                                                                                 FILED
                                                                           Jan 31 2019, 7:28 am

                                                                                 CLERK
                                                                           Indiana Supreme Court
                                                                              Court of Appeals
                                                                                and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
J. Michael Woods                                           Curtis T. Hill, Jr.
Stracci Criminal Defense, P.C.                             Attorney General
Merrillville, Indiana
                                                           Angela N. Sanchez
                                                           Assistant Section Chief,
                                                           Criminal Appeals
                                                           Indianapolis, Indiana


                                            IN THE
    COURT OF APPEALS OF INDIANA

Jamil Michael Pirant,                                      January 31, 2019
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           18A-CR-1225
        v.                                                 Appeal from the Lake Superior
                                                           Court
State of Indiana,                                          The Honorable Samuel L. Cappas,
Appellee-Plaintiff                                         Judge
                                                           Trial Court Cause Nos.
                                                           45G04-0905-MR-4
                                                           45G04-0905-FA-16



Crone, Judge.




Court of Appeals of Indiana | Opinion 18A-CR-1225 | January 31, 2019                               Page 1 of 7
                                              Case Summary
[1]   In 2008, the State initiated juvenile delinquency referrals against fifteen-year-old

      Jamil Michael Pirant for committing acts amounting to murder and class A

      felony attempted murder if committed by an adult. He was waived to adult

      court, where he pled guilty to murder while perpetrating a robbery and

      attempted murder. Nearly a decade later, he filed a motion to set aside his

      convictions pursuant to Indiana Trial Rule 60(B), claiming that the adult court

      lacked subject matter jurisdiction because he received ineffective assistance of

      counsel during his waiver hearing. The trial court denied his motion, and we

      affirm.


                                  Facts and Procedural History
[2]   The facts as stipulated in conjunction with Pirant’s plea agreement are as

      follows. In November 2007, fifteen-year-old Pirant and some friends agreed to

      rob and “take care of” Dominique Keesee. Appellant’s App. Vol. 3 at 29.

      They forced their way into Keesee’s home, ordered him at gunpoint to open his

      safe, stole marijuana and other personal property, and shot him until he was

      dead. Less than two weeks later, Pirant shot Patrick Goodman with a .22

      caliber revolver during a conversation on an East Chicago street. Goodman

      survived.


[3]   In 2008, the State filed juvenile delinquency petitions alleging that Pirant

      committed acts amounting to murder and class A felony attempted murder if

      committed by an adult. In 2009, the State filed petitions to waive Pirant to


      Court of Appeals of Indiana | Opinion 18A-CR-1225 | January 31, 2019       Page 2 of 7
      adult court in both causes, which the juvenile court granted following a hearing,

      at which he was represented by counsel (“waiver counsel”).


[4]   In May 2009, the State charged Pirant with murder in cause 45G04-0905-MR-4

      (“Cause 4”) and subsequently amended the information to include counts of

      murder in the perpetration of a robbery and class B felony robbery. The State

      charged Pirant with class A felony attempted murder in cause 45G04-0905-FA-

      16 (“Cause 16”). Pirant was represented by the same counsel in adult court

      (“trial counsel”). In August 2009, Pirant entered into a plea agreement

      whereby he pled guilty to murder in the perpetration of a robbery in Cause 4

      and attempted murder in Cause 16, in exchange for the dismissal of the

      remaining charges in Cause 4. Pursuant to the agreement, Pirant was to

      provide testimony at the trials of his friends. The plea agreement fixed his

      aggregate sentence at forty-five years. The factual basis was stipulated, and the

      trial court took the matter under advisement pending a hearing for formal

      acceptance and sentencing. Pirant’s counsel moved to continue the hearing,

      which the trial court granted. Before the acceptance and sentencing hearing,

      Pirant was called to testify at the trial of one of his friends and refused. Trial

      counsel moved to withdraw, and Pirant moved to withdraw his guilty plea.

      The trial court denied both motions, accepted the plea agreement, and

      sentenced Pirant accordingly.


[5]   In 2011, Pirant filed a petition for post-conviction relief (“PCR”), in which he

      raised ineffective assistance of trial counsel during the proceedings in adult

      court and trial court error concerning his motion to withdraw his guilty plea.

      Court of Appeals of Indiana | Opinion 18A-CR-1225 | January 31, 2019         Page 3 of 7
      The post-conviction court denied Pirant’s petition following a hearing, and

      Pirant filed a notice of appeal. In 2013, this Court dismissed his appeal with

      prejudice after he failed to file an appellant’s brief.


[6]   In 2018, Pirant filed a motion to vacate his convictions pursuant to Trial Rule

      60(B)(6). The trial court denied Pirant’s motion, finding that he filed the

      motion “years beyond what might be deemed ‘within a reasonable time.’”

      Appealed Order at 1. Pirant filed a motion to correct error, which the trial

      court also denied. He now appeals. Additional facts will be provided as

      necessary.


                                      Discussion and Decision
[7]   Pirant contends that the trial court erred in denying his motion to set aside his

      convictions pursuant to Trial Rule 60(B)(6). A ruling on a Trial Rule 60(B)

      motion is left to the trial court’s sound discretion. State v. Willits, 773 N.E.2d

      808, 811 (Ind. 2002). On review, we will reverse only if the trial court abused

      that discretion. Id. An abuse of discretion occurs if the trial court’s decision is

      clearly against the logic and effect of the facts and circumstances before it or if it

      misinterpreted the law. Id. We may affirm on any basis supported by the

      record. State v. Chavez, 956 N.E.2d 709, 712 (Ind. Ct. App. 2011).


[8]   Indiana Trial Rule 60(B)(6) provides that the trial court may relieve a party

      from judgment where “the judgment is void[.]” Trial Rule 60(B) specifies that

      “[t]he motion shall be filed within a reasonable time for reasons (5), (6), (7), and

      (8).” Pirant claims that his motion was not subject to the “reasonable time”

      Court of Appeals of Indiana | Opinion 18A-CR-1225 | January 31, 2019         Page 4 of 7
      rule because it was based on a lack of subject matter jurisdiction, which, he

      maintains, made his waiver to adult court void. See Downham v. Wagner, 408

      N.E.2d 606, 611 (Ind. Ct. App. 1980) (lack of subject matter jurisdiction may be

      raised at any time before final decision, and where apparent, trial court must

      raise issue sua sponte if party does not raise it); see also Tapia v. Heavner, 648

      N.E.2d 1202, 1205 (Ind. Ct. App. 1995) (when court lacks subject matter

      jurisdiction, any action it takes is void).


[9]   Pirant’s case does not present a classic subject matter jurisdiction challenge.

      Instead, he argues that the trial court lacked subject matter jurisdiction to hear

      his case because the waiver hearing in the juvenile court was flawed. The flaw,

      he asserts, is that waiver counsel provided ineffective assistance during that

      hearing.1 In its order denying Pirant’s Trial Rule 60(B) motion, the trial court

      recognized that Pirant had already “litigated an ineffective assistance claim [as

      to trial counsel] and that he now raises another claim of ineffectiveness [as to

      waiver counsel] as the core of a T.R. 60(B) motion.” Appealed Order at 1.




      1
         Pirant relies on Gingerich v. State as support for his argument that he is now entitled to challenge alleged
      defects during juvenile waiver proceedings after entering a guilty plea and being sentenced in adult court.
      979 N.E.2d 694, 703-06 (Ind. Ct. App. 2012), trans. denied (2013). In Gingerich, a juvenile murder defendant
      challenged on direct appeal of his adult court conviction certain actions by the juvenile court during waiver
      proceedings, i.e., the denial of a continuance that allegedly resulted in denying him a full and fair opportunity
      to prepare for the waiver hearing. Id. at 705-06. Another panel of this Court held that Gingerich did not
      waive the right to appeal the alleged juvenile court error by pleading guilty in adult court. Id. at 712. We
      find Gingerich distinguishable, as it addressed the availability of the alleged error for direct appeal. In contrast,
      here, Pirant’s appeal comes nearly a decade after his waiver and subsequent plea agreement and more than
      six years after his first PCR petition.

      Court of Appeals of Indiana | Opinion 18A-CR-1225 | January 31, 2019                                     Page 5 of 7
[10]   We believe that Pirant’s motion is essentially a claim for post-conviction relief

       and should have been filed as such. Indiana Post-Conviction Rule 1 § 1(b)

       states that the rule “takes the place of all other common law, statutory, or other

       remedies heretofore available for challenging the validity of the conviction or

       sentence and it shall be used exclusively in place of them.” (Emphasis added.) In

       other words, “[g]enerally, our Trial Rules govern procedure and practice in civil

       cases only …. [and our] Post-Conviction Rules … facilitate review of criminal

       convictions and sentences.” Van Meter v. State, 650 N.E.2d 1138, 1138 (Ind.

       1995). “Criminal defendants may not circumvent these procedures by seeking

       remedies under the civil law.” Id.2 Post-Conviction Rule 1 § 12(b) allows a

       petitioner to file a request for a successive PCR petition, subject to the PCR

       court’s authorization, where “the petitioner establishes a reasonable possibility

       that [he] is entitled to post-conviction relief.”


[11]   Pirant correctly submits that he is not attempting to relitigate a claim that was

       dismissed with prejudice by this Court, as his current claim of ineffectiveness

       involves the performance of his waiver counsel in the juvenile court as opposed

       to the ineffectiveness of trial counsel during plea negotiations. Even so, he was

       required to raise any collateral challenges to his convictions through post-

       conviction proceedings, meaning that he is limited to filing a request for a



       2
         In J.W. v. State, No. 19S-JV-12 2019 WL 140041 (Ind. Jan. 9, 2019), our supreme court, noting that PCR
       proceedings apply only to adult criminal convictions, held that “Trial Rule 60 is an appropriate avenue
       through which a juvenile must raise any and all claims premised on the illegality of an agreed delinquency
       adjudication.” Id. at *4. J.W. is distinguishable because here, Pirant seeks to vacate his convictions entered
       after he pled guilty in adult court, and as such, must raise his claims through PCR proceedings. Ind. Post-
       Conviction Rule 1 § 1(b); Van Meter, 650 N.E.2d at 1138.

       Court of Appeals of Indiana | Opinion 18A-CR-1225 | January 31, 2019                                Page 6 of 7
       successive PCR petition, subject to the parameters and procedures outlined in

       Post-Conviction Rule 1 §§ 8 and 12.3 Because Pirant was required to raise his

       collateral challenge to his convictions through post-conviction proceedings, the

       trial court acted within its discretion in denying his Trial Rule 60(B) motion to

       vacate them. Accordingly, we affirm the trial court’s denial, without prejudice

       to Pirant’s ability to pursue relief subject to the rules and procedures governing

       successive PCR petitions.


[12]   Affirmed.


       Vaidik, C.J., and Mathias, J., concur.




       3
           Post-Conviction Rule 1 § 8 states,
               All grounds for relief available to a petitioner must be raised in his original petition. Any ground
               finally adjudicated on the merits or not so raised and knowingly, voluntarily and intelligently
               waived in the proceeding that resulted in the conviction or sentence, or in any other proceeding
               the petitioner has taken to secure relief, may not be the basis for a subsequent petition, unless
               the court finds a ground for relief asserted which for sufficient reason was not asserted or was
               inadequately raised in the original petition.
       (Emphasis added.) We note that the issue of ineffective assistance of waiver counsel was available when
       Pirant filed his 2011 PCR petition.

       Court of Appeals of Indiana | Opinion 18A-CR-1225 | January 31, 2019                                    Page 7 of 7
