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Death By Lethal Subjection Contents Death By Lethal Subjection Obstruction Of Justice Criminal File 1 Criminal File 2 Criminal File 3 Criminal File 4 Criminal File 5 Criminal File 6
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CRIMINAL FILE 6 AS TO GROUNDS ALLEGED REGARDING DISMISSAL OF SUCCESSIVE POST-CONVICTION RELIEF PETITION GROUND TWENTY-SEVEN FACTS Sholes was delayed in prosecuting his successive post-conviction matter because of two separate forty-five day prison-wide lock-downs within a five and a half month period, from March 16, 2001, the last day of recorded activity to August 30, 2001, the day the State of Indiana filed it's Motion To Dismiss. The lockdowns occurred on April 2, 2001 through May 14, 2001and again on July 9, 2001 through August 20, 2001. Sholes never had 60 consecutive days of delay in which he was not locked-down during the period in question, as required by Indiana Trial Rule 41(E) to dismiss for want of prosecution. Additionally, Sholes established for the Wabash Circuit Court and the State Appellate Courts that during said prison lock-downs he was denied access to the prison law library and forbidden to request anything from the law library because he did not have a verifiable deadline in the courts. Moreover, Sholes established that the reason why he did not have a deadline in the courts was that he had been granted an indefinite continuance from the evidentiary hearing in the Wabash Circuit Court, which he relied upon in good faith, and that the post-conviction court had not set the matter for a future hearing. Furthermore, Sholes established he was denied access to an adequate prison law library even when the prison is not on lock-down. However, the Post-Conviction Court, Indiana Court of Appeals, and the Indiana Supreme Court ignored Sholes' reasons for the delay and claim of deprivation of access to the courts when he was denied access to the law library due to the prison lock-downs, and deprived and denied Sholes meaningful access to the courts when it dismissed his successive petition for want of prosecution. GROUND TWENTY-EIGHT FACTS The Wabash County prosecutor, Alfred H. Plummer, III, was responsible to bring the complete Wabash Circuit Court file with him to the September 17, 2001 hearing to show cause why Sholes' successive post-conviction relief petition, being held in neighboring Huntington County, Huntington Circuit Court, Special Judge mark A. McIntosh presiding, should not be dismissed. However, the prosecutor failed to bring a court file or a complete court file containing the procedural history of Sholes' successive post-conviction matter. Additionally, the Prosecutor gained an unfair tactical advantage over Sholes at and during the September 17, 2001 hearing to show cause when he intentionally removed documents from the court file, which unknowingly and unfairly placed the burden to recreate the procedural history squarely on Sholes' shoulders. Many documents were missing from the court file that showed Sholes diligently prosecuting his case, included but not limited to: Sholes' September 8, 2000 principle motion for an indefinite continuance, with stipulations; the Wabash Circuit Court's September 20, 2000 order granting Sholes an indefinite continuance, and, at least and additionally, Sholes' discovery efforts filed with the court to safeguard this very threat (i.e. several Subpoena Duces Tecums and Requests For Production of Document by Non-Party and Party). Sholes has to assume that all documents favorable to him were missing, including even his September 11, 2001 Objection and Response In Opposition To State's Motion To Dismiss For Want Of Prosecution, where he went into detail as to the reason for his delay and asked the court to set the matter for hearing if it felt he needed to proceed. Because of the prosecutor's actions, the court was misled to believe Sholes' delay was longer than actually occurred and erroneously portrayed Sholes as dilatory, all the while eliminating the court's ability to verify or otherwise establish the actual length of delay and procedural activity of Sholes, elements that must be considered before a dismissal for want of prosecution. GROUND TWENTY-NINE FACTS According to the transcript, Judge McIntosh, at the beginning of the September 17, 2001 hearing to show cause told the Wabash County prosecutor, "Go right ahead, Mr. Plummer. Do you have the file?" Mr. Plummer responded: "Uh, yeah-uh, the file is up there for you, Judge, I think." Then further into the proceeding, when Judge McIntosh realized that Sholes was talking about filing things an a procedural history that he was not privy to, he asked the same prosecutor, "This isn't the full file is it, Mr. Plummer, that you have given me?" Mr. Plummer responded: "I'm sorry. I-I-I don't have the file, Judge." Additionally, the prosecutor did not attempt to correct his malfeasance even after the judge confronted him about the incomplete court file. After discovering the incomplete court file, Judge McIntosh had a duty to afford Sholes a fair and impartial proceeding, yet failed to provide Sholes such. Further, the judge did not continue the matter to be heard at a future date when a complete procedural history could be present before the court ruled; rather, the judge pressed on without a complete account and procedural history and dismissed Sholes as dilatory. Therefore, the post-conviction court, Judge Mark A. McIntosh, failed to afford Sholes fairness and a proper procedure at the September 17, 2001 proceeding, and to address the prosecutor's misconduct in intentionally sifting and removing documents favorable to Sholes from the court file, relevant to the procedural history at the hearing. As a result, Sholes was unfairly prejudiced and denied due process and a fair proceeding when Judge McIntosh failed to address the prosecutor's misconduct and proceeded to dismiss Sholes anyway. GROUND THIRTY FACTS The post-conviction court failed to afford Sholes, as an incarcerated indigent pro se litigant, the same rights and procedures it would have shown an attorney-represented petitioner. Indiana Rules of procedure for Post-Conviction Remedies, Rule 1, Section 5, regarding Hearing, stipulates, "All rules and statutes applicable in civil proceedings including pre-trial and discovery are available to the parties." If the Wabash Circuit Court had been an involved court, it would have called for a pretrial conference, pursuant to Rule 16(a)(7) of Indiana Rules of Trial procedure, to inquire of Sholes' status in proceeding. Instead, the court was indifferent to Sholes and it did not call for a pretrial conference, did not afford Sholes, pro se, the same hands-on management of the case that an attorney would have been shown; rather, it did nothing but stand back and wait until the State filed its motion to dismiss then it unfairly and aggressively threw Sholes out of court. Additionally, the court even led Sholes to, in good faith, rely upon having been granted an indefinite continuance before it dismissed his matter. GROUND THIRTY-ONE FACTS On September 8, 2000, pursuant to Indiana Trial Rule 53.5, Sholes properly and timely filed his Affidavit and Motion For Continuance from the evidentiary hearing on his successive post-conviction relief petition in the Wabash Circuit Court, without objection from the Wabash County Prosecutor. The Motion contained the stipulation that, in exercising his right to discovery, Sholes needed adequate time to prepare for a two-day evidentiary hearing, calling up to fifteen witnesses, and would motion the Court when he was prepared to proceed. Upon granting an indefinite continuance in his successive post-conviction relief matter, on September 20, 2000, the Wabash Circuit Court set aside the previously set evidentiary hearing date and did not re-set the matter on the Court calendar. Most importantly, the post-conviction court Order did not disagree with nor otherwise address Sholes' stipulation for granting him an indefinite continuance; rather, the court's order gave him every reason to believe the court had agreed to the stipulation, which further caused Sholes to rely, in good faith, upon what he asked the court to grant him. The post-conviction court, in effect, caused Sholes to rely, in good faith, upon the provisions of one law, Indiana Trial Rule 53.5 and an indefinite continuance, only to superimpose another law, Indiana Trial Rule 41(E) and dismiss his successive post-conviction relief matter, in contravention to his rights provided by Indiana Rules of Procedure for Post-Conviction Remedies, Rule 1, Section 5, regarding an evidentiary hearing on his successive post-conviction relief matter. GROUND THIRTY-TWO FACTS Sholes, in filing his pro se request for leave to file and in filing his pro se successive post-conviction relief petition, on the sole issue of ineffective assistance of post-conviction and appeal counsel, declined appointment of counsel because he had a conflict of interest with the Public Defender's Office. The Public Defender previously failed to amend and prosecute Sholes' pro se and amateurish original post-conviction petition on issues of coercion of plea agreement and ineffective assistance of trial counsel, and waited until just a few weeks before his evidentiary hearing before withdrawing [Public Defender's] her appearance. Additionally, Sholes, as a pro se litigant, was relying in good faith upon having been granted an indefinite continuance to obtain discovery, information that trial and post-conviction counsel failed to investigate and enter into the record, and to prepare for a two-day evidentiary hearing on his successive post-conviction relief issue of ineffective assistance of post-conviction counsel using an inadequate prison law library, when he was denied access to the prison law library due to and during two separate forty-five day prison lockdowns and delayed in prosecuting his matter, and subsequently dismissed for want of prosecution, before he could for and be heard at an evidentiary hearing. (see, Ground Twenty-Seven Facts, above). Sholes had planned to call and examine up to fifteen witnesses and to introduce crucial evidence of post-conviction counsel's (and in turn, trial counsel's) deficient performance and prejudice against Sholes, uncovered from his discovery efforts. Additionally, preparation for such was also hindered by an uninvolved post-conviction court which was prejudicial to Sholes when it failed to afford him the same consideration it would have shown an attorney-represented petitioner; a pre-trial conference, warning, or otherwise inform Sholes he needed to proceed, and threw him out of court. GROUND THIRTY-THREE FACTS The State of Indiana's erroneous dismissal of Sholes' successive post-conviction relief petition denied him the opportunity and right to have the merits of his petition adjudicated, to be heard, to confront and examine witnesses, to present evidence previously excluded from the record by both trial and post-conviction counsel. Additionally, the Court of Appeal's November 25, 2002 decision affirming the lower court's dismissal of Sholes' successive post-conviction petition for want of prosecution, February 9, 2004 Order denying Sholes' Petition for Rehearing, and the Supreme Court of Indiana's April 1, 2004 Order denying Transfer has thwarted his last attempt to get into the record facts that would support his claim raised in his successive post-conviction petition, which in turn would support claims raised in his first petition, ineffective assistance of trial counsel and coercion of a plea agreement. For example, through Sholes', pro se, discovery efforts in this successive matter he obtained documents from former defense expert witness and toxicologist, Dr. Roger Maickel, that showed trial counsel lied to Sholes, and failed to include with other documents provided to Dr. Maickel the Paramedic and Wabash County Hospital reports (which show minutes after the shooting incident Sholes had lapsed into a drug/alcohol coma) when requesting Dr. Maickel's opinion regarding Sholes' mental capacity. Further, these reports scientifically verify Sholes' physiological condition, which included: .232 blood alcohol level (serum); positive drug screen for Darvon (actually Klonopin), a sedative, and Pseudoephedrine (Sudafed); fixed and constricted pupils; gross respiratory depression, 4-10 breathes per minute; elevated carbon dioxide blood gas levels; lowered oxygen blood gas levels; very high (sinus-tacky) heartbeat rhythm, while unconscious; elevated blood-pressure; and unresponsive unconsciousness that lasted several hours, all classic symptoms of drug/alcohol overdose. (Prior to Sholes' coerced plea agreement, trial counsel told Sholes that Dr. Maickel's findings regarding Sholes' mental capacity at the time of the hooting were inconclusive, and depended upon Sholes' "tolerance" to alcohol and drugs. Yet, during Sholes' original post-conviction haring, trial counsel testified he failed to tell Sholes before his plea that Dr. Maickel's preliminary findings showed Sholes, at the time of the shooting, suffered from diminished capacity). Additionally, had post-conviction counsel called Dr. Maickel as a witness and obtained discovery from him prior to examining trial counsel, he would have been able to show the court that not only was trial counsel's performance deficient for not including these documents when requesting his expert opinion, but that had trial counsel provided Dr. Maickel with these two documents the results would not have been inconclusive and there would have been no question as to the degree of Sholes' impairment and mental capacity, making the issue of "tolerance" moot and the viability of an intoxication defense unquestionable. Moreover, had post-conviction counsel called the Wabash County Hospital paramedic, Ed Phillips, and Registered Nurse, Gladys Speicher (1st responder and emergency room nurse) as witnesses they would have been able to substantiate Sholes' condition and corroborate this evidence in testimony and for the record, since their medical reports were included in the documentation excluded to Dr. Maickel. Clearly, a different outcome would have resulted. Furthermore, this excluded evidence was essential to evaluate Sholes' mental capacity and overwhelmingly show both post-conviction counsel's deficient performance in failing to obtain them and to corroborate this evidence through expert witness testimony, and trial counsel's deficient performance in lying to Sholes and in intentionally excluding documents favorable to Sholes, which also support the voluntary intoxication defense earlier rejected by counsel. Had Sholes been given an evidentiary hearing on his successive post-conviction issue, ineffective assistance of post-conviction counsel and appeal counsel, Sholes would have been able to, at least, call the above witnesses and those listed in Ground Twenty Facts, (viii) an (x), above, to show that post-conviction counsel performance was utterly deficient. Sholes would have been able to show that there was no strategy for PC counsel to not call any witnesses other than trial counsel. Sholes was forced into a credibility contest between himself and trial counsel during the November 19, 1998 PC hearing. Counsel called only two witnesses, Sholes and trial counsel, even though there were other witnesses available to refute the testimony of trial counsel on Sholes' claim of ineffective assistance of counsel. (see, Ground Twenty Facts, (viii) and (x), above). Accordingly, it cannot be argued that post-conviction counsel made a strategic and tactical decision not to introduce into the record known and available evidence, written and oral, to impeach trial counsel's testimony, when at issue is the credibility of the two witnesses called in Sholes' matter. Still, the facts of this case indicate that post-conviction counsel kept essential evidence, Sholes' true physical and mental condition, out of the record. Voluntary intoxication defense was the only explanation for what happened and there was no other defense applicable in Sholes' case. Therefore, there was no strategic or tactical choice employed by post-conviction counsel in failing to investigate and establish for the record evidence to support Sholes' post-conviction claims. Finally, had Sholes been given an evidentiary hearing on his successive post-conviction issue, based upon the above facts, he would have been able to show, through expert witness and other witness testimony that he had a viable voluntary intoxication defense, thwarted by trial counsel and not pursued or argued by post-conviction counsel, and that he was coerced into accepting a plea agreement to keep this matter from going to trial. Additionally, Sholes would have been able to establish his physiological condition, and in turn, the mental/psychological impairment associated at the time of the shooting. Moreover, Sholes would have been able to show the time chronology corresponding with his consumption of the alcohol and drugs that confirm the shooting occurred well after the physical effects of the alcohol and drugs took effect but just before they rendered Sholes unconscious. (see, Ground One Facts, (xv), above). Furthermore, Sholes would have been able to show that his condition was so impaired at the time of the shooting that he was not capable of forming intent and was unable to appreciate the wrongfulness of his actions. Finally, he would have been able to show that if his criminal matter had gone to trial using the voluntary intoxication defense, the State of Indiana had the burden, not Sholes, of disproving and overcoming, beyond a reasonable doubt, this mountain of scientific evidence establishing the degree of Sholes' impairment, both physically and psychologically, which is the motive for and reason why the state and trial counsel coerced Sholes into a plea agreement. Sholes would have been acquitted of murder and attempted murder. Clearly, he was kept in the dark, denied effective assistance of counsel, and coerced into accepting a plea agreement; he was tricked, lied to, and manipulated by counsel working in conjunction with and under the threats of the State of Indiana. Therefore, his plea agreement was not voluntarily. GROUND THIRTY-FOUR FACTS The Wabash Circuit Court's October 22, 2001 Final Judgment (lower court) completely ignored the reasons for Sholes' delay in prosecuting his successive post-conviction relief matter, and set forth in his September 11, 2001 Objection to the State's Motion To Dismiss, and is nothing more than a cursory summation that is grossly inadequate and unreasonable in light of the evidence presented. In his objection, Sholes established that during the delay in question, from March 16, 2001, the last day of recorded activity, to August 30, 2001, the day the State of Indiana filed it's Motion To Dismiss, Sholes had been delayed due to two separate forty-five day prison-wide lock-downs where he was forbidden from visiting and denied access to the prison law library to prepare for a two-day evidentiary hearing. (see, Ground Twenty-Seven Facts, above). In addition, the Court of Appeals and Supreme Court of Indiana have completely ignored the facts and circumstances of the case in affirming the lower court's dismissal for want of prosecution. The Court of Appeal's November 25, 2002 Not For Publication opinion is a cursory summation that is grossly inadequate and unreasonable in light of the evidence presented. The Court of Appeals even acknowledged March 16, 2001 as the last recorded date of activity in Sholes' case but completely ignored the reasons for Sholes' delay in prosecuting his successive post-conviction relief matter and the fundamental errors of the lower court. Sholes was denied access to the courts when said Courts failed to properly weigh and consider the circumstances behind Sholes' delay in prosecuting his case, being denied access to and foreclosed from the prison law library due to and during two separate forty-five day prison-wide lockdowns within a five and a half month period from March 16,2001 to August 30,2001. (see, Ground Twenty-Seven Facts, above). Moreover, Sholes was denied a fair proceeding at and during the September 17, 2001 hearing to show cause why his successive post-conviction relief petition should not be dismissed. The Court of Appeals and Supreme Court of Indiana ignored the lower court's failure to maintain fairness and proper procedures at the September 17, 2001 proceeding, and to address the prosecutor's misconduct in intentionally sifting and removing documents favorable to Sholes from the court file, relevant to the procedural history at the hearing. As a result, Sholes was unfairly prejudiced and denied due process and a fair proceeding when Judge McIntosh failed to address the prosecutor's misconduct and proceeded to dismiss Sholes anyway (see Grounds Twenty-Eight and Twenty-Nine Facts, above). Also, Sholes was denied equal protection of the laws when the post-conviction court failed to afford Sholes, as an incarcerated indigent pro se litigant, the same rights and procedures it would have shown an attorney-represented petitioner. The Court of Appeals and Supreme Court of Indiana ignored the lower court's indifference to Sholes and the lower court's failure to call for a pretrial conference, afford Sholes, pro se, the same hands-on management of the case that an attorney-represented petitioner would have been shown, and the lower court's failure to do anything but stand back and wait until the State filed its motion to dismiss then unfairly and aggressively threw Sholes out of court (see, Ground Thirty Facts, above). Besides, the Courts completely ignored Sholes having been granted an indefinite continuance of the evidentiary hearing in the successive post-conviction relief petition. Upon granting Sholes an indefinite continuance in his successive post-conviction relief matter, on September 20, 2000, the post-conviction court set aside the previously set evidentiary hearing date and did not re-set the matter on the Court calendar. Most importantly, the post-conviction court Order did not disagree with nor otherwise address Sholes' stipulation for granting him an indefinite continuance; rather, the court's Order gave him every reason to believe the court had agreed to the stipulation, which further caused Sholes to rely, in good faith, upon what he asked the court to grant him. Furthermore, the Court of Appeals and Supreme Court of Indiana completely ignored the fact that the post-conviction court, in effect, caused Sholes to rely, in good faith, upon the provisions of one law, Indiana Trial Rule 53.5 and an indefinite continuance, only to superimpose another law, Indiana Trial Rule 41(E) and dismiss his successive post-conviction relief matter, in contravention to his rights provided by Indiana Rules of Procedure for Post-Conviction Remedies, Rule 1, Section 5, regarding an evidentiary hearing on his successive post-conviction relief matter (see Ground Thirty-One Facts, above). Finally, Sholes was denied the right to make a defense and to self-representation when the post-conviction court erroneously dismissed his successive post-conviction relief petition for want of prosecution. The Court of Appeals and Supreme Court of Indiana completely ignored the fact that Sholes, as a pro se litigant, was relying in good faith upon having been granted an indefinite continuance to obtain discovery, information that trial and post-conviction counsel failed to investigate and enter into the record, and to prepare for a two-day evidentiary hearing on his successive post-conviction relief issue of ineffective assistance of post-conviction counsel using an inadequate prison law library, when he was denied access to the prison law library due to and during two separate forty-five day prison lock-downs and delayed in prosecuting his matter, and subsequently dismissed for want of prosecution, before he could prepare and present an adequate defense (see Ground Thirty-Two Facts, above). AS TO GROUND ALLEGED AS TO CONSTITUTIONALITY OF INDIANA DEATH PEN ALTY STATUTES, RULES, AND PRACTICE GOVERNING CAPITAL CASES GROUND THIRTY-FIVE FACTS Indiana Code § 35-50-2-3; Indiana Code § 35-50-2-9; Indiana Criminal Rule 24, and existing Indiana "practice" distinguish Sholes' lesser capital sentence of life without parole, along with death, from non-capital sentences, but do not afford him the same provisions as death sentences during appeal and collateral attack after conviction. This is in violation of Sholes' right to due process and equal protection of the law, under the Fifth and Fourteenth Amendments to the United States Constitution and Article I, Section 12 and Section 23 of the Indiana Constitution. Clearly, the plain statutory language of "life imprisonment without parole" is intended to be distinguished from a sentence of life, with parole, and a term of years. The Indiana General Assembly's intent in Indiana Code § 35-50-2-3 and Indiana Code § 35-50-2-9 was, in part, to create an alternative to death, while safeguarding the ineligibility of parole for a prisoner serving life without parole. This distinguishment necessarily discourages and forecloses a future sympathetic release from prison, such as sentence modification, clemency, etc. As a result, life without parole is the lesser capital sentence and can only be imposed if the criteria of Indiana Code §35-50-2-9 are met. Moreover, Sholes was held to the same heightened standards used in death penalty cases and was subject to the same requirements, but was not afforded the same provisions after conviction. Sholes was sentenced to life without the possibility of parole on March 7, 1997, pursuant to Indiana Code §35-50-2-9. Before conviction, all provisions of Indiana Code § 35-50-2-3(b) and Indiana Code § 35-50-2-9(a); Indiana Rules of Criminal Procedure, Rule 24; and established Indiana practice, fairly and equally applied to Sholes. However, after conviction, Sholes was denied automatic appeal and appointment of two qualified attorneys, denied appointment of two qualified attorneys during collateral attack of his conviction through post-conviction relief, and denied all provisions made available to death sentences, according to Indiana Statute, Rules, and practice, in violation of his right to due process and equal protection of the law, under the Fifth and Fourteenth Amendments to the United States Constitution and Article 1, Section 12 and Section 23 of the Indiana Constitution. Furthermore, Sholes was prejudiced by the denial of the aforementioned provisions. Had he been appointed two qualified attorneys and given an automatic appeal, had he been appointed two qualified attorneys during his collateral attack of his conviction, Sholes would not have filed an amateurish pro se post-conviction relief petition; would not have had to file a pro se successive post-conviction relief petition, raising all of the issues post-conviction counsel failed to amend; would not have been left without counsel after post-conviction counsel withdrew her appearance just before the evidentiary hearing; would not have been deemed waived/res judicata on all but one successive post-conviction issue; would have investigated, obtained discovery, called witnesses and impeached trial counsel's deficient performance; would not have been left with a deficient record to overcome, due to post-conviction deficient performance; would not have been delayed by prison lock-down and dismissed for want of prosecution; would have had a fair and equitable fact finding proceeding on all of the issues raised, preserved all objections and issues for appeal, and been rendered a final judgment that included a complete findings of fact and conclusions of law. Moreover, Sholes would have been able to show that he was coerced into taking a plea, that his plea was not knowingly and intelligently entered into; that he had a viable defense of voluntary intoxication; that trial counsel had told Sholes the Indiana Attorney General warned trial counsel not to pursue a voluntary intoxication defense; that trial counsel had hid and excluded documents favorable to a defense of intoxication from toxicologist and defense expert witness; that trial counsel had intentionally excluded scientific evidence and mitigation supporting intoxication defense from the record; that Sholes was without memory sufficient to establish a factual basis for the guilty plea; that trial counsel had to ask Sholes questions (not based upon Sholes' memory or recollection but upon historical facts and outright fabrications, proven as such at Sentencing) that he could simply respond "yes" to when fulfilling the requirements to accept the plea; that he was wrongfully convicted of murder and attempted murder, and a different result would have occurred had this matter gone to trial. (see, Ground Thirty-Three Facts, above). Sholes was statutorily held to the same heightened standards used in death penalty cases and was subject to the same requirements, but was denied the same statutory provisions after conviction, which is unconstitutional.
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