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. Court of Appeals of Indiana | Memorandum Decision 15A04-1712-PC-2889 | July 10, 2018 Page 1 of 9

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 Court of Appeals of Indiana | Memorandum Decision 15A04-1712-PC-2889 | July 10, 2018 Page 4 of 9

(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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