2 STATEMENT OF THE CASE
Jerome Binkley (“Binkley”) appeals pro se from the post

- conviction court ’ s order
denying his petition for post

- con viction relief.

We reverse and remand

.
ISSUE
Whether the post

- conviction court erred by summarily denying Binkley ’ s petition for post

- conviction relief.

FACTS
The facts of Binkley ’ s crimes were set forth in the opinion by our Supreme

Court on direct appeal as follows: 1

The evidence at trial showed that in the early morning hours of August 31, 1991, Wayne Kemp was shot in the head while sitting in the front seat of his car. After completing an autopsy, the coroner could not determine what type of gun fired the fatal bullet. Furthermore, the police could not find the fatal bullet. They did discover, however, a spent shell casing on the floor of the car. Ballistics tests confirmed that the casing had housed a bullet fired from a Taurus nine

- millimeter pistol found in a trash can behind the house of the appellant ’ s friend, Dennis Owe ns.
Linking the putative murder weapon to Binkley was an important element of the State ’ s case. Though the pistol had been cleaned of fingerprints, Owens and another witness, Bill Loveland, testified that it had been in Binkley ’ s possession the night of Kemp ’ s murder. Police confirmed that the pistol was one of several firearms stolen a week before the murder from a Terre Haute sporting goods store. Binkley, Loveland, and Kemp were suspects in that robbery. Quite a number of the Terre Haute weapons wer e also recovered from Owens ’ trash can. According to Owens, Binkley had left a trash bag containing several guns, including t he Taurus pistol, at his (Owens ’ ) house a few days before the murder. Owens took a fancy to the pistol, and at some point gave Bi nkley forty dollars toward its purchase.

1 The Supreme Court set out the facts during their analysis of the sufficiency of the evidence argument.3

The night before the murder, Owens and Binkley met with friends at various Terre Haute night spots. Owens had loaded the pistol before leaving home, and had it with him in his car. He still considered it to be Bi nkley ’ s gun, and gave it to Binkley after he asked for it in the parking lot across the street from Nolan ’ s Bar. At some point, Wayne Kemp ’ s car pulled up to the group of revelers in the parking lot. Owens last saw appellant that night walking toward Way ne Kemp ’ s car.

The nex t morning Binkley came to Owens ’ house and presented him with a cloth bundle containing the pistol, now covered with sand and dirt. Binkley left, but returned later in the day after being questioned by the police. He informed Owens that the police were looking for the guns stolen in Terre Haute in connection with K emp ’ s murder, and he said they needed to get rid of them. Owens, who had cleaned the Taurus pistol prior to Binkley ’ s return, concealed it with the other weapons at the b ottom of a trash can in the alley behind his house. A short while late r Binkley was arrested at Owens ’ house for Kemp ’ s murder. Owens subsequently led detectives to the stash of guns.

Loveland corroborated Owens ’ account in important ways. He testified he had been sleeping at Binkley ’ s apartment on the night in question, and he was awakened at least twice before sunrise. On the first occasion, while Binkley was still out on the town, Wayne Kemp came by looking for him. Kemp left after smoking some coca ine, possibly heeding Loveland ’ s suggesti on to look for Binkley at Nolan ’ s. (It was outside Nolan ’ s where Owens o bserved appellant approach Kemp ’ s car.)
Loveland was awakened again about 4 a.m. when Binkley returned to the apartment. The two took to the streets on Loveland ’ s bicycle just as dawn was beginning to break. They first attempted to call on Owens. When no one responded to their knocking, Binkley produced a nine

- millimeter pistol and hid it in the barbecue grill behind Owens ’ house (thus expla ining the gritty coating Owens described). They next attempted to purchase cocaine at another location, without success, and finally proceeded at Binkley ’ s di rection to the alley where Kemp ’ s car sat with his body inside.
At the car, Binkley retrieved th e keys from inside and opened the trunk. Binkley told Loveland he had already taken five hundred dollars from Kemp and was searchi ng for “the rest of the money.” 2 The trunk search

2 It seems that the day before his murder, Kemp had cashed his Indiana State University loan check. His widow testified that even after paying various debts and other expenses, he still had five or six one

hundred dollar bills on his person in the hours before his death. This cash was not recovered from the murder sce ne

.4

proved unsuccessful, and Loveland and Binkley departed for a nearby crack h ouse. On each of two visits Binkley acquired a gram of cocaine. The cocaine had a street value of a hundred dollars per gram. When arrested several hours later, Binkley was carrying three one

- hundred dollar bills and

a one

- dollar bill.
The testimony by Owens and Loveland strongly suggested Binkley ’ s guilt, of course, but there was also physical evidence linking appellant to the murder. The clothes he was seen wearing the night of the murder turned up covered in blood in a dumpster. Tests of the blood on Binkley ’ s sweatshirt and blue jeans indicated that the blood could have come from the decedent, but not from Binkley. There was also evidence that Binkley knew Kemp was about to receive his loan check. According to Loveland, Kemp had approached Binkle y about purchasing some of cocaine once the loan check cleared. Binkley told Loveland he intended to “gank” (that is, rob) Kemp instead. Binkley v. State , 654 N.E. 2d 736, 737

- 38 (Ind. 1995).
After two mistrials, Binkley was convicted of murder and found to be an habitual

offender. Binkley was sentenced to sixty (60) years in prison for murder enhanced by
thirty (30) years for being an habitual offender.
Thereafter, Binkley filed a direct appeal from his convictions, arguing that the

evidence was insuff

icient to convict him of murder and that his ninety (90) year sentence
was manifestly unreasonable. As part of his sufficiency argument, Binkley specifically
challenged the credibility of Loveland ’ s testimony. The Supreme Court addressed his
sufficiency a rgument as follows:
Binkley ’ s lawyer struggled mightily to undermine Loveland ’ s testimony by introducing several sworn statements in which Loveland told different versions of the events on the night of Kemp ’ s murder. His brief on appeal casts Loveland ’ s testimony as “inherently unbelievable, and unreliable.” Whatever incentives Loveland may have had to perjure himself, we think a jury could have reasonably concluded, based on the testimony of Loveland and Owens and the attendant physical evidence, that Bi nkley had indeed followed through with his stated intent to “gank” Kemp, with fatal consequences.5

Id . at 738

- 39. The Supreme Court affirmed both Binkley ’ s conviction and sentence. Id

.
at 740.
In 2000 and 2003, Binkley filed petitions for post

- convictio n relief ( “ PCR ” ) . He
eventually withdrew both petitions

. On July 20, 2012
, Binkley filed a pr o se petition for
PCR, claiming that :
trial counsel was ineffective for failure to adequately preserve that the knowing use of perjured testimony is fundamentall y unfair; and a conviction obtained by the use of such testimony will not be upheld

- which was stronger than the issue legally inapplicable for appellate review. This violated petitioner ’ s Fifth, Sixth, and Fourteenth amendments to the United Stat es Consti tution, and state law.

(State ’ s App. 2)

. The S tate filed an answer to Binkley ’ s petition on August 7, 2012. 3 On

August 13, 2012 , the post

- c onviction court summarily denied Binkley ’ s petition for PCR.
Binkley now appeals.

DECISION
Binkley appeals from the post

- conviction court ’ s order denying post

- conviction

relief without conducting an evidentiary hearing

. Our standard of revi ew in post

conviction proceedings is well settled.
We observe that post

- conviction proceedings do not grant a petitioner a “s uper

- appeal” but are limited to those issues available under the Indiana Post

- Conviction Rules. Post

- conviction proceedings are civil in nature, and petitioners bear the burden of proving their grounds for relief by a preponderance of the evidence. Ind. Post

- Conviction Rule 1(5). A petitioner who appeals the denial of PCR faces a rigorous standard of review, as the reviewing court may consider only the evidence and the reasonable inferences supporting the judgment of the post

- conviction court. The appel late court must accept the post

- conviction court ’ s findings of fact and may reverse only if the findings are clearly erroneous. If a PCR

3 Neither party included a copy of the State ’ s answer in th eir appendices

.6

petitioner was denied relief, he or she must show that the evidence as a whole leads unerringly and unmistakably to an opposite conclusion than that reached by the post

- conviction court. Shepherd v. State , 924 N.E.2d 1274, 1280 (Ind. Ct. App. 2010) (internal citations

omitted), trans. denied.
The only issue on appeal is whether the post

- conviction c ourt erred by summa rily
denying Binkley ’ s petition for PCR that raised a claim of ineffective assistance of

counsel

. The State argues that the post

- conviction court did not err because the pleadings
conclusively established that he was not entitled to relief. In addition, the State argues
that Binkley’s allegation of ineffective assistance of counsel was essentially the same

issue addressed by our Supreme Court in his direct appeal. Binkley argues that his

ineffective assistance of counsel claim is different because it inv olves a claim that his
trial counsel did not adequately preserve the issue of whether the State’s primary witness

( Bill Loveland) committed perjury.
In addressing this issue, it is important to decide the appropriate standard of

review. Post

- Conviction Rule 1, section 4 outlines two different ways a post

- conviction
court may deny a petition without a hearing. A separate panel of this court has discusse d

the differences as follows :
First, in subsection ( f

) , the rule provides: “If the pleadings conclusive ly show that petitioner is entitled to no relief, the court may deny the petition without further proceedings .” Second, in subsection (g), the rule provides:

The court may grant a motion by either party for summary disposition of the petition when it app ears 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.7

Disposal of a petition under each of these two subsections leads to a different standard of review on appeal.
When a court disposes of a petition under subsection ( f ) , we essentially review the lower court’s decision as we would a motion for judgment on the pleading s. The court errs in disposing of a petition in this manner unless ‘the pleadings conclusively show that petitioner is entitled to no relief.’ If the petition alleges only errors of law, then the court may determine without a hearing whether the petition er is entitled to no relief on those questions. However, if the facts pled raise an issue of possible merit, then the petition should not be disposed of under section 4(f). ‘This is true even though the petitioner has only a remote chance of establishing his claim.’

On the other hand, when a court disposes of a petition under subsection (g), we review the lower court’s decision as we would a motion for summary judgment. We face the same issues that were before the post

conviction court and follow the sa me process. A grant of summary disposition is erroneous unless ‘there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.’ We must resolve all doubts about facts, and the inferences to be drawn from the f acts, in the non

- movant’s favor. The appellant has the burden of persuading us that the post

- conviction court erred.

* * * *
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. . . .

Allen v. State , 791 N.E.2d 748, 752

- 753 (Ind. Ct. App. 2003) (internal citations omitted)
,
trans. denied

.

Concerning the issue of ineffective assistance of trial counsel, we have held this
particular issue is fact sensitive. Kelley v. State , 952 N.E.2d 297, 300 (Ind. Ct. App.

20 11). In fact, some factual determinations must be made. Id . “Consequently, when a8

petitioner alleges ineffective assistance of counsel, and the facts pled raise an issue of

possible merit, the petition should not be summarily denied. Id . at 300 (emphas is added)

. In this case, it is clear from the record that the post

- conviction court made its
decision based solely on the pleadings under subsection (f). Neither party had submitted
any affidavits, referred to other evidence, or filed a motion for su mmary disposition,
which would have triggered subsection (g). As a result, we must determine whether the
pleadings conclusively show that Binkley is not entitled to relief.
In his petition, Binkley inartfully argues that his trial counsel was ineffective for
failing “to adequately preserve that the knowing use of [Loveland’s] perjured testimony”

was fundamentally unfair. ( Binkley ’s App. 15). The State argues that the post

conviction court likely disregarded this argument because it was addressed by our
Supreme Court on direct appeal. While our Supreme Court mentioned Loveland’s

perjured testimony, it did not address the testimony in terms of whether the manner in
which Binkley’s trial counsel sought to prevent or counteract the testimony amounted to

ine ffective assistance of counsel. In other words, whether the performance of Binkley’s

trial counsel (1) fell below an objective standard of reasonableness; and (2) but for
counsel’s errors, the result of the proceeding would have been different. Stricklan d v.

Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Ineffective
assistance is a separate and distinct inquiry from whether there is sufficient evidence to
support a conviction. This is partly why an ineffective assistance claim is avail able for

post

- conviction relief, even when the issue is available and not raised on direct appeal.

Landis v. State , 749 N.E.2d 1130 (Ind. 2001).9

Because Binkley has pled sufficient facts to raise an issue of possible merit, we

find that the trial court erred in summarily denying Bin k ley’s PCR petition. As a result,
we remand for further proceedings on Binkley’s ineffective assistance of counsel claim

and direct the post

- conviction court to issue findings of fact and conclusions of law

consistent with Pos t

- Conviction Rule 1(6)

.
Reversed and remanded.

KIRSCH, J., and VAIDIK, J., concur.