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Court erred in striking state’s response as untimely

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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.”

 

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  1. Just an aside, but regardless of the outcome, I 'm proud of Judge William Hughes. He was the original magistrate on the Home place issue. He ruled for Home Place, and was primaried by Brainard for it. Their tool Poindexter failed to unseat Hughes, who won support for his honesty and courage throughout the county, and he was reelected Judge of Hamilton County's Superior Court. You can still stand for something and survive. Thanks, Judge Hughes!

  2. CCHP's real accomplishment is the 2015 law signed by Gov Pence that basically outlaws any annexation that is forced where a 65% majority of landowners in the affected area disagree. Regardless of whether HP wins or loses, the citizens of Indiana will not have another fiasco like this. The law Gov Pence signed is a direct result of this malgovernance.

  3. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  4. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  5. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

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