                                                                        FILED
                                                                   May 28 2019, 2:51 pm

                                                                        CLERK
                                                                    Indiana Supreme Court
                                                                       Court of Appeals
                                                                         and Tax Court
                              IN THE

     Indiana Supreme Court
                Supreme Court Case No. 19S-PC-328

                       Anthony Bedolla,
                      Appellant (Petitioner below),

                                  –v–

                        State of Indiana,
                     Appellee (Respondent below).


           Argued: January 17, 2019 | Decided: May 28, 2019

                Appeal from the Marion Superior Court,
                       No. 49G02-0903-PC-34210
                The Honorable Amy Barbar, Magistrate

      On Petition to Transfer from the Indiana Court of Appeals,
                        No. 49A02-1712-PC-3004



                        Opinion by Justice Goff
              Chief Justice Rush and Justice David concur.
                    Justice Massa concurs in result.
Justice Slaughter concurs in part, dissents in part with separate opinion.
Goff, Justice.

   In what can only be characterized as a twist of fate, Anthony Bedolla
found himself sharing a holding cell with the man who could help prove
he had been wrongly convicted of murder. Securing the man’s testimony
and presenting it to the post-conviction court proved challenging for
Bedolla’s attorney for various reasons, some outside her control. After an
unsuccessful deposition, yet with assurances from the witness that he
would cooperate, Bedolla’s counsel sought leave from the court to try
again to get the testimony. But the post-conviction court refused to hear
argument from Bedolla’s attorney on this point, even denying her the
opportunity to make an offer of proof. The court then ended discovery,
closed the evidence, and demanded proposed findings and conclusions
from the parties. When Bedolla’s counsel attempted to make her case and
develop a record for appeal, the court silenced her with threats of
contempt.

   Part of a judge’s job is to listen. In re Van Walters v. Bd. of Children’s
Guardians of Marion Cty., 132 Ind. 567, 571, 32 N.E. 568, 569 (1892) (stating
judges must “hear with deliberation, act with impartiality, and decide
upon the law and the evidence”) (emphasis added). When a judge refuses
to hear a party’s offer to prove, she not only abdicates the duty to listen,
but she calls into question the principle of fundamental fairness, which
requires that parties, particularly those bearing the burden of proof,
receive every reasonable opportunity to make their case. Hirsch v. State,
697 N.E.2d 37, 43 (Ind. 1998). Today we hold that a post-conviction court
abuses its discretion when it denies a party’s legitimate request to make
an offer of proof.


Factual and Procedural History
   In the wee hours of March 8, 2009, Erick Espinoza was shot and killed
in an Indianapolis nightclub’s parking lot. Multiple witnesses placed
Anthony Bedolla in the parking lot, but only one witness identified him as
the killer. The State eventually charged Bedolla with murder and cocaine
possession. Following a bench trial in February 2010, the court found



Indiana Supreme Court | Case No. 19S-PC-328 | May 28, 2019          Page 2 of 13
Bedolla guilty as charged and sentenced him to 45 years in prison. See
Bedolla v. State, No. 49A02-1003-CR-368, 2011 WL 240152, at *1 (Ind. Ct.
App. Jan. 20, 2011), trans. denied.

  In October 2011, after exhausting direct appeals, Bedolla sought post-
conviction relief. He twice amended his petition over the years before the
court held an evidentiary hearing on January 11, 2017. After that hearing,
while Bedolla sat in a Marion County Jail holding cell awaiting transport
back to prison, he met Miguel Barragan-Lopez. The two cellmates struck
up a conversation and Barragan-Lopez provided information that, if true,
would exonerate Bedolla.

   Barragan-Lopez told Bedolla that he knew Sarai Solano—the one
witness that testified she saw Bedolla shoot Espinoza—and she told him
that another man committed the murder. Specifically, Barragan-Lopez
recounted he had a brief relationship with Solano and she confided to him
that Jose Reyes (her old boyfriend) shot and killed Espinoza, not Bedolla.

   Bedolla relayed this information to his post-conviction attorney
(“Counsel”) and asked her to investigate. Counsel talked with both
Barragan-Lopez and his attorney. In April 2017, Counsel submitted a third
amendment to Bedolla’s PCR petition, alleging newly discovered evidence
revealed a different killer and entitled him to a new trial. Counsel
arranged to have Barragan-Lopez testify at an April 26, 2017 evidentiary
hearing, but a week before the hearing United States Marshalls moved
him from Indianapolis to Litchfield, Kentucky.

   On July 19, 2017, Counsel attempted to take Barragan-Lopez’s recorded
statement, but he refused to go on the record without a court order.
Counsel updated the post-conviction court about the prior unsuccessful
attempts to have Barragan-Lopez testify. She moved for leave to depose
Barragan-Lopez and attached the subpoena to the motion. Counsel
acknowledged that since Barragan-Lopez was in Kentucky, she would
need to utilize the Uniform Interstate Depositions and Discovery Act to
serve the subpoena. The State did not respond to Counsel’s motion and
the court later granted it.




Indiana Supreme Court | Case No. 19S-PC-328 | May 28, 2019        Page 3 of 13
    On September 13, 2017, Counsel travelled to Kentucky to depose
Barragan-Lopez. The State participated via video conference. Shortly into
the deposition, the State objected to Counsel’s leading questions, calling
them “totally inappropriate for a trial deposition.” Appellant’s App. Vol.
III, p. 72, lines 17–18. Upon hearing the State’s objections, Barragan-Lopez
said: “If they’re not appropriate, then I want to leave.” Id. at 72, lines 21–
22. Counsel tried to explain to Barragan-Lopez that the State was objecting
only as to the questions’ form and reminded him that he was under a
subpoena. After listening to the back-and-forth between the attorneys,
Barragan-Lopez said he could help Bedolla, but he did not want to get
into trouble. As Counsel tried to continue the deposition, Barragan-Lopez
repeatedly said he wanted his attorney present because he did not trust
what either the State or Counsel was telling him. Barragan-Lopez affirmed
he would eventually talk, but he wanted his attorney present. Before
leaving the room, Barragan-Lopez told Counsel: “I know that you feel bad
because I want to leave. But if you come back with my attorney, I will
answer all of the questions you have.” Id. at 82, lines 5–7. Counsel called
Barragan-Lopez’s attorney, but the latter could not participate in the
deposition that day.

   One week later, the parties appeared before the post-conviction court
for a status hearing. At the beginning of the hearing the court said: “I
think I had just set this for a hearing to make sure that I got my order out
on that [deposition] motion. I meant to actually vacate this hearing.” Tr.
Vol. III, p. 35, lines 1–3. The court then cleared up a duplicate filing and
asked, “So is there anything else?” Id. at 36, lines 15–16. At this Counsel
updated the court:

      We’re still working on getting [the deposition] completed, Your
      Honor. I’m in touch with the deponent’s counsel. He’s on
      vacation this week and we’re scheduled to talk on Monday. So
      we’ll coordinate a new time.


Id. at 36, lines 17–20. The court said, “okay . . . anything further State?” Id.
at 36, lines 21–24. The State then objected to further depositions since
Barragan-Lopez twice refused to talk. The post-conviction court admitted,


Indiana Supreme Court | Case No. 19S-PC-328 | May 28, 2019             Page 4 of 13
“I don’t know any of this.” Id. at 37, line 8. Counsel then explained her
efforts and the subsequent roadblocks to her getting Barragan-Lopez’s
testimony before the court. Counsel confirmed she talked with Barragan-
Lopez’s attorney about the deposition, but she could not remember (due
to her granddaughter’s recent death) whether she notified the attorney of
the deposition date. The State responded by questioning whether
Barragan-Lopez currently had counsel. The State then went on to argue
that another deposition would yield only inadmissible evidence since
Barragan-Lopez’s testimony would be merely impeaching and, thus,
would not qualify as newly discovered evidence. After hearing argument
from the State alone on the issue of whether Barragan-Lopez had counsel
or would provide admissible evidence, the Court said:


      Okay. We’re done. The Court is going to show evidence is
      closed on this. I’ve done everything the Court needs to do. This
      is—we’ve had, what, three hearing[s] with multiple witnesses
      already. The parties are going to submit their Proposed
      Findings of Fact and Conclusions of Law on or before
      November 8th. If you need more time, let me know that and I’ll
      give you more time.


Id. at 42, lines 7–13. Counsel began to ask permission to briefly respond to
the State’s arguments, but the post-conviction court cut her off with a curt,
“No.” Id. at 42, line 16. Counsel then asked permission to make an offer of
proof for what Barragan-Lopez would say when this exchange ensued:


      The Court:         No. This is not a criminal matter. This is quasi-
                         civil. And you’ve had multiple opportunities to
                         get the testimony of this witness. The evidence is
                         closed in this matter.


                         All right. Next case.


      Counsel:           Your Honor, I do believe . . .


      The Court:         Marcell Boutte.


Indiana Supreme Court | Case No. 19S-PC-328 | May 28, 2019             Page 5 of 13
      Counsel:           . . . we have the right . . .


      The Court:         Counsel, I have told you this is a quasi-civil
                         matter. And if you want to appeal it, you may
                         appeal it. But at this point I’m done hearing the
                         argument on this witness.


                         Marcell Boutte.


      Counsel:           Your Honor?


      The Court:         I’ve called the next case, counsel.


      Counsel:           I apologize, Your Honor. I do need to make an
                         offer to prove and I also think my client has the
                         right to . . .


      The Court:         Counsel, if you don’t move away from the table
                         right now, I’m going to ask the deputy to put
                         you in the back. All right. I have told you three
                         times your case is over. . . . If you have a
                         difficulty with that, then you can always go to
                         the higher court.


Id. at 43–44. With that, the status hearing the post-conviction court
intended to vacate ended.

   Bedolla filed a motion to correct error, making two distinct arguments.
First, Bedolla argued that the post-conviction court erred in denying
Counsel the chance to make an offer of proof. Second, he argued the post-
conviction court erred in refusing to hear Counsel’s argument concerning
Bedolla’s right under the Trial Rules to request sanctions against
Barragan-Lopez. The post-conviction court denied the motion. Bedolla
next moved the post-conviction court to stay the proceedings and certify
for interlocutory appeal its order denying his motion to correct error. The
court granted that motion and the Court of Appeals accepted jurisdiction.


Indiana Supreme Court | Case No. 19S-PC-328 | May 28, 2019             Page 6 of 13
   The Court of Appeals rephrased the parties’ arguments into a single
issue: “whether the post-conviction court abused its discretion when it did
not sanction a federal prisoner who refused to answer questions during a
deposition without an attorney present.” Bedolla v. State, No. 49A02-1712-
PC-3004, 2018 WL 4275360, at *1 (Ind. Ct. App. Aug. 31, 2018). The Court
of Appeals concluded as a matter of law that since Barragan-Lopez’s
testimony would merely impeach Sarai Solano, it would not amount to
newly discovered evidence entitling Bedolla to a new trial. Id. at *5. And
so assuming without deciding that an Indiana court even could sanction
an uncooperative witness following a deposition in Kentucky, the Court
of Appeals held the post-conviction court did not abuse its discretion by
not sanctioning Barragan-Lopez. Id. at *4–5. Bedolla now seeks transfer.

   Although the parties’ arguments present issues related to the Indiana
Constitution’s Open Courts clause, or the scope and application of the
Indiana Trial Rules in post-conviction proceedings, or the Uniform
Interstate Depositions and Discovery Act, or when newly discovered
evidence is considered merely impeaching—we view these issues as
premature considering the record before us. Rather, the dispositive issue
here, in our view, is whether the post-conviction court abused its
discretion in closing evidence without allowing Counsel to make an offer
of proof and thus foreclosing enforcement of a valid subpoena to secure a
deposition. It is to address this issue alone that we now grant transfer.


Standard of Review
   “Discretion is a privilege afforded a trial court to act in accord with
what is fair and equitable in each case.” McCullough v. Archbold Ladder Co.,
605 N.E.2d 175, 180 (Ind. 1993). A court’s discretion—and obligation to act
fairly—naturally extends to decisions made while overseeing the
proceedings before it and regulating discovery. We, therefore, review a
court’s decision to deny an offer of proof, to close the evidence, and
thereby foreclose discovery enforcement for an abuse of that discretion.
See Pierce v. State, 29 N.E.3d 1258, 1264, 1267–68 (Ind. 2015). A court’s
decision in these matters “should be upset only when the court reached an
erroneous conclusion and judgment, one clearly against the logic and


Indiana Supreme Court | Case No. 19S-PC-328 | May 28, 2019         Page 7 of 13
effect of the facts and circumstances before the court or the reasonable,
probable and actual deductions to be drawn therefrom.” Tucker v. State,
786 N.E.2d 710, 712 (Ind. 2003) (quoting Tapia v. State, 753 N.E.2d 581, 585
(Ind. 2001)). Under this deferential standard, “[w]e will second-guess the
[lower] court only when it responds to that factual context in an
unreasonable manner.” Tapia, 753 N.E.2d at 585.


Discussion and Decision
   “[F]undamental fairness [is] essential to the very concept of justice.”
Leach v. State, 699 N.E.2d 641, 642 (Ind. 1998). Our justice system requires
that litigants (be they civil or criminal) receive equal opportunity to
present their case to an impartial factfinder. See Prime Mortg. USA, Inc. v.
Nichols, 885 N.E.2d 628, 649 (Ind. Ct. App. 2008) (stating “the opportunity
to be heard in court is a litigant’s most precious right and should be
sparingly denied”); Everling v. State, 929 N.E.2d 1281, 1287 (Ind. 2010) (“A
trial before an impartial judge is an essential element of due process.”). By
making evidentiary decisions, controlling the proceedings, and
maintaining courtroom discipline, Indiana’s trial judges play the pivotal
role in ensuring litigants receive fundamentally fair proceedings. See
generally Timberlake v. State, 690 N.E.2d 243, 256 (Ind. 1997). Indeed, we’ve
said our trial judges stand as “gatekeepers of justice.” Logan v. State, 16
N.E.3d 953, 965 (Ind. 2014).

   Trial courts undoubtedly shoulder a heavy burden in assuring justice is
served speedily and efficiently while maintaining the parties’ rights. But
does a trial court abuse its discretion as gatekeeper by denying a party’s
legitimate offer of proof and thereby closing evidence and foreclosing
discovery sanctions? Based on the specific facts before us, we answer yes.




Indiana Supreme Court | Case No. 19S-PC-328 | May 28, 2019          Page 8 of 13
I. The post-conviction court abused its discretion by
   denying Counsel the opportunity to make an offer
   of proof.
    “[F]undamental fairness dictates that any party shouldering the
burden of coming forward with evidence . . . be given a relatively
untrammeled opportunity to do so.” Hirsch, 697 N.E.2d at 43. The
evidentiary burden certainly includes making necessary offers of proof.
Indeed, “offers of proof are important procedural tools.” Littler v. State,
871 N.E.2d 276, 278 n.2 (Ind. 2007). They are most beneficial when the trial
court must decide whether to exclude proffered testimony. A valid offer
to prove must explain three points: (1) the testimony’s substance; (2) the
testimony’s relevance; and (3) the grounds for admitting the testimony.
Roach v. State, 695 N.E.2d 934, 939 (Ind. 1998); Nelson v. State, 792 N.E.2d
588, 594 (Ind. Ct. App. 2003).

   Offers of proof “benefit[] not only the parties and the trial court,” but
they are invaluable to reviewing courts. Littler, 871 N.E.2d at 278 n.2. To
be sure, appellate courts cannot duly review whether a lower court
properly excluded evidence if the party below did not (or could not) make
an offer of proof. See Roach, 695 N.E.2d at 939 (citing Ind. Evidence Rule
103(a)(2)).

   Offers of proof, thus, help assure parties receive fundamental fairness
at both the trial and appellate levels. Pierce, 29 N.E.3d at 1268. So when a
party asks to make a legitimate offer of proof, the trial court should grant
that request. Littler, 871 N.E.2d at 278 n.2 (cautioning that a trial court
“should very rarely completely deny a party’s request to make an offer of
proof, and then only upon clear abuse by the requesting party”). Cf.
Nelson, 792 N.E.2d at 595 (“We hold that a party has a right to make an
offer of proof [and] . . . that it is reversible error for a trial court to deny . . .
an offer of proof.”). Of course, as part of its duty to impartially control a
proceeding, the “court may exercise reasonable discretion in determining
the timing and extent” of an offer of proof. Pierce, 29 N.E.3d at 1268
(quoting Littler, 871 N.E.2d at 278 n.2). But nevertheless, absent clear abuse
by a party, offers of proof should be allowed.



Indiana Supreme Court | Case No. 19S-PC-328 | May 28, 2019                 Page 9 of 13
   Looking at this record, we see the post-conviction court abused its
discretion in preventing Counsel from making an offer of proof
concerning Barragan-Lopez’s anticipated testimony. Bedolla believed
Barragan-Lopez’s testimony could prove his actual innocence and
Counsel tried to secure the evidence through discovery. We note that until
the status hearing, the State had not opposed the deposition. Likewise, the
State made no argument that Counsel had been dilatory in getting
Barragan-Lopez’s deposition or that Counsel had abused the discovery
process or that the State would be prejudiced in continuing the matter to
allow for another deposition. 1 Tr. Vol. III, pp. 36–37, 40–42. Yet the post-
conviction court, after hearing only the State’s argument, refused to listen
to Counsel’s offer of proof and warned that a deputy would remove her if
she did not yield her spot at counsel’s table. Id. at 42–43. In our view, the
post-conviction court “respond[ed] to [this] factual context in an
unreasonable manner.” Tapia, 753 N.E.2d at 585.

   The post-conviction court “ha[d] the responsibility to direct the
[proceedings] in a manner that facilitates the ascertainment of truth,
ensures fairness, and obtains economy of time and effort commensurate
with the rights of society and the [petitioner].” Vanway v. State, 541 N.E.2d
523, 526 (Ind. 1989). But a court cannot ensure fundamentally fair
proceedings that “promote discovery of truth,” id. at 527, without
listening to arguments from both parties. Although “[w]e afford trial
judges ample ‘latitude’” in controlling the proceedings and “[w]e even
tolerate a ‘crusty’ demeanor towards litigants so long as it is applied even-
handedly,” In re J.K., 30 N.E.3d 695, 698–99 (Ind. 2015), we cannot affirm
the court’s decision here. The post-conviction court’s refusal to hear
further argument and its intemperate demeanor amount to an abuse of
discretion—they even undermine the fundamental fairness the Indiana
Constitution demands. See Edwards v. State, 902 N.E.2d 821, 828 (Ind. 2009)
(“[W]e have found that the Indiana Constitution assumes and demands
fundamental fairness in all judicial proceedings.”). We, therefore, reverse




1We also note that at oral argument the State conceded there would be no harm in allowing
the deposition now. Oral Argument at 18:24.



Indiana Supreme Court | Case No. 19S-PC-328 | May 28, 2019                     Page 10 of 13
the post-conviction court’s order denying Bedolla’s motion to correct
error.

   We pause briefly to note Bedolla’s motion to correct error and petition
for interlocutory appeal also alleged the post-conviction court abused its
discretion in refusing to hear Counsel’s arguments about discovery
sanctions. But we cannot address that argument because we see the post-
conviction court’s refusal to hear an offer of proof from Counsel and then
intimidating her from speaking as the first domino falling, causing a chain
reaction that makes appellate review of whether Counsel could move for
sanctions, let alone enforce them via the UIDDA, premature. Without an
offer of proof explaining the testimony’s substance, relevance, and
admissibility, a court cannot properly determine if discovery sanctions
would be beneficial to ascertaining truth and securing the parties’ rights.
See generally Wright v. Miller, 989 N.E.2d 324, 327 (Ind. 2013). And without
Barragan-Lopez’s deposition—or even an offer of proof—no court can
determine if that evidence would be newly discovered evidence entitling
Bedolla to a new trial or whether it would be merely impeaching.


II. Bedolla may proceed with the deposition.
   But having found reversible error in refusing the offer to prove, we
now must determine the necessary relief. Bedolla’s transfer petition
presented us with two options for relief: allow for discovery sanctions and
allow more time for the deposition. Bedolla made similar requests at oral
argument, but also asked this Court to remand with instructions to allow
the offer to prove or allow the deposition. Oral Argument at 4:13, 7:15–
8:01, 17:08, 38:45–40:14. Since the record before us contains the essential
information for an offer to prove—the proposed testimony’s substance,
relevance, and potential admissibility—we consider that and conclude
Bedolla should be permitted to proceed with the deposition.

   When asked during oral argument what the offer to prove would have
been, Bedolla directed us to the third amendment to his post-conviction
relief petition. Based on conversations with Barragan-Lopez, Bedolla and
his Counsel anticipate that Barragan-Lopez will testify that Solano
recanted her testimony that Bedolla murdered Espinoza and she identified


Indiana Supreme Court | Case No. 19S-PC-328 | May 28, 2019        Page 11 of 13
Jose Reyes as the killer. See Oral Argument at 7:20–8:36; Appellant’s App.
Vol. II, pp. 141–44. Testimony that, if true, would exonerate one man and
implicate another certainly meets the low bar for relevance under our
evidentiary rules. Evid. R. 401. As for admissibility, Bedolla anticipated
the testimony could be admissible as a Statement Against Interest under
Rule 804(b)(3). Oral Argument at 9:15–9:33. 2 Based on this piecemeal offer
to prove—coupled with the fact that both parties and the post-conviction
court agreed to the deposition—we remand the matter with instructions to
proceed with the deposition.


Conclusion
  For these reasons, we reverse the post-conviction court’s order denying
Bedolla’s motion to correct error and we remand this matter for further
proceedings consistent with this opinion.


Rush, C.J., and David, J., concur.
Massa, J., concurs in result.
Slaughter, J., concurs in part, dissents in part with separate opinion.




2 We take as true Counsel’s representations at oral argument that she has contacted counsel in
North Carolina (Barragan-Lopez has since been moved from Kentucky to North Carolina) to
help properly serve and enforce the subpoena. Oral Argument at 15:07, 17:31. Likewise, we
trust that Counsel will coordinate with deponent’s attorney or others to assure Barragan-
Lopez has the benefit of counsel during the deposition.



Indiana Supreme Court | Case No. 19S-PC-328 | May 28, 2019                        Page 12 of 13
ATTORNEY FOR APPELLANT
Cynthia M. Carter
Law Office of Cynthia M. Carter, LLC
Indianapolis, Indiana

ATTORNEYS FOR APPELLEE
Curtis T. Hill, Jr.
Attorney General of Indiana

Caroline G. Templeton
Deputy Attorney General
Indianapolis, Indiana




Indiana Supreme Court | Case No. 19S-PC-328 | May 28, 2019   Page 13 of 13
Slaughter, J., concurring in part, dissenting in part.

   I share the Court’s concern that the trial court was heavy-handed in
refusing to allow Bedolla’s counsel the opportunity to make a modest
offer of proof—going so far as to threaten the lawyer with contempt. I
appreciate that busy trial judges with heavy dockets can grow frustrated
with lawyers’ wheel-spinning and reach a point that counsel must either
“put up or shut up”. There is no obvious point along the continuum in a
given case when that time has arrived (or been exceeded), and that is why
trial courts are entitled to considerable deference on review when they
conclude “enough is enough”. My initial vote in this case was to deny
transfer because the court of appeals’ unanimous opinion has no
precedential value—and, on the merits, the opinion struck me as reflecting
a reasonable level of deference to the trial court’s exercise of discretion
here. My colleagues, however, view this case differently and believe the
trial court abused its discretion. That was not my original view. But I can
live with that result in this case.

   I write separately, however, because the relief awarded to Bedolla
exceeds what follows from the wrong he sustained. Recall that our narrow
holding here is that a post-conviction court abuses its discretion when it
denies a party’s legitimate request to make an offer of proof. The obvious
remedy is to vacate the trial court’s judgment and remand with
instructions to allow Bedolla to do what the trial court refused—which is
to make his offer of proof. That remedy would be proper and proportional
to the wrong suffered. But the Court goes beyond that remedy and orders
that Bedolla may proceed with his deposition of Barragan-Lopez. That
remedy is unwarranted, in my view, for two reasons.

   First, it affords Bedolla more relief than he sought. The relief sought
was to enforce the deposition subpoena by ordering sanctions against
Barragan-Lopez under Indiana Trial Rule 37. And on transfer, Bedolla
doubled down on his request for sanctions by arguing “there is no specific
case law regarding the use of Trial Rule 37 to enforce a subpoena for an
out-of-state witness who has exculpatory evidence.” Instead of addressing
Bedolla’s request for sanctions, the Court skips over that step and orders
that he be permitted to depose Barragan-Lopez. The Court thus says, in
effect, it doesn’t matter what the trial court might conclude on remand
after hearing Bedolla’s offer of proof. Bedolla gets to take the deposition
no matter what. In that sense, the Court’s holding today is broader than it
lets on.

   Second, the Court’s remedy ignores the more fundamental problem
that Bedolla sought relief from the wrong court. Not only does Rule 37 not
entitle Bedolla to a sanctions award against the deponent, but the
deponent is outside the jurisdiction of the Marion Superior Court. By its
terms, Trial Rule 37 does not afford relief here. Rule 37(B)(1) contemplates
sanctions by a court where the deposition is taken. And Rule 37(B)(2)
permits an Indiana court to award sanctions against a party or a party’s
representative. But the initial deposition was in Kentucky not Indiana, and
the deponent is not a party to Bedolla’s post-conviction proceeding but a
non-party witness. So nothing in Rule 37 entitles Bedolla to an award of
sanctions from the Marion Superior Court. And, more fundamentally,
Barragan-Lopez is not subject to the jurisdiction of that court. He is not a
party to a pending suit in Marion County, and he is physically located in
another state. What Bedolla should have done is sought sanctions in the
court where Barragan-Lopez is in custody. That court—not the Marion
Superior Court—has jurisdiction over him and can award whatever
sanctions against him may be warranted for his failure to comply with the
subpoena.

   Although I am sympathetic to the Court’s impulse to do justice in this
case, I respectfully dissent from its conclusion that we should excuse
Bedolla’s procedural errors and award him more relief than he sought or
than the trial court’s violation warrants.




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