FOR PUBLICATION



APPELLANT PRO SE:    ATTORNEYS FOR APPELLEE:

ERNEST T. SMITH     STEVE CARTER
Carlisle, Indiana    Attorney General of Indiana

            MICHAEL GENE WORDEN
            Deputy Attorney General
             Indianapolis, Indiana

ERNEST T. SMITH,        )

                             )
Appellant-Petitioner,        )
                             )
vs.                          )    No. 79A02-0408-PC-649
                             )
STATE OF INDIANA,            )
                             )
Appellee-Respondent.         )

2.    Whether the PCR court’s conclusion that Smith’s trial counsel was not ineffective is clearly erroneous.

    We affirm.

J.C. Dallas Long and his son David arrived at Mom’s at approximately 2:00 that afternoon. They saw both Nobile and defendant in the bar. When the Longs left sometime between 2:30 and 3:00 p.m., defendant was still in Mom’s Place. Around 3:15 or 3:20, Richard Barrett walked into Mom’s Place. After a few minutes, during which time he did not see Nobile, Barrett became suspicious and looked around. He found Nobile in the utility room of the building. Her throat was slit and she had bled to death through a wound to her jugular vein. Nobile had also been stabbed on her palms, arms, chest, and back. Several hundred dollars [were] missing from the bar.

At some point during the afternoon of April 7, defendant’s girlfriend saw him near her home. She observed what appeared to be blood on his pants leg between his knee and ankle. He told her that he had fallen and cut himself. Defendant was also seen later on April 7 at several bars where he spent money freely, though he had needed to borrow money the previous night. He also stayed in a hotel room that night, though he had stayed on a cousin’s porch the night before.

The police arrested defendant on April 9, 1995. When photographed by police on April 12, defendant had no marks on his legs but did have scratch marks on his hands and neck. Defendant, while in jail, told his cell-mate that he and another man were drinking in Mom’s Place on April 7 and that they talked of robbing and killing Nobile. Defendant also told his cell-mate that he must have blacked out and, when he awoke, he was covered in so much blood that he figured Nobile’s throat had probably been cut. Defendant further confided that, if the police found his hunting knife, then he “figured he would be screwed.” (R. at 3891.) Finally, defendant admitted that he had gotten blood on his pants and went to see his girlfriend.

At trial, the State introduced DNA evidence based upon two pieces of evidence: a towel found near the rear entrance to Mom’s and the shoes that defendant was wearing when arrested. Testing determined that blood was on the towel and on defendant’s right tennis shoe. The State then conducted DNA testing on the towel and the shoe. The results indicated that Nobile’s DNA profile was consistent with that found in the blood on the shoe. The results also indicated that defendant’s DNA profile was consistent with that found in the blood on the towel.

    Following conviction and sentence, Smith raised five issues on direct appeal: (1) whether the trial court erred in admitting DNA evidence; (2) whether the trial court erred in admitting evidence obtained in violation of a court order; (3) whether the trial court erred in admitting into evidence a deposition from an unavailable witness; (4) whether the State’s comments during closing argument required reversal; and (5) whether the State presented insufficient evidence to sustain Smith’s convictions. Our supreme court affirmed the trial court. See id. at 677.
    Thereafter, Smith filed his pro se PCR petition alleging that his trial counsel was ineffective. The State responded to Smith’s petition, and eventually, the PCR court directed the parties to submit affidavits in support of and in opposition to the petition. See footnote Thereafter, Smith filed a pro se amended PCR petition, in which he, again, raised the sole claim that his trial counsel was ineffective. At the same time he filed his amended petition, Smith also asked the PCR court to set a hearing date on his petition. Smith then filed his own affidavit in support of his petition, and the State submitted affidavits of Smith’s three trial attorneys. Following the PCR court’s general denial of Smith’s petition and this court’s decision remanding for entry of findings, the PCR court entered findings of fact and conclusions of law denying Smith relief. This appeal ensued.

Rule 1(5), entitled “Hearing” provides:
The petition shall be heard without a jury. A record of the proceedings shall be made and preserved. All rules and statutes applicable in civil proceedings including pre-trial and discovery procedures are available to the parties, except as provided above in Section 4(b). The court may receive affidavits, depositions, oral testimony, or other evidence and may at its discretion order the applicant brought before it for the hearing. The petitioner has the burden of establishing his grounds for relief by a preponderance of the evidence.

(Emphasis added). And Rule 1(9)(b) See footnote provides in relevant part:
In the event petitioner elects to proceed pro se, the court at its discretion may order the cause submitted upon affidavit. It need not order the personal presence of the petitioner unless his presence is required for a full and fair determination of the issues raised at an evidentiary hearing.

That rule goes on to explain, among other things, the procedure that a pro se petitioner must follow if he wishes to subpoena witnesses at an evidentiary hearing.
This court has had few occasions to address Rule 1(9)(b). In Fuquay v. State, 689 N.E.2d 484, 486 (Ind. Ct. App. 1997), trans. denied, we established that the decision to “order the cause submitted upon affidavit” is committed to the PCR court’s discretion and will be reversed only when the court abuses that discretion. In that case, the petitioner claimed in his pro se PCR petition that his trial counsel was ineffective, and the PCR court granted the State’s request to have the matter submitted upon affidavit under Rule 1(9)(b). The petitioner nevertheless opposed the State’s motion, claimed that he was entitled to a hearing on his claim, and filed a request to subpoena his trial counsel to appear at the hearing. The petitioner never filed any affidavits, and the PCR court eventually granted the State’s motion to dismiss the petition under Indiana Trial Rule 41(B). Id. at 485-86.
The petitioner argued in part on appeal that the PCR court should have conducted an evidentiary hearing on his petition because “his trial counsel would never ‘sign an affidavit saying he was ineffective[.]’” Id. at 486 (citation omitted). We characterized the petitioner’s argument as “speculation” and noted that he had made “no attempt to obtain information in support of his claims from any other source.” Id. In addition, we noted that the petitioner had failed to comply with Rule 1(9)(b)’s requirements for requesting the issuance of subpoenas for witnesses because he failed to file an affidavit setting forth the substance of his trial counsel’s expected testimony. We determined that because the petitioner would not have been entitled to have his trial counsel testify at a hearing, a hearing would not have aided him. Thus, we concluded that the PCR court did not abuse its discretion when it ordered the cause submitted upon affidavit.     
The only other case in which we have addressed Rule 1(9)(b) is Hamner v. State, 739 N.E.2d 157 (Ind. Ct. App. 2000). In Hamner, the petitioner raised two issues in his petition: (1) his guilty plea was not entered knowingly, and (2) his trial counsel was ineffective. The State filed a general denial of his petition and raised various defenses. Along with his petition, Hamner filed a motion to proceed by affidavit, which the PCR court granted. Hamner later moved to amend his petition, which the court granted. He also filed an affidavit in support of his petition, and the State responded to that affidavit with a memorandum. See footnote After the State filed its memorandum, Hamner requested an evidentiary hearing to introduce testimony from his trial counsel and the deputy prosecutor who prosecuted his case. The PCR court ultimately denied him relief without a hearing. See id. at 158-59.
Hamner appealed and argued that the PCR court erred in denying his petition without a hearing. In response, the State asserted that Hamner had invited any error. In particular, the State argued, consistent with our decision in Fuquay, that Hamner had failed to follow the requirements for requesting the issuance of subpoenas for witnesses under Rule 1(9)(b) because he had failed to state by affidavit the reason the witnesses’ testimony was required and the substance of the expected testimony. The State also claimed that because Hamner would not have been able to require his witnesses’ appearance, a hearing would not have benefited him. See id. at 159.
Without discussing Fuquay, this court disagreed with the State’s argument that Hamner had invited any error. Rather, the Hamner court reasoned:
Hamner elected to proceed pro se and the post-conviction court, at its discretion, ordered the cause submitted by affidavit on Hamner’s motion. Hamner submitted an Affidavit in Support of Petition for Post-Conviction Relief. Hamner states that once it became clear that material facts continued to exist, he requested an evidentiary hearing on his Petition[]. Hamner further states that had the post-conviction court agreed that material issues of fact existed and ordered an evidentiary hearing date set, he would have then requested the issuance of subpoenas for witnesses at the evidentiary hearing and at that time [would] specifically state by affidavit the reason the witness’ testimony is required and the substance of the witness’ expected testimony. [Post-Conviction Rule 1(9)(b)] does not state when the affidavit must be submitted. The rule states what the petitioner is required to do “if the pro se petitioner requests issuance of subpoenas for witnesses at an evidentiary hearing.” It does not state when a hearing will be held or under what circumstances a hearing will be held. Thus, an evidentiary hearing could first be set and then a petitioner could submit an affidavit [in compliance with Rule 1(9)(b)]. An evidentiary hearing was never set. Therefore, Hamner did not invite the error.

Id. at 159-60 (citations and internal brackets omitted, emphases added).
The Hamner court then addressed whether summary disposition was appropriate under Indiana Post-Conviction Rule 1(4)(f), which allows for the PCR court to deny a petition without a hearing if the “pleadings conclusively show that petitioner is entitled to no relief[.]” Id. at 160. As the State points out, the panel in Hamner did not consider the effect of any affidavits submitted under Rule 1(9)(b). Rather, looking only at the pleadings, we determined that issues of fact existed and that a hearing was required. We therefore reversed the PCR court and remanded for a hearing on Hamner’s petition. Id. at 161.
Smith now asserts that Hamner controls and that the PCR court in this case should have granted his request for a hearing because the affidavits submitted pursuant to Rule 1(9)(b) create genuine issues of fact. The State responds that Hamner confused the two rules and erroneously applied the standards applicable to denial of a petition under Rule 1(4)(f) to a Rule 1(9)(b) situation. We must agree with the State.
The opinion in Hamner supports a conclusion that there is a direct relationship between summary disposition under Rules 1(4)(f) and (g) and Rule 1(9)(b). In other words, although the opinion falls short of holding as much, Hamner suggests that after a PCR court orders that the cause be submitted upon affidavit under Rule 1(9)(b), the “issue of fact” standard applicable to determining whether summary disposition is appropriate under Rules 1(4)(f) and (g) applies equally to Rule 1(9)(b). We disagree with Hamner to the extent that it conflated summary disposition and Rule 1(9)(b).
This court has previously clarified that Rule 1(4) “contains two subsections indicating that a court may deny a petition without a hearing[,]” namely, subsections (f) and (g). Allen v. State, 791 N.E.2d 748, 752 (Ind. Ct. App. 2003). But it does not follow that an evidentiary hearing is necessarily required on every petition unless the parties meet the requirements of one of those two subsections. Rather, Rule 1(9)(b) clearly and plainly provides that when a petitioner proceeds pro se, the PCR court has the discretion to order the cause submitted upon affidavit. That rule also provides that the PCR court “need not order the personal presence of the petitioner unless his presence is required for a full and fair determination of the issues raised at an evidentiary hearing.” Id. We read those sentences together to mean that if the PCR court orders the cause submitted by affidavit under Rule 1(9)(b), it is the court’s prerogative to determine whether an evidentiary hearing is required, along with the petitioner’s personal presence, to achieve a “full and fair determination of the issues raised[.]” Thus, Rule 1(9)(b) is a third and distinct way for a PCR court to rule on a petition without an evidentiary hearing.
We cannot accept Smith’s assertion that Rule 1(4)(g) applies in this case simply because the affidavits submitted present issues of fact. Affidavits are sworn testimony and constitute “competent evidence” in post-conviction proceedings. Gould v. State, 578 N.E.2d 382, 384 (Ind. Ct. App. 1991), trans. denied. Factual statements in affidavits often raise issues of fact, and to require a full evidentiary hearing any time affidavits submitted under Rule 1(9)(b) create issues of fact 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. Accordingly, where the PCR court orders the parties to proceed by affidavit under Rule 1(9)(b), the court may also determine that the petitioner’s personal presence at an evidentiary hearing is required. But we hold that the decision whether to hold an evidentiary hearing for a “full and fair determination of he issues raised,” like the decision to proceed by affidavit, is best left to the PCR court’s discretion. Rule 1(4)(g), concerning summary disposition, has no bearing on the matter. Instead, consistent with our holding in Fuquay, 689 N.E.2d at 486, we will review the PCR court’s decision to forego an evidentiary hearing when affidavits have been submitted under Rule 1(9)(b) under an abuse of discretion standard.
    Turning to the facts of this case, on the same day Smith submitted his Affidavit in Support of Petition for Post-Conviction Relief, he filed a Motion to Reconsider Order, Set Hearing, and Order to Produce Petitioner in which he requested an evidentiary hearing on his petition. Our review of the Chronological Case Summary shows that the PCR court never ruled on Smith’s motion. In any event, other than claiming that the affidavits he and the State submitted raised issues of fact, Smith has failed to show how an evidentiary hearing would have aided him. Rather, he has made general assertions that he was denied an opportunity to present unidentified witnesses in support of his ineffective assistance of counsel claim. If Smith believed that there were witnesses to support his claims, he could have either submitted affidavits from those witnesses or followed the procedure set forth under Rule 1(9)(b) and requested that such witnesses be subpoenaed. See footnote We therefore conclude that the PCR court did not abuse its discretion when it did not hold an evidentiary hearing on Smith’s petition.