Robb, J.
John Laboa pleaded guilty to child molesting, a Class B felony, and was sentenced to twenty years in the Indiana Department of Correction (“DOC”).
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Following his guilty plea, Laboa filed a petition for post-conviction relief in March 2015 in which he claimed ineffective assistance of counsel, prosecutorial misconduct, and judicial bias. However, Laboa withdrew his petition in February 2017. He filed another petition for post-conviction relief in April 2017. … The original trial court judge recused herself and Special Judge Bradley Jacobs was appointed. In November 2017, Laboa amended his petition and submitted an affidavit summarizing his allegations. Laboa also attached his previously withdrawn petition for post-conviction relief and the statement of facts which he had submitted with his first petition, and he requested an evidentiary hearing. In support of his petition, Laboa filed self-serving affidavits and subsequently filed numerous notices with the post-conviction court. The chronological case summary indicates that the State did not respond to Laboa’s petition and the post-conviction court did not order the cause to be submitted by affidavit or schedule an evidentiary hearing.
On December 28, 2017, the post-conviction court issued findings of fact and conclusions thereon denying Laboa’s petition …
Laboa then filed a motion to correct errors, which was deemed denied because it was not ruled on within the allotted time, and this appeal ensued.
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A petition for post-conviction relief shall be heard without a jury and the court “may receive affidavits, depositions, oral testimony, or other evidence and may at its discretion order the [petitioner] brought before it for the hearing.” Ind. Post-Conviction Rule 1(5). We have previously explained that Post-Conviction Rule 1(4) contains two different subsections under which a post-conviction court may deny a petition without a hearing—subsection (f) and subsection (g)—and that each one has a different applicable standard of review. … Subsection (f) provides that a post-conviction court “may deny the petition without further proceedings” if “the pleadings conclusively show that [the] petitioner is entitled to no relief[.]” P-C.R. 1(4)(f) (emphasis added). Subsection (g) provides that a post-conviction 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.
Under the plain language of subsection g, a court may grant summary disposition after “a motion by either party” and after considering the pleadings and other evidence submitted. The language of subsection f, on the other hand, permits a court to deny a petition based upon only the pleadings and apparently without a motion by either party.
Post-Conviction Rule 1(9)(b) provides another way for the post-conviction court to rule on a petition without an evidentiary hearing:
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.
This subsection “clearly and plainly provides that when a petitioner proceeds pro se, the PCR court has the discretion to order the cause submitted upon affidavit.” Smith v. State, 822 N.E.2d 193, 201 (Ind. Ct. App. 2005), trans. denied. This rule is a “distinct way for a PCR court to rule on a petition without an evidentiary hearing.” Id.
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The post-conviction court’s procedural options can be summarized as follows:
hold a full evidentiary hearing, P-C.R. 1(5); deny the petition if the pleadings show no merit, P-C.R. 1(4)(f); decide the petition on the basis of the pleadings and other evidence submitted if either party moves for summary disposition and there is no genuine issue of material fact to be considered at a hearing, P-C.R. 1(4)(g); or, if the petitioner is pro se, order the case submitted on affidavit, PC.R. 1(9).
The post-conviction court did not hold an evidentiary hearing as contemplated by Post-Conviction Rule 1(5). The State is correct that the post-conviction court may order the cause to be submitted by affidavit when, as here, the petitioner is pro se. However, our review of the record reveals that the postconviction court did not order the cause to be submitted upon affidavit. The fact that Laboa submitted several affidavits to the court when he filed (and then amended) his petition, is not equivalent to ordering the parties to proceed upon affidavit. Had the post-conviction court ordered the case tried upon affidavit, Laboa would have been entitled to gather and submit additional evidence he felt was relevant to his claims within the allocated time by the court. In addition, not only did the State not submit any affidavits, the chronological case summary also indicates that the State failed to respond to Laboa’s petition as required by Post-Conviction Rule 1(4)(a), which states: “Within thirty (30) days after the filing of the petition, or within any further reasonable time the court may fix, . . . the prosecuting attorney . . . shall respond by answer stating the reasons, if any, why the relief prayed for should not be granted.” (Emphasis added.) Therefore, the post-conviction court did not avail itself of the option provided by Post-Conviction Rule 1(9) to decide a post-conviction case without a hearing. And in its order, the post-conviction court stated it had considered the pleadings and affidavits submitted by Laboa; thus, it did not decide the case as provided by Post-Conviction Rule 1(4)(f), either. Moreover, the post conviction court could not decide the case as provided by Post-Conviction Rule 1(4)(g) because neither party moved for summary disposition. Allen, 791 N.E.2d at 753.
Because the post-conviction court’s judgment was not decided as provided by the rules outlined above, we conclude the post-conviction court erred in the procedure it used to dispose of Laboa’s petition. Therefore, we reverse the judgment of the post-conviction court and remand with instructions to either order the cause to be submitted by affidavit, allowing Laboa time to gather and submit affidavits he feels are relevant to his allegations, or hold an evidentiary hearing. …
Reversed and remanded.
Baker, J., and Najam, J., concur