      MEMORANDUM DECISION
                                                                           May 22 2015, 9:25 am
      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                                        ATTORNEYS FOR APPELLEE
      Dedric Thompson                                          Gregory F. Zoeller
      Correctional Industrial Facility                         Attorney General of Indiana
      Pendleton, Indiana
                                                               Larry D. Allen
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Dedric Thompson,                                         May 22, 2015

      Appellant-Petitioner,                                    Court of Appeals Case No.
                                                               89A01-1408-PC-359
              v.                                               Appeal from the Wayne Superior
                                                               Court
      State of Indiana,                                        Lower Court Cause No.
                                                               89D03-1401-PC-1
      Appellee-Respondent.
                                                               The Honorable Gregory A. Horn,
                                                               Judge




      Pyle, Judge.


                                         Statement of the Case
[1]   Appellant/Petitioner, Dedric Thompson (“Thompson”), appeals the post-

      conviction court’s order granting Appellee/Respondent, the State’s, motion for


      Court of Appeals of Indiana | Memorandum Decision 89A01-1408-PC-359 | May 22, 2015          Page 1 of 8
      summary disposition of his petition for post-conviction relief and denying his

      petition. In his petition for post-conviction relief, Thompson requested relief

      from his convictions for Class D felony operating a vehicle as a habitual traffic

      violator and Class D felony operating a vehicle while intoxicated, as well as

      relief from his adjudication as a habitual substance offender, on the basis that

      the trial court had not possessed subject matter jurisdiction over his case. The

      post-conviction court granted the State’s motion for summary disposition and

      denied Thompson’s petition, concluding that the trial court had possessed

      subject matter jurisdiction. On appeal, Thompson challenges the post-

      conviction court’s conclusions on the merits. However, we need not address

      his arguments because we conclude that he waived his claims and could not

      raise them in his petition for post-conviction relief. Accordingly, we affirm the

      post-conviction court’s denial of his petition.


      We affirm.


                                                     Issue
              Whether the post-conviction court erred when it denied Thompson’s
              petition for post-conviction relief.

                                                     Facts
[2]   On March 15, 2012, the State charged Thompson with Count I, Class D felony

      operating a vehicle as a habitual traffic violator; Count II, Class D felony

      operating a vehicle while intoxicated; Count III, Class D felony operating a

      vehicle with an alcohol concentration equivalent of .08; and an habitual

      substance offender enhancement. On June 28, 2013, the trial court held a jury
      Court of Appeals of Indiana | Memorandum Decision 89A01-1408-PC-359 | May 22, 2015   Page 2 of 8
      trial, and the jury found Thompson guilty as charged. On July 25, 2013, the

      trial court sentenced Thompson to two and one-half (2½) years for Count I and

      two and one-half (2½) years for Count II, enhanced by seven (7) years for the

      habitual offender enhancement.1 The trial court also suspended Thompson’s

      driving privileges for life.


[3]   Subsequently, Thompson filed a direct appeal. However, he later moved to

      dismiss the appeal, and this Court granted his motion and dismissed the appeal

      with prejudice. He later attempted to file another appeal, but this Court

      dismissed the appeal as untimely.


[4]   On January 21, 2014, Thompson filed a pro se2 petition for post-conviction

      relief, arguing that the trial court had lacked subject matter jurisdiction over his

      criminal proceedings. He alleged that he had challenged subject matter

      jurisdiction at the trial level on March 5, 2013; March 14, 2013; and June 25,




      1
          It is apparent that the trial court did not enter a conviction on Count III.
      2
        It appears that Thompson filed his petition pro se. “Dedric Thompson-Bey©” filed an appearance on
      behalf of Thompson (identified as “DEBTOR, DEDRIC THOMPSON©, ENS LEGIS”). In the context of
      the record it appears that Dedric Thompson-Bey© is Thompson. (App. 70). In his motion for summary
      judgment, Thompson-Bey© qualified his signature block, stating: “Dedric Thompson-Bey©, Petitioner,
      Secured Party/Creditor, A Natural Person, In Propria Persona, Sui Heredes, Sui Juris (not to be confused
      with nor substituted with Pro Se); and not a Statutory Person.” (App. 127). However, if Thompson does not
      wish to be viewed as a person—and therefore pro se—we must still affirm the post-conviction court’s denial
      of his post-conviction petition because he has not presented any legal authority for the proposition that any
      entity other than a natural “person” may file a petition for post-conviction relief. See Ind. Post-Conviction
      Rule 1(1)(a) (stating that a petition for post-conviction relief is available for “[a]ny person who has been
      convicted of, or sentenced for, a crime . . . ”); see also State v. Ziliak, 464 N.E.2d 929, 930 (explaining that,
      even though corporations are included within the definition of “person” and criminal statutes all begin with
      “a person who[,]” corporations are not subject to all criminal statutes). Further, Thompson was convicted as
      a natural person and, therefore, may only appeal that conviction as such.

      Court of Appeals of Indiana | Memorandum Decision 89A01-1408-PC-359 | May 22, 2015                   Page 3 of 8
      2013. The State filed its response to Thompson’s petition on March 3, 2014. It

      objected to the petition on the grounds that: (1) the signature on the petition

      was not verified by a person authorized to administer oaths; (2) the petition

      failed to state facts upon which relief could be granted; and (3) the trial court

      did have subject matter jurisdiction over Thompson’s criminal proceedings.


[5]   Ten days later, on March 13, 2014, Thompson filed a motion for summary

      judgment, asserting that there was no genuine issue of material fact because

      “without a contract requiring his performance[,] the trial court [was] without

      subject matter jurisdiction.” (App. 80) (emphasis removed from original). In

      support of this argument, Thompson listed the elements required for the

      formation of a contract.


[6]   The post-conviction court scheduled a summary judgment hearing for July 29,

      2014, but on April 22, 2014, Thompson filed a “Notice of Non-Response and

      Non-Opposition to Summary Judgment,” requesting again that the post-

      conviction court summarily determine that there was no genuine issue of

      material fact because the State had not responded to his motion for summary

      judgment as it was required to do within thirty days pursuant to the post-

      conviction court’s orders. The next day, he also filed a motion for a default

      judgment under Indiana Trial Rule 55. Although the State did not file a

      response to Thompson’s motions, it filed a motion for summary disposition on

      May 16, 2014, arguing that Thompson had failed to raise a genuine issue of

      material fact and re-asserting that the trial court had possessed subject matter

      jurisdiction over Thompson’s criminal case.

      Court of Appeals of Indiana | Memorandum Decision 89A01-1408-PC-359 | May 22, 2015   Page 4 of 8
[7]   On July 29, 2014, the post-conviction court held a hearing on Thompson’s

      petition for post-conviction relief and on all of the outstanding motions.

      However, it terminated the hearing after Thompson refused to present any

      argument or evidence regarding his motions or petition. The next day, on July

      30, 2014, it issued findings of fact and conclusions thereon granting the State’s

      motion for summary disposition, denying Thompson’s summary judgment and

      default judgment motions, and denying Thompson’s petition for post-

      conviction relief. It concluded that the trial court had possessed subject matter

      jurisdiction over Thompson’s criminal proceedings. Thompson now appeals.


                                                  Decision
[8]   On appeal, Thompson argues that the post-conviction court erred when it

      denied his petition for post-conviction relief. When a petitioner appeals the

      denial of post-conviction relief, he appeals from a negative judgment. Allen v.

      State, 791 N.E.2d 748, 752 (Ind. Ct. App. 2003), trans. denied. Consequently,

      we may not reverse the judgment of the post-conviction court unless the

      petitioner demonstrates that the evidence “‘as a whole, leads unerringly and

      unmistakably to a decision opposite that reached by the post-conviction court.’”

      Id. (quoting Curry v. State, 674 N.E.2d 160, 161 (Ind. 1996)). We accept the

      post-conviction court’s findings of fact unless they are clearly erroneous, but we

      do not give deference to the court’s conclusions of law. Id.


[9]   Post-conviction proceedings afford petitioners a limited opportunity to raise

      issues that were unavailable or unknown at trial and on direct appeal. Id. Such


      Court of Appeals of Indiana | Memorandum Decision 89A01-1408-PC-359 | May 22, 2015   Page 5 of 8
       proceedings are not “super appeals” through which convicted persons can raise

       issues that they failed to raise at trial or on direct appeal. Id. Post-conviction

       proceedings are civil in nature, and petitioners bear the burden of proving their

       grounds for relief by a preponderance of the evidence. Id.


[10]   In his petition, Thompson requested post-conviction relief on the basis that the

       trial court had not possessed subject matter jurisdiction over his criminal case.

       He contests the trial court’s subject matter jurisdiction in several respects, but

       we conclude that he waived all of these arguments by failing to raise them on

       direct appeal.


[11]   On post-conviction review, a petitioner may only raise issues that were

       unknown and unavailable at the time of the original trial or direct appeal, aside

       from claims of ineffective assistance of counsel. Stephenson v. State, 864 N.E.2d

       1022, 1028 (Ind. 2007). The issue of subject matter jurisdiction concerns

       whether or not the particular court has jurisdiction over the general class of

       actions to which the particular case belongs. K.S. v. State, 849 N.E.2d 538, 542

       (Ind. 2006). Subject matter jurisdiction must be derived from the Constitution

       or statute and cannot be conferred by the consent or agreement of the parties.

       Traux v. State, 856 N.E.2d 116, 122 (Ind. Ct. App. 2006). Thus, the issue of

       whether or not the trial court had subject matter jurisdiction was available to

       Thompson at the time of trial. In fact, it is undisputed that Thompson objected




       Court of Appeals of Indiana | Memorandum Decision 89A01-1408-PC-359 | May 22, 2015   Page 6 of 8
       to subject matter jurisdiction at trial.3 As a result, Thompson should have

       challenged the subject matter jurisdiction on direct appeal, if at all. Ritchie v.

       State, 875 N.E.2d 706, 712 n.1 (Ind. 2007) (stating that an issue known but not

       raised on direct appeal is waived), reh’g denied; see also Smith v. State, 774 N.E.2d

       1021, 1022 (Ind. Ct. App. 2002) (“If an issue was available on direct appeal but

       not litigated, it is deemed waived.”). Because Thompson moved to dismiss his

       appeal, he failed to litigate the issue of subject matter jurisdiction on appeal.

       Therefore, he waived his arguments on the issue and could not raise them in a

       petition for post-conviction relief. See Smith, 774 N.E.2d at 1022.


[12]   Nevertheless, Thompson seems to argue that, regardless of whether his petition

       had any merit, the post-conviction court should have granted him a default

       judgment because the State did not file a response to his motion for summary

       judgment. We disagree. A trial court is not required to grant an unopposed

       summary judgment, which is essentially what Thompson requests. Murphy v.

       Curtis, 930 N.E.2d 1228, 1234 (Ind. Ct. App. 2010), trans. denied. Summary

       judgment is awarded on the merits of the motion, not on technicalities. Id.


[13]   Further, the only effect of a default judgment on a petition for post-conviction

       relief is that the facts as alleged in the petition are deemed admitted. Shoulders




       3
         The State claims in its brief that Thompson objected to the trial court’s subject matter jurisdiction, but
       Thompson did not offer the trial transcript as an exhibit in his post-conviction proceedings. Nevertheless, it
       is irrelevant whether Thompson did in fact object at trial because the issue of whether not the trial court
       possessed subject matter jurisdiction was available at trial and on direct appeal. See Stephenson, 864 N.E.2d at
       1028.

       Court of Appeals of Indiana | Memorandum Decision 89A01-1408-PC-359 | May 22, 2015                  Page 7 of 8
v. State, 462 N.E.2d 1034, 1035 (Ind. 1984). The court must still determine as a

matter of law whether the facts alleged in the petition entitle the petitioner to

relief. Id. Here, we have determined that the facts in Thompson’s petition did

not entitle him to relief. Accordingly, we also conclude that the post-conviction

court did not abuse its discretion in granting the State’s motion for summary

disposition or err in denying Thompson’s petition for post-conviction relief.


Affirmed.


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




Court of Appeals of Indiana | Memorandum Decision 89A01-1408-PC-359 | May 22, 2015   Page 8 of 8
