Edward Lee Smith, Sr. v. State of Indiana (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Oct 02 2019, 9:02 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
Edward Smith Curtis T. Hill, Jr.
New Castle, Indiana Attorney General of Indiana
Michael Vo Sherman
Certified Legal Intern
Evan Matthew Comer
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Edward Lee Smith, Sr., October 2, 2019
Appellant-Petitioner, Court of Appeals Case No.
19A-PC-772
v. Appeal from the Lake Superior
Court
State of Indiana, The Honorable Kathleen A.
Appellee-Respondent Sullivan, Magistrate
Trial Court Cause No.
45G01-1806-PC-6
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-PC-772 | October 2, 2019 Page 1 of 4
[1] Edward Smith appeals the post-conviction court’s dismissal of his petition for
post-conviction relief, arguing that the post-conviction court erroneously failed
to follow the prison mailbox rule. Finding no error, we affirm.
[2] On June 30, 2016, a jury found Smith guilty of Class C felony child molesting
and two counts of Class C criminal confinement. This Court later affirmed
Smith’s convictions. Smith v. State, 45A03-1609-CR-1974 (Ind. Ct. App. Mar.
15, 2017). On June 5, July 17, and October 30, 2018, Smith, pro se, filed three
different amended petitions for post-conviction relief, alleging each time that he
was denied the effective assistance of trial counsel. On November 2, 2018, the
post-conviction court ordered that Smith include findings of fact and
conclusions of law in his petition by December 2, 2018.
[3] The post-conviction court then granted, in part, Smith’s motion for enlargement
of time on January 7, 2019. The new filing deadline was set for January 18,
2019. Smith once again moved for an enlargement of time, which the post-
conviction court granted and set the final filing deadline for February 8, 2019.
After Smith failed to file the required documents, the post-conviction court
dismissed with prejudice Smith’s petition for post-conviction relief on February
20, 2019. Smith finally submitted his findings of fact and conclusions of law on
February 22, 2019, without any explanation for the delay. Smith now appeals.
[4] Smith’s sole argument on appeal is that the post-conviction court erroneously
failed to follow the prison mailbox rule. A post-conviction petitioner bears the
burden of establishing grounds for relief by a preponderance of the evidence.
Court of Appeals of Indiana | Memorandum Decision 19A-PC-772 | October 2, 2019 Page 2 of 4
Henley v. State, 881 N.E.2d 639, 643 (Ind. 2008). To prevail on appeal from the
denial of post-conviction relief, the petitioner must show that the evidence as a
whole leads unerringly and unmistakably to a conclusion opposite that reached
by the post-conviction court. Id. at 643-44.
[5] The prison mailbox rule says that a “pro se incarcerated litigant who delivers [a
document] to prison officials for mailing on or before its due date accomplishes
a timely filing.” Dowell v. State, 922 N.E.2d 605, 607 (Ind. 2010). However, “a
pro se prisoner [must] provide reasonable, legitimate, and verifiable
documentation supporting a claim that a document was timely submitted to
prison officials for mailing.” Id. “Where a prisoner’s proof is lacking, however,
the opposite result obtains.” Id. at 608.
[6] Here, Smith points to no reasonable, legitimate, or verifiable documentation
proving that he had submitted the required documents before the final February
8, 2019, deadline. Rather, Smith proffered only “a copy of the remittance slip
Dated February 7th 2018 and secondly, the Certificate of Service also dated
February 7th 2018.” Appellant’s Br. p. 5. Indiana courts have, in the past,
recognized sworn affidavits from prison officials, legal mail logs from law
librarians, and letterhead statements as examples of reasonable, legitimate, or
verifiable documents that invoke the prison mailbox rule. See Dowell, 922
N.E.2d at 608; see also Harkins v. Westmeyer, 116 N.E.3d 461, 469-70 (Ind. Ct.
App. 2018). Because Smith has not provided any such documentation, we find
that Smith failed to submit his findings of fact and conclusions of law on time.
Court of Appeals of Indiana | Memorandum Decision 19A-PC-772 | October 2, 2019 Page 3 of 4
[7] Moreover, it is clear that the post-conviction court exhibited patience and gave
Smith multiple opportunities to file his findings of fact and conclusions of law,
all to no avail. Smith failed to submit documents necessary for post-conviction
proceedings, and after these delays, the post-conviction court reasonably
dismissed his petition. And, any argument that the post-conviction court should
have shown Smith leniency because of his pro se status is without merit. Pro se
litigants are held to the same standards as trained counsel and must follow all
procedural rules. Wright v. State, 772 N.E.2d 449, 463 (Ind. Ct. App. 2002). In
sum, there was no error.
[8] The judgment of the post-conviction court is affirmed.
Kirsch, J., and Crone, J., concur.
Court of Appeals of Indiana | Memorandum Decision 19A-PC-772 | October 2, 2019 Page 4 of 4