Court of Appeals of Indiana | Opinion 35A04-1412-PC-568 | July 22, 2015 Page 1 of 12

ATTORNEY FOR APPELLANT

Rodolfo S. Monterrosa, Jr.

South Bend, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

James B. Martin

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Abdullatip Osmanov,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

July 22, 2015

Court of Appeals Case No.

35A04-1412-PC-568

Appeal from the Huntington Superior 

Court

Lower Court Cause No.

35D01-1410-PC-14

The Honorable Jeffrey R. 

Heffelfinger, Judge

Pyle, Judge.

Statement of the Case

[1] Abdullatip Osmanov (“Osmanov”), a United States permanent resident who 

pled guilty to a felony and a misdemeanor, filed a petition for post-conviction 

relief, in which he claimed that his plea was entered unknowingly and that his 

trial counsel was ineffective, with both claims dependent on his contention that 
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he had not been advised of the risk of deportation. Before the State filed a 

response to the petition, the post-conviction court—relying on a written

advisement and waiver of rights form and the transcript from Osmanov’s guilty 

plea—summarily denied Osmanov’s post-conviction petition because the

advisement/waiver form contained an advisement that a felony conviction 

could result in the possibility of deportation and because Osmanov stated 

during the guilty plea hearing that he had read the advisement and discussed it 

with his attorney. On appeal, Osmanov challenges both the propriety of the 

post-conviction court’s entry of a summary denial and the denial of his two

post-conviction claims. We find Osmanov’s issue regarding the summary 

disposition to be dispositive and conclude that the post-conviction court erred 

by summarily denying Osmanov’s post-conviction petition. Accordingly, we 

reverse the post-conviction court’s judgment and remand for further 

proceedings. 

[2] We reverse and remand.

Issue1

Whether the post-conviction court erred by summarily denying 

Osmanov’s post-conviction petition. 

 

 

1 Osmanov raises three issues on appeal. Because we find the first one dispositive, we will not address the 

remaining two.
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Facts

[3] In April 2013, the State charged Osmanov, who was a United States permanent 

resident, with Class D felony theft2 and Class B misdemeanor failure to stop 

after an accident resulting in non-vehicle damage.

3

 In May 2013, Osmanov 

pled guilty, pursuant to a written plea agreement, to the crimes as charged. 

When doing so, he filed a “Written Advisement and Waiver of Rights” form

with the trial court. (App. 4). The trial court sentenced Osmanov to three (3) 

years, with two (2) years and 357 days suspended to probation, for Osmanov’s 

Class D felony conviction and to 180 days, with 172 days suspended to 

probation, for his Class B misdemeanor conviction, and it ordered that these 

sentences be served concurrently. 

[4] On October 29, 2014, Osmanov, by counsel, filed a petition for post-conviction 

relief.

4

 In his petition he raised the following claims: (1) his guilty plea was not 

entered knowingly because he was “unaware of the immigration consequences 

that a criminal conviction would have on his legal permanent resident status[;]” 

and (2) he had received ineffective assistance of trial counsel in regard to his 

 

2

IND. CODE § 35-43-4-2. 

3

I.C. § 9-26-1-4. This statute was repealed effective January 1, 2015. 

4

In between Osmanov’s sentencing and the filing of his post-conviction petition, he admitted that he had 

violated the terms of his probation, and the trial court ordered him to serve an additional 180 days of his 

original sentence and modified the terms of his probation to include drug testing. 
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guilty plea, pursuant to Padilla v. Kentucky, 559 U.S. 356 (2010), because his 

counsel had failed to advise him of the risk of deportation. (App. 9). 

[5] Twelve days later and before the State had filed an answer, the post-conviction 

court issued an order, summarily denying Osmanov’s petition for postconviction relief. In its order, the post-conviction court quoted Osmanov’s two 

claims from his post-conviction petition and gave its reasons for denying relief 

as follows:

The Court would note that at the time defendant entered his 

written Motion to Enter a Plea of Guilty that the defendant also 

filed with the Court a Written Advisement and Waiver of Rights, 

which he and his attorney signed. The defendant represented to 

the Court that he had read the advisement, that he had discussed 

it with his attorney and that he understood it.

Paragraph 7 of his Written Advisement and Waiver of Rights 

states: “If you are not a citizen of the United States of America, 

a felony conviction may have severed [sic] adverse consequences 

on your immigration status, including the possibility of 

deportation.”

(App. 12). Thus, when ruling on Osmanov’s post-conviction petition, the postconviction court apparently took judicial notice of and relied upon documents 

outside of the post-conviction proceeding—i.e., Osmanov’s Written 
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Advisement and Waiver of Rights form and guilty plea transcript from his 

criminal proceeding.5 Osmanov now appeals. 

Decision

[6] Osmanov appeals from the post-conviction court’s order summarily denying 

post-conviction relief on his claims of an unknowing guilty plea and ineffective 

assistance of trial counsel. 

[7] Our standard of review in post-conviction proceedings is well settled. “Postconviction procedures . . . create a narrow remedy for subsequent collateral 

challenges to convictions, challenges which must be based on grounds 

enumerated in the post-conviction rules.” Williams v. State, 706 N.E.2d 149, 

153 (Ind. 1999), reh’g denied, cert. denied. “Petitioners bear the burden of 

establishing their grounds for relief by a preponderance of the evidence.” Id. 

However, “[w]hen one appeals the negative judgment of a post-conviction 

court, the standard is even more rigorous[,]” and such petitioners “must show 

that the evidence as a whole, ‘leads unerringly and unmistakably to a 

conclusion opposite to that reached by the trial court.’” Id. at 154 (quoting 

Weatherford v. State, 619 N.E.2d 915, 917 (Ind. 1993), reh’g denied).

 

5 Our review of the record on appeal reveals that the post-conviction court did not include the written 

advisement/waiver form in the post-conviction record; nor did Osmanov include it in his Appellant’s 

Appendix. The guilty plea transcript is also not part of the appellate record.
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[8] Osmanov argues that the post-conviction court erred by: (1) summarily 

denying his petition for post-conviction relief without holding a hearing; and (2) 

denying post-conviction relief on his two post-conviction claims. We find that 

Osmanov’s first issue is dispositive and will only address that issue. 

[9] In regard to Osmanov’s summary disposition argument, he contends that the 

post-conviction court erred by summarily denying his post-conviction relief 

without holding an evidentiary hearing. Osmanov asserts that the postconviction court’s summary denial was erroneous because his claims raised 

issues of fact that were inappropriate for such a summary disposition. 

Additionally, Osmanov argues that the post-conviction court erred because it 

“referred to his guilty plea hearing in making its decision” but did not enter the 

guilty plea court records into evidence. (Osmanov’s Br. 6). More specifically, 

he contends that the post-conviction court erred by taking judicial notice of the 

guilty plea records from his original criminal proceeding and cites to Armstead v. 

State, 596 N.E.2d 291 (Ind. Ct. App. 1992), to support his contention. 

[10] The State does not address the propriety of the post-conviction court’s

introduction of or reliance upon evidence from Osmanov’s guilty plea

proceeding; nor does it directly respond to Osmanov’s contention that the postconviction court erred by taking judicial notice of these underlying records. 

Instead, the State asserts that the post-conviction court properly entered a 

summary denial on Osmanov’s post-conviction claims under Post-Conviction 

Rule 1(4)(g) and properly denied his claims because Osmanov’s “conduct at his 
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guilty plea hearing and the Written Advisement and Waiver of Rights he 

endorsed” “refuted” his post-conviction claims.

6

 (State’s Br. 10).

[11] Turning to Osmanov’s general contention that the post-conviction court erred 

by summarily denying his petition without a hearing, we have previously 

explained that Post-Conviction Rule 1(4) provides 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. See Binkley v. State, 993 N.E.2d 645, 649-50 (Ind. Ct. App.

2013) (citing Allen v. State, 791 N.E.2d 748, 752-53 (Ind. Ct. App. 2003), trans. 

denied). Subsection (f) provides that a post-conviction court “may deny the 

 

6 The State also contends that Osmanov waived review of this issue, arguing that he did so because he: (1) 

failed to make “any effort . . . to subpoena any witnesses, to present his evidence through affidavit, or to have 

an evidentiary hearing[;]” (2) failed to provide an adequate record on appeal because his appendix does not 

include the Written Advisement and Waiver of Rights form referenced by the post-conviction court; and (3) 

failed to provide cogent argument regarding the post-conviction court’s disposition of his case without an 

evidentiary hearing. (State’s Br. 6). 

We disagree with the State’s assertions of waiver. First, Osmanov did not waive appellate review of his 

challenge to the post-conviction court’s summary disposition of his case by failing to subpoena witnesses, 

present affidavits, or request a hearing. The post-conviction court summarily denied Osmanov’s postconviction petition a mere twelve days after he filed it. Indeed, the rapid denial of his petition—which is 

exactly what he is challenging on appeal—did not leave time for Osmanov to do any of the acts that the State 

now faults him for not doing. 

Second, Osmanov also did not waive review of this issue due to his failure to include the Written Advisement 

and Waiver of Rights form in his Appellant’s Appendix. Appellate Rule 49(B) provides that a party’s “failure 

to include any item in an Appendix shall not waive any issue or argument.” Furthermore, it does not appear, 

from our review of the record on appeal, that the post-conviction court included this form in the record. 

Moreover, as explained later in the opinion, the post-conviction court’s reliance on this form and the guilty 

plea transcript was not proper where, as here, the court’s summarily denial of Osmanov’s was based on PostConviction Rule 1(4)(f). 

Third and lastly, we disagree with the State’s contention that Osmanov has waived his summary disposition 

argument based on a failure to provide a cogent argument. Osmanov clearly argues that the post-conviction 

court erred by summarily denying his post-conviction petition and provides citation to case law to support his 

argument.
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petition without further proceedings” if “the pleadings conclusively show that 

[the] petitioner is entitled to no relief[.]” Ind. Post-Conviction Rule 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.

P-C.R. 1(4)(g). 

[12] Here, the record on appeal reveals that neither party filed a motion for 

summary disposition or submitted affidavits or other evidence. Indeed, the 

parties did not even have time to do so as the post-conviction court denied 

Osmanov’s petition less than two weeks after he filed it and before the State had 

a chance to file an answer within the thirty-day response period. See P-C.R. 

1(4)(a). Because neither party filed a motion for summary disposition or 

submitted any sort of evidence, the post-conviction court’s summary denial

would not have been based on Indiana Post-Conviction Rule 1(4)(g). See

Binkley, 993 N.E.2d at 650 (clarifying that subsection (g) is “triggered” only

when the parties have submitted affidavits, referred to evidence, or filed a 

motion for summary disposition) (emphasis added); Allen, 791 N.E.2d at 753 

(explaining that “[u]nder the plain language” of subsection (g), a postconviction court “may grant summary disposition after ‘a motion by either 

party’ and after considering the pleadings and other evidence submitted” by the 
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parties) (quoting P-C.R. 1(4)(g)). Instead, the post-conviction court’s summary 

disposition would have been based on subsection (f). 

[13] “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 

pleadings.” Allen, 791 N.E.2d at 752. “The [post-conviction] court errs in 

disposing of a petition in this manner unless ‘the pleadings conclusively show 

that petitioner is entitled to no relief.’” Id. at 752-53 (quoting P-C.R. 1(4)(f)) 

(emphasis added). If a post-conviction petition contains claims that allege only 

“errors of law,” then the post-conviction court may determine, without a 

hearing, whether the petitioner is entitled to relief on those claims. Id. at 753. 

See also Clayton v. State, 673 N.E.2d 783, 785 (Ind. Ct. App. 1996). “However, if 

the facts pled raise an issue of possible merit, then the petition should not be 

disposed of under section 4(f).” Id. “‘This is true even though the petitioner 

has only a remote chance of establishing his claim.” Id. (quoting Clayton, 673 

N.E.2d at 785). The post-conviction court “should accept the well-pled facts as 

true and determine whether the post-conviction petition raises an issue of 

possible merit.” Id. at 756.

[14] Osmanov alleged in his post-conviction petition that his guilty plea was 

unknowingly entered because he was “unaware of the immigration 

consequences that a criminal conviction would have on his legal permanent 

resident status” and that he had received ineffective assistance of trial counsel in 

regard to his guilty plea, pursuant to Padilla v. Kentucky, 559 U.S. 356 (2010), 

because his counsel failed to advise him of the risk of deportation. (App. 9). 
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Both of Osmanov’s claims are based on questions of fact, not law, in regard to 

his awareness of the risk of deportation. Indeed, we have repeatedly held that 

the “issue of the effectiveness of counsel is an evidentiary question” and that the 

resolution of such an issue “revolves around the particular facts of each case.” 

Kelly v. State, 952 N.E.2d 297, 300 (Ind. Ct. App. 2011). See also Binkley, 993 

N.E.2d at 650 (explaining that the issue of ineffective assistance of counsel is 

“fact sensitive”); Allen, 791 N.E.2d at 756; Evolga v. State, 722 N.E.2d 370, 372 

(Ind. Ct. App. 2000); Clayton, 673 N.E.2d at 786. “Consequently, when a 

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

issue of possible merit, the petition should not be summarily denied.” Kelly, 952 

N.E.2d at 300 (emphasis added). Additionally, we have found that the issue of 

voluntariness of a guilty plea involve issues of fact not appropriate for summary 

disposition. See Hamner v. State, 739 N.E.2d 157, 161 (Ind. Ct. App. 2000).

[15] Again, Osmanov’s post-conviction petition alleged that his trial counsel was 

ineffective and that his plea was unknowingly entered because he was not 

aware or advised of the risk of deportation. The post-conviction court 

summarily denied the petition before the State had the opportunity to respond. 

In its order, the post-conviction court referred to and relied upon documents 

outside of the post-conviction proceeding—i.e., Osmanov’s Written 

Advisement and Waiver of Rights form and guilty plea transcript from his 

criminal proceeding—when denying post-conviction relief. This apparent 

judicial notice by the post-conviction court suggests that it applied an 

inappropriate standard when reviewing Osmanov’s claims. See Allen, 791 
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N.E.2d at 755-756 (holding that the post-conviction court’s language that the 

petitioner’s ineffective assistance of counsel claim was without merit because 

“the evidence of record” and the petitioner’s contentions “suggested no good 

faith reasons for the Court to conclude otherwise” suggested that the postconviction court applied an inappropriate standard when reviewing the 

petitioner’s claim). “At this stage of the [post-conviction] proceedings, we have 

only the pleadings[.]” Id. at 756. As a result, the post-conviction court’s 

consideration of the advisement/waiver form and the transcript from 

Osmanov’s guilty plea hearing, when it was summarily disposing of his petition 

under Post-Conviction Rule 1(4)(f), was not appropriate in this specific 

instance.7 See id. “Rather, the [post-conviction] court should [have] accept[ed]

the well-pled facts as true and determine[d] whether the petition raise[d] an 

issue of possible merit.” Id.

[16] Osmanov’s petition—when reviewed without considering documents outside 

the pleadings—pled facts that raised issues of possible merit. Thus, the postconviction court erred by summarily denying relief on his post-conviction 

 

7

 We clarify that the impropriety of the post-conviction court’s act of taking judicial notice is specifically 

limited to the precise facts involved in this case. Indeed, we reject Osmanov’s suggestion that the postconviction court cannot, in any circumstance, take judicial notice in a post-conviction proceeding, as well as, 

his reliance on Armstead to support his suggestion. We note that Armstead was issued before the effective date 

of Indiana Evidence Rule 201, which provides that courts, including a post-conviction court, may take 

judicial notice of “records of a court of this state” and of facts that “can be accurately and readily determined 

from sources whose accuracy cannot reasonably be questioned.” See Evid. R. 201(b)(5), 201(a)(1)(B), 

respectively. Additionally, Indiana Post-Conviction Rule 1(4)(d) provides that when a post-conviction 

“petition is challenging a sentence imposed following a plea of guilty, the court shall make a part of the 

record the certified transcript made pursuant to [Criminal Rule] 10.” However, because the post-conviction 

proceeding before us was at the summary disposition stage under Post-Conviction Rule 1(4)(f), consideration 

of judicially-noticed records or documents was not appropriate at this specific stage.
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petition under Post–Conviction Rule 1(4)(f). Accordingly, we must reverse the 

post-conviction court’s summary denial and remand for further proceedings on 

his ineffective assistance of counsel and unknowing guilty plea claims. See, e.g.,

Binkley, 993 N.E.2d at 651 (reversing the post-conviction court’s summary 

denial under Post–Conviction Rule 1(4)(f) where the petitioner’s claim of

ineffective assistance of counsel raised an issue of possible merit); Kelly, 952 

N.E.2d at 300-01 (holding that the post-conviction court’s summary denial of a 

post-conviction petition was erroneous and remanding for a hearing on the 

petitioner’s ineffective assistance of counsel claim); Allen, 791 N.E.2d at 756 

(reversing the post-conviction court’s summary denial under Post–Conviction 

Rule 1(4)(f) where the post-conviction court inappropriately considered matters 

outside the pleadings); Hamner, 739 N.E.2d at 161 (remanding for an 

evidentiary hearing where fact issues were involved in the petitioner’s claims of

voluntariness of a guilty plea and effectiveness of counsel); Armstead v. State, 596 

N.E.2d 291, 293-94 (Ind. Ct. App. 1992) (reversing a post-conviction court’s 

summary denial of a petitioner’s claims of unknowing guilty plea and 

ineffective assistance of counsel and remanding for a hearing).

[17] Reversed and remanded.

Crone, J., and Brown, J., concur.