Jay F. Vermillion v. State of Indiana (mem. dec.)

MEMORANDUM DECISION FILED Feb 23 2017, 9:27 am

Pursuant to Ind. Appellate Rule 65(D), this CLERK Indiana Supreme Court Memorandum Decision shall not be regarded as Court of Appeals precedent or cited before any court except for the and Tax Court

purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

APPELLANT PRO SE ATTORNEYS FOR APPELLEE Jay F. Vermillion Curtis T. Hill, Jr. Pendleton, Indiana Attorney General of Indiana Eric P. Babbs Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Jay F. Vermillion, February 23, 2017

Appellant-Petitioner, Court of Appeals Case No. 84A04-1604-PC-900 v. Appeal from the Vigo Superior Court. The Honorable John T. Roach III, State of Indiana, Judge. Appellee-Respondent. Cause No. 84D01-1109-PC-3025

Friedlander, Senior Judge [1] Jay Vermillion appeals from the post-conviction court’s dismissal of his petition

for post-conviction relief, and denial of his motion for relief from judgment. On

appeal, Vermillion raises several issues of which we find the following

dispositive: whether the post-conviction court abused its discretion by

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dismissing his post-conviction relief petition without first holding a hearing.

We reverse and remand. [2] Vermillion was convicted of murder, burglary, auto theft, and dealing in a

sawed-off shotgun. On direct appeal, our Supreme Court affirmed his

convictions. See Vermillion v. State, 719 N.E.2d 1201 (Ind. 1999). [3] In 2003, Vermillion filed a post-conviction relief (PCR) petition in Vigo

Superior Court Division 3 – the court where he was convicted. Under local

rules, the petition was transferred to a different court division – Division 1. He

filed a motion to withdraw the petition in 2009, which was granted. Vermillion

filed another PCR petition in 2011, in the Division 3 court. Again, under local

rules, the petition was transferred to the Division 1 court. [4] On March 7, 2014, the post-conviction court issued an order notifying the

parties that Vermillion’s PCR petition would be dismissed under Indiana Trial

Rule 41(E) if the parties did not appear in court on April 10, 2014. The court

dismissed the petition on July 3, 2014, because no action had been taken on the

case since April 26, 2012. On August 28, 2014, Vermillion filed a motion to

reinstate the petition, alleging he did not receive notice of the March 7th order.

The post-conviction court granted the motion. [5] On September 14, 2015, the court again issued an order notifying the parties

that Vermillion’s PCR petition would be dismissed under Trial Rule 41(E) if the

parties did not appear in court on October 8, 2015, and indicate their desire to

continue the matter. An entry was made on the chronological case summary

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(CCS) as follows: “Cause set for dismissal hearing under Trial Rule 41E [sic]

on 10/8/15 at 11:00 a.m.” Appellant’s App., Vol. 2, p. 12. Vermillion did not

respond and the court dismissed the petition on October 9, 2015. The CCS

does not show that the court held the hearing before it dismissed Vermillion’s

petition. [6] On October 23, 2015, Vermillion filed a motion to reinstate his petition. The

post-conviction court denied the motion on December 4, 2015. On January 25,

2016, Vermillion filed a motion for relief from judgment under Trial Rule

60(B), alleging that because his PCR petition was dismissed by “a judicial

officer other than the duly elected or duly appointed judge of the court where

[his] convictions took place, said judgment is void.” Id., Vol. 3, p. 125. The

post-conviction court denied the motion on January 29, 2016. On February 12,

2016, Vermillion filed a motion to correct error, which was deemed denied.

Vermillion appeals. [7] Vermillion argues that the post-conviction court erred in dismissing his PCR

petition under Trial Rule 41(E) without holding a hearing prior to dismissal.

We will reverse a Trial Rule 41(E) dismissal for failure to prosecute “only for a

clear abuse of discretion. 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.” Caruthers v. State, 58 N.E.3d 207, 210 (Ind. Ct. App. 2016) (internal

citations omitted). [8] Indiana Trial Rule 41(E) provides:

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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.

[9] A trial court’s authority to dismiss a case pursuant to Trial Rule 41(E) “stems

not only from considerations of fairness for defendants, but is also rooted in the

administrative discretion necessary for a trial court to effectively conduct its

business.” Baker Mach., Inc. v. Superior Canopy Corp., 883 N.E.2d 818, 823 (Ind.

Ct. App. 2008), trans. denied. The purpose of Trial Rule 41(E) is “to ensure that

plaintiffs will diligently pursue their claims” and to provide “an enforcement

mechanism whereby a defendant, or the court, can force a recalcitrant plaintiff

to push his case to resolution.” Belcaster v. Miller, 785 N.E.2d 1164, 1167 (Ind.

Ct. App. 2003), trans. denied (quotation omitted). The plaintiff bears the burden

of moving the litigation forward, and the trial court has no duty to urge or

require counsel to go to trial, even where it would be within the court’s power

to do so. Id. “Courts cannot be asked to carry cases on their dockets

indefinitely and the rights of the adverse party should also be considered. He

should not be left with a lawsuit hanging over his head indefinitely.” Id.

(quotation omitted). “Although Indiana does not require trial courts to impose

lesser sanctions before applying the ultimate sanctions of default judgment or

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dismissal, we view dismissals with disfavor, and dismissals are considered

extreme remedies that should be granted only under limited circumstances.”

Am. Family Ins. Co. ex rel. Shafer v. Beazer Homes Indiana, LLP, 929 N.E.2d 853,

857 (Ind. Ct. App. 2010). [10] Although the trial court set a hearing under Trial Rule 41(E) on the dismissal of

Vermillion’s PCR petition, the CCS does not show that the hearing was held.

The State argues that “there are circumstances in which a hearing does not need

to be held but only scheduled.” Appellee’s Br. p. 11 (emphasis added). [11] The Indiana Supreme Court and this Court have held that a court must

generally hold a hearing prior to entering an order of dismissal under Trial Rule

41(E). See Wright v. Miller, 989 N.E.2d 324, 328 n.3 (Ind. 2013) (citing Rumfelt

v. Himes, 438 N.E.2d 980, 984 (Ind. 1982)), and providing that “in light of the

gravity of the sanction of dismissal, we believe that the hearing required by

Trial Rule 41(E) should henceforth likewise be held when a case dismissal is

sought or contemplated under Trial Rule 37”); Rumfelt, 438 N.E.2d at 983-984

(holding that the trial court’s order dismissing the action with prejudice “wholly

fail[ed] to comply with the clear dictates of the rule requiring a hearing” and

that “Trial Rule 41(E) clearly requires a hearing on a motion to dismiss which

controls over Trial Rule 73 allowing the trial court to expedite its business by

directing the submission and determination of motions without oral hearing,”

and remanding with instructions to order a hearing on the motion to dismiss

under Rule 41(E)). In Caruthers, a panel of this Court found:

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Judge Sullivan[’s dissent in Metcalf v. Estate of Hastings, 726 N.E.2d 372, 374-75 (Ind. Ct. App. 2000) (Sullivan, J. dissenting), trans. denied,] opining 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’ . . . is not only a correct reading of [Rule 41(E)] but is also consistent with Rumfelt, which we are bound to follow as controlling supreme court precedent.

58 N.E.3d at 214. [12] We, like the panel in Caruthers, are bound by controlling supreme court

precedent. The post-conviction court dismissed Vermillion’s action without

holding a hearing as required by Trial Rule 41(E). We reverse the court’s

dismissal of Vermillion’s PCR petition and remand for either a Trial Rule 41(E)

hearing or reinstatement of his action. [13] In the interest of judicial economy, we address Vermillion’s issue of whether the

post-conviction court erred in denying his Trial Rule 60(B) motion on the

ground that the court’s dismissal of his PCR petition is void because the Vigo

Superior Court Division 1 lacked jurisdiction over his petition. Vermillion’s

argument appears to be that the court in which he originally was convicted,

Vigo Superior Court Division 3, was the only court with jurisdiction to rule on

his PCR petition. Vermillion’s claim is without merit. [14] Vermillion’s PCR petition was filed in the superior court in which he was

convicted. See Ind. Post-Conviction Rule 1(2) (a person who claims relief under

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this rule must file a verified petition with clerk of court in which conviction took

place). Under local rules, that court transferred the matter to a different

superior court division. Rule LR84-CR2.2-2(D) of the Local Rules of Practice

and Procedure for the Vigo County Superior and Circuit Courts states, “[a]

judge of the Circuit [or] Superior Courts, by appropriate order entered in the

record of judgments and orders, may transfer and reassign a case to any other

court of record in the county with jurisdiction to hear the charged offense

subject to acceptance by the receiving court.” Indiana Code section 33-29-1-

1.5 (2011) provides that all superior courts have original and concurrent

jurisdiction in all civil cases and in all criminal cases. The Division 1 court has

jurisdiction over Vermillion’s PCR petition. No error occurred here. [15] Finally, Vermillion has filed a “Verified Motion for Judicial Notice,” asking

this Court to take judicial notice of those parts of the record from his underlying

criminal case and his direct appeal that he references in his brief, since he did

not have the opportunity to make the record a part of his post-conviction

proceedings. The State has not filed a motion in response. Effective January 1,

2010, amended Indiana Rule of Evidence 201(b)(5) permits courts to take

judicial notice of “records of a court of this state.” We decline to do so here

because the record from Vermillion’s trial and direct appeal are not necessary to

the determination of the issues before us. By separate order issued

contemporaneously with this opinion, we deny Vermillion’s motion to take

judicial notice. [16] Reversed and remanded.

Court of Appeals of Indiana | Memorandum Decision 84A04-1604-PC-900 | February 23, 2017 Page 7 of 8 [17] Baker, J., and Kirsch, J., concur.

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