MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                        FILED
regarded as precedent or cited before any                               Oct 02 2019, 9:02 am
court except for the purpose of establishing
                                                                             CLERK
the defense of res judicata, collateral                                  Indiana Supreme Court
                                                                            Court of Appeals
estoppel, or the law of the case.                                             and Tax Court




APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
Edward Smith                                             Curtis T. Hill, Jr.
New Castle, Indiana                                      Attorney General of Indiana
                                                         Michael Vo Sherman
                                                         Certified Legal Intern
                                                         Evan Matthew Comer
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Edward Lee Smith, Sr.,                                   October 2, 2019
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         19A-PC-772
        v.                                               Appeal from the Lake Superior
                                                         Court
State of Indiana,                                        The Honorable Kathleen A.
Appellee-Respondent                                      Sullivan, Magistrate
                                                         Trial Court Cause No.
                                                         45G01-1806-PC-6



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-PC-772 | October 2, 2019                   Page 1 of 4
[1]   Edward Smith appeals the post-conviction court’s dismissal of his petition for

      post-conviction relief, arguing that the post-conviction court erroneously failed

      to follow the prison mailbox rule. Finding no error, we affirm.


[2]   On June 30, 2016, a jury found Smith guilty of Class C felony child molesting

      and two counts of Class C criminal confinement. This Court later affirmed

      Smith’s convictions. Smith v. State, 45A03-1609-CR-1974 (Ind. Ct. App. Mar.

      15, 2017). On June 5, July 17, and October 30, 2018, Smith, pro se, filed three

      different amended petitions for post-conviction relief, alleging each time that he

      was denied the effective assistance of trial counsel. On November 2, 2018, the

      post-conviction court ordered that Smith include findings of fact and

      conclusions of law in his petition by December 2, 2018.


[3]   The post-conviction court then granted, in part, Smith’s motion for enlargement

      of time on January 7, 2019. The new filing deadline was set for January 18,

      2019. Smith once again moved for an enlargement of time, which the post-

      conviction court granted and set the final filing deadline for February 8, 2019.

      After Smith failed to file the required documents, the post-conviction court

      dismissed with prejudice Smith’s petition for post-conviction relief on February

      20, 2019. Smith finally submitted his findings of fact and conclusions of law on

      February 22, 2019, without any explanation for the delay. Smith now appeals.


[4]   Smith’s sole argument on appeal is that the post-conviction court erroneously

      failed to follow the prison mailbox rule. A post-conviction petitioner bears the

      burden of establishing grounds for relief by a preponderance of the evidence.


      Court of Appeals of Indiana | Memorandum Decision 19A-PC-772 | October 2, 2019   Page 2 of 4
      Henley v. State, 881 N.E.2d 639, 643 (Ind. 2008). To prevail on appeal from the

      denial of post-conviction relief, the petitioner must show that the evidence as a

      whole leads unerringly and unmistakably to a conclusion opposite that reached

      by the post-conviction court. Id. at 643-44.


[5]   The prison mailbox rule says that a “pro se incarcerated litigant who delivers [a

      document] to prison officials for mailing on or before its due date accomplishes

      a timely filing.” Dowell v. State, 922 N.E.2d 605, 607 (Ind. 2010). However, “a

      pro se prisoner [must] provide reasonable, legitimate, and verifiable

      documentation supporting a claim that a document was timely submitted to

      prison officials for mailing.” Id. “Where a prisoner’s proof is lacking, however,

      the opposite result obtains.” Id. at 608.


[6]   Here, Smith points to no reasonable, legitimate, or verifiable documentation

      proving that he had submitted the required documents before the final February

      8, 2019, deadline. Rather, Smith proffered only “a copy of the remittance slip

      Dated February 7th 2018 and secondly, the Certificate of Service also dated

      February 7th 2018.” Appellant’s Br. p. 5. Indiana courts have, in the past,

      recognized sworn affidavits from prison officials, legal mail logs from law

      librarians, and letterhead statements as examples of reasonable, legitimate, or

      verifiable documents that invoke the prison mailbox rule. See Dowell, 922

      N.E.2d at 608; see also Harkins v. Westmeyer, 116 N.E.3d 461, 469-70 (Ind. Ct.

      App. 2018). Because Smith has not provided any such documentation, we find

      that Smith failed to submit his findings of fact and conclusions of law on time.



      Court of Appeals of Indiana | Memorandum Decision 19A-PC-772 | October 2, 2019   Page 3 of 4
[7]   Moreover, it is clear that the post-conviction court exhibited patience and gave

      Smith multiple opportunities to file his findings of fact and conclusions of law,

      all to no avail. Smith failed to submit documents necessary for post-conviction

      proceedings, and after these delays, the post-conviction court reasonably

      dismissed his petition. And, any argument that the post-conviction court should

      have shown Smith leniency because of his pro se status is without merit. Pro se

      litigants are held to the same standards as trained counsel and must follow all

      procedural rules. Wright v. State, 772 N.E.2d 449, 463 (Ind. Ct. App. 2002). In

      sum, there was no error.


[8]   The judgment of the post-conviction court is affirmed.


      Kirsch, J., and Crone, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 19A-PC-772 | October 2, 2019   Page 4 of 4
