Anthony W. Smith v. State of Indiana (mem. dec.) ( 2017 )


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  • 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
    

Document Info

Docket Number: 35A05-1705-PC-1058

Judges: Najam

Filed Date: 12/27/2017

Precedential Status: Precedential

Modified Date: 10/19/2024