Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                          FILED
regarded as precedent or cited before                        Jul 25 2012, 8:22 am
any court except for the purpose of
establishing the defense of res judicata,                           CLERK
                                                                  of the supreme court,
collateral estoppel, or the law of the case.                      court of appeals and
                                                                         tax court




APPELLANT PRO SE:                                   ATTORNEYS FOR APPELLEE:

SEAN SHUMAKER                                       GREGORY F. ZOELLER
Indiana State Prison                                Attorney General of Indiana
Michigan City, Indiana
                                                    ELLEN H. MEILAENDER
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

SEAN SHUMAKER,                                      )
                                                    )
       Appellant-Petitioner,                        )
                                                    )
               vs.                                  )      No. 43A03-1203-CR-133
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Respondent.                         )


                     APPEAL FROM THE KOSCIUSKO SUPERIOR COURT
                            The Honorable Duane G. Huffer, Judge
                               Cause No. 43D01-0712-FB-400



                                          July 25, 2012


                MEMORANDUM DECISION - NOT FOR PUBLICATION


BRADFORD, Judge
       Appellant-Petitioner Sean Shumaker appeals following the post-conviction court’s

denial of his petition for post-conviction relief (“PCR”). Shumaker raises numerous issues,

which we restate as whether the trial court abused its discretion (1) in denying Shumaker’s

motion for default judgment and allowing the State to file a belated answer to his PCR

petition; and (2) in summarily denying his PCR petition without providing him with a

hearing. We affirm in part, reverse in part, and remand with instructions.

                          FACTS AND PROCEDURAL HISTORY

       On December 7, 2007, the State charged Shumaker with three counts of burglary and

two counts of theft. In June of 2008, Shumaker pled guilty to three counts of Class B felony

burglary. In exchange for Shumaker’s plea, it appears that the State agreed to a fixed term of

imprisonment and that the remaining theft charges be dismissed. The trial court accepted

Shumaker’s plea and imposed consecutive six-year sentences on each count, with the final

six years suspended to probation.

       On December 20, 2011, Shumaker filed a PCR petition. In his petition, Shumaker

alleged that his guilty plea in the underlying matter was unknowing and involuntary.

Shumaker also claimed that his trial counsel provided ineffective assistance. Specifically,

Shumaker argued that his trial counsel provided ineffective assistance because counsel (1)

failed to move to suppress his confession to police following his arrest where he allegedly

was not read his Miranda1 rights prior to questioning; and (2) failed to request a competency

evaluation despite the fact that counsel knew that he had been prescribed a new psychotropic


       1
           See Miranda v. Arizona, 384 U.S. 436 (1966).
                                                   2
medication and had been diagnosed as bi-polar.

       Shumaker filed a motion for default judgment on February 14, 2012, arguing that he

was entitled to default judgment because the State failed to respond to his PCR petition

within thirty days as prescribed by Indiana Post-Conviction Rule 1(4)(a). On February 21,

2012, the State requested permission to file a belated answer to Shumaker’s PCR petition.

That same day, the post-conviction court granted the State’s request and the State filed its

belated answer. On February 22, 2012, the post-conviction court summarily denied

Shumaker’s PCR petition. Shumaker filed a motion to correct error on March 2, 2012, which

was denied by the post-conviction court that same day. This appeal follows.

                            DISCUSSION AND DECISION

       Shumaker contends that the post-conviction court abused its discretion in denying his

motion for default judgment and allowing the State to file a belated answer to his PCR

petition, and in summarily denying his PCR petition without providing him with a hearing.

The State, for its part, argues that the post-conviction court acted within its discretion in

denying Shumaker’s motion for default judgment and allowing it to file a belated answer to

Shumaker’s PCR petition, but concedes that the court erred in disposing of Shumaker’s

claims on PCR in a summary fashion.

       I. Whether the Post-Conviction Court Abused its Discretion in Denying
           Shumaker’s Motion for Default Judgment and Permitting the
            State to File a Belated Answer to Shumaker’s PCR Petition

       Shumaker claims that the post-conviction court abused its discretion in denying his

motion for default judgment and permitting the State to file a belated answer to his PCR

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petition. Granting a default judgment is within the discretion of the post-conviction court

and is reviewable only for abuse of that discretion. Kindred v. State, 514 N.E.2d 314, 316

(Ind. Ct. App. 1987) (citing Likens v. State, 177 Ind. App. 101, 103, 378 N.E.2d 24, 26

(1978)), trans. denied. An abuse of discretion occurs when the decision is clearly against the

logic and effect of the facts and circumstances before the court, or the reasonable, probable,

and actual deductions to be drawn therefrom. Southern v. State, 878 N.E.2d 315, 323 (Ind.

Ct. App. 2007), trans. denied. Thus, we will reverse only if the trial court’s decision is

clearly against the logic and effect of the facts and circumstances. Delphi Corp. v. Orlik, 831

N.E.2d 265, 267 (Ind. Ct. App. 2005).

       Indiana Post-Conviction Rule 1(4)(a) provides, in relevant part, as follows:

       Within thirty (30) days after the filing of the petition, or within any further
       reasonable time the court may fix, the [S]tate … shall respond by answer
       stating the reasons, if any, why the relief prayed for should not be granted.
       The court may make appropriate orders for amendment of the petition or
       answer, for filing further pleadings or motions, or for extending the time of the
       filing of any pleading.

(Emphasis added). By its clear language, this rule grants the post-conviction court the

discretion to extend the time of the filing of any pleading.

       In Likens, it was discovered during the course of the post-conviction hearing that the

State had failed to file an answer to the petitioner’s PCR petition. 177 Ind. App. at 103, 378

N.E.2d at 26. Thereupon, the State requested permission to file an answer in denial, either

orally or in writing. Id., 378 N.E.2d at 26. The petitioner, on the other hand, moved for

default and for summary disposition. Id., 378 N.E.2d at 26. The post-conviction court


                                              4
permitted the State to orally deny the petition, precluded it from asserting any new matters,

and denied the petitioner’s motions. Id., 378 N.E.2d at 26. On appeal, this court affirmed,

concluding that the petitioner had failed to demonstrate an abuse of discretion because the

petitioner did not show prejudice or assert any surprise from the State’s position or the

evidence produced. Id., 378 N.E.2d at 26.

       Likewise, in Murphy v. State, 477 N.E.2d 266, 270 (Ind. 1985), the Indiana Supreme

Court held that the post-conviction court acted within its discretion in allowing the State to

file a belated answer to a petitioner’s PCR petition. In Murphy, the record indicated that the

State’s answer was filed more than seventy days after the petition, but was filed

approximately a month before the hearing on the petitioner’s PCR petition. 477 N.E.2d at

270. The petitioner’s post-conviction counsel unsuccessfully moved to strike the State’s

untimely response at the beginning of the post-conviction hearing. Id. Upon review, the

Indiana Supreme Court determined that the post-conviction court acted within its discretion

because the post-conviction rules expressly provide the court with the discretion to extend the

time for filing any pleading. Id. Moreover, it was clear from the record that there was no

surprise to the petitioner due to late filing of the State’s answer, and the State adequately

explained the reason for the delay to the court. Id.

       Here, Shumaker filed his PCR petition on December 20, 2011, and his motion for

default judgment on February 14, 2012. On February 21, 2012, the State requested

permission to file a belated answer to Shumaker’s PCR petition. In requesting permission to

file a belated answer to Shumaker’s PCR petition, the State argued that Shumaker would not

                                              5
be prejudiced by the State’s belated filing as nothing within the answer whould be a surprise

to Shumaker. The post-conviction court permitted the State to file its belated answer to

Shumaker’s PCR petition and denied Shumaker’s motion for default judgment.

       In its belated answer, the State did not assert any affirmative defenses or new claims

that would require a response from Shumaker, but rather denied the material allegations

levied in Shumaker’s PCR petition. Shumaker has failed to demonstrate on appeal how he

was prejudiced, if at all, by the post-conviction court’s decision to allow the State to file its

belated answer approximately one month after the original thirty-day time period prescribed

by Post-Conviction Rule 1(4)(a) had passed. While the State did not provide any explanation

for why its answer was not timely filed, a valid explanation for the delay is not a prerequisite

to allowing a late filing. See Likens, 177 Ind. App. at 103-04, 378 N.E.2d at 26 (finding no

abuse of discretion even though the only explanation for the delay was that the State did not

realize that it had not filed an answer until the day of the post-conviction hearing). Upon

review of the circumstances presented in the instant matter and in light of Likens and

Murphy, we cannot say that the trial court abused its discretion in allowing the State to file a

belated answer to Shumaker’s PCR petition or in denying Shumaker’s motion for default

judgment.

            II. Whether the Post-Conviction Court Abused its Discretion in
                   Summarily Denying Shumaker’s PCR Petition

       Shumaker also claims that the post-conviction court abused its discretion in summarily

denying his PCR petition.

       A petition for post-conviction relief may be summarily denied if the pleadings
                                              6
       and the record conclusively demonstrate that there is no genuine issue of
       material fact and the petitioner is not entitled to relief. Howard v. State, 576
       N.E.2d 1253, 1254 (Ind. 1991) (citing P-C. R. 1(4)(g)). “An evidentiary
       hearing is not necessary when the pleadings show only issues of law; [t]he
       need for a hearing is not avoided, however, when a determination of the issues
       hinges, in whole or in part, upon facts not resolved.” Godby v. State, 809
       N.E.2d 480, 482 (Ind. Ct. App. 2004). Thus, a hearing is still needed even if
       the petitioner’s chance of establishing his claim is remote. Gann v. State, 550
       N.E.2d 803, 804 (Ind. Ct. App. 1990).

Kuhn v. State, 901 N.E.2d 10, 13 (Ind. Ct. App. 2009).

       It is well-established that claims of ineffective assistance of counsel generally raise

issues of material fact and render summary disposition improper. See id.; Truitt v. State, 853

N.E.2d 504, 507-08 (Ind. Ct. App. 2006); Evolga v. State, 722 N.E.2d 370, 373 (Ind. Ct.

App. 2000). Here, the State acknowledges that summary disposition was improper and that

the trial court abused its discretion in summarily denying Shumaker’s PCR petition because

Shumaker raised specific allegations of ineffective assistance of counsel and the State raised

only a general denial of those claims, thus creating issues of material fact. Shumaker was

entitled to an opportunity to present evidence to support his claims. As such, we reverse the

summary denial of Shumaker’s PCR petition and remand to the trial court for further

proceedings consistent with this opinion.

       The judgment of the post-conviction court is affirmed in part, reversed in part, and

remanded with instructions.

VAIDIK, J., and CRONE, J., concur.




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