MEMORANDUM DECISION
                                                                           FILED
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                 Jan 16 2019, 7:49 am

regarded as precedent or cited before any                                  CLERK
                                                                       Indiana Supreme Court
court except for the purpose of establishing                              Court of Appeals
                                                                            and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
William Mallory                                          Curtis T. Hill, Jr.
Carlisle, Indiana                                        Attorney General of Indiana
                                                         Ellen H. Meilaender
                                                         Supervising Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

William Mallory,                                         January 16, 2019
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         18A-CR-2001
        v.                                               Appeal from the Vigo Superior
                                                         Court
State of Indiana,                                        The Honorable John T. Roach,
Appellee-Respondent.                                     Judge
                                                         Trial Court Cause No.
                                                         84D01-1503-PC-528



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2001 | January 16, 2019               Page 1 of 6
                                          Case Summary
[1]   William Mallory (“Mallory”) appeals the denial of his Indiana Trial Rule 60(B)

      Motion for Relief from Judgment, which we treat as a Trial Rule 72(E) motion.

      He presents the sole issue of whether the trial court abused its discretion. We

      affirm.



                            Facts and Procedural History
[2]   On March 2, 2015, Mallory filed a petition for post-conviction relief,

      challenging his convictions for one count of murder, two counts of attempted

      murder, and one count of carrying a handgun without a license. As amended,

      his petition alleged that he had been denied the effective assistance of counsel

      because counsel mis-advised him on self-defense and caused him to reject a plea

      offer from the State. The post-conviction court conducted a hearing on

      December 6, 2017, and issued an order denying post-conviction relief on

      January 15, 2018.


[3]   On June 7, 2018, Mallory petitioned to file a belated notice of appeal. He

      claimed that he had not received notice of the denial of his petition for post-

      conviction relief until March 6, 2018, which was outside the thirty days in

      which to initiate an appeal. The petition to file a belated notice of appeal was

      denied on grounds that a belated appeal procedure is available only for direct




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2001 | January 16, 2019   Page 2 of 6
      appeal of a conviction or sentence.1 On July 9, 2018, Mallory filed a motion for

      relief from judgment, requesting an extension of time in which to appeal the

      denial of his petition for post-conviction relief. The motion was denied on

      August 3, 2018. Mallory now appeals.



                                   Discussion and Decision
[4]   Mallory’s Trial Rule 60(B) motion for relief from judgment sought to extend the

      time in which to file his appeal of the denial of post-conviction relief. In Collins

      v. Covenant Mut. Ins. Co., 644 N.E.2d 116, 117 (Ind. 1994), our supreme court

      observed that, although “there was a time when a party might obtain relief

      upon a claim of failure to receive notice through Trial Rule 60,” the Court had

      “amended Trial Rule 72 to establish it as the sole vehicle.” But where a Trial

      Rule 60(B) motion clearly indicates that the basis for the motion is lack of

      notice under Trial Rule 72(E), we have treated the motion as a Trial Rule 72(E)

      motion, noting our preference for elevating substance over form. Goodrich v.

      Dearborn Cnty., 822 N.E.2d 1063, 1069 (Ind. Ct. App. 2005), trans. denied.


[5]   Mallory captioned his motion as a motion for relief from judgment under Trial

      Rule 60(B), but clearly requested an extension of time to appeal due to a




      1
        Indiana Post-Conviction Rule 2(1)(a) provides that an eligible defendant may petition for permission to file
      a belated notice of appeal of the conviction or sentence if “(1) the defendant failed to file a timely notice of
      appeal; (2) the failure to file a timely notice of appeal was not due to the fault of the defendant; and (3) the
      defendant has been diligent in requesting permission to file a belated notice of appeal under this rule.” This
      rule is a vehicle for belated direct appeals only. Taylor v. State, 939 N.E.2d 1132, 1135 (Ind. Ct. App. 2011).

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2001 | January 16, 2019                     Page 3 of 6
      claimed lack of timely notice of the post-conviction court’s January 15, 2018

      judgment. We will thus treat the motion as one for an extension of time under

      Trial Rule 72(E). We review a trial court’s ruling concerning Trial Rule 72(E)

      for an abuse of discretion. Atkins v. Veolia Water Indianapolis, LLC, 994 N.E.2d

      1287, 1288 (Ind. Ct. App. 2013). A trial court abuses its discretion when its

      decision is clearly against the logic and effect of the facts and circumstances

      before the court or when the trial court has misinterpreted the law. Id.


[6]   Trial Rule 72(E) provides:


              Lack of notice, or the lack of the actual receipt of a copy of the
              entry from the Clerk shall not affect the time within which to
              contest the ruling, order or judgment, or authorize the Court to
              relieve a party of the failure to initiate proceedings to contest
              such ruling, order or judgment, except as provided in this section.
              When the service of a copy of the entry by the Clerk is not
              evidenced by a note made by the clerk upon the Chronological
              Case Summary [“CCS”], the Court, upon application for good
              cause shown, may grant an extension of any time limitation
              within which to contest such ruling, order or judgment to any
              party who was without actual knowledge, or who relied upon
              incorrect representations by Court personnel. Such extension
              shall commence when the party first obtained actual knowledge
              and not exceed the original time limitation.


[7]   Here, the CCS includes an entry on January 15, 2018 pertaining to the “Order

      denying Petitioner’s Amended Petition for Post-Conviction Relief” and lists

      Mallory among those “Noticed.” (App. Vol. II, pg. 6.) A January 17, 2018

      entry includes Mallory among those to whom “automated paper notice” was

      “issued.” Id. “Trial Rule 72(E) plainly states that only if the CCS does not

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2001 | January 16, 2019   Page 4 of 6
      contain evidence that a copy of the court’s entry was sent to each party may a

      party claiming not to have received such notice petition the trial court for an

      extension of time to initiate an appeal.” Collins, 644 N.E.2d at 117-18. Thus,

      Mallory cannot obtain relief from the application of Trial Rule 72(E).


[8]   Finally, we address Mallory’s attempt to argue the merits of his claim for post-

      conviction relief, that is, ineffectiveness of counsel. In the brief submitted to us,

      Mallory argues that trial counsel was ineffective for failing to request an

      instruction on voluntary manslaughter. This argument is not properly before

      us. However, we observe that, even if Trial Rule 72(E) had afforded Mallory

      an extension of time to appeal the denial of post-conviction relief, he had

      appealed that denial, and we had reached the merits of his claim, he would not

      have prevailed. Mallory claimed in his amended petition for post-conviction

      relief that his trial counsel was ineffective for advising Mallory that he was

      entitled to a self-defense instruction and thereby influencing Mallory’s decision

      to refuse a plea offer capping his sentence at fifty years. A claim of

      ineffectiveness on new grounds not raised in the post-conviction petition and

      then raised for the first time on appeal from the denial of post-conviction relief

      is waived and not available for appellate review. Walker v. State, 843 N.E.2d 50,

      58 n.2 (Ind. Ct. App. 2006), trans. denied.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2001 | January 16, 2019   Page 5 of 6
                                               Conclusion
[9]    Mallory has demonstrated no abuse of discretion by the trial court.


[10]   Affirmed.


       Bradford, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2001 | January 16, 2019   Page 6 of 6
