Court of Appeals of Indiana | Memorandum Decision 19A-PC-2058 | May 4, 2020 Page 1 of 10

MEMORANDUM DECISION

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.

APPELLANT PRO SE

Jason Dean Hubbell

Pendleton, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Ellen H. Meilaender

Supervising Deputy Attorney 

General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Jason Dean Hubbell,

Appellant-Petitioner,

v.

State of Indiana,

Appellee-Respondent.

May 4, 2020

Court of Appeals Case No.

19A-PC-2058

Appeal from the Bartholomew 

Circuit Court

The Honorable Kelly S. Benjamin, 

Judge

Trial Court Cause No. 

03C01-1504-PC-1915

Shepard, Senior Judge.

[1] Jason Hubbell appeals the denial of his petition for post-conviction relief. We 

affirm.
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Facts and Procedural History

[2] The underlying facts, as stated in Hubbell’s direct appeal, are as follows:

Sharon Myers left for work at the Arvin plant early on the 

morning of May 13, 1997. She never arrived. Another employee 

of Arvin, Sherry Young, saw a man and a woman leaving the 

Arvin plant as she arrived at work that same morning. The 

woman looked similar to Myers. The man had one hand on the 

woman’s neck or back, and the two entered a white van and 

drove away.

The police came to the plant later that morning to look for 

Myers. Young had “mentally” made note of the license plate 

number and gave the police the number and a description of the 

van. The police traced the license plate number to a white van 

owned by Hubbell. Hubbell worked at the Arvin plant with 

Myers and had called in sick on May 13. Young then identified 

a picture of the van as the one she had seen that morning, and 

later that day identified Hubbell when police presented him to 

her.

In November 1997, skeletal remains were found in a marsh area 

in Johnson County and identified as Myers’ through dental 

records. An autopsy showed a fracture in the hyoid bone which, 

together with the size of a ligature found around Myers’ neck, 

indicated that the cause of death was manual strangulation.

Acrylic fibers found near the body were consistent with fibers 

found in Hubbell’s van. Grass fragments found in the search of 

the van were consistent with grass samples from the marsh. . . .

On August 31, 1998, Hubbell was indicted by a grand jury on the 

charges of murder and criminal confinement. On September 28, 

Hubbell filed a notice of alibi, which he amended on October 15. 

The State did not respond. At trial, the State introduced parts of 
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Hubbell’s statements made following a polygraph examination. 

The State also introduced testimony from a jail inmate that 

Hubbell admitted the killing to him. 

Hubbell v. State, 754 N.E.2d 884, 887-88 (Ind. 2001) (internal footnote omitted).

[3] Additional facts presented at trial supported the jury’s verdict. As the Arvin 

human resources clerk, Myers handled insurance and disability matters. In that 

position she had several interactions with Hubbell, who was having difficulty 

obtaining disability payments and adding his newborn son to his insurance. 

Further, an investigating officer testified at trial that Hubbell told him “it might 

be possible” that he was responsible for Myers’ disappearance and that “he 

can’t say that he did do it, but he has prayed to God every night since then that 

it isn’t so.” Trial Tr. Vol. 17, p. 129.

[4] At the end of a four-week jury trial in late 1999, Hubbell was convicted of both 

charges. The court sentenced him to consecutive terms of sixty-five years for 

murder and ten years for confinement. Hubbell, 754 N.E.2d at 888.

[5] On direct appeal, Hubbell raised ten issues, and our Supreme Court affirmed 

the judgment. See id. at 887.

[6] In 2002, Hubbell filed a pro se petition for post-conviction relief, which was 

denied in 2015. Still acting as his own counsel, Hubbell appealed. This Court 

reversed and remanded with instructions for the post-conviction court to obtain 

the direct appeal record and permit Hubbell to question his witnesses and 
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present his arguments with the benefit of the record. See Hubbell v. State, 58 

N.E.3d 268 (Ind. Ct. App. 2016).

[7] In December 2016, Hubbell filed an amended post-conviction petition, which 

the court heard in February 2019. The court took the matter under advisement 

and denied Hubbell’s petition in August. He now appeals.

Issues

[8] Hubbell presents two issues, which we restate as:

I. Whether the post-conviction court erred by denying 

Hubbell’s claim of ineffective assistance of appellate 

counsel.

II. Whether the post-conviction court erred by denying 

Hubbell’s request for discovery of evidence in an unrelated 

case.

Discussion and Decision

[9] As the post-conviction court has denied relief, the petitioner appeals from a 

negative judgment and faces the rigorous burden of showing that the evidence, 

as a whole, leads unerringly and unmistakably to a conclusion opposite that 

reached by the post-conviction court. Harris v. State, 762 N.E.2d 163 (Ind. Ct. 

App. 2002), trans. denied. A post-conviction court’s findings and judgment will 

be reversed only upon a showing of clear error — that which leaves us with a 

definite and firm conviction that a mistake has been made. Kistler v. State, 936 

N.E.2d 1258 (Ind. Ct. App. 2010), trans. denied. In this review, findings of fact
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are accepted unless they are clearly erroneous, and no deference is accorded to 

conclusions of law. Id.

I. Ineffective Assistance

[10] To prevail on a claim of ineffective assistance of counsel, a defendant is 

required to establish both (1) that counsel’s performance was deficient and (2) 

that counsel’s deficient performance prejudiced the defendant. Johnson v. State, 

948 N.E.2d 331 (Ind. 2011) (citing Strickland v. Washington, 466 U.S. 668, 687-

96, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). To satisfy the first element, the 

defendant must show that counsel’s representation fell below an objective 

standard of reasonableness and that counsel’s errors were so serious that the 

defendant was denied the counsel guaranteed by the Sixth Amendment. Bethea 

v. State, 983 N.E.2d 1134 (Ind. 2013). In order to satisfy the second element, 

the defendant must show prejudice; that is, a reasonable probability that, but for 

counsel’s errors, the result of the proceeding would have been different. Id.

There is a strong presumption that counsel rendered effective assistance and 

made all significant decisions in the exercise of reasonable professional 

judgment, and the defendant has the burden of overcoming this presumption. 

Harris, 762 N.E.2d 163.

[11] Hubbell asserts that his appellate counsel was ineffective for failing to raise a 

double jeopardy issue on appeal. Because the strategic decision regarding 

which issues to raise on appeal is one of the most important decisions to be 

made by appellate counsel, counsel’s failure to raise a specific issue on direct 
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appeal rarely constitutes ineffective assistance. Brown v. State, 880 N.E.2d 1226

(Ind. Ct. App. 2008), trans. denied. “For countless years, experienced advocates 

have ‘emphasized the importance of winnowing out weaker arguments on 

appeal and focusing on one central issue if possible, or at most a few key 

issues.’” Walker v. State, 988 N.E.2d 1181, 1191 (Ind. Ct. App. 2013) (quoting 

Bieghler v. State, 690 N.E.2d 188, 194 (Ind. 1997)), trans. denied. Accordingly, on 

review, we should be particularly deferential to appellate counsel’s strategic 

decision to exclude certain issues in favor of other issues more likely to result in 

a reversal. Id. To prevail on such a claim, a defendant must show from the 

information available in the trial record or otherwise known to appellate 

counsel that counsel failed to present a significant and obvious issue and that 

this failure cannot be explained by any reasonable strategy. Ben-Yisrayl v. State, 

738 N.E.2d 253 (Ind. 2000).

[12] Hubbell’s trial counsel was also his appellate counsel. Prior to Hubbell’s 

sentencing, counsel filed with the trial court a motion to vacate or reduce the 

confinement conviction on double jeopardy grounds. The State filed a response

identifying the evidence that supported separate injuries so as to avoid any 

violation of Hubbell’s double jeopardy rights. The State pointed to trial 

evidence of loss of consciousness and a cigarette burn that the jury could have 

found fulfilled the serious bodily injury element of Hubbell’s confinement

charge. The court denied Hubbell’s motion.

[13] As we noted above, on direct appeal, Hubbell’s counsel raised ten issues. Our 

Supreme Court affirmed.
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[14] Hubbell’s trial/appellate counsel testified at both his post-conviction hearings, 

stating that the State’s response to the motion to vacate “laid out a compelling 

case that the[re] were separate facts used to convict [Hubbell] of both the 

criminal confinement and the murder.” 2015 PCR Tr. Vol. 1, p. 68. 

Additionally, counsel testified he believed there were “other compelling or 

stronger arguments to have the conviction reversed.” Id. And later he 

reiterated, “[W]e did consider raising that on appeal, but it was decided, as I 

testified last time that we felt that the State’s argument was strong, that we 

wouldn’t be successful on that argument, and we had more arguments that we 

felt were going to be more successful in the appeal than that would have been

and we made a conscious decision not to include it.” 2019 PCR Tr. Vol. 2, p. 

12. Counsel also indicated that a successful double jeopardy argument would 

have resulted only in a reduction of sentence whereas success on the issues 

raised on appeal had the potential to lead to a reversal. Id. at 57.

[15] The post-conviction court observed that Hubbell’s trial/appellate counsel 

argued double jeopardy to the trial court based on the Richardson test, that the 

State responded with compelling arguments, and that the trial judge, who had 

just presided over the trial, denied Hubbell’s motion. The post-conviction court 

further found that counsel made a strategic decision not to include the double 

jeopardy claim on appeal due to the State’s strong argument in the trial court 

and the trial court’s decision, as well as the existence of stronger issues. Finally, 

the court noted that counsel attempted to show the cumulative effect of multiple 
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trial errors in an attempt to obtain a reversal of Hubbell’s convictions and, to do 

so, used 13,997 of the allotted 14,000 words in his appellate brief.

[16] Hubbell’s appellate counsel testified that his decision not to raise a double 

jeopardy claim on appeal was a strategic decision based on his assessment of 

other possible claims and their corresponding potential benefit. Moreover, his 

assessment was informed by the practice run in the trial court, and counsel was 

thus able to make his decision in light of the State’s argument and the court’s 

decision on the motion to vacate. Hubbell has not met his burden of showing 

that his appellate counsel failed to present a significant and obvious issue and 

that the failure cannot be explained by any reasonable strategy.

II. Request for Discovery

[17] Hubbell next contends the post-conviction court erred by denying his motion 

for discovery of the record of the unrelated criminal case of Michael Dean 

Overstreet.

[18] Post-conviction proceedings are governed by the same rules applicable in civil 

proceedings, including discovery procedures. Ind. Post-Conviction Rule 1(5).

Trial and post-conviction courts are afforded broad discretion in ruling on 

discovery matters, and we will affirm their determinations absent a showing of 

clear error and resulting prejudice. Wilkes v. State, 984 N.E.2d 1236 (Ind. 2013).

[19] Hubbell claims the post-conviction court’s ruling deprived him of his ability to 

“fully question, present evidence, and argue [his] position that Michael Dean 

Overstreet was the perpetrator of the crimes committed in [his] case.” 
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Appellant’s Br. pp. 21-22. However, Hubbell posed questions and argued his 

position during his evidentiary hearings. At his first hearing, Hubbell 

questioned his trial counsel about counsel’s investigation into Overstreet as a 

suspect in the disappearance of Myers. Counsel testified that he deposed the 

detective/lead investigator in Hubbell’s case who stated he had looked into 

Overstreet but “could never come up with any connection.” 2015 PCR Tr. Vol. 

1, p. 16. Referring to Overstreet, counsel further testified that he “thoroughly 

investigated that lead at the trial stages and ruled him out positively.” Id. at 89. 

Counsel recalled checking Overstreet’s BMV registration and records to 

determine if he had a van of the type that was described by Sherry Young,

talking with Overstreet’s attorneys, and reviewing all the media coverage of the 

Overstreet case. He stated, “The facts weren’t matching up. We made a 

conclusion that he wasn’t an alternate suspect. If he would have been, we 

absolutely would have included him in there. In fact, we had two other 

alternate suspects that we included[,]” one of whom admitted to the murder. 

Id. at 90; 2019 PCR Tr. Vol. 2, p. 17.

[20] At Hubbell’s second hearing, counsel again stated that he had thoroughly 

investigated Overstreet but that he “wasn’t a viable alternative suspect.” 2019 

PCR Tr. Vol. 2, p. 17. Hubbell extensively questioned his counsel as to his 

investigation of Overstreet. See id. at 29-48.

[21] There was no basis for the court to allow Hubbell to engage in a fishing 

expedition fueled merely by his speculation or hope that there is relief to be 

found. See Roche v. State, 690 N.E.2d 1115, 1132 (Ind. 1997) (post-conviction is 
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not device for investigating possible claims, but rather means for vindicating 

actual claims). Hubbell has failed to demonstrate that the post-conviction 

court’s refusal to allow him to obtain the records in Overstreet’s unrelated 

criminal case was clearly erroneous.

Conclusion

[22] Based on the foregoing, we conclude Hubbell has not met his burden of 

showing the evidence leads unerringly and unmistakably to a conclusion 

opposite that reached by the post-conviction court.

[23] Affirmed.

Bradford, C.J., and Bailey, J., concur.