was not. Malott did not appeal the restitution issue in 2020 and instead waited until his post-conviction proceedings in 2023 to raise the issue. Malott therefore waived this issue in his post-conviction action and appeal.

Conclusion

[36] The post-conviction court did not abuse its discretion by finding Malott's trial and appellate attorneys were not ineffective or in conducting Malott's post-conviction proceedings by affidavit rather than holding an evidentiary hearing. We also find the post-conviction court did not err by denying Malott's request to receive double pretrial detention credit time in a claim in which the LaPorte County Prosecutor's Office represented the State. Finally, we find Malott's claim regarding his restitution order is waived.

[37] Affirmed.

FOOTNOTES

1.   Malott was initially charged with: Count I – Level 5 felony Operating a Vehicle with a Blood Alcohol Content of .08 or Greater Causing Death; Count II – Level 5 felony Operating While Intoxicated Causing Death; Count III – Level 4 felony Operating a Vehicle with a Blood Alcohol Content of .08 or Greater with a Prior Conviction Causing Death; and Count IV – Level 4 felony Operating While Intoxicated with a Prior Conviction Causing Death. On February 11, 2019, the State amended the charging information to add Count V – Level 5 felony Reckless Homicide. See Malott, 2020 WL 2530224, at *2.

2.   Class B credit time “provides ․ one day of good time credit for every three days [Malott] is imprisoned or confined while waiting for trial or sentencing.” Ind. Code § 35-50-6-3.1(c).

3.   Insofar as we understand Malott's arguments regarding ineffective assistance of counsel, we address them on their merits.

4.   The U.S. Supreme Court has held that the Strickland standard (explained in paragraph 11) applies to ineffectiveness claims arising out of the guilty plea process. Dew v. State, 843 N.E.2d 556, 564 (Ind. Ct. App. 2006). And our Indiana Supreme Court has held “[i]t is a denial of effective assistance of counsel if in fact there is a failure to convey a plea offer from the State.” Id. (quoting Gibbs v. State, 483 N.E.2d 1365, 1366 (Ind. 1985)). Malott provides no evidence by which to evaluate his claim that plea offers were withheld. There is no mention in the record or in Malott's brief indicating what plea offers were allegedly withheld or any other evidence to support his clam. This also applies to his claim of “erroneous advice,” as there is no mention of what advice was given, why it influenced Malott to plead guilty, or how the advice was “erroneous.” Therefore, Malott's claim of ineffective assistance of trial counsel fails as it relates to these arguments.

5.   Indiana Rule of Appellate Procedure 32(A) lays out the procedure for resolving disagreements over the contents of a trial court transcript or record. Malott does not explain what from the record he wanted his appellate counsel to modify or correct. Therefore, Malott's claim for ineffective assistance of counsel fails under this ground.

6.   Malott also claims the post-conviction court's dismissal was improper because he “had only submitted a Motion for Summary Disposition under Ind. PC Rule 1§ 1(4)(g) [sic]” for the “improper credit-time award” issue. Appellant's Br. at 22 (emphasis in original). However, Malott conflates his request for a summary disposition with the post-conviction court's ability to order the parties to proceed by affidavit in the presentation of the case. See P-C.R. 1(4)(g); P-C.R. 1(9)(b).

7.   As the Laboa court explains, a post-conviction court's procedural options are: (1) hold a full evidentiary hearing, P-C.R. 1(5); (2) deny the petition if the pleadings show no merit, P-C.R. 1(4)(f); (3) decide the petition on the basis of the pleadings and other evidence submitted if either party moves for summary disposition and there is no genuine issue of material fact to be considered at a hearing, P-C.R. 1(4)(g); or, (4) if the petitioner is pro se, order the case submitted on affidavit, P-C.R. 1(9). Laboa, 131 N.E.3d at 664.

8.   Malott filed a Motion for Summary Disposition on this issue. Malott also appears to argue that because the Attorney General's Office did not enter an appearance in this case, the State did not properly present any meritorious counterclaim or defense to his pleadings, and summary disposition on these pleadings should have been granted in his favor. Appellant's Br. at 22-23. The post-conviction court, however, denied this motion on May 27, 2024. Appellant's App. 3 at 174.

DeBoer, Judge.

Judges May and Tavitas concur. May, J., and Tavitas, J., concur.