APPELLANT PRO SE                                            ATTORNEYS FOR APPELLEE
Eric D. Smith                                               Gregory F. Zoeller
Pendleton, Indiana                                          Attorney General of Indiana

                                                            Cynthia L. Ploughe
                                                            Deputy Attorney General
                                                                                          Jun 22 2015, 9:02 am
                                                            Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Eric D. Smith,                                             June 22, 2015

Appellant,                                                 Court of Appeals Case No.
                                                           33A04-1404-IF-187
        v.                                                 Appeal from the Henry Circuit Court

State of Indiana,                                          The Honorable Bob A. Witham,
                                                           Judge
Appellee.
                                                           Cause Nos. 33C03-1402-IF-373,
                                                           33C03-1402-IF-374




Brown, Judge.




Court of Appeals of Indiana | Opinion 33A04-1404-IF-187 | June 22, 2015                       Page 1 of 9
[1]   Eric D. Smith, pro se, appeals the trial court’s denial of his motion for relief from

      judgment and his petition for post-conviction relief. Smith raises two issues

      which we revise and restate as:


        I.    Whether the trial court abused its discretion in denying his motion for
              relief from judgment; and

       II.    Whether the trial court abused its discretion in denying his petition for
              post-conviction relief.

      We affirm.


                                        Facts and Procedural History

[2]   On May 27, 2000, Smith was ticketed for disobeying a traffic signal under cause

      number 33I01-0007-IF-06910. He failed to appear for the bench trial on

      September 14, 2000, and the court ordered him to pay eighty-one dollars.


[3]   On July 15, 2000, Smith was ticketed for speeding in cause number 33I01-0008-

      IF-08089. The case reached disposition on November 4, 2000, and Smith failed

      to pay the resulting fine of eighty-one dollars.


[4]   In February 2014, Smith filed a motion for relief from judgment pursuant to

      Ind. Trial Rule 60(B)(8) under both cause numbers. He alleged that he just

      learned of the cases by contacting the trial court about traffic violations, that he

      was innocent of the charges, that he had been serving in the United States

      Army in Korea and Fort McCoy, Wisconsin, that somebody had stolen his car

      and driver’s license and must have impersonated him, and that he never

      received any notice. On March 5, 2014, the State filed its response to Smith’s


      Court of Appeals of Indiana | Opinion 33A04-1404-IF-187 | June 22, 2015     Page 2 of 9
      motions, and on March 10, 2014, the court denied Smith’s motion for relief

      from judgment as to each cause number.


[5]   That same month, Smith filed a petition for post-conviction relief under both

      cause numbers, asserting that he was not given notice of any charges or court

      hearings, was not afforded counsel, was innocent of the charges, and was a

      victim of identity theft.


[6]   An entry in the chronological case summary for each cause number states:

      “Post Conviction Relief is available to defendants who have been convicted of a

      crime. These cases involve infractions which are civil in nature and not crimes.

      Accordingly, Post Conviction Relief is not available to the defendant in these

      cases.” Appellant’s Appendix at 6, 56.


[7]   On April 9, 2014, Smith filed a notice of appeal of the court’s denial of his

      motions for relief from judgment and petitions for post-conviction relief.


                                                     Discussion

[8]   Initially, we observe that Smith is proceeding pro se. Such litigants are held to

      the same standard as trained counsel and are required to follow procedural

      rules. Evans v. State, 809 N.E.2d 338, 344 (Ind. Ct. App. 2004), trans. denied.


                                                           I.


[9]   The first issue is whether the trial court abused its discretion in denying Smith’s

      motion for relief from judgment. We review a trial court’s ruling on Rule 60

      motions for abuse of discretion. Outback Steakhouse of Fla., Inc. v. Markley, 856

      Court of Appeals of Indiana | Opinion 33A04-1404-IF-187 | June 22, 2015    Page 3 of 9
       N.E.2d 65, 72 (Ind. 2006). 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.


[10]   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.


[11]   Smith’s motions requested reversal pursuant to Ind. Trial Rule 60(B)(8) and he

       cites Rule 60(B)(8) on appeal. Ind. Trial Rule 60(B) provides in part:

               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;

       Court of Appeals of Indiana | Opinion 33A04-1404-IF-187 | June 22, 2015       Page 4 of 9
               (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).


[12]   “The motion shall be filed within a reasonable time for reasons (5), (6), (7), and

       (8), and not more than one year after the judgment, order or proceeding was

       entered or taken for reasons (1), (2), (3), and (4).” Ind. Trial Rule 60(B). “A

       movant filing a motion for reasons (1), (2), (3), (4), and (8) must allege a

       meritorious claim or defense.” Id. A meritorious defense for the purposes of

       Rule 60(B) is “one that would lead to a different result if the case were tried on

       the merits.” Butler v. State, 933 N.E.2d 33, 36 (Ind. Ct. App. 2010) (quoting

       Bunch v. Himm, 879 N.E.2d 632, 637 (Ind. Ct. App. 2008)). “Absolute proof of

       the defense is not necessary, but there must be ‘enough admissible evidence to

       make a prima facie showing’ that ‘the judgment would change and that the

       defaulted party would suffer an injustice if the judgment were allowed to

       stand.’” Id. (quoting Bunch, 879 N.E.2d at 637). “The trial 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), trans. denied (citation omitted).




       Court of Appeals of Indiana | Opinion 33A04-1404-IF-187 | June 22, 2015           Page 5 of 9
[13]   Smith argues that he filed his motions in a reasonable time, that exceptional

       circumstances were shown to justify relief, and that his motions demonstrated a

       meritorious defense. He asserts that someone impersonated him and he was

       outside of Indiana on military duty at the time of the offenses. He contends

       that the decision of the trial court conflicts with a decision from the Noblesville

       City Court that granted his identical motion for relief in another cause, and that

       the trial court did not balance his hardship and alleged injustice against the

       interest of the State and society in general, nor did it conduct a hearing to

       determine if he was indigent. The State argues that Smith’s account for the

       delay is inadequate, the delay has prejudiced the State, and Smith has failed to

       prove his claim.


[14]   With respect to the State’s argument that Smith’s motion is untimely, a motion

       under Trial Rule 60(B)(8) must be filed “within a reasonable time.” 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. In his motions

       for relief from judgment, Smith stated that he “just learned of this case by

       contacting the trial court about traffic violations . . . .” Appellant’s Appendix at

       7, 57. However, he did not specifically state when he contacted the traffic

       court.


[15]   Additionally, Smith did not meet his burden of demonstrating that relief was

       justified. His military records do not indicate where he was in May or July

       Court of Appeals of Indiana | Opinion 33A04-1404-IF-187 | June 22, 2015    Page 6 of 9
       2000, the dates of his infractions. Absent any further evidence, there is nothing

       in the record other than Smith’s self-serving arguments to support his claims

       that he was not the person who disobeyed a traffic signal or was caught

       speeding. Accordingly, because he did not present a meritorious defense, we

       conclude that the trial court did not abuse its discretion in denying his motion

       for relief.


[16]   To the extent Smith argues that the trial court erred because it imposed a fine

       and did not conduct a hearing to determine if he was indigent, we observe that

       Smith’s adjudication was civil in nature, and a trial court is not required to

       conduct an indigency hearing where there is no chance that a party will be

       imprisoned for non-payment. See Pridemore v. State, 577 N.E.2d 237, 238 (Ind.

       Ct. App. 1991) (holding that traffic infractions are civil proceedings in nature

       and that there can be no imprisonment), reh’g denied; see also Ladd v. State, 710

       N.E.2d 188, 192 (Ind. Ct. App. 1999) (holding that when restitution is ordered

       as part of an executed sentence, an inquiry into the defendant’s ability to pay is

       not required, and in such a situation, restitution is merely a money judgment,

       and a defendant cannot be imprisoned for non-payment).


[17]   We also do not find any merit in Smith’s argument that, because the

       Noblesville City Court granted him relief in a case involving similar issues, the

       trial court here was required to do the same. The decision of one trial court is

       not binding on another trial court. See Ind. Dep’t of Natural Res. v. United

       Minerals, Inc., 686 N.E.2d 851, 857 (Ind. Ct. App. 1997), reh’g denied, trans.

       denied. In the Noblesville court’s order granting relief from a judgment, the

       Court of Appeals of Indiana | Opinion 33A04-1404-IF-187 | June 22, 2015        Page 7 of 9
       court stated that it had verified that Smith was incarcerated on September 26,

       2001, which was presumably the date of the infraction, and based on this

       verification, the court granted relief. Unlike the Noblesville court, the trial

       court here was not able to verify Smith’s whereabouts on the date of his

       infractions. That difference justifies the dissimilar outcomes. Additionally, the

       Noblesville court’s verification that Smith was incarcerated on September 26,

       2001, is not relevant here as that date is at least ten months after the latest

       disposition at issue. Accordingly, the trial court was not required to grant relief

       based upon that court’s decision. We cannot say that the trial court abused its

       discretion by denying Smith’s motion for relief from judgment.


                                                           II.


[18]   The next issue is whether the post-conviction court erred in denying Smith’s

       petition for post-conviction relief. The post-conviction rules contemplate a

       narrow remedy for subsequent collateral challenges to convictions. Reed v.

       State, 856 N.E.2d 1189, 1194 (Ind. 2006). Smith cited Post-Conviction Rule 1

       which provides that “[a]ny person who has been convicted of, or sentenced for,

       a crime by a court of this state . . . may institute at any time a proceeding under

       this Rule to secure relief.” Ind. Post-Conviction Rule 1(a) (emphasis added).


[19]   The violations of the motor vehicle code that Smith was accused of committing

       were disregarding a traffic control device and speeding. Both constitute

       infractions and not crimes. “[T]raffic infractions are civil, rather than criminal,

       in nature and the State must prove the commission of the infraction by only a


       Court of Appeals of Indiana | Opinion 33A04-1404-IF-187 | June 22, 2015      Page 8 of 9
       preponderance of the evidence.” Rosenbaum v. State, 930 N.E.2d 72, 74 (Ind.

       Ct. App. 2010), trans. denied. Consequently, we cannot say that Ind. Post-

       Conviction Rule 1 provides a remedy.1 See State v. Hurst, 688 N.E.2d 402, 403-

       406 (Ind. 1997) (concluding that the proceedings for a violation of the failure to

       yield the right-of-way statute are civil and the defendant who had been found to

       have failed to yield the right-of-way, a class C infraction, and ordered to pay a

       fine of seven dollars had not been criminally prosecuted for his actions).


                                                       Conclusion

[20]   For the foregoing reasons, we affirm the trial court’s denial of Smith’s motion

       for relief from judgment and petition for post-conviction relief.


[21]   Affirmed.


       Crone, J., and Pyle, J., concur.




       1
         We acknowledge that in Strong v. State, 29 N.E.3d 760, 765-766 (Ind. Ct. App. 2015), this court held that
       traffic infractions are classified as criminal for purposes of appeal under Ind. Appellate Rule 2(G) and that a
       defendant should be entitled to the benefit of Post-Conviction Rule 2 as in other criminal appeals. Unlike in
       Strong, Smith did not appeal the determination that he committed an infraction, but filed a motion for relief
       from judgment and a petition for post-conviction relief under Post-Conviction Rule 1. Thus, we do not find
       Strong instructive.



       Court of Appeals of Indiana | Opinion 33A04-1404-IF-187 | June 22, 2015                              Page 9 of 9
