William Mallory v. State of Indiana (mem. dec.) , 121 N.E.3d 135 ( 2019 )

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be Jan 16 2019, 7:49 am
regarded as precedent or cited before any CLERK
Indiana Supreme Court
court except for the purpose of establishing Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
William Mallory Curtis T. Hill, Jr.
Carlisle, Indiana Attorney General of Indiana
Ellen H. Meilaender
Supervising Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
William Mallory, January 16, 2019
Appellant-Petitioner, Court of Appeals Case No.
18A-CR-2001
v. Appeal from the Vigo Superior
Court
State of Indiana, The Honorable John T. Roach,
Appellee-Respondent. Judge
Trial Court Cause No.
84D01-1503-PC-528
Bailey, Judge.
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Case Summary
[1] William Mallory (“Mallory”) appeals the denial of his Indiana Trial Rule 60(B)
Motion for Relief from Judgment, which we treat as a Trial Rule 72(E) motion.
He presents the sole issue of whether the trial court abused its discretion. We
affirm.
Facts and Procedural History
[2] On March 2, 2015, Mallory filed a petition for post-conviction relief,
challenging his convictions for one count of murder, two counts of attempted
murder, and one count of carrying a handgun without a license. As amended,
his petition alleged that he had been denied the effective assistance of counsel
because counsel mis-advised him on self-defense and caused him to reject a plea
offer from the State. The post-conviction court conducted a hearing on
December 6, 2017, and issued an order denying post-conviction relief on
January 15, 2018.
[3] On June 7, 2018, Mallory petitioned to file a belated notice of appeal. He
claimed that he had not received notice of the denial of his petition for post-
conviction relief until March 6, 2018, which was outside the thirty days in
which to initiate an appeal. The petition to file a belated notice of appeal was
denied on grounds that a belated appeal procedure is available only for direct
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appeal of a conviction or sentence.1 On July 9, 2018, Mallory filed a motion for
relief from judgment, requesting an extension of time in which to appeal the
denial of his petition for post-conviction relief. The motion was denied on
August 3, 2018. Mallory now appeals.
Discussion and Decision
[4] Mallory’s Trial Rule 60(B) motion for relief from judgment sought to extend the
time in which to file his appeal of the denial of post-conviction relief. In Collins
v. Covenant Mut. Ins. Co., 644 N.E.2d 116, 117 (Ind. 1994), our supreme court
observed that, although “there was a time when a party might obtain relief
upon a claim of failure to receive notice through Trial Rule 60,” the Court had
“amended Trial Rule 72 to establish it as the sole vehicle.” But where a Trial
Rule 60(B) motion clearly indicates that the basis for the motion is lack of
notice under Trial Rule 72(E), we have treated the motion as a Trial Rule 72(E)
motion, noting our preference for elevating substance over form. Goodrich v.
Dearborn Cnty., 822 N.E.2d 1063, 1069 (Ind. Ct. App. 2005), trans. denied.
[5] Mallory captioned his motion as a motion for relief from judgment under Trial
Rule 60(B), but clearly requested an extension of time to appeal due to a
1
Indiana Post-Conviction Rule 2(1)(a) provides that an eligible defendant may petition for permission to file
a belated notice of appeal of the conviction or sentence if “(1) the defendant failed to file a timely notice of
appeal; (2) the failure to file a timely notice of appeal was not due to the fault of the defendant; and (3) the
defendant has been diligent in requesting permission to file a belated notice of appeal under this rule.” This
rule is a vehicle for belated direct appeals only. Taylor v. State, 939 N.E.2d 1132, 1135 (Ind. Ct. App. 2011).
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2001 | January 16, 2019 Page 3 of 6
claimed lack of timely notice of the post-conviction court’s January 15, 2018
judgment. We will thus treat the motion as one for an extension of time under
Trial Rule 72(E). We review a trial court’s ruling concerning Trial Rule 72(E)
for an abuse of discretion. Atkins v. Veolia Water Indianapolis, LLC, 994 N.E.2d
1287, 1288 (Ind. Ct. App. 2013). A trial court abuses its discretion when its
decision is clearly against the logic and effect of the facts and circumstances
before the court or when the trial court has misinterpreted the law. Id.
[6] Trial Rule 72(E) provides:
Lack of notice, or the lack of the actual receipt of a copy of the
entry from the Clerk shall not affect the time within which to
contest the ruling, order or judgment, or authorize the Court to
relieve a party of the failure to initiate proceedings to contest
such ruling, order or judgment, except as provided in this section.
When the service of a copy of the entry by the Clerk is not
evidenced by a note made by the clerk upon the Chronological
Case Summary [“CCS”], the Court, upon application for good
cause shown, may grant an extension of any time limitation
within which to contest such ruling, order or judgment to any
party who was without actual knowledge, or who relied upon
incorrect representations by Court personnel. Such extension
shall commence when the party first obtained actual knowledge
and not exceed the original time limitation.
[7] Here, the CCS includes an entry on January 15, 2018 pertaining to the “Order
denying Petitioner’s Amended Petition for Post-Conviction Relief” and lists
Mallory among those “Noticed.” (App. Vol. II, pg. 6.) A January 17, 2018
entry includes Mallory among those to whom “automated paper notice” was
“issued.” Id. “Trial Rule 72(E) plainly states that only if the CCS does not
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contain evidence that a copy of the court’s entry was sent to each party may a
party claiming not to have received such notice petition the trial court for an
extension of time to initiate an appeal.” Collins, 644 N.E.2d at 117-18. Thus,
Mallory cannot obtain relief from the application of Trial Rule 72(E).
[8] Finally, we address Mallory’s attempt to argue the merits of his claim for post-
conviction relief, that is, ineffectiveness of counsel. In the brief submitted to us,
Mallory argues that trial counsel was ineffective for failing to request an
instruction on voluntary manslaughter. This argument is not properly before
us. However, we observe that, even if Trial Rule 72(E) had afforded Mallory
an extension of time to appeal the denial of post-conviction relief, he had
appealed that denial, and we had reached the merits of his claim, he would not
have prevailed. Mallory claimed in his amended petition for post-conviction
relief that his trial counsel was ineffective for advising Mallory that he was
entitled to a self-defense instruction and thereby influencing Mallory’s decision
to refuse a plea offer capping his sentence at fifty years. A claim of
ineffectiveness on new grounds not raised in the post-conviction petition and
then raised for the first time on appeal from the denial of post-conviction relief
is waived and not available for appellate review. Walker v. State, 843 N.E.2d 50,
58 n.2 (Ind. Ct. App. 2006), trans. denied.
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Conclusion
[9] Mallory has demonstrated no abuse of discretion by the trial court.
[10] Affirmed.
Bradford, J., and Brown, J., concur.
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