MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                 FILED
this Memorandum Decision shall not be                             Nov 22 2016, 8:39 am

regarded as precedent or cited before any                              CLERK
                                                                   Indiana Supreme Court
court except for the purpose of establishing                          Court of Appeals
                                                                        and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


APPELLANT PRO SE                                        ATTORNEYS FOR APPELLEE
Anthony Stansbury                                       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

Anthony Stansbury,                                      November 22, 2016
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        15A01-1511-PC-1859
        v.                                              Appeal from the Dearborn
                                                        Superior Court
State of Indiana,                                       The Honorable Jonathan N.
Appellee-Plaintiff.                                     Cleary, Judge
                                                        Trial Court Cause No.
                                                        15D01-1505-PC-6



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 15A01-1511-PC-1859 | November 22, 2016   Page 1 of 7
                               Case Summary and Issues
[1]   Anthony Stansbury, pro se, appeals the post-conviction court’s denial of his

      petition for post-conviction relief, raising two issues for our review, which we

      restate as (1) whether the post-conviction court abused its discretion in denying

      Stansbury’s motion for continuance, and (2) whether the post-conviction court

      erred in denying his petition without first holding an evidentiary hearing.

      Concluding the post-conviction court did not abuse its discretion in denying

      Stansbury’s motion for continuance nor did it err in denying his petition, we

      affirm.



                            Facts and Procedural History
[2]   On September 14, 2011, Stansbury was convicted of attempted robbery and

      aggravated battery as Class B felonies. He was also found to be an habitual

      offender, and the trial court sentenced him to an executed term in the Indiana

      Department of Correction. We affirmed his convictions on appeal, but

      remanded to the trial court to correct an error in the sentencing order. Stansbury

      v. State, No. 15A05-1111-CR-585, slip op. at 1 (Ind. Ct. App. May 31, 2012),

      trans. denied.


[3]   In October 2012, Stansbury filed a petition for post-conviction relief under

      cause number 15D01-1209-PC-0008, alleging he received ineffective assistance

      of trial and appellate counsel. The post-conviction court appointed a public

      defender, and after conducting an appropriate investigation and consulting with


      Court of Appeals of Indiana | Memorandum Decision 15A01-1511-PC-1859 | November 22, 2016   Page 2 of 7
      Stansbury, the public defender withdrew his appearance. On September 8,

      2014, Stansbury filed a pro se motion to withdraw his petition, which the post-

      conviction court granted without prejudice.


[4]   On May 6, 2015, Stansbury filed a petition for post-conviction relief under the

      current cause number. This petition also alleged Stansbury received ineffective

      assistance of trial and appellate counsel. Stansbury requested the post-

      conviction court appoint a public defender, which the post-conviction court

      granted. On June 4, 2015, the public defender filed a notice of non-

      representation, citing the fact Stansbury’s allegations from the 2012 petition had

      not changed; Stansbury proceeded pro se.


[5]   On June 5, 2015, the post-conviction court ordered Stansbury to submit his case

      by affidavit within sixty days. On July 23, 2015, Stansbury moved for a

      continuance, claiming he had not yet received the clerk’s record. The post-

      conviction court granted the motion and extended Stansbury’s deadline to

      submit affidavits to October 5, 2015.


[6]   On October 2, 2015, Stansbury filed a second motion for continuance, claiming

      a lock-down at the prison and supervisor unavailability severely limited his

      access to the prison law libraries. On October 5, 2015, the post-conviction court

      denied Stansbury’s motion for continuance1 and denied his petition for post-



      1
        We note Stansbury’s second motion for continuance was never entered in the Chronological Case
      Summary. The State did not receive notice or a copy of the motion and did not have the opportunity to
      respond. Regardless, the post-conviction court noted in its October 5 order it received the motion and denied
      the motion. In addition, the motion was not included in the clerk’s record on appeal and Stansbury did not

      Court of Appeals of Indiana | Memorandum Decision 15A01-1511-PC-1859 | November 22, 2016          Page 3 of 7
      conviction relief. As to the denial of Stansbury’s petition, the post-conviction

      court concluded Stansbury did not submit his case by affidavits as ordered and

      failed to produce sufficient evidence to support his petition. This appeal

      ensued.



                                   Discussion and Decision
                                   I. Motion for Continuance
[7]   Stansbury argues that the trial court abused its discretion in denying his motion

      for continuance. Rulings upon non-statutory motions for continuance are

      within the discretion of the post-conviction court and will be reversed only for

      an abuse of that discretion. Tapia v. State, 753 N.E.2d 581, 586 (Ind. 2001). An

      abuse of discretion occurs only where the evidence is clearly against the logic

      and effect of the facts and circumstances. Id at 585.


[8]   We cannot say the post-conviction court abused its discretion in denying the

      motion for continuance. In early June 2015, the post-conviction court ordered

      Stansbury to submit his case by affidavit by early August. Nearly two weeks

      prior to the August deadline, Stansbury moved for a continuance, which the

      post-conviction court granted. In so doing, the post-conviction court extended

      the deadline for Stansbury to submit his case by affidavit to October 5, 2015.




      include the motion in his appendix. After submission of the parties’ briefs, Stansbury filed a motion for leave
      to amend the record and submitted a supplemental appendix including a file-stamped copy of the motion. In
      a separate order, we grant his motion for leave to amend and we address the merits of his claims herein.

      Court of Appeals of Indiana | Memorandum Decision 15A01-1511-PC-1859 | November 22, 2016            Page 4 of 7
      Just three days prior to this deadline, on October 2, 2015, Stansbury filed a

      second motion for continuance. The motion alleges a lockdown at the prison

      and supervisor unavailability hampered his access to the law library. Although

      we have no reason to question the veracity of Stansbury’s claims, the motion

      lacks any specificity that would show he was unable to access the law library at

      any time during the two additional months he was granted to submit his case.

      For example, the motion does not detail the length of the lock-down. We

      conclude the post-conviction court’s denial of Stansbury’s motion for

      continuance is not clearly against the logic and effect of the facts and

      circumstances.


                       II. Petition for Post-Conviction Relief
                                      A. Standard of Review
[9]   Defendants who have exhausted the direct appeal process may challenge the

      correctness of their convictions and sentence by filing a post-conviction

      petition. Ind. Post-Conviction Rule 1(1). A petitioner for post-conviction relief

      has the burden of establishing his grounds for relief by a preponderance of the

      evidence. Timberlake v. State, 753 N.E.2d 591, 597 (Ind. 2001), cert. denied, 537

      U.S. 839 (2002). Because Stansbury is appealing from a negative judgment, he

      must convince this court the evidence as a whole unmistakably and unerringly

      points to a conclusion contrary to the post-conviction court’s decision. See id.




      Court of Appeals of Indiana | Memorandum Decision 15A01-1511-PC-1859 | November 22, 2016   Page 5 of 7
                                     B. Submission by Affidavit
[10]   Stansbury argues the post-conviction court erred in denying his petition.

       Specifically, he argues the denial was improper without holding an evidentiary

       hearing. We disagree.


[11]   Indiana Post-Conviction Rule 1(9)(b) “clearly and plainly provides that when a

       petitioner proceeds pro se, the PCR court has the discretion to order the cause

       submitted upon affidavit.” Smith v. State, 822 N.E.2d 193, 201 (Ind. Ct. App.

       2005), trans. denied. This rule is a “distinct way for a PCR court to rule on a

       petition without an evidentiary hearing.” Id. A post-conviction court is only

       required to hold an evidentiary hearing after ordering a case be submitted by

       affidavit if (1) affidavits are, in fact, submitted, (2) either party moves for

       summary disposition, and (3) there is a genuine issue of material fact. See P-

       C.R. 1(4)(g).


[12]   Here, the post-conviction court exercised its discretion in ordering Stansbury to

       submit his case by affidavit pursuant to Rule 1(9)(b).2 Despite having nearly

       four months to submit his case by affidavit, Stansbury did not submit any

       affidavits. As a result, Stansbury offered no evidence in support of his petition

       and the post-conviction court never had the opportunity to determine whether




       2
         Stansbury does not argue the post-conviction court abused its discretion in ordering his case be submitted
       by affidavit.

       Court of Appeals of Indiana | Memorandum Decision 15A01-1511-PC-1859 | November 22, 2016           Page 6 of 7
       an evidentiary hearing was required. See P-C.R. 1(4)(g). We conclude the post-

       conviction court did not err in denying Stansbury’s petition.



                                               Conclusion
[13]   The post-conviction court did not abuse its discretion in denying Stansbury’s

       motion for continuance nor did it err in denying his petition. Accordingly, we

       affirm.


[14]   Affirmed.


       Mathias, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 15A01-1511-PC-1859 | November 22, 2016   Page 7 of 7
