Gudger v. State, 012221 INCA, 20A-PC-1184

• Docket Nº: 20A-PC-1184
• Opinion Judge: PYLE, JUDGE.
• Party Name: William Thomas Gudger, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff.
• Attorney: APPELLANT, PRO SE William Thomas Gudger Greencastle, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Ian McLean Supervising Deputy Attorney General Indianapolis, Indiana
• Judge Panel: Vaidik, J., and Brown, J., concur.
• Case Date: January 22, 2021
• Court: Court of Appeals of Indiana

William Thomas Gudger, Appellant-Defendant,

v.

State of Indiana, Appellee-Plaintiff.

No. 20A-PC-1184

Court of Appeals of Indiana

January 22, 2021

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

Appeal from the Howard Superior Court The Honorable Brant J. Parry, Judge Trial Court Cause No. 34D02-1910-PC-3367

APPELLANT, PRO SE William Thomas Gudger Greencastle, Indiana

ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Ian McLean Supervising Deputy Attorney General Indianapolis, Indiana

MEMORANDUM DECISION

PYLE, JUDGE.

Statement of the Case

[¶1] William Thomas Gudger ("Gudger") appeals the post-conviction court's summary denial of his petition for post-conviction relief. Gudger filed an amended petition for post-conviction relief, in which he claimed that his appellate counsel was ineffective. Before the State had filed an answer to the amended petition, the post-conviction court summarily denied Gudger's post-conviction petition.

[¶2] On appeal, Gudger argues that the post-conviction court erred by denying his petition. In response, the State points out that the post-conviction court engaged in a procedural error by summarily denying Gudger's post-conviction petition that was premised on a factual claim of ineffective assistance of counsel. The State requests that our Court remand this case for further proceedings. We agree with the State that the post-conviction court erred by summarily denying Gudger's post-conviction petition. Accordingly, we reverse the post-conviction court's judgment and remand for further proceedings.

[¶3] We reverse and remand.

Issue

Whether the post-conviction court erred by summarily denying Gudger's post-conviction petition.

Facts

[¶4] In 2016, the State charged Gudger with Level 3 felony robbery. Before trial, Gudger filed a motion to suppress the evidence seized pursuant to search warrants from his residence and his hotel room as well as his statement to police. The trial court denied the motion. In January 2018, a jury found Gudger guilty as charged, and the trial court imposed a fifteen (15) year sentence.

[¶5] Gudger, by counsel, appealed his conviction. See Gudger v. State, No. 18A-CR-525 (Ind.Ct.App. June 18, 2019). On appeal, Gudger argued that the trial court had abused its discretion when it admitted into evidence items that the police had seized during a search of his residence. Specifically, he argued that "the search of his residence was illegal because the search warrant lacked probable cause." Id. at *4. A majority of the panel from this Court determined that "we need not decide whether there was probable cause to issue the search warrant." Id.¹ This Court explained that Gudger was required to "demonstrate both that the warrant lacked probable cause and that the good faith exception d[id] not apply" and that Gudger had failed to make an argument that the good faith exception did not apply. Id. (emphasis in original). We also pointed out that Gudger had failed to show or even argue that his case fell under one of the two...