The Indiana Court of Appeals upheld the denial of a man’s petition for post-conviction relief claiming ineffective assistance of trial and appellate counsel. The man failed to introduce the original trial transcript at his post-conviction hearing and the post-conviction court didn’t take judicial notice of the record, as it’s now able to do under an amended Indiana Evidence Rule.

Larry Mitchell pro se challenged the denial of his petition for post-conviction relief following his convictions of felony murder, robbery, and related offenses. While he sought relief on claims of ineffective assistance of trial and appellate counsel, he never offered the original transcript into evidence at the post-conviction hearing. Mitchell also didn’t ask the judge to take notice of the original transcript, which is allowed under Indiana Evidence Rule 201(b)(5), effective Jan. 1, 2010.

This amendment allows courts to judicially notice records beyond those in the cases before them, the Court of Appeals has ruled in recent cases involving the rule amendment. Before the amendment, a post-conviction court couldn’t take judicial notice of the original proceedings absent an exceptional situation.

“Accordingly, we understand amended Evidence Rule 201(b)(5) to allow a post-conviction court to judicially notice the transcript of the evidence from the petitioner’s underlying criminal proceedings to appraise counsel’s performance and evaluate claims of ineffective assistance,” wrote Judge Nancy Vaidik in Larry D. Mitchell v. State of Indiana, No. 49A02-1003-CR-340.  

But Mitchell never asked the court to take judicial notice of the record any time before the court’s Feb. 8, 2010, order that denied relief. In addition, the court didn’t judicially notice the record sua sponte, so the trial record was never before the post-conviction court for consideration. His claims of ineffective assistance of counsel were fact-sensitive allegations that required examination of the trial record, Judge Vaidik continued.

The judges also held the post-conviction court didn’t error by issuing its judgment denying relief before Mitchell’s deadline for submitting proposed findings of fact and conclusions of law, and the court didn’t err in denying his motion to withdraw his petition of post-conviction relief without prejudice.