MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                         FILED
regarded as precedent or cited before any
court except for the purpose of establishing                             Dec 27 2017, 8:38 am

the defense of res judicata, collateral                                       CLERK
                                                                          Indiana Supreme Court
estoppel, or the law of the case.                                            Court of Appeals
                                                                               and Tax Court




APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
Anthony W. Smith                                         Curtis T. Hill, Jr.
Bunker Hill, Indiana                                     Attorney General of Indiana

                                                         Angela N. Sanchez
                                                         Supervising Deputy Attorney
                                                         General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Anthony W. Smith,                                        December 27, 2017
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         35A05-1705-PC-1058
        v.                                               Appeal from the Huntington
                                                         Circuit Court
State of Indiana,                                        The Honorable Thomas M. Hakes
Appellee-Respondent.                                     Trial Court Cause No.
                                                         35C01-1511-PC-24



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 35A05-1705-PC-1058 | December 27, 2017          Page 1 of 8
                                        Statement of the Case
[1]   Anthony W. Smith appeals the post-conviction court’s dismissal of his petition

      for post-conviction relief for failure to prosecute. Smith presents the following

      dispositive issue for our review: whether the post-conviction court erred when

      it did not hold a hearing before dismissing his petition under Trial Rule 41(E). 1

      We reverse and remand with instructions.


                                  Facts and Procedural History
[2]   The facts underlying Smith’s convictions were stated by this court on direct

      appeal:


              In 2010, Misty Sell was living with David Smith.[] In November
              2010, she broke up with David and began dating Anthony. In
              December 2010, she stopped dating Anthony and moved back in
              with David. When Sell broke up with Anthony, he threatened to
              kill Sell, David, and himself. Less than a week later, on
              December 17, 2010, Sell retrieved some of her belongings from
              Anthony, and Sell told Anthony that she did not want to get back
              together with him. She returned to David’s apartment, and they
              went to sleep.

              In the early morning hours of December 18, 2010, Anthony left
              his house with a steak knife in the waistband of his pants, and
              McDaniel, Anthony’s stepson, followed Anthony. Sell and
              David awoke to someone beating on the front door. As David
              put on his pants, Sell opened the door to Anthony and
              McDaniel. They pushed Sell out of the way and went into the



      1
        Because we reverse and remand, we need not address the second issue raised by Smith, namely, whether
      the post-conviction court erred when it did not make findings of fact or conclusions of law.

      Court of Appeals of Indiana | Memorandum Decision 35A05-1705-PC-1058 | December 27, 2017      Page 2 of 8
              apartment. David backed into a corner and asked what they
              were doing there. Anthony said, “shut up you f****** faggot I’m
              going to kill you.” Tr. p. 494. Anthony and David fought until
              Sell started to call the police, and then Anthony went toward the
              door. At that point, McDaniel and David began fighting.
              Anthony went toward David, but Sell yelled at him and shoved
              him out of the apartment.

              Sell saw Anthony and McDaniel each stab David on his left side.
              David was stabbed a total of three times and suffered a lacerated
              spleen and diaphragm, which required surgery to suture. Two
              knives were recovered from the scene.

              The State initially charged Anthony and McDaniel with Class B
              felony aggravated battery. The informations were amended to
              include charges of Class A felony attempted murder and Class C
              felony battery, and the aggravated battery charges were
              dismissed. Anthony and McDaniel were jointly tried, and a jury
              found them guilty as charged. At sentencing, the trial court
              vacated the battery convictions. For the attempted murder
              convictions, Anthony was sentenced to forty-five years, with ten
              years suspended to probation, for an executed sentence of thirty-
              five years, and McDaniel was sentenced to thirty-five years, with
              fifteen years suspended to probation, for an executed sentence of
              twenty years.


      Smith v. State, No. 35A04-1112-CR-662, 2012 WL 3222382, at *1 (Ind. Ct. App.

      Aug. 9, 2012). We affirmed his convictions and sentence. Id. at *6.


[3]   On November 25, 2015, Smith filed a pro se petition for post-conviction relief,

      and the post-conviction court appointed a public defender to represent Smith.

      However, on January 19, 2016, the public defender filed a notice of

      nonrepresentation under Post-Conviction Rule 1(9)(c), whereby he declined to


      Court of Appeals of Indiana | Memorandum Decision 35A05-1705-PC-1058 | December 27, 2017   Page 3 of 8
      represent Smith. Two months later, Smith requested new counsel, but the trial

      court denied that request.


[4]   On October 13, 2016, the State moved to dismiss Smith’s petition for failure to

      prosecute under Trial Rule 41(E). On October 14, the trial court ordered the

      parties to submit evidence by affidavits. On November 15, Smith filed a motion

      for additional time to respond to the State’s motion to dismiss, and he filed an

      affidavit stating his intention to prosecute his petition and stating his reasons for

      asking for an additional sixty days to respond. The trial court granted Smith’s

      motion and ordered him to respond to the motion to dismiss by January 14,

      2017.


[5]   On January 31, 2017, the State filed a notice to inform the post-conviction court

      that Smith had not filed a response by the January 14 deadline, and the State

      moved the court to grant its motion to dismiss. On February 21, Smith filed a

      motion for an evidentiary hearing on his petition for post-conviction relief, and

      he asked the court to issue subpoenas for witnesses to attend that hearing. On

      March 2, the post-conviction court granted the State’s motion to dismiss

      without first holding a hearing. This appeal ensued.


                                     Discussion and Decision
[6]   Smith contends that the post-conviction court erred when it dismissed his

      petition for post-conviction relief pursuant to Indiana Trial Rule 41(E) without

      holding a hearing on the State’s motion. We will reverse a Trial Rule 41(E)

      dismissal for failure to prosecute “only for a clear abuse of discretion.”

      Court of Appeals of Indiana | Memorandum Decision 35A05-1705-PC-1058 | December 27, 2017   Page 4 of 8
      Caruthers v. State, 58 N.E.3d 207, 210 (Ind. Ct. App. 2016) (quoting Robertson v.

      State, 687 N.E.2d 223, 224 (Ind. Ct. App. 1997), trans. denied). “An abuse of

      discretion occurs if the decision of the trial court is against the logic and effect

      of the facts and circumstances before it.” Id.


[7]   Indiana Trial Rule 41(E) provides as follows:


              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.


      (Emphasis added.)


[8]   In Caruthers, 58 N.E.3d at 211-14, we addressed whether Trial Rule 41(E)

      requires a hearing and held as follows:


              Caruthers argues that Trial Rule 41(E) requires a court to hold a
              hearing prior to dismissing a case for failure to prosecute. We
              agree, based on our supreme court’s decision in Rumfelt v. Himes,
              438 N.E.2d 980 (Ind. 1982). . . .

                                                     ***

              . . . Our supreme court rejected the defendants’ argument [that
              the Rumfelts had waived any right to a hearing and had not

      Court of Appeals of Indiana | Memorandum Decision 35A05-1705-PC-1058 | December 27, 2017   Page 5 of 8
        shown prejudice], observing that “[t]he language of Trial Rule
        41(E) is explicit: ‘the court, on motion of a party or on its own
        motion shall order a hearing for the purpose of dismissing such
        case.’” Id. at 983. The court explained, “‘If the failure to obey
        the clear, explicit dictates of the Indiana Rules of Procedure can
        be simply dismissed as harmless error, then, the erosion of an
        orderly judicial system has begun.’” Id. (quoting Otte v. Tessman,
        426 N.E.2d 660, 662 (Ind. 1981)). . . . The Rumfelt court . . .
        concluded that the trial court had not satisfied the requirements
        of Trial Rule 41(E), reversed the trial court’s dismissal, and
        remanded with instructions to order a hearing on the defendants’
        motion to dismiss in accordance with Trial Rule 41(E).

                                               ***

        [In a dissenting opinion in Metcalf v. Estate of Hastings, 726 N.E.2d
        372 (Ind. Ct. App. 2000), trans. denied,] Judge Sullivan . . .
        opin[ed] that Trial Rule 41(E) “clearly contemplate[s] that a hearing
        not only be scheduled, but that it be conducted unless, and only unless the
        plaintiff has, prior to the hearing, been afforded opportunity to
        demonstrate sufficient good cause for the delay and has in fact done so.”
        Id. at 374-75 (Sullivan, J. dissenting). We believe that Judge
        Sullivan’s dissent is not only a correct reading of the rule but is
        also consistent with Rumfelt, which we are bound to follow as
        controlling supreme court precedent.

        . . . Trial Rule 41(E) does not require the plaintiff to wait until the
        scheduled hearing to show cause but clearly anticipates that a
        plaintiff may show cause at or before the hearing. [Here, t]he
        trial court did not rule on [Caruthers’] April 20, 2015[,] motion to
        show cause. Caruthers also filed a motion for evidentiary
        hearing and a request for transport order, which the trial court
        did not rule on. There were multiple mechanisms that were available
        to the court to address Caruthers’s motions, such as arranging a telephone
        conference or directing Caruthers to submit his case by affidavit.
        However, the trial court dismissed his action without holding a
        hearing as required by Trial Rule 41(E).[] See Rumfelt, 438
Court of Appeals of Indiana | Memorandum Decision 35A05-1705-PC-1058 | December 27, 2017   Page 6 of 8
               N.E.2d at 983. Accordingly, we reverse the postconviction
               court’s summary dismissal of Caruthers’s PCR action and
               remand for either a Trial Rule 41(E) hearing or reinstatement of
               his action.


       (Emphases added, some citations omitted.)2


[9]    The State suggests that our holding in Caruthers permits a post-conviction court

       to rule on a Trial Rule 41(E) motion without a hearing, where the court directs

       the parties to submit their cases by affidavit, “exactly as this Court suggested in

       Caruthers.” Appellee’s Br. at 9. But the State misconstrues our reference in

       Caruthers to “other mechanisms” available to the post-conviction court, such as

       affidavits. The Caruthers court was referring to other mechanisms for

       responding to the petitioner’s motions, not the State’s motion to dismiss.


[10]   Further, the State ignores our explicit holding that Trial Rule 41(E) requires

       that “‘a hearing not only be scheduled, but that it be conducted unless, and only

       unless the plaintiff has, prior to the hearing, been afforded opportunity to

       demonstrate sufficient good cause for the delay and has in fact done so.’”

       Caruthers, 58 N.E.3d at 214 (quoting Metcalf, 726 N.E.2d at 374-75 (Sullivan, J.,

       dissenting)). Here, as in Rumfelt and Caruthers, because the post-conviction

       court did not hold a hearing on the State’s motion to dismiss, the court erred

       when it dismissed Smith’s petition. Accordingly, we reverse the postconviction




       2
        As we noted in Caruthers, our Supreme Court recently cited its opinion in Rumfelt with approval in Wright v.
       Miller, 989 N.E.2d 324, 328 n.3 (Ind. 2013).

       Court of Appeals of Indiana | Memorandum Decision 35A05-1705-PC-1058 | December 27, 2017          Page 7 of 8
       court’s dismissal of Smith’s petition for post-conviction relief and remand for

       either a Trial Rule 41(E) hearing or reinstatement of his action.


[11]   Reversed and remanded with instructions.


       Mathias, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 35A05-1705-PC-1058 | December 27, 2017   Page 8 of 8
