MEMORANDUM DECISION
                                                                        FILED
Pursuant to Ind. Appellate Rule 65(D),                              Apr 19 2016, 8:31 am

this Memorandum Decision shall not be                                   CLERK
regarded as precedent or cited before any                           Indiana Supreme Court
                                                                       Court of Appeals
                                                                         and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Gregory F. Zoeller                                        Stephen T. Owens
Attorney General of Indiana                               Public Defender of Indiana

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




                                           IN THE
    COURT OF APPEALS OF INDIANA

State of Indiana,                                         April 19, 2016
Appellant-Respondent,                                     Court of Appeals Case No.
                                                          49A04-1508-PC-1036
        v.                                                Appeal from the Marion Superior
                                                          Court
Robert Collier,                                           The Honorable Helen W. Marchal,
Appellee-Petitioner.                                      Judge
                                                          The Honorable Stanley E. Kroh,
                                                          Magistrate
                                                          Trial Court Cause No.
                                                          49F15-9608-PC-124576



Brown, Judge.



Court of Appeals of Indiana | Memorandum Decision 49A04-1508-PC-1036 | April 19, 2016       Page 1 of 10
[1]   The State appeals the post-conviction court’s grant of Collier’s motion for relief

      from judgment. The State raises one issue which we revise and restate as

      whether the court erred in granting Collier’s motion for relief from judgment.

      We reverse.


                                      Facts and Procedural History

[2]   On August 21, 1997, Collier pled guilty to possession of cocaine as a class D

      felony. The court sentenced Collier to 545 days in the Department of

      Correction with 521 days suspended and ninety days of probation.


[3]   On August 1, 2001, Collier filed a pro se petition for post-conviction relief

      alleging that he was denied the effective assistance of trial counsel, was misled

      by the trial court, and his guilty plea was not knowingly, intelligently, or

      voluntarily made. Collier also indicated that he wished to have the Public

      Defender represent him and completed an affidavit of indigence. On January 3,

      2005, the court entered an order granting a motion filed by a public defender to

      dismiss the petition without prejudice, and appointed counsel to pursue

      proceedings under Indiana Post-Conviction Rule 2. On July 14, 2005, the court

      denied Collier’s motion to file a belated notice of appeal, ordered that Collier’s

      original petition for post-conviction relief be reinstated, and scheduled a hearing

      for September 12, 2005.


[4]   On October 6, 2005, a public defender filed a notice of withdrawal of

      appearance and certification, and the court approved the withdrawal on

      October 11, 2005. Collier filed a motion to withdraw his petition for post-


      Court of Appeals of Indiana | Memorandum Decision 49A04-1508-PC-1036 | April 19, 2016   Page 2 of 10
      conviction relief without prejudice, and the court granted the petition on

      November 21, 2005.


[5]   On August 20, 2007, Collier filed a pro se petition for post-conviction relief

      alleging ineffective assistance of counsel, claiming that he did not make a

      voluntary and intelligent guilty plea, and requesting that the court vacate his

      plea agreement. He completed an affidavit of indigence and indicated that he

      was detained in the Wabash Valley Correctional Facility and that he wished to

      have the Public Defender represent him. In September 2007, the court

      summarily denied Collier’s petition for post-conviction relief. The court’s order

      states in part:

              2. On review of the Court’s file, the transcript of the August 21,
              1997 guilty plea hearing and sentencing hearing, the Petition, and
              the plea agreement, the Court finds that pursuant to Post-
              Conviction Rule 1(4)(f) that if the pleadings show that the
              petitioner is entitled to no relief, the court may summarily deny
              the petition. The plea agreement and judgment of conviction
              show the defendant pled guilty to Possession of Cocaine, Class D
              felony.


              3. [Collier] is asserting that if “he had known that the jury would
              have the option of determining the lesser included offense of
              possession of cocaine is either inherently of [sic] factually
              included as a class a misdemeanor” he would not have pled
              guilty. [Collier] also asserts he was not advised the court would
              have the option of sentencing him to a class A Misdemeanor.


              4. The court finds as a matter of law that there is no lesser
              included offense for the charge of possession of cocaine, class D
              felony.

      Court of Appeals of Indiana | Memorandum Decision 49A04-1508-PC-1036 | April 19, 2016   Page 3 of 10
              5. The transcript clearly shows [Collier] was advised at his guilty
              plea hearing that the court could sentence under alternative
              misdemeanor sentencing.


              6. The Petition is DENIED.


      Appellant’s Appendix at 189-190.


[6]   Entries in the chronological case summary (“CCS”) indicate that Collier filed

      correspondence with the court and the court sent him a copy of the September

      2007 order denying his petition in December 2008, that Collier filed

      correspondence with the court and the court sent him a copy of the CCS in

      September 2009, that the petition for post-conviction relief was denied but the

      file was never closed out and the court did so in July 2011, and that Collier filed

      correspondence and a motion to compel documents and that the court sent a

      copy of the September 2007 order in September 2012.


[7]   On September 24, 2014, Collier filed another pro se petition for post-conviction

      relief. On April 8, 2015, Collier, by counsel, filed a verified motion for leave to

      amend his petition for post-conviction relief. That same day, Collier, by

      counsel, filed a verified motion for relief from the September 2007 order that

      summarily denied his petition for post-conviction relief. Collier’s counsel

      requested relief “pursuant to Ind. Trial Rule 60(B)(8) and Ind. Post Conviction

      Rule 1 Section 2” and argued that his August 20, 2007 petition for post-

      conviction relief affirmatively requested representation by the State Public

      Defender and included an affidavit of indigence. Id. at 231. He further argued


      Court of Appeals of Indiana | Memorandum Decision 49A04-1508-PC-1036 | April 19, 2016   Page 4 of 10
      that Indiana Post-Conviction Rule 1(2) imposed a duty upon the court to order

      a copy of the petition be sent to the Public Defender’s Office, 1 that the court’s

      own records appeared to indicate that Collier was not advised of the summary

      denial of his 2007 petition until it was too late to timely appeal the decision,

      that counsel’s impression was that Collier suffers from cognitive and/or mental

      deficiencies which interfere with his ability to represent himself, that Collier has

      a ninth grade education according to the presentence investigation report

      prepared in 2012, and that a review of Collier’s cocaine conviction led to the

      identification of issues that have merit.


[8]   On April 13, 2015, the court granted Collier’s motion for relief from judgment

      before receiving a response from the State. On April 14, 2015, the State filed its

      objection and a motion to reconsider the April 13, 2015 order granting Collier’s

      motion for relief from judgment.


[9]   On May 6, 2015, the court held a hearing, and the prosecutor argued that

      Collier’s petition had been previously denied and he was seeking to reopen it

      without first asking permission from the Court of Appeals to file a successive

      petition. The court reversed its order granting Collier’s motion for relief from

      judgment and scheduled a hearing for May 18, 2015.




      1
        Indiana Post-Conviction Rule 1(2) 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.”

      Court of Appeals of Indiana | Memorandum Decision 49A04-1508-PC-1036 | April 19, 2016               Page 5 of 10
[10]   As scheduled the court held a hearing and Collier’s counsel, a public defender,

       argued that Collier’s petition should have been referred to the Public Defender.

       Collier’s counsel stated that the Public Defender would like to receive a referral

       every time a petition for post-conviction relief alleging indigence and requesting

       the Public Defender’s services is newly filed. The prosecutor argued that the

       State could not agree that a court “can simply regain jurisdiction because it feels

       like it.” Transcript at 18.


[11]   On July 13, 2015, the court held another hearing. The prosecutor reiterated the

       State’s position that the court did not have jurisdiction. Collier’s counsel

       argued that the court could vacate the prior judgment and assume jurisdiction.

       The court stated that it thought it was a mistake for the court to have previously

       summarily denied Collier’s petition without appointing counsel and that it

       would reinstate that prior petition for post-conviction relief, noting:


               Okay the Court today would reinstate that prior P.C.R. that was
               filed. I know procedurally that may be error and the State may
               be seeking to appeal that but I suppose if that is reversed we will
               be back to square one. But at this point in fairness, in equity, and
               you know the P.C.R. rules are something that our Supreme
               Court has set up . . . final look at how things went in the case so
               what the Court would be inclined to do . . . .


       Id. at 25. In an entry in the CCS dated July 13, 2015, the court granted Collier’s

       “Petition to Reinstate.” Appellant’s Appendix at 7.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1508-PC-1036 | April 19, 2016   Page 6 of 10
                                                    Discussion

[12]   The issue is whether the court erred in granting Collier’s motion for relief from

       judgment. The State’s position is that the court abused its discretion when it

       granted Collier’s request for relief pursuant to Trial Rule 60(B) because it lacked

       jurisdiction, and that Collier’s motion was untimely, Collier never explained the

       reason for the delay once he received notice of the judgment, he could not have

       demonstrated excusable neglect, and the delay prejudiced the State. The State

       also contends that Collier cannot demonstrate that his petition for post-

       conviction relief presents a meritorious claim.


[13]   Collier argues that the court had jurisdiction to grant his motion for relief from

       judgment because the motion addressed only the procedural and equitable

       grounds warranting relief from the lower court’s summary denial of his 2007

       petition for post-conviction relief, not the legal merits of the judgment. He

       posits that the cases cited by the State are distinguishable because those cases

       involved litigants who enjoyed direct appeals and one or more post-conviction

       proceedings through appeal, and he is in pursuit of his first full and fair post-

       conviction hearing. He also argues that extraordinary circumstances such as

       not referring the petition to the State Public Defender, not holding a hearing,

       not serving him with notice of the denial, his incarceration, limited resources,

       and education, and his desire for legal representation, excuse his failure to act.


[14]   Even assuming, without deciding, that a motion for relief from judgment under

       Ind. Trial Rule 60(B) was proper here, we conclude that Collier’s motion was

       not filed within a reasonable time. We review a trial court’s ruling on Rule 60
       Court of Appeals of Indiana | Memorandum Decision 49A04-1508-PC-1036 | April 19, 2016   Page 7 of 10
       motions for abuse of discretion. Outback Steakhouse of Fla., Inc. v. Markley, 856

       N.E.2d 65, 72 (Ind. 2006). See also Huntington Nat. Bank v. Car-X Assoc. Corp., 39

       N.E.3d 652, 658 (Ind. 2015) (“[T]he decision whether to grant or deny a party’s

       motion is left to the trial court’s equitable discretion and is highly fact

       specific.”). An abuse of discretion occurs when the trial court’s judgment is

       clearly against the logic and effect of the facts and inferences supporting the

       judgment for relief. Wagler v. West Boggs Sewer Dist., Inc., 980 N.E.2d 363, 371

       (Ind. Ct. App. 2012), reh’g denied, trans. denied, cert. denied, 134 S. Ct. 952 (2014).

       When reviewing the trial court’s determination, we will not reweigh the

       evidence. Id.


[15]   Ind. Trial Rule 60(B) “affords relief in extraordinary circumstances which are

       not the result of any fault or negligence on the part of the movant.” Dillard v.

       Dillard, 889 N.E.2d 28, 34 (Ind. Ct. App. 2008) (quoting Goldsmith v. Jones, 761

       N.E.2d 471, 474 (Ind. Ct. App. 2002), reh’g denied). “On a motion for relief

       from judgment, the burden is on the movant to demonstrate that relief is both

       necessary and just.” Id. at 33 (quoting G.B. v. State, 715 N.E.2d 951, 953 (Ind.

       Ct. App. 1999)). A trial court must balance the alleged injustice suffered by the

       moving party against the interests of the party who prevailed and society’s

       interest in the finality of judgment. Wagler, 980 N.E.2d at 371.


[16]   Collier’s motion requested relief pursuant to Ind. Trial Rule 60(B)(8). Ind. Trial

       Rule 60(B) provides in part:




       Court of Appeals of Indiana | Memorandum Decision 49A04-1508-PC-1036 | April 19, 2016   Page 8 of 10
               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).


[17]   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). 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), trans. denied. “The trial

       Court of Appeals of Indiana | Memorandum Decision 49A04-1508-PC-1036 | April 19, 2016   Page 9 of 10
       court’s residual powers under subsection (8) may only be invoked upon a

       showing of exceptional circumstances justifying extraordinary relief.” Brimhall

       v. Brewster, 864 N.E.2d 1148, 1153 (Ind. Ct. App. 2007) (citation omitted), trans.

       denied.


[18]   The record reveals that Collier pled guilty to possession of cocaine as a class D

       felony on August 21, 1997. In September 2007, the post-conviction court

       denied his petition for post-conviction relief. The CCS entries indicate that the

       court sent Collier a copy of the September 2007 order denying his petition in

       December 2008 and again in September 2012. Collier did not file a motion for

       relief from the September 2007 order denying his petition for post-conviction

       relief until more than seven and one-half years later on April 8, 2015. Under

       the circumstances, we cannot say that Collier filed his motion for relief from

       judgment within a reasonable time.


                                                    Conclusion

[19]   For the foregoing reasons, we reverse the post-conviction court’s grant of

       Collier’s motion for relief from judgment.


[20]   Reversed.


       Kirsch, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1508-PC-1036 | April 19, 2016   Page 10 of 10
