Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited                Sep 30 2014, 8:23 am
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:

K.T.                                             GREGORY F. ZOELLER
Michigan City, Indiana                           Attorney General of Indiana

                                                 ERIC P. BABBS
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

K.T.,                                            )
                                                 )
        Appellant-Respondent,                    )
                                                 )
               vs.                               )    No. 20A03-1311-JV-453
                                                 )
STATE OF INDIANA,                                )
                                                 )
        Appellee-Petitioner.                     )


                     APPEAL FROM THE ELKHART CIRCUIT COURT
                         The Honorable Terry C. Shewmaker, Judge
                        The Honorable Deborah Domine, Magistrate
                              Cause No. 20C01-9606-JD-380


                                     September 30. 2014

                MEMORANDUM DECISION – NOT FOR PUBLICATION

BARNES, Judge
                                    Case Summary

       K.T. appeals the trial court’s denial of his motion for relief from judgment

regarding his 1996 delinquency adjudication for what would have been Class C felony

child molesting if committed by an adult. We affirm.

                                          Issue

      K.T. raises several issues. The dispositive issue we address is whether K.T.’s

motion for relief from judgment was timely.

                                          Facts

      In 1996, K.T. was adjudicated delinquent for what would have been Class C

felony child molesting if committed by an adult based upon his admission that he had a

seven or eight-year-old child touch his penis. In September 2013, K.T. filed a motion for

relief from judgment pursuant to Indiana Trial Rule 60(B). K.T. alleged that his 1996

adjudication was improper because he did not have legal representation at the hearing, the

State violated the guilty plea, and he was not properly advised of his rights. The trial

court denied the motion for relief from judgment. The trial court noted that a motion for

relief from judgment under Trial Rule 60(B) must be sought within a reasonable amount

of time and found that the seventeen-year delay was not reasonable. The trial court also

noted that some of K.T.’s allegations were based on fraud and misrepresentation and that

relief under those circumstances must be sought within one year. Consequently, the trial

court denied K.T.’s motion. K.T. also filed a motion for reconsideration arguing that the

delay was due to “extenuating circumstances.” Appellant’s Br. p. 33. According to K.T.,

he believed that he had only admitted to battery and incorrigibility and learned of the

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child molesting adjudication in 2008. K.T. alleged that his juvenile adjudication was

used “to enhance [his] sentence of [his] current case.” Id. at 34. The trial court denied

the motion for reconsideration, finding that the seventeen-year delay was unreasonable

and that the defense of laches was also applicable. K.T. now appeals.

                                        Analysis

      Post-conviction procedures are not available to challenge a juvenile delinquency

adjudication, which is civil in nature. A.S. v. State, 923 N.E.2d 486, 489 (Ind. Ct. App.

2010). Thus, Trial Rule 60(B) is the appropriate means to challenge an adjudication of

delinquency. J.A. v. State, 904 N.E.2d 250, 254 (Ind. Ct. App. 2009), trans. denied. A

Trial Rule 60(B) motion cannot be used as a substitute for a direct appeal, nor can it be

used to revive an expired attempt to appeal. Id. Trial Rule 60(B) provides:

             On motion and upon such terms as are just the court may
             relieve a party or his legal representative from a judgment,
             including a judgment by default, for the following reasons:

             (1)    mistake, surprise, or excusable neglect;

             (2)    any ground for a motion to correct error, including
                    without limitation newly discovered evidence, which
                    by due diligence could not have been discovered in
                    time to move for a motion to correct errors under Rule
                    59;

             (3)    fraud (whether heretofore denominated intrinsic or
                    extrinsic), misrepresentation, or other misconduct of
                    an adverse party;

             (4)    entry of default or judgment by default was entered
                    against such party who was served only by publication
                    and who was without actual knowledge of the action
                    and judgment, order or proceedings;


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(5)   except in the case of a divorce decree, the record fails
      to show that such party was represented by a guardian
      or other representative, and if the motion asserts and
      such party proves that

      (a)    at the time of the action he was an infant or
             incompetent person, and

      (b)    he was not in fact represented by a guardian or
             other representative, and

      (c)    the person against whom the judgment, order or
             proceeding is being avoided procured the
             judgment with notice of such infancy or
             incompetency, and, as against a successor of
             such person, that such successor acquired his
             rights therein with notice that the judgment was
             procured against an infant or incompetent, and

      (d)    no appeal or other remedies allowed under this
             subdivision have been taken or made by or on
             behalf of the infant or incompetent person, and

      (e)    the motion was made within ninety [90] days
             after the disability was removed or a guardian
             was appointed over his estate, and

      (f)    the motion alleges a valid defense or claim;

(6)   the judgment is void;

(7)   the judgment has been satisfied, released, or
      discharged, or a prior judgment upon which it is based
      has been reversed or otherwise vacated, or it is no
      longer equitable that the judgment should have
      prospective application; or

(8)   any reason justifying relief from the operation of the
      judgment, other than those reasons set forth in sub-
      paragraphs (1), (2), (3), and (4).

The motion shall be filed within a reasonable time for reasons
(5), (6), (7), and (8), and not more than one year after the

                              4
              judgment, order or proceeding was entered or taken for
              reasons (1), (2), (3), and (4). A movant filing a motion for
              reasons (1), (2), (3), (4), and (8) must allege a meritorious
              claim or defense.

The burden is on the movant to establish the ground for Trial Rule 60(B) relief. In re

Paternity of P.S.S., 934 N.E.2d 737, 740 (Ind. 2010). A trial court’s ruling on a Trial

Rule 60(B) motion for relief from judgment will be disturbed only for an abuse of

discretion. Id. at 740-41. An abuse of discretion will be found only when the trial court’s

action is clearly erroneous, that is, against the logic and effect of the facts before it and

the inferences which may be drawn therefrom. Id. at 741.

       The trial court determined that K.T.’s motion was not filed within a reasonable

time for reasons (5), (6), (7), and (8) or within one year for reasons (1), (2), (3), and (4).

Clearly, K.T. did not file his motion within one year; thus, the issue is whether he filed

his motion within a reasonable time. The determination of what period constitutes a

reasonable time varies with the circumstances of each case. D.D.J. v. State, 640 N.E.2d

768, 769 (Ind. Ct. App. 1994), trans. denied. In making its determination, the court must

consider the length of time that elapsed from the date of the judgment to the date of the

filing of the Trial Rule 60 motion, the circumstances of the delay, the diligence exercised

by the movant, and the possibility of prejudice to the opposing party. Jordan v. State, 549

N.E.2d 382, 384 (Ind. Ct. App. 1990), trans. denied.

       Seventeen years elapsed from the time of the delinquency adjudication until K.T.

filed his Trial Rule 60(B) motion. Even if we accept K.T.’s assertion that he was

unaware of his child molesting adjudication until 2008, K.T. still waited another five


                                              5
years before challenging the adjudication.       Further, K.T.’s attorney in 1996 is now

deceased, the juvenile court judge is no longer on the bench, and the child victims are

now adults. The State clearly would be prejudiced by the substantial delay. We conclude

that the trial court did not abuse its discretion by denying K.T.’s motion for relief from

judgment under Trial Rule 60(B). See, e.g., D.D.J., 640 N.E.2d at 770 (holding that the

juvenile court did not abuse its discretion by denying a motion for relief from judgment

after a two-year delay); Jordan, 549 N.E.2d at 384 (holding that the trial court did not

abuse its discretion by denying a motion for relief from judgment after a twenty-three-

year delay).

                                       Conclusion

       The trial court properly denied K.T.’s motion for relief from judgment, which was

brought seventeen years after his juvenile adjudication. We affirm.

       Affirmed.

BRADFORD, J., and BROWN, J., concur.




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