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. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

  2. Seventh Circuit Court Judge Diane Wood has stated in “The Rule of Law in Times of Stress” (2003), “that neither laws nor the procedures used to create or implement them should be secret; and . . . the laws must not be arbitrary.” According to the American Bar Association, Wood’s quote drives home this point: The rule of law also requires that people can expect predictable results from the legal system; this is what Judge Wood implies when she says that “the laws must not be arbitrary.” Predictable results mean that people who act in the same way can expect the law to treat them in the same way. If similar actions do not produce similar legal outcomes, people cannot use the law to guide their actions, and a “rule of law” does not exist.

  3. Linda, I sure hope you are not seeking a law license, for such eighteenth century sentiments could result in your denial in some jurisdictions minting attorneys for our tolerant and inclusive profession.

  4. Mazel Tov to the newlyweds. And to those bakers, photographers, printers, clerks, judges and others who will lose careers and social standing for not saluting the New World (Dis)Order, we can all direct our Two Minutes of Hate as Big Brother asks of us. Progress! Onward!

  5. My daughter was taken from my home at the end of June/2014. I said I would sign the safety plan but my husband would not. My husband said he would leave the house so my daughter could stay with me but the case worker said no her mind is made up she is taking my daughter. My daughter went to a friends and then the friend filed a restraining order which she was told by dcs if she did not then they would take my daughter away from her. The restraining order was not in effect until we were to go to court. Eventually it was dropped but for 2 months DCS refused to allow me to have any contact and was using the restraining order as the reason but it was not in effect. This was Dcs violating my rights. Please help me I don't have the money for an attorney. Can anyone take this case Pro Bono?

ADVERTISEMENT