                                                                                        FILED
                                                                                   Oct 25 2016, 12:37 pm
 ATTORNEY FOR APPELLANT                               ATTORNEY FOR APPELLEE
                                                                                        CLERK
                                                                                    Indiana Supreme Court
 Gregory F. Zoeller                                   Steven T. Owens                  Court of Appeals
                                                                                         and Tax Court
 Attorney General                                     Public Defender of Indiana

 Henry A. Flores, Jr.                                 Vickie Yaser
 Deputy Attorney General                              Deputy Public Defender
 Indianapolis, Indiana                                Indianapolis, Indiana




                                             In the
                           Indiana Supreme Court
                                     No. 49S04-1610-PC-554

STATE OF INDIANA,
                                                                 Appellant (Respondent below),

                                                 v.

ROBERT COLLIER,
                                                                 Appellee (Petitioner below).




               Appeal from the Marion Superior Court, No. 49F15-9608-PC-124576
                            The Honorable Helen W. Marchal, Judge
                            The Honorable Stanley Kroh, Magistrate


      On Petition to Transfer from the Indiana Court of Appeals, No. 49A04-1508-PC-1036


                                         October 25, 2016

David, Justice.

        At issue in this case is whether the post-conviction court erred in granting Collier’s motion
for relief from judgment pursuant to Trial Rule 60(B)(8). In light of the facts and circumstances
of this case and given the deferential standard of review, we affirm finding that: 1) Collier filed
his motion within a reasonable time given his incarceration, lack of education, limited resources
and potential cognitive and/or mental deficiencies; 2) there were extraordinary circumstances due
to the post-conviction court’s failure to refer Collier’s petition to the State Public Defender in
accordance with the Post-Conviction Rules; and 3) Collier has alleged a meritorious claim.

                                  Facts and Procedural History

       In 1997, Robert Collier pled guilty to possession of cocaine as a class D felony. He was
sentenced to 545 days in the Department of Correction with 521 days suspended and 90 days of
probation.


       In 2001, Collier filed a pro se petition for post-conviction relief wherein he alleged that he
was denied the effective assistance of counsel, was misled by his attorney and the trial court and
his guilty plea was not knowing, intelligent and voluntary. Collier indicated he wished to have a
public defender appointed to represent him and submitted an affidavit of indigence. The post-
conviction court appointed a public defender for Collier, but his petition for post-conviction relief
was ultimately withdrawn without prejudice in 2005 after Collier’s motion to file a belated appeal
was denied and his public defender withdrew as counsel.


       In 2007, Collier filed a new pro se petition for post-conviction relief alleging ineffective
assistance of counsel, claiming he did not make an intelligent and voluntary plea and requesting
his plea agreement be vacated. Collier again indicated that he wished to have a public defender
appointed and completed an affidavit of indigence. However, the court did not refer the petition
to the State Public Defender and the court summarily denied Collier’s petition.


       In December 2008, Collier wrote to the court asking about the status of his petition and
request for representation. According to an entry in the court’s chronological case summary
(CCS), Collier was sent a copy of the order denying his 2007 petition in December 2008. Between
May 2009 and September 2012, Collier submitted multiple requests or motions seeking documents
related to his conviction and the order denying his 2007 petition. In August 2009, the court sent
him a copy of the CCS. In September 2012, the court again sent him a copy of the order denying
his 2007 petition.



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        In September 2014, Collier filed another pro se petition for post-conviction relief. He again
requested representation and submitted an affidavit of indigence. Thereafter, in April 2015,
Collier, by counsel, filed both a verified motion for leave to amend his petition for post-conviction
relief and a verified motion for relief from the September 2007 order (that summarily denied his
2007 petition for post-conviction relief) pursuant to Indiana Trial Rule 60(B)(8) and Indiana
Post-Conviction Rule 1 Section 21.


        In his motion for relief from judgment, Collier argued that in his 2007 petition, he requested
representation and included an affidavit of indigence. As such, Post-Conviction Rule 1(2) imposed
a duty upon the post-conviction court to order a copy of the petition to be sent to the State Public
Defender. He further argued that he was not timely notified of the court’s summary denial of his
petition and so he could not perfect a timely appeal. Finally, his counsel argued that it was her
belief that Collier suffered from cognitive and/or mental deficiencies that impacted Collier’s
ability to represent himself2, Collier has limited education and that review of the record reveals
that there are issues that have merit.


        The post-conviction court granted Collier’s motion for relief from judgment before
receiving a response from the State. The State then filed an objection and a motion to reconsider
the order granting Collier’s motion for relief from judgment. The State argued that Collier’s
motion for relief was not timely filed and was not supported by extraordinary circumstances. It
further argued that Collier should have sought to file a successive petition for post-conviction relief
instead.




1
  Indiana Post-Conviction Rule 1(2) provides in relevant part: “[i]f the court finds the indigent petitioner is
incarcerated in the Indiana Department of Correction, and has requested representation, it shall order a copy
of the petition sent to the Public Defender’s office.
2
  There is no evidence in the record about a specific mental or cognitive diagnosis for Collier. All we have
is his counsel’s verified statement that it is her belief that Collier suffers from “cognitive and/or mental
deficiencies.” (App. at 233.) Nevertheless, we find that this may be a factor although our opinion is not
contingent upon this being true, in light of evidence that Collier has only a 9th grade education.



                                                      3
       The post-conviction court granted the State’s motion to reconsider. After two hearings,
the post-conviction court determined that it would reinstate Collier’s 2007 petition for post-
conviction relief. The court reasoned:


               I think I was the one who signed that order to summarily dismiss or
               deny the petition and I guess what my thinking is in fairness Mr.
               Collier ought to have a shot at retrying a P.C.R. with counsel but
               then I would anticipate the State possibly filing. . .filing to appeal
               that. . . I think it was a mistake for the [c]ourt not to appoint counsel
               and to summarily deny the P.C.R. . . .and so that is what the [c]ourt
               is deciding.

(Tr. 24-25.) Thus, the court granted Collier’s “Petition to Reinstate.” The State appealed and the
Court of Appeals reversed the post-conviction court “conclud[ing] that Collier’s motion was not
filed within a reasonable time.” State v. Collier, 2016 WL 1567245, No. 49A04-1508-PC-1036,
slip op. *7, 10. (Ind. Ct. App. April 19, 2016). We now accept transfer and affirm the post-
conviction court, thereby vacating the Court of Appeals opinion. Ind. App. Rule 58(A).


                                         Standard of Review

       The decision of whether the grant a Trial Rule 60(B)(8) motion is left to the equitable
discretion of the trial court, and is reviewable only for abuse of discretion. Gipson v. Gipson, 644
N.E.2d 876, 877 (Ind. 1994). “An abuse of discretion occurs if the decision is clearly against the
logic and effect of the facts and circumstances before the court, or the reasonable, probable, and
actual deductions to be drawn therefrom.” McElfresh v. State, 51 N.E.3d 103, 107 (Ind. 2016)
(internal quotations and citations omitted). The reviewing court does not reweigh the evidence.
Gipson, 644 N.E.2d at 877.


                                             Discussion

       At issue here is whether the post-conviction court abused its discretion in granting Collier’s
Trial Rule 60(B)(8) motion for relief from judgment. Trial Rule 60(B) provides in relevant part:




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               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;

                                              *****

               (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).


        A motion for relief from judgment filed for reason (8) shall be filed within a reasonable
time and must allege a meritorious claim or defense. Ind. Trial Rule 60(B). The passage of time
alone is not enough to warrant the denial of a motion on the basis of timeliness. See Fairrow v.
Fairrow, 559 N.E.2d 597 (Ind. 1990) (This Court granted relief eleven (11) years after the
judgment due to the unusual circumstances of the case.) Determining what is a reasonable time
period depends on the circumstances of each case, as well as the potential prejudice to the party
opposing the motion and the basis for the moving party's delay. Parham v. Parham, 855 N.E.2d
722, 728 (Ind. Ct. App. 2006) (citations omitted). “Finality and fairness are both important goals.
When faced with an apparent conflict between them, this Court unhesitatingly chooses the latter.”
State v. Huffman, 643 N.E.2d 899, 901 (Ind. 1994).


        For the purposes of Rule 60(B), a meritorious claim or defense is “one that would lead to
a different result if the case were tried on the merits.” Butler v. State, 933 N.E.2d 33, 36 (Ind. Ct.
App. 2010) (quoting Bunch v. Himm, 879 N.E.2d 632, 637 (Ind. Ct. App. 2008)). Additionally,
in order to be granted relief pursuant to Ind. Trial Rule 60(B)(8), the moving party must
demonstrate some extraordinary or exceptional circumstances justifying equitable relief. Smith v.
State, 38 N.E.3d 218, 221 (Ind. Ct. App. 2015); In re Adoption of T.L.W., 835 N.E.2d 598, 601
(Ind. Ct. App. 2005); WW Extended Care, Inc. v. Aetna Life Ins. Co., 755 N.E.2d 712, 719 (Ind.




                                                 5
Ct. App. 2001) (The moving party must show failure to act was not merely due to omission
involving mistake, surprise, or excusable neglect, but due to some extraordinary circumstance.)


       Thus, in order to be granted relief, Collier must show that: 1) he brought his claim within
a reasonable time in light of the circumstances of the case; 2) extraordinary or exceptional
circumstances justify that relief; and 3) he has alleged a meritorious claim or defense. Ind. Trial
Rule 60(B); Parham, 855 N.E.2d at 728; Smith, 38 N.E.3d at 221-222.

       Here, Collier’s motion for relief from judgment was filed in 2015, seven and one half (7
½) years after his 2007 petition for post-conviction relief was summarily denied. The record
demonstrates that Collier wrote to the court asking about the status of his petition and request for
counsel in 2008, over a year after his petition was denied, and thus, the court sent him a copy of
the order at that time. He then requested and filed motions to obtain other documents related to
his case, including requesting another copy of the order denying his 2007 petition which he
received in 2012.


       It is true that many years passed between 2008 when Collier presumably first received
notice that his petition was summarily denied and 2015 when his motion for relief from judgment
was filed. Collier, by counsel, explained this delay was due to Collier’s lack of education and
resources. Counsel also stated her belief that Collier suffered from cognitive or mental
deficiencies. Indeed, an incarcerated man lacking education and potentially suffering from a
cognitive or mental impairment could not reasonably be expected to know how to go about seeking
relief from an adverse judgment without the assistance of counsel, even when he did request and
receive copies of the judgment.


       Collier requested counsel at the time he filed his 2007 petition. However, the court never
referred his petition for post-conviction relief to the State Public Defender as required by Ind. Post-
Conviction Rule 1(2), which provides that “[i]f the court finds the indigent petitioner is
incarcerated in the Indiana Department of Correction, and has requested representation, it shall
order a copy of the petition sent to the Public Defender’s office. Ind. Post-Conviction Rule 1(2)
(emphasis added). The record reflects that Collier persistently sought relief by requesting and
filing motions to obtain documents, albeit misguidedly. However, it wasn’t until Collier secured



                                                  6
a public defender that he could seek meaningful relief. Once he had counsel, he was able to file
the appropriate motion requesting relief, and he did so. Under these circumstances, Collier’s
motion was filed in reasonable time. Additionally, the post-conviction court’s failure to refer
Collier’s case to the State Public Defender is an error that cannot be attributed to Collier and one
that justifies extraordinary relief.


        As for the requirement that Collier allege a meritorious claim or defense, in his verified
motion for leave to amend his petition for post-conviction relief, Collier alleges, among other
things, ineffective assistance of counsel due to counsel’s failure to appropriately advise Collier
that he would be convicted of a felony, instead of a misdemeanor, and failure of counsel to argue
for alternative misdemeanor sentencing. He further argues that the trial court accepted his guilty
plea even though he denied guilt at the plea hearing in contravention of Indiana law. Collier
previously presented similar but not identical, claims in his pro se petitions; however, with the
assistance of counsel, Collier presented more cogent arguments to the court. Thus, it is quite
possible that Collier would be granted relief if his claims are heard on the merits. More
fundamentally though, if his motion for relief from judgment is granted, the result for Collier is
certainly different – he would have an opportunity to present his claim with the assistance of
counsel and have it decided on the merits instead of having it summarily dismissed.


        In sum, the post-conviction court was well aware of the time delay between the denial of
Collier’s 2007 petition and his 2015 motion for relief from judgment. It also heard from both
parties during two hearings wherein Collier presented evidence regarding his reasons for the delay
and the State presented its argument that it was prejudiced by the delay. Nevertheless, the post-
conviction court ultimately decided that, in light of the court’s own error in not referring Collier’s
petition to the State Public Defender in 2007, he should be allowed to have his case heard on the
merits with the assistance of counsel. This result is consistent with the facts and circumstances of
this case and with this Court’s interest in ensuring fairness, first and foremost. See Huffman, 643
N.E.2d at 901. It cannot be said that the court’s correction of its own error, which was compounded
by Collier’s lack of education and potentially his cognitive and/or mental difficulties, is against
the “logic and effect of the facts and circumstances before [it].” McElfresh, 51 N.E.3d at 107.




                                                 7
                                             Conclusion

       Because Collier’s petition for post-conviction relief was not referred to the State Public
Defender as required by the Post-Conviction Rules, and in light of Collier’s lack of education and
potential cognitive and/or mental deficiencies, the post-conviction court did not err in granting
Collier’s Trial Rule 60(B)(8) motion for relief from judgment so that he could seek meaningful
post-conviction review. Collier sufficiently demonstrated that he filed his motion for relief within
a reasonable time considering the circumstances and that he is entitled to extraordinary relief. He
also alleged a meritorious claim because, in any case, the result of his post-conviction petition will
now be different than a summary dismissal. Accordingly, the post-conviction court did not abuse
its discretion and we affirm its judgment.


Rush, C.J., Rucker, Massa and Slaughter, J.J., concur.




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