MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                            Dec 23 2015, 8:42 am
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
Charles Sweeney                                          Gregory F. Zoeller
Carlisle, Indiana                                        Attorney General

                                                         Kyle Hunter
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
     COURT OF APPEALS OF INDIANA

Charles E. Sweeney,                                      December 23, 2015
Appellant,                                               Court of Appeals Cause No.
                                                         77A01-1509-MI-1556
        v.                                               Appeal from the Sullivan Circuit
                                                         Court
The Honorable Nancy H.                                   The Honorable Robert E. Hunley,
Vaidik,                                                  Judge
                                                         Robert E. Springer, Magistrate
Appellee.
                                                         Trial Court Cause No.
                                                         77C01-1508-MI-427



Barnes, Judge.


Court of Appeals of Indiana | Memorandum Decision 77A01-1509-MI-1556 | December 23, 2015   Page 1 of 7
                                             Case Summary
[1]   Charles E. Sweeney appeals the trial court’s dismissal of his complaint against

      the Honorable Nancy H. Vaidik, Chief Judge of the Indiana Court of Appeals.

      We affirm.


                                                     Issues
[2]   Sweeney raises several issues. We address two of the issues, which we restate

      as:


                       I.      whether the trial court properly dismissed
                               Sweeney’s complaint; and

                       II.     whether the trial court properly denied
                               Sweeney’s motion to correct error.


                                                     Facts
[3]   In 1995, Sweeney was convicted of murder and sentenced to sixty years in the

      Indiana Department of Correction. Sweeney v. State, 704 N.E.2d 86, 93 (Ind.

      1998), cert denied. Our supreme court affirmed his conviction and sentence. Id.

      at 112. Sweeney then unsuccessfully sought habeas corpus relief. Sweeney v.

      Carter, 361 F.3d 327 (7th Cir. 2004), reh. and reh. en banc denied, cert. denied.

      Sweeney then sought post-conviction relief, which the post-conviction court

      denied. A panel of this court that included Judge Bailey, Judge May, and

      Judge Bradford affirmed the denial of his petition for post-conviction relief.

      Sweeney v. State, 886 N.E.2d 1 (Ind. Ct. App. 2008), trans. denied, cert. denied.




      Court of Appeals of Indiana | Memorandum Decision 77A01-1509-MI-1556 | December 23, 2015   Page 2 of 7
[4]   In August 2015, Sweeney filed a 42 U.S.C. § 1983 civil complaint against Chief

      Judge Vaidik.1 Sweeney alleged that the appeal of the denial of his petition for

      post-conviction relief was incorrectly decided. According to Sweeney,

              The Court of Appeals [sic] inexplicable failure to recognize
              decades of Indiana Supreme Court precedent holding that the
              Article I Section 13 right to be heard by (competent) counsel
              attaches when a suspect is arrested and before the filing of formal
              charges violates the right to due process and equal protection of
              law as guaranteed by the Fourteenth Amendment of the U.S.
              Constitution and the Indiana Article I Section 12 right to due
              course of law.


      Appellant’s App. p. 12.


[5]   On August 27, 2015, Chief Judge Vaidik filed a motion to dismiss with

      prejudice because “the claims are barred by collateral estoppel, are contrary to

      public policy and Plaintiff has failed to state a claim against Defendant.”

      Appellee’s App. p. 6. Chief Judge Vaidik argued, in part, that Sweeney was

      attempting to relitigate his petition for post-conviction relief and that she did not

      participate in the decision at issue. On September 1, 2015, the trial court

      dismissed Sweeney’s complaint with prejudice. Sweeney then filed a motion to

      correct error, which the trial court also denied. Sweeney now appeals.




      1
       Sweeney identified the defendant in the complaint as “Hon. Nancy H. Vaidik, Chief Judge of the Indiana
      Court of Appeals, et al.” Appellant’s App. p. 5 (emphasis added). Although Sweeney apparently mailed a
      copy of the complaint and various other pleading to other judges on this court, he has not named anyone
      other than Chief Judge Vaidik as a defendant.


      Court of Appeals of Indiana | Memorandum Decision 77A01-1509-MI-1556 | December 23, 2015        Page 3 of 7
                                                       Analysis
                                               I. Motion to Dismiss

[6]   Chief Judge Vaidik’s motion to dismiss was based on Indiana Trial Rule

      12(B)(6). A Trial Rule 12(B)(6) motion to dismiss challenges the legal

      sufficiency of a complaint. Meyers v. Meyers, 861 N.E .2d 704, 705-06 (Ind.

      2007). “Our review of a trial court’s grant or denial of a motion to dismiss

      based on Trial Rule 12(B)(6) is de novo.” Allen v. Clarian Health Partners, Inc.,

      980 N.E.2d 306, 308 (Ind. 2012). Viewing the complaint in the light most

      favorable to the non-moving party, we must determine whether the complaint

      states any facts on which the trial court could have granted relief. Id.


[7]   Sweeney’s only argument2 on appeal is that the motion to dismiss should have

      been construed as a motion for summary judgment pursuant to Indiana Trial

      Rule 12(B), which provides:

               If, on a motion, asserting the defense number (6), to dismiss for
               failure of the pleading to state a claim upon which relief can be
               granted, matters outside the pleading are presented to and not
               excluded by the court, the motion shall be treated as one for
               summary judgment and disposed of as provided in Rule 56. In




      2
        Sweeney does not address the merits of the motion to dismiss or basis of the trial court’s grant of the motion
      to dismiss. Consequently, we do not address these issues. Sweeney does summarily contend that he is not
      collaterally challenging the denial of his petition for post-conviction relief. To the extent this could be
      considered a challenge to the merits of the motion to dismiss, it is waived for failure to make a cogent
      argument. See Ind. Appellate Rule 46(A)(8). The majority of Sweeney’s appellant’s brief addresses the
      claims presented in his complaint, which we also need not address.

      Court of Appeals of Indiana | Memorandum Decision 77A01-1509-MI-1556 | December 23, 2015              Page 4 of 7
              such case, all parties shall be given reasonable opportunity to
              present all material made pertinent to such a motion by Rule 56.


      According to Sweeney, the trial court considered matters outside the pleadings

      and should have allowed him thirty days to file a response to the motion. Our

      review of the motion to dismiss does not reveal any matters outside of the

      pleadings that were presented to or considered by the trial court. Sweeney does

      not specifically identify any such matters or evidence. As such, the trial court

      properly did not convert the motion into a motion for summary judgment.

[8]   The Indiana Trial Rules do not require the trial court to wait for Sweeney to file

      a response before granting the motion to dismiss. See Higgason v. State, 789

      N.E.2d 22, 29 (Ind. Ct. App. 2003) (“Because the trial court did not have to

      wait for a response from Higgason, the trial court did not err when it ruled on

      Defendants’ motion thirteen days after it was filed.”); see also Ind. Trial Rule

      6(C). Consequently, the trial court did not err by granting the motion to dismiss

      before Sweeney responded.


                                       II. Motion to Correct Error

[9]   Sweeney next argues that the trial court erred by denying his motion to correct

      error. We review a trial court’s ruling on a motion to correct error for an abuse

      of discretion. Santelli v. Rahmatullah, 993 N.E.2d 167, 173 (Ind. 2013). An

      abuse of discretion occurs when the decision is clearly against the logic and

      effect of the facts and circumstances before the court, including any reasonable




      Court of Appeals of Indiana | Memorandum Decision 77A01-1509-MI-1556 | December 23, 2015   Page 5 of 7
       inferences therefrom. Dunno v. Rasmussen, 980 N.E.2d 846, 849 (Ind. Ct. App.

       2012).


[10]   Sweeney argued in his motion that he had not received a service copy of the

       motion to dismiss and was not afforded “his right (15 days) to Reply.”

       Appellant’s App. p. 16. On appeal, he argues that the trial court should have

       granted the motion to correct error because he was not served with a copy of

       the motion to dismiss. He argues that the “trial court should have ordered

       Counsel to serve Appellant and afforded him an opportunity to reply.”

       Appellant’s Br. p. 12. Chief Judge Vaidik responds that the certificates of

       service of the motion to dismiss and related documents indicate that Sweeney

       was, in fact, served with the documents.


[11]   Even if Sweeney did not receive the documents, the trial court was not required

       to give Sweeney an opportunity to respond prior to ruling on the motion. See

       Higgason, 789 N.E.2d at 29. Sweeney has failed to demonstrate any error in the

       trial court’s grant of the motion to dismiss. Consequently, even if he did not

       receive the documents in a timely manner, he has failed to demonstrate any

       prejudice. The trial court did not err by denying the motion to correct error.


                                                 Conclusion
[12]   The trial court properly granted the motion to dismiss and properly denied the

       motion to correct error. We affirm.


[13]   Affirmed.



       Court of Appeals of Indiana | Memorandum Decision 77A01-1509-MI-1556 | December 23, 2015   Page 6 of 7
Robb, J., and Altice, J., concur.




Court of Appeals of Indiana | Memorandum Decision 77A01-1509-MI-1556 | December 23, 2015   Page 7 of 7
