      MEMORANDUM DECISION
                                                                                  FILED
                                                                             Feb 23 2017, 9:27 am

      Pursuant to Ind. Appellate Rule 65(D), this                                 CLERK
                                                                              Indiana Supreme Court
      Memorandum Decision shall not be regarded as                               Court of Appeals
      precedent or cited before any court except for the                           and Tax Court

      purpose of establishing the defense of res judicata,
      collateral estoppel, or the law of the case.



      APPELLANT PRO SE                                          ATTORNEYS FOR APPELLEE
      Jay F. Vermillion                                         Curtis T. Hill, Jr.
      Pendleton, Indiana                                        Attorney General of Indiana
                                                                Eric P. Babbs
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana


                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Jay F. Vermillion,                                        February 23, 2017

      Appellant-Petitioner,                                     Court of Appeals Case No.
                                                                84A04-1604-PC-900
              v.                                                Appeal from the Vigo Superior
                                                                Court.
                                                                The Honorable John T. Roach III,
      State of Indiana,                                         Judge.
      Appellee-Respondent.                                      Cause No. 84D01-1109-PC-3025




      Friedlander, Senior Judge

[1]   Jay Vermillion appeals from the post-conviction court’s dismissal of his petition

      for post-conviction relief, and denial of his motion for relief from judgment. On

      appeal, Vermillion raises several issues of which we find the following

      dispositive: whether the post-conviction court abused its discretion by


      Court of Appeals of Indiana | Memorandum Decision 84A04-1604-PC-900 | February 23, 2017         Page 1 of 8
      dismissing his post-conviction relief petition without first holding a hearing.

      We reverse and remand.


[2]   Vermillion was convicted of murder, burglary, auto theft, and dealing in a

      sawed-off shotgun. On direct appeal, our Supreme Court affirmed his

      convictions. See Vermillion v. State, 719 N.E.2d 1201 (Ind. 1999).


[3]   In 2003, Vermillion filed a post-conviction relief (PCR) petition in Vigo

      Superior Court Division 3 – the court where he was convicted. Under local

      rules, the petition was transferred to a different court division – Division 1. He

      filed a motion to withdraw the petition in 2009, which was granted. Vermillion

      filed another PCR petition in 2011, in the Division 3 court. Again, under local

      rules, the petition was transferred to the Division 1 court.


[4]   On March 7, 2014, the post-conviction court issued an order notifying the

      parties that Vermillion’s PCR petition would be dismissed under Indiana Trial

      Rule 41(E) if the parties did not appear in court on April 10, 2014. The court

      dismissed the petition on July 3, 2014, because no action had been taken on the

      case since April 26, 2012. On August 28, 2014, Vermillion filed a motion to

      reinstate the petition, alleging he did not receive notice of the March 7th order.

      The post-conviction court granted the motion.


[5]   On September 14, 2015, the court again issued an order notifying the parties

      that Vermillion’s PCR petition would be dismissed under Trial Rule 41(E) if the

      parties did not appear in court on October 8, 2015, and indicate their desire to

      continue the matter. An entry was made on the chronological case summary

      Court of Appeals of Indiana | Memorandum Decision 84A04-1604-PC-900 | February 23, 2017   Page 2 of 8
      (CCS) as follows: “Cause set for dismissal hearing under Trial Rule 41E [sic]

      on 10/8/15 at 11:00 a.m.” Appellant’s App., Vol. 2, p. 12. Vermillion did not

      respond and the court dismissed the petition on October 9, 2015. The CCS

      does not show that the court held the hearing before it dismissed Vermillion’s

      petition.


[6]   On October 23, 2015, Vermillion filed a motion to reinstate his petition. The

      post-conviction court denied the motion on December 4, 2015. On January 25,

      2016, Vermillion filed a motion for relief from judgment under Trial Rule

      60(B), alleging that because his PCR petition was dismissed by “a judicial

      officer other than the duly elected or duly appointed judge of the court where

      [his] convictions took place, said judgment is void.” Id., Vol. 3, p. 125. The

      post-conviction court denied the motion on January 29, 2016. On February 12,

      2016, Vermillion filed a motion to correct error, which was deemed denied.

      Vermillion appeals.


[7]   Vermillion argues that the post-conviction court erred in dismissing his PCR

      petition under Trial Rule 41(E) without holding a hearing prior to dismissal.

      We will reverse a Trial Rule 41(E) dismissal for failure to prosecute “only for a

      clear abuse of discretion. An abuse of discretion occurs if the decision of the

      trial court is against the logic and effect of the facts and circumstances before

      it.” Caruthers v. State, 58 N.E.3d 207, 210 (Ind. Ct. App. 2016) (internal

      citations omitted).


[8]   Indiana Trial Rule 41(E) provides:


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              Whenever there has been a failure to comply with these rules or
              when no action has been taken in a civil case for a period of sixty
              [60] days, the court, on motion of a party or on its own motion
              shall order a hearing for the purpose of dismissing such case.
              The court shall enter an order of dismissal at plaintiff’s costs if
              the plaintiff shall not show sufficient cause at or before such
              hearing. Dismissal may be withheld or reinstatement of
              dismissal may be made subject to the condition that the plaintiff
              comply with these rules and diligently prosecute the action and
              upon such terms that the court in its discretion determines to be
              necessary to assure such diligent prosecution.


[9]   A trial court’s authority to dismiss a case pursuant to Trial Rule 41(E) “stems

      not only from considerations of fairness for defendants, but is also rooted in the

      administrative discretion necessary for a trial court to effectively conduct its

      business.” Baker Mach., Inc. v. Superior Canopy Corp., 883 N.E.2d 818, 823 (Ind.

      Ct. App. 2008), trans. denied. The purpose of Trial Rule 41(E) is “to ensure that

      plaintiffs will diligently pursue their claims” and to provide “an enforcement

      mechanism whereby a defendant, or the court, can force a recalcitrant plaintiff

      to push his case to resolution.” Belcaster v. Miller, 785 N.E.2d 1164, 1167 (Ind.

      Ct. App. 2003), trans. denied (quotation omitted). The plaintiff bears the burden

      of moving the litigation forward, and the trial court has no duty to urge or

      require counsel to go to trial, even where it would be within the court’s power

      to do so. Id. “Courts cannot be asked to carry cases on their dockets

      indefinitely and the rights of the adverse party should also be considered. He

      should not be left with a lawsuit hanging over his head indefinitely.” Id.

      (quotation omitted). “Although Indiana does not require trial courts to impose

      lesser sanctions before applying the ultimate sanctions of default judgment or

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       dismissal, we view dismissals with disfavor, and dismissals are considered

       extreme remedies that should be granted only under limited circumstances.”

       Am. Family Ins. Co. ex rel. Shafer v. Beazer Homes Indiana, LLP, 929 N.E.2d 853,

       857 (Ind. Ct. App. 2010).


[10]   Although the trial court set a hearing under Trial Rule 41(E) on the dismissal of

       Vermillion’s PCR petition, the CCS does not show that the hearing was held.

       The State argues that “there are circumstances in which a hearing does not need

       to be held but only scheduled.” Appellee’s Br. p. 11 (emphasis added).


[11]   The Indiana Supreme Court and this Court have held that a court must

       generally hold a hearing prior to entering an order of dismissal under Trial Rule

       41(E). See Wright v. Miller, 989 N.E.2d 324, 328 n.3 (Ind. 2013) (citing Rumfelt

       v. Himes, 438 N.E.2d 980, 984 (Ind. 1982)), and providing that “in light of the

       gravity of the sanction of dismissal, we believe that the hearing required by

       Trial Rule 41(E) should henceforth likewise be held when a case dismissal is

       sought or contemplated under Trial Rule 37”); Rumfelt, 438 N.E.2d at 983-984

       (holding that the trial court’s order dismissing the action with prejudice “wholly

       fail[ed] to comply with the clear dictates of the rule requiring a hearing” and

       that “Trial Rule 41(E) clearly requires a hearing on a motion to dismiss which

       controls over Trial Rule 73 allowing the trial court to expedite its business by

       directing the submission and determination of motions without oral hearing,”

       and remanding with instructions to order a hearing on the motion to dismiss

       under Rule 41(E)). In Caruthers, a panel of this Court found:



       Court of Appeals of Indiana | Memorandum Decision 84A04-1604-PC-900 | February 23, 2017   Page 5 of 8
               Judge Sullivan[’s dissent in Metcalf v. Estate of Hastings, 726
               N.E.2d 372, 374-75 (Ind. Ct. App. 2000) (Sullivan, J. dissenting),
               trans. denied,] opining that Trial Rule 41(E) ‘clearly
               contemplate[s] that a hearing not only be scheduled, but that it be
               conducted unless, and only unless the plaintiff has, prior to the
               hearing, been afforded opportunity to demonstrate sufficient
               good cause for the delay and has in fact done so’ . . . is not only a
               correct reading of [Rule 41(E)] but is also consistent with Rumfelt,
               which we are bound to follow as controlling supreme court
               precedent.


       58 N.E.3d at 214.


[12]   We, like the panel in Caruthers, are bound by controlling supreme court

       precedent. The post-conviction court dismissed Vermillion’s action without

       holding a hearing as required by Trial Rule 41(E). We reverse the court’s

       dismissal of Vermillion’s PCR petition and remand for either a Trial Rule 41(E)

       hearing or reinstatement of his action.


[13]   In the interest of judicial economy, we address Vermillion’s issue of whether the

       post-conviction court erred in denying his Trial Rule 60(B) motion on the

       ground that the court’s dismissal of his PCR petition is void because the Vigo

       Superior Court Division 1 lacked jurisdiction over his petition. Vermillion’s

       argument appears to be that the court in which he originally was convicted,

       Vigo Superior Court Division 3, was the only court with jurisdiction to rule on

       his PCR petition. Vermillion’s claim is without merit.


[14]   Vermillion’s PCR petition was filed in the superior court in which he was

       convicted. See Ind. Post-Conviction Rule 1(2) (a person who claims relief under

       Court of Appeals of Indiana | Memorandum Decision 84A04-1604-PC-900 | February 23, 2017   Page 6 of 8
       this rule must file a verified petition with clerk of court in which conviction took

       place). Under local rules, that court transferred the matter to a different

       superior court division. Rule LR84-CR2.2-2(D) of the Local Rules of Practice

       and Procedure for the Vigo County Superior and Circuit Courts states, “[a]

       judge of the Circuit [or] Superior Courts, by appropriate order entered in the

       record of judgments and orders, may transfer and reassign a case to any other

       court of record in the county with jurisdiction to hear the charged offense

       subject to acceptance by the receiving court.” Indiana Code section 33-29-1-

       1.5 (2011) provides that all superior courts have original and concurrent

       jurisdiction in all civil cases and in all criminal cases. The Division 1 court has

       jurisdiction over Vermillion’s PCR petition. No error occurred here.


[15]   Finally, Vermillion has filed a “Verified Motion for Judicial Notice,” asking

       this Court to take judicial notice of those parts of the record from his underlying

       criminal case and his direct appeal that he references in his brief, since he did

       not have the opportunity to make the record a part of his post-conviction

       proceedings. The State has not filed a motion in response. Effective January 1,

       2010, amended Indiana Rule of Evidence 201(b)(5) permits courts to take

       judicial notice of “records of a court of this state.” We decline to do so here

       because the record from Vermillion’s trial and direct appeal are not necessary to

       the determination of the issues before us. By separate order issued

       contemporaneously with this opinion, we deny Vermillion’s motion to take

       judicial notice.


[16]   Reversed and remanded.

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[17]   Baker, J., and Kirsch, J., concur.




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