MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                           FILED
regarded as precedent or cited before any                                Apr 01 2020, 10:45 am

court except for the purpose of establishing                                    CLERK
                                                                          Indiana Supreme Court
the defense of res judicata, collateral                                      Court of Appeals
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estoppel, or the law of the case.


APPELLANT PRO SE                                          ATTORNEYS FOR APPELLEE
Ronell Roberts                                            Curtis T. Hill, Jr.
Pendleton, Indiana                                        Attorney General of Indiana
                                                          J.T. Whitehead
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Ronell L. Roberts,                                        April 1, 2020
Appellant-Petitioner,                                     Court of Appeals Case No.
                                                          19A-CR-1452
        v.                                                Appeal from the
                                                          Cass Superior Court
State of Indiana,                                         The Honorable
Appellee-Respondent                                       Richard Maughmer, Judge
                                                          Trial Court Cause No.
                                                          09D02-1807-PC-5



Vaidik, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1452 | April 1, 2020                     Page 1 of 7
                                           Case Summary
[1]   In July 2018, the post-conviction court summarily denied Ronell L. Roberts’s

      pro se petition for post-conviction relief “due to [its] inadequacy” but did not

      serve him with notice that his petition was denied. After filing numerous letters

      and motions with the court asking about the status of his case and getting

      unclear responses, Roberts filed a motion to reopen/reinstate his petition in

      May 2019. Because the State concedes that it is “unable to ascertain any

      inadequacy in [Roberts’s] petition” and that the court erred in summarily

      denying it, we remand this case to the post-conviction court with instructions to

      reinstate Roberts’s petition and proceed according to the post-conviction rules.

      We therefore reverse and remand.



                            Facts and Procedural History
[2]   In 2017, Roberts was convicted of Level 2 felony dealing in cocaine and Class

      A misdemeanor dealing in marijuana and sentenced to thirty-one years. He

      appealed to this Court, and we affirmed. See Roberts v. State, No. 09A05-1702-

      CR-283 (Ind. Ct. App. July 31, 2017). On July 25, 2018, Roberts filed a pro se

      petition for post-conviction relief, alleging ineffective assistance of trial and

      appellate counsel. He also filed requests for production to numerous

      individuals. The next day, July 26, the post-conviction court stamped




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1452 | April 1, 2020   Page 2 of 7
      “DENIED” on Roberts’s proposed order.1 Appellant’s App. Vol. II p. 28. A

      CCS entry for July 26 says, “Order—DENIED,” without specifying what was

      denied. Id. at 3. As the State acknowledges on appeal, “The record does not

      reveal or indicate that [Roberts] was served with the notice of the denial of his

      petition.” Appellee’s Br p. 6; see also id. at 10.


[3]   Thereafter, Roberts filed numerous letters and motions with the post-conviction

      court, all of which indicate that he did not know his petition had been denied.

      For example, on January 30, 2019, Roberts filed a motion asking the court for

      the status of his case. Roberts explained that the CCS showed that his case was

      “active,” he had not received an answer from the State,2 and the court had not

      ordered the State to respond to his petition. He asked the court for “direction . .

      . as to the Status of the Petition . . . as well as direction on the additional filings

      . . . .” 09D02-1897-PC-5 (Jan. 30, 2019). In response, the court sent Roberts a

      CCS. The CCS, which said “Pending” at the top, contained the July 26

      “Order—DENIED” entry. 09D02-1897-PC-5 (Jan. 30, 2019). However, as the

      State acknowledges on appeal, the CCS entry is not specific as to what was

      denied and therefore Roberts would not have necessarily known that his




      1
       The proposed order on which the court stamped “DENIED” was not an order on the merits of Roberts’s
      petition. Rather, the proposed order simply stated that the clerk shall serve a copy of the petition on the State
      and the State shall respond to the petition within thirty days. See Appellant’s App. Vol. II p. 28. Roberts says
      he received a copy of his proposed order with “DENIED” stamped on it but that he didn’t know whether his
      “whole” petition had been denied. See Appellant’s Br. p. 7.
      2
       According to the State, it never received Roberts’s petition and therefore did not file an answer. See
      Appellee’s Br. p. 12.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1452 | April 1, 2020                        Page 3 of 7
      petition had been denied. Then, on March 13, Roberts wrote the court asking if

      an evidentiary hearing had been scheduled. 09D02-1897-PC-5 (Mar. 13, 2019).

      The next day, March 14, the court made the following CCS entry: “This post

      conviction relief was closed July 25, 2018[3] without hearing due to the

      inadequacy of the petition.” Appellant’s App. Vol. II p. 4. As the State

      acknowledges on appeal, “The entry from March 14, 2019, also does not

      specify any kind of service to” Roberts. Appellee’s Br. p. 10.

[4]   On May 8, Roberts again wrote the post-conviction court expressing confusion

      about the status of his case. In the letter, Roberts said that the CCS the court

      sent him on January 30 said that his petition was still “active” and “pending”;

      however, Roberts noted that sometime “in the month of March” he accessed

      the CCS from the prison library and saw the March 14 entry that said “[t]his

      post conviction relief was closed July 25, 2018 without hearing due to the

      inadequacy of the petition.” 09D02-1897-PC-5 (May 8, 2019). Roberts asked

      the court if the March 14 entry was made in error since he had not received

      notice that his petition had been denied. The court did not respond to Roberts’s

      letter.

[5]   On May 23, Roberts sent a letter to the clerk “seeking to get some clarity” about

      the status of his case because the court had neither sent him an order denying

      his petition nor explained why his petition was inadequate. 09D02-1897-PC-5



      3
       The March 14 CCS entry says the case was closed on July 25, but the CCS entry “Order—DENIED” was
      made on July 26.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1452 | April 1, 2020           Page 4 of 7
      (May 23, 2019). Along with the letter, Roberts filed a “Motion to

      Reopen/Reinstate Post-Conviction Relief,” alleging that the court did not send

      him an order denying his petition and asking the court to reinstate his petition.

      Appellant’s App. Vol. II p. 30. The post-conviction court denied Roberts’s

      motion that same day.

[6]   Roberts now appeals.



                                 Discussion and Decision
[7]   Roberts argues that the post-conviction erred in summarily denying his petition

      and therefore should have granted his motion to reopen/reinstate his petition.

      The State admits it is “unable to ascertain any inadequacy in [Roberts’s]

      petition,” Appellee’s Br. p. 10 n.2, and agrees the court erred in summarily

      denying it. The State notes that Indiana Post-Conviction Rule 1(4) provides

      two ways that a court can summarily deny a petition. Specifically, Post-

      Conviction Rule 1(4)(f) provides that “[i]f the pleadings conclusively show that

      petitioner is entitled to no relief, the court may deny the petition without further

      proceedings.” Post-Conviction Rule 1(4)(g) provides that “[t]he 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.” The State says that neither rule has been satisfied in this case:



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1452 | April 1, 2020   Page 5 of 7
        Here, the summary disposition in this case appears not to have
        relied upon either of the above two grounds for a summary
        dismissal. There were no pleadings. Indeed, the State has yet to
        answer, and, it appears, be served. Nothing in the record
        indicates that the State has had anything to do with this process
        up to this point. The post-conviction court’s entry in the docket,
        explaining the denial, states only that the cause was closed
        “Without hearing due to the inadequacy of the petition.”
        However, no order in the Appendix indicates the specific
        “inadequacy.” The petition itself argues ineffective assistance of
        counsel, and [Roberts] did not raise a claim of ineffectiveness of
        trial counsel in his direct appeal. The petition was not a
        successive petition and it is verified.


Appellee’s Br. pp. 12-13 (citations omitted). Given this concession by the State,

we remand this case to the post-conviction court with instructions to reinstate

Roberts’s petition and proceed according to the post-conviction rules.4




4
 The State asserts that Roberts’s May 23, 2019 motion to reopen/reinstate should be treated as a motion
under Indiana Trial Rule 72(E), which provides, in pertinent part:
        When the service of a copy of the entry by the Clerk is not evidenced by a note made by the Clerk
        upon the Chronological Case Summary, the Court, upon application for good cause shown, may
        grant an extension of any time limitation within which to contest such ruling, order or judgment to
        any party who was without actual knowledge, or who relied upon incorrect representations by Court
        personnel. Such extension shall commence when the party first obtained actual knowledge and not
        exceed the original time limitation.
The State contends that we “should remand this cause to the post-conviction court so that it can determine
when [Roberts] obtained actual knowledge of the summary denial of his petition, and whether he is entitled
to relief under Trial Rule 72(E).” Appellee’s Br. p. 8. We believe that remand for proceedings under Trial
Rule 72(E) would be a waste of time and resources. The State acknowledges that Roberts did not receive
notice when his petition was denied on July 26, 2018. On January 30, 2019, Roberts filed a motion asking
the court for the status of his case, and the court sent him a CCS that said his case was “Pending.” On March
13, Roberts wrote the court asking if an evidentiary hearing had been scheduled, and the court then made a
CCS entry that the case had been closed on July 25 due to the inadequacy of Roberts’s petition. As the State
acknowledges, Roberts did not get notice of this entry. On May 8, Roberts again wrote the court, asking if
the March 14 entry was made in error since he had not received notice that his petition had been denied;
however, the court did not respond to Roberts’s letter. On May 23, the same day Roberts filed his motion to


Court of Appeals of Indiana | Memorandum Decision 19A-CR-1452 | April 1, 2020                     Page 6 of 7
[8]   Reversed and remanded.


      May, J., and Robb, J., concur.




      reopen/reinstate, Roberts wrote the clerk asking about the status of his case because the court had neither
      sent him an order denying his petition nor explained why his petition was inadequate. Given these serious
      procedural failings, it cannot be said that Roberts had “actual knowledge” that his petition had been denied
      even when he filed his motion to reopen/reinstate on May 23. For that reason, and in light of the State’s
      concession that the post-conviction court erred in summarily denying Roberts’s petition, remand for further
      proceedings on that petition is the appropriate course of action.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1452 | April 1, 2020                      Page 7 of 7
