Timothy Bennington v. State of Indiana (mem. dec.)

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 On direct appeal, he challenged his sentence, which this court affirmed by unpublished decision.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2010, the P-CR court issued a notice of withdrawal (“the Notice”), informing the parties that the public defender had withdrawn from the case in accordance with Post-Conviction Rule 1, Section 9(C).2 Appellant’s App.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 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.

[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.

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