Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of
establishing the defense of res judicata,                     Jul 15 2014, 10:18 am
collateral estoppel, or the law of the case.


APPELLANT PRO SE:

JAMES E. MANLEY
Bunker Hill, Indiana


                             IN THE
                   COURT OF APPEALS OF INDIANA

JAMES E. MANLEY,                               )
                                               )
      Appellant-Plaintiff,                     )
                                               )
             vs.                               )     No. 53A01-1402-MI-65
                                               )
MONROE COUNTY PROSECUTOR,                      )
                                               )
      Appellee-Defendant.                      )


                    APPEAL FROM THE MONROE CIRCUIT COURT
                         The Honorable E. Michael Hoff, Judge
                           Cause No. 53C01-1306-MI-1212


                                     July 15, 2014

              MEMORANDUM DECISION - NOT FOR PUBLICATION

SULLIVAN, Senior Judge
         James E. Manley appeals from the trial court’s order dismissing his “Complaint for

Declaratory and Injunctive Relief/Challenge to the Constitutionality of Indiana Statute”

filed against the “Monroe County Prosecutor,” contending that the trial court violated

judicial canons by asserting an affirmative defense on behalf of the Monroe County

Prosecutor, and challenging the constitutionality of Indiana Code section 35-42-4-3 and its

application to him. Consistent with our standard of review, however, we affirm the trial

court.

         Manley, who is incarcerated as a result of his conviction of two counts of Class A

felony child molesting and two counts of Class B felony child molesting, filed his

complaint against the Monroe County Prosecutor on June 28, 2013, but no responsive

pleading and no discovery responses were filed. On October 24, 2013, Manley filed a

motion for default judgment, which the trial court denied. Manley filed a motion to correct

error, which was also denied by the trial court. Manley now appeals.

         As we stated in Green v. Karol, 344 N.E.2d 106, 110 (Ind. Ct. App. 1976), “Trial

Rule 55(A) provides the basis for holding a party in default. If a party is in default, or can

be defaulted, then Trial Rule 55(B) provides the procedure for obtaining a default

judgment.” Further, Trial Rule 55(E) provides that a judgment by default may be entered

against a governmental organization. Pertinent to this appeal, Trial Rule 83(3) defines a

governmental organization to include “the state, or a department, agency, corporation,

office or branch thereof; a county, township, municipality or local governmental unit, or a

department, agency, corporation, office or branch thereof; or any governmental

representative named as such; or any governmental unit.”

                                              2
       Here, the Monroe County Prosecutor did not file a responsive pleading to Manley’s

complaint. Therefore, the Monroe County Prosecutor was technically subject to default

upon application to the trial court. “However, a default judgment is not generally favored,

and any doubt of its propriety must be resolved in favor of the defaulted party.” Green,

344 N.E.2d at 111. Additionally, when there is a technical default, the nondefaulting party

is not entitled to a default judgment as a matter of right. Id. at 110. The trial court has the

sound discretion to determine whether entry of a default judgment is appropriate, and that

discretion is considerable. Id. “An abuse of discretion involves a decision that is clearly

against the logic and effect of the facts and circumstances before the court.” Washington

v. State, 784 N.E.2d 584, 587 (Ind. Ct. App. 2003).

       Although we do not have the complaint before us, we do have the benefit of the trial

court’s order and Manley’s brief. Both suggest that the nature of Manley’s complaint was

a collateral challenge of his conviction and sentence. The trial court correctly determined

that Manley’s complaint was not a direct appeal of his conviction or sentence. Therefore,

the appropriate method by which Manley might pursue a collateral attack of his conviction

and sentence would be through post-conviction procedures. Wrinkles v. State, 749 N.E.2d

1179, 1187 (Ind. 2001) (post-conviction procedures “create a narrow remedy for

subsequent collateral challenges to convictions which must be based on grounds

enumerated in the post-conviction rules.”).

       Accordingly, we conclude that the trial court was not in violation of judicial canons

by exercising its considerable discretion in determining whether a default judgment was

warranted here. Further, the record before us supports the trial court’s use of discretion to

                                              3
deny Manley’s request for a default judgment against the Monroe County Prosecutor. The

trial court did not err by dismissing Manley’s complaint without prejudice in order to allow

him to pursue the possibility of seeking post-conviction relief, the appropriate avenue for

bringing such claims.

                                      CONCLUSION

       In light of the foregoing, we affirm the trial court’s decision.

CRONE, J., and PYLE, J., concur.




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