Roy C. Bebout v. State of Indiana

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any Sep 16 2014, 8:56 am
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:
Roy C. Bebout GREGORY F. ZOELLER
Bunker Hill, Indiana Attorney General of Indiana
MICHAEL GENE WORDEN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
ROY C. BEBOUT, )
)
Appellant-Defendant, )
)
vs. ) No. 82A01-1401-CR-27
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE VANDERBURGH CIRCUIT COURT
The Honorable David D Kiely, Judge
Cause No. 82C01-9803-CF-285
September 16, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
FRIEDLANDER, Judge
In his most recent appeal, Roy C. Bebout contends that the trial court erred in
denying his “Motion to Correct Court Record (CSS [sic] Docket) under newly discovered
evidence of ‘Prison Mail Box Rule’”. Appellant’s Appendix at 5. Because Bebout’s
motion amounts to an unauthorized successive petition for post-conviction relief, we
dismiss this appeal.
In 1998, Bebout was sentenced to forty-five years in prison after being convicted
of kidnapping, criminal deviate conduct, and rape. After Bebout’s convictions were
affirmed on direct appeal, Bebout filed a pro se petition for post-conviction relief, which
was denied on May 18, 2004. After his motion to correct error was denied, Bebout
appealed, arguing in part that the post-conviction court erred by failing to consider his
amended petition for post-conviction relief and denying him an evidentiary hearing. This
court affirmed, concluding in pertinent part that the record did not establish that Bebout
had filed an amended petition or a request for an evidentiary hearing. See Bebout v.
State, No. 82A01-0408-PC-343 (Ind. Ct. App. February 25, 2005). This court also
concluded that the post-conviction court had considered the additional issue raised in the
amended petition Bebout claimed to have filed and correctly concluded that Bebout was
not entitled to relief on that basis.
Bebout subsequently filed a petition for writ of habeas corpus in the United States
District Court for the Northern District of Indiana, which was denied. In 2008, Bebout
filed a federal lawsuit under 42 U.S.C. § 1983 against the Vanderburgh County Clerk and
one of her employees, alleging that they had denied him access to the courts by failing to
file the amended petition for post-conviction relief and request for an evidentiary hearing
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he claimed to have submitted in the state post-conviction proceedings. The federal
district court granted summary judgment for the defendants, and that judgment was
affirmed by the United States Court of Appeals for the Seventh Circuit.
On July 14, 2011, Bebout filed a Motion to Correct Court Docket in the post-
conviction court. Bebout has not included a copy of this motion in his Appellant’s
Appendix, but an entry in the Chronological Case Summary (CCS) indicates that the
motion was denied “for the reason the court has reviewed the file and has found no
motion for evidentiary hearing or motion to amend filed between 3-26-04 and 4-1-04.”
Id. at 251. Thus, it is apparent that the July 14, 2011 Motion to Correct Court Docket
requested that the CCS be corrected to reflect the filing of those documents in the post-
conviction proceedings. Following the denial of the Motion to Correct Court Docket,
Bebout filed a motion to correct error, which was denied. Bebout then filed a notice of
appeal. On February 28, 2012, Bebout’s appeal was dismissed with prejudice for failure
to timely file an appellant’s brief.
On September 9, 2013, Bebout filed his “Motion to Correct Court Record (CSS
[sic] Docket) under newly discovered evidence of ‘Prison Mail Box Rule’”. Id. at 5. In
the motion, Bebout again alleged that the CCS was in error because it did not reflect that
he filed an amended petition for post-conviction relief and a request for an evidentiary
hearing on March 31, 2004. The motion was denied on October 4, 2013. On November
4, 2013, Bebout filed a motion to correct error. The trial court ruled that the motion
would be treated as a petition for permission to file a belated motion to correct error
pursuant to Ind. Post-Conviction Rule 2 and set deadlines for the submission of affidavits
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and other documents. The trial court ultimately denied the motion, concluding that
Bebout had not been diligent in requesting permission to file the belated motion to correct
error and that he was not an “eligible defendant” for the purposes of P-C.R. 2 because he
had already had a direct appeal.
On appeal, the State argues that Bebout’s September 9, 2013 motion is barred by
the doctrine of res judicata because it involves the same issues raised in his July 14, 2011
motion. The State’s arguments in this regard are well taken, but we dismiss for a more
fundamental reason. P-C.R. 1(12) sets forth the applicable procedures a litigant must
follow to seek authorization to file a successive petition for post-conviction relief. See
Young v. State, 888 N.E.2d 1255, 1257 (Ind. 2008) (explaining that when a petitioner has
already litigated a petition for post-conviction relief, “that petitioner must follow the
procedure outlined in P-C.R. 1(12) for filing successive petitions”). In this case, Bebout
has already fully litigated a petition for post-conviction relief, and he is now attempting
to collaterally attack the denial of that petition. The only procedural vehicle remaining
available to Bebout for asserting this claim is a successive petition for post-conviction
relief.1 Bebout, however, did not receive, or even request, authorization to file a
successive petition. Accordingly, we dismiss this appeal.
To the extent Bebout’s motion could be characterized as a petition for permission to file a
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belated motion to correct error relating to the denial of his original petition for post-conviction relief, we
agree with the post-conviction court’s conclusion that Bebout is not an “eligible defendant” for the
purposes of P-C.R. 2 because he filed both a motion to correct error and an appeal following the denial of
that petition. See P-C.R. 2 (defining an “eligible defendant” as one “who, but for the defendant’s failure
to do so timely, would have the right to challenge on direct appeal a conviction or sentence after a trial or
plea of guilty by filing a notice of appeal, filing a motion to correct error, or pursuing an appeal”). More
fundamentally, however, P-C.R. 2(2) provides that “[a]n eligible defendant convicted after a trial or plea
of guilty may petition the court of conviction for permission to file a belated motion to correct error
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Appeal dismissed.
VAIDIK, C.J., and MAY, J., concur.
addressing the conviction or sentence[.]” (Emphasis supplied). As this court has explained, “[t]his rule
clearly applies to motions to correct errors relating to matters on the direct appeal. It is not applicable to
belated motions to correct errors relating to matters at the post-conviction stage.” Sceifers v. State, 663
N.E.2d 1191, 1192 (Ind. Ct. App. 1996), trans. denied. Thus, even if Bebout qualified as an “eligible
defendant”, he would not be entitled to pursue a belated motion to correct error relating to the denial of
his original petition for post-conviction relief.
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