ILNews

Court erred in striking state’s response as untimely

Back to TopCommentsE-mailPrintBookmark and Share

The Indiana Court of Appeals held Wednesday that the post-conviction court erred in striking as untimely the state’s response to a man’s motion for summary judgment on his post-conviction relief petition. The judges also refused to grant the state’s request to hold that it is relieved of the time constraints of Indiana Trial Rule 56.

In State of Indiana v. Antonio Gonzalez-Vazquez, 09A02-1210-PC-792, the state appealed the denial of its motion to correct error challenging the grant of summary judgment to Antonio Gonzalez-Vazquez on his petition for post-conviction relief. Gonzalez-Vazquez alleged he received ineffective assistance of counsel.

Gonzalez-Vazquez’s convictions were affirmed on direct appeal. He filed his petition for post-conviction relief in 2011 and filed his motion for summary judgment pursuant to Trial Rule 56 and Post-Conviction Rule 1(4)(g) on July 17, 2012. The state received his motion by certified mail.

On Aug. 20, the state requested an extension of time to respond; the court gave the state until Aug. 24, when it filed its response. Gonzalez-Vazquez claimed the state’s request for more time and its response were untimely; the state countered that the motion for enlargement of time was timely because the state was entitled to add three days for mail service based on Trial Rule 6(E) and the 33rd day fell on a Sunday.

The post-conviction court rejected the state’s argument and granted summary judgment for Gonzalez-Vazquez. That court excluded the state’s response on the grounds that Rule 6(E) was inapplicable, but that was erroneous as a matter of law, the judges ruled, citing DeLage Landen Fin. Servs. Inc v. Cmty. Mental Health Ctr., 965 N.E.2d 693 (Ind. Ct. App. 2012).

The state also argued that Trial Rule 56(C) and (I) shouldn’t be applicable to post-conviction proceedings because “significant prosecutions could be undone without any basis simply because a prosecutor’s office fails to respond in thirty days.” The state pointed to PCR 1(4)(g) that gives the trial court discretion to consider all pleadings and other matters, whereas Rule 56(C) limits consideration to the designated evidentiary matter.

“We are not in a position to carve out an exception to redress the State’s concern that mere negligence on its part might result in a windfall to a petitioner and a danger to the public,” Judge L. Mark Bailey wrote.

“Although the State may have a valid concern that a lack of diligent responses in post-conviction proceedings could result in the reversal of some criminal convictions, it would be an extremely rare occasion upon which a petitioner would be able to show an absence of an issue of material fact and further show his entitlement to judgment as a matter of law without a hearing and the presentation of evidence. Indeed, in this particular case, Vazquez focused upon alleged omissions but largely ignored the requirement of showing prejudice. In light of the foregoing, we decline the State’s invitation to hold that it is relieved of the time constraints of Trial Rule 56.”

 

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. KUDOS to the Indiana Supreme Court for realizing that some bureacracies need to go to the stake. Recall what RWR said: "No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth!" NOW ... what next to this rare and inspiring chopping block? Well, the Commission on Gender and Race (but not religion!?!) is way overdue. And some other Board's could be cut with a positive for State and the reputation of the Indiana judiciary.

  2. During a visit where an informant with police wears audio and video, does the video necessary have to show hand to hand transaction of money and narcotics?

  3. I will agree with that as soon as law schools stop lying to prospective students about salaries and employment opportunities in the legal profession. There is no defense to the fraudulent numbers first year salaries they post to mislead people into going to law school.

  4. The sad thing is that no fish were thrown overboard The "greenhorn" who had never fished before those 5 days was interrogated for over 4 hours by 5 officers until his statement was illicited, "I don't want to go to prison....." The truth is that these fish were measured frozen off shore and thawed on shore. The FWC (state) officer did not know fish shrink, so the only reason that these fish could be bigger was a swap. There is no difference between a 19 1/2 fish or 19 3/4 fish, short fish is short fish, the ticket was written. In addition the FWC officer testified at trial, he does not measure fish in accordance with federal law. There was a document prepared by the FWC expert that said yes, fish shrink and if these had been measured correctly they averaged over 20 inches (offshore frozen). This was a smoke and mirror prosecution.

  5. I love this, Dave! Many congrats to you! We've come a long way from studying for the bar together! :)

ADVERTISEMENT