      MEMORANDUM DECISION                                                              FILED
                                                                                  Sep 27 2017, 10:56 am
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                            CLERK
                                                                                   Indiana Supreme Court
      regarded as precedent or cited before any                                       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.


      APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
      Timothy Bennington                                       Curtis T. Hill, Jr.
      Carlisle, Indiana                                        Attorney General of Indiana
                                                               George P. Sherman
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Timothy Bennington,                                      September 27, 2017
      Appellant-Petitioner,                                    Court of Appeals Case No.
                                                               55A01-1703-PC-708
              v.                                               Appeal from the
                                                               Morgan Superior Court
      State of Indiana,                                        The Honorable
      Appellee-Respondent.                                     Brian H. Williams, Judge
                                                               Trial Court Cause No.
                                                               55D02-0810-PC-423



      Kirsch, Judge.


[1]   Timothy Bennington (“Bennington”), pro se, appeals following the post-

      conviction court’s denial of his motion for relief from judgment under Indiana


      Court of Appeals of Indiana | Memorandum Decision 55A01-1703-PC-708 | September 27, 2017             Page 1 of 6
      Trial Rule 60(B). On appeal, Bennington raises the following restated issue:

      whether the post-conviction court abused its discretion when it did not hold a

      hearing in 2010 prior to dismissing Bennington’s petition for post-conviction

      relief.


[2]   We affirm.


                                   Facts and Procedural History
[3]   On March 16, 2007, Bennington pleaded guilty to Class A felony voluntary

      manslaughter with a deadly weapon for the act of stabbing his father-in-law

      forty-five times with a knife in the presence of Bennington’s wife, son, and

      daughter. Bennington v. State, No. 55A05-0707-CR-364, 2008 WL 2042802 at

      *1 (Ind. Ct. App. May 14, 2008). On June 1, 2007, the trial court sentenced

      Bennington to fifty years in prison. Id. On direct appeal, he challenged his

      sentence, which this court affirmed by unpublished decision. Id. at *3.


[4]   On October 2, 2008, Bennington, pro se, filed a petition for post-conviction

      relief (“P-CR”) and, thereafter, obtained appointed counsel.1 Two years later,

      on October 26, 2010, the P-CR court issued a notice of withdrawal (“the

      Notice”), informing the parties that the public defender had withdrawn from




      1
       Bennington’s P-CR petition alleged the following grounds for relief: (1) Bennington’s plea was given no
      consideration during sentencing; (2) Bennington’s attorney provided ineffective assistance of counsel by
      advising Bennington that if he pleaded guilty, he would not get the maximum sentence; (3) the trial court
      abused its discretion by not recognizing mitigating factors; (4) the trial court abused its discretion by
      excluding medical records regarding prescribed medications; and (5) the trial judge abused his discretion
      when he did not recuse himself, even though he knew the victim.

      Court of Appeals of Indiana | Memorandum Decision 55A01-1703-PC-708 | September 27, 2017          Page 2 of 6
      the case in accordance with Post-Conviction Rule 1, Section 9(C).2 Appellant’s

      App. Vol. II at 11. The Notice ordered Bennington to respond to the P-CR court

      within thirty days regarding whether he planned to dismiss the P-CR petition

      without prejudice or to proceed without counsel. In its December 6, 2010 order

      of dismissal (“Dismissal Order”), the P-CR court explained, “As of 12-6-2010,

      [Bennington] has failed to respond to the Court’s Notice, and has failed to elect

      whether to dismiss the petition, or proceed in forma pauperis.” Id. at 12. The

      P-CR court also said, “Any future request by [Bennington] for a second or

      successive Petition for Post-Conviction Relief must comply with the

      requirements of Rule P.C. 1, Section 12 (Successive Petitions).” 3 Id.


[5]   Six and a half years later, on March 6, 2017, Bennington filed a Motion for

      Relief from Judgment pursuant to Trial Rule 60(B), alleging that the P-CR court

      erred by dismissing his 2010 P-CR petition without first holding a hearing




      2
       We note that there is no copy of appointed counsel’s “Withdrawal of Appearance” in the record before us.
      Post-Conviction Rule 1, Section 9(C), provides:
      (c) Counsel shall confer with petitioner and ascertain all grounds for relief under this rule, amending the petition if
      necessary to include any grounds not included by petitioner in the original petition. In the event that counsel
      determines the proceeding is not meritorious or in the interests of justice, before or after an evidentiary hearing is
      held, counsel shall file with the court counsel’s withdrawal of appearance, accompanied by counsel’s certification
      that 1) the petitioner has been consulted regarding grounds for relief in his pro se petition and any other possible
      grounds and 2) appropriate investigation, including but not limited to review of the guilty plea or trial and
      sentencing records, has been conducted. Petitioner shall be provided personally with an explanation of the reasons
      for withdrawal. Petitioner retains the right to proceed pro se, in forma pauperis if indigent, after counsel
      withdraws.

      (Emphasis added).

      3
        While the P-CR court did not say whether the dismissal was with or without prejudice, the latter seems
      more likely in light of the fact that the court required any future post-conviction relief to comply with the
      requirements of a successive petition.

      Court of Appeals of Indiana | Memorandum Decision 55A01-1703-PC-708 | September 27, 2017                   Page 3 of 6
      pursuant to Trial Rule 41(E). Id. at 13-15. On March 7, 2017, the P-CR court

      denied Bennington’s motion, explaining: “[Bennington] did not timely present

      this claim at the time his case was disposed [sic]. [Bennington] cites caselaw

      established years after his case was disposed of, and [Bennington] did not

      timely appeal or otherwise contest the Court’s action at the time.” Id. at 16.

      Bennington now appeals.


                                         Discussion and Decision
[6]   Bennington contends that the P-CR court erred in 2010 by summarily

      dismissing his P-CR petition. Appellant’s Br. at 4. Specifically, he challenges the

      P-CR court’s failure to comply with Indiana Trial Rule 41(E)’s requirement that

      a hearing be held prior to dismissal.4 Appellant’s Br. at 7-8. Bennington,

      however, makes no claim that the P-CR court abused its discretion in 2017

      when it denied his Trial Rule 60(B) motion for relief from judgment. The

      propriety of the 2017 order is the only matter available for appeal, and

      accordingly, we address that issue.




      4
          Indiana Trial Rule 41(E) provides:

      (E) Failure to prosecute civil actions or comply with rules. Whenever there has been a failure to comply with
      these rules or when no action has been taken in a civil case for a period of sixty [60] days, the court, on
      motion of a party or on its own motion shall order a hearing for the purpose of dismissing such case. The
      court shall enter an order of dismissal at plaintiff’s costs if the plaintiff shall not show sufficient cause at or
      before such hearing. Dismissal may be withheld or reinstatement of dismissal may be made subject to the
      condition that the plaintiff comply with these rules and diligently prosecute the action and upon such terms
      that the court in its discretion determines to be necessary to assure such diligent prosecution.

      Court of Appeals of Indiana | Memorandum Decision 55A01-1703-PC-708 | September 27, 2017               Page 4 of 6
[7]   The decision of whether to grant a motion under Trial Rule 60(B) is left to the

      equitable discretion of the trial court and is reviewable only for abuse of

      discretion. State v. Collier, 61 N.E.3d 265, 268 (Ind. 2016). “‘An abuse of

      discretion occurs if the decision is clearly against the logic and effect of the facts

      and circumstances before the court, or the reasonable, probable, and actual

      deductions to be drawn therefrom.’” Id. (quoting McElfresh v. State, 51 N.E.3d

      103, 107 (Ind. 2016)). The reviewing court does not reweigh the evidence. Id.


[8]   Our court has consistently held that Trial Rule 60(B) cannot be used as a

      substitute for a direct appeal or to revive an expired attempt to appeal. State v.

      Mooney, 51 N.E.3d 281, 284 (Ind. Ct. App. 2016); J.A. v. State, 904 N.E.2d 250,

      254 (Ind. Ct. App. 2009), trans. denied.


              The general rule is that one must appeal a judgment within the
              time allowed and not sit idly by, letting the time to appeal expire,
              and thereafter filing a Rule 60(B) motion in an attempt to revive
              his remedy of appeal. . . Relief is only properly provided under
              Rule 60(B) after a failure to perfect an appeal when there is some
              additional fact present justifying extraordinary relief which allows
              a trial court to invoke its equitable powers to do justice. The
              additional factors available for providing relief are those found in
              subsections (1) through (8).


      William F. Harvey, 4 Ind. Prac. 222 (3d ed. 2003) (emphasis in original). “In

      other words, Rule 60(B) does not provide for an end-run around the usual

      appellate process.” See, e.g., Vazquez v. Dulios, 505 N.E.2d 152, 154 (Ind. Ct.

      App. 1987).



      Court of Appeals of Indiana | Memorandum Decision 55A01-1703-PC-708 | September 27, 2017   Page 5 of 6
[9]    Here, in support of his Rule 60(B) motion, Bennington cited to the P-CR court’s

       failure to hold a hearing prior to the 2010 dismissal of his P-CR petition. That

       evidence was well known to Bennington within thirty days after the entry of the

       2010 Dismissal Order. As such, if Bennington had a problem with the

       Dismissal Order, in part or in whole, he could have and should have appealed

       that order. He did not. Thus, Rule 60(B) was not a procedural path available

       to Bennington on this record. On March 17, 2017, the P-CR court denied

       Bennington’s motion for relief from judgment under Rule 60(B), explaining,

       “[Bennington] did not timely present this claim at the time his case was

       disposed [sic]. [Bennington] cites caselaw established years after his case was

       disposed of, and [Bennington] did not timely appeal or otherwise contest the

       Court’s action at the time.” Id. at 16. The P-CR court did not abuse its

       discretion when it denied Bennington’s motion for relief under Rule 60(B).


[10]   Affirmed.


[11]   Najam, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 55A01-1703-PC-708 | September 27, 2017   Page 6 of 6
