James E. Hinkle, Appellant-Defendant,
State of Indiana, Appellee-Plaintiff.
from the Elkhart Superior Court Nos. 20D03-0812-FB-61,
20D03-1312-PC-81 The Honorable Teresa L. Cataldo, Judge
ATTORNEY FOR APPELLANT Richard J. Thonert Fort Wayne, Indiana
ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General
of Indiana Tyler G. Banks Deputy Attorney General
ATTORNEYS FOR AMICUS CURIAE PUBLIC DEFENDER OF INDIANA
Stephen T. Owens Public Defender of Indiana J.Michael Sauer
Deputy Public Defender Indianapolis, Indiana
of the Case
Employing the Davis-Hatton procedure,  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
issues 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
3. Whether Hinkle's trial counsel rendered ineffective
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.
and Procedural History
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.
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.
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.
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 discussion, S.B. admitted to his drug use and also
revealed that Hinkle had been molesting him.
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
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 entire un-redacted
file." Ex. Vol. III at 121. 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. Appellant's App. Vol. IV at
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.
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.
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.
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 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
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.
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
25. In the instant case, the record establishes that . . .
the court directed the State to produce for Petitioner all
exculpatory 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
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 ...