FILED
Jan 31 2019, 7:28 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
J. Michael Woods Curtis T. Hill, Jr.
Stracci Criminal Defense, P.C. Attorney General
Merrillville, Indiana
Angela N. Sanchez
Assistant Section Chief,
Criminal Appeals
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jamil Michael Pirant, January 31, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-1225
v. Appeal from the Lake Superior
Court
State of Indiana, The Honorable Samuel L. Cappas,
Appellee-Plaintiff Judge
Trial Court Cause Nos.
45G04-0905-MR-4
45G04-0905-FA-16
Crone, Judge.
Court of Appeals of Indiana | Opinion 18A-CR-1225 | January 31, 2019 Page 1 of 7
Case Summary
[1] In 2008, the State initiated juvenile delinquency referrals against fifteen-year-old
Jamil Michael Pirant for committing acts amounting to murder and class A
felony attempted murder if committed by an adult. He was waived to adult
court, where he pled guilty to murder while perpetrating a robbery and
attempted murder. Nearly a decade later, he filed a motion to set aside his
convictions pursuant to Indiana Trial Rule 60(B), claiming that the adult court
lacked subject matter jurisdiction because he received ineffective assistance of
counsel during his waiver hearing. The trial court denied his motion, and we
affirm.
Facts and Procedural History
[2] The facts as stipulated in conjunction with Pirant’s plea agreement are as
follows. In November 2007, fifteen-year-old Pirant and some friends agreed to
rob and “take care of” Dominique Keesee. Appellant’s App. Vol. 3 at 29.
They forced their way into Keesee’s home, ordered him at gunpoint to open his
safe, stole marijuana and other personal property, and shot him until he was
dead. Less than two weeks later, Pirant shot Patrick Goodman with a .22
caliber revolver during a conversation on an East Chicago street. Goodman
survived.
[3] In 2008, the State filed juvenile delinquency petitions alleging that Pirant
committed acts amounting to murder and class A felony attempted murder if
committed by an adult. In 2009, the State filed petitions to waive Pirant to
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adult court in both causes, which the juvenile court granted following a hearing,
at which he was represented by counsel (“waiver counsel”).
[4] In May 2009, the State charged Pirant with murder in cause 45G04-0905-MR-4
(“Cause 4”) and subsequently amended the information to include counts of
murder in the perpetration of a robbery and class B felony robbery. The State
charged Pirant with class A felony attempted murder in cause 45G04-0905-FA-
16 (“Cause 16”). Pirant was represented by the same counsel in adult court
(“trial counsel”). In August 2009, Pirant entered into a plea agreement
whereby he pled guilty to murder in the perpetration of a robbery in Cause 4
and attempted murder in Cause 16, in exchange for the dismissal of the
remaining charges in Cause 4. Pursuant to the agreement, Pirant was to
provide testimony at the trials of his friends. The plea agreement fixed his
aggregate sentence at forty-five years. The factual basis was stipulated, and the
trial court took the matter under advisement pending a hearing for formal
acceptance and sentencing. Pirant’s counsel moved to continue the hearing,
which the trial court granted. Before the acceptance and sentencing hearing,
Pirant was called to testify at the trial of one of his friends and refused. Trial
counsel moved to withdraw, and Pirant moved to withdraw his guilty plea.
The trial court denied both motions, accepted the plea agreement, and
sentenced Pirant accordingly.
[5] In 2011, Pirant filed a petition for post-conviction relief (“PCR”), in which he
raised ineffective assistance of trial counsel during the proceedings in adult
court and trial court error concerning his motion to withdraw his guilty plea.
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The post-conviction court denied Pirant’s petition following a hearing, and
Pirant filed a notice of appeal. In 2013, this Court dismissed his appeal with
prejudice after he failed to file an appellant’s brief.
[6] In 2018, Pirant filed a motion to vacate his convictions pursuant to Trial Rule
60(B)(6). The trial court denied Pirant’s motion, finding that he filed the
motion “years beyond what might be deemed ‘within a reasonable time.’”
Appealed Order at 1. Pirant filed a motion to correct error, which the trial
court also denied. He now appeals. Additional facts will be provided as
necessary.
Discussion and Decision
[7] Pirant contends that the trial court erred in denying his motion to set aside his
convictions pursuant to Trial Rule 60(B)(6). A ruling on a Trial Rule 60(B)
motion is left to the trial court’s sound discretion. State v. Willits, 773 N.E.2d
808, 811 (Ind. 2002). On review, we will reverse only if the trial court abused
that discretion. Id. An abuse of discretion occurs if the trial court’s decision is
clearly against the logic and effect of the facts and circumstances before it or if it
misinterpreted the law. Id. We may affirm on any basis supported by the
record. State v. Chavez, 956 N.E.2d 709, 712 (Ind. Ct. App. 2011).
[8] Indiana Trial Rule 60(B)(6) provides that the trial court may relieve a party
from judgment where “the judgment is void[.]” Trial Rule 60(B) specifies that
“[t]he motion shall be filed within a reasonable time for reasons (5), (6), (7), and
(8).” Pirant claims that his motion was not subject to the “reasonable time”
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rule because it was based on a lack of subject matter jurisdiction, which, he
maintains, made his waiver to adult court void. See Downham v. Wagner, 408
N.E.2d 606, 611 (Ind. Ct. App. 1980) (lack of subject matter jurisdiction may be
raised at any time before final decision, and where apparent, trial court must
raise issue sua sponte if party does not raise it); see also Tapia v. Heavner, 648
N.E.2d 1202, 1205 (Ind. Ct. App. 1995) (when court lacks subject matter
jurisdiction, any action it takes is void).
[9] Pirant’s case does not present a classic subject matter jurisdiction challenge.
Instead, he argues that the trial court lacked subject matter jurisdiction to hear
his case because the waiver hearing in the juvenile court was flawed. The flaw,
he asserts, is that waiver counsel provided ineffective assistance during that
hearing.1 In its order denying Pirant’s Trial Rule 60(B) motion, the trial court
recognized that Pirant had already “litigated an ineffective assistance claim [as
to trial counsel] and that he now raises another claim of ineffectiveness [as to
waiver counsel] as the core of a T.R. 60(B) motion.” Appealed Order at 1.
1
Pirant relies on Gingerich v. State as support for his argument that he is now entitled to challenge alleged
defects during juvenile waiver proceedings after entering a guilty plea and being sentenced in adult court.
979 N.E.2d 694, 703-06 (Ind. Ct. App. 2012), trans. denied (2013). In Gingerich, a juvenile murder defendant
challenged on direct appeal of his adult court conviction certain actions by the juvenile court during waiver
proceedings, i.e., the denial of a continuance that allegedly resulted in denying him a full and fair opportunity
to prepare for the waiver hearing. Id. at 705-06. Another panel of this Court held that Gingerich did not
waive the right to appeal the alleged juvenile court error by pleading guilty in adult court. Id. at 712. We
find Gingerich distinguishable, as it addressed the availability of the alleged error for direct appeal. In contrast,
here, Pirant’s appeal comes nearly a decade after his waiver and subsequent plea agreement and more than
six years after his first PCR petition.
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[10] We believe that Pirant’s motion is essentially a claim for post-conviction relief
and should have been filed as such. Indiana Post-Conviction Rule 1 § 1(b)
states that the rule “takes the place of all other common law, statutory, or other
remedies heretofore available for challenging the validity of the conviction or
sentence and it shall be used exclusively in place of them.” (Emphasis added.) In
other words, “[g]enerally, our Trial Rules govern procedure and practice in civil
cases only …. [and our] Post-Conviction Rules … facilitate review of criminal
convictions and sentences.” Van Meter v. State, 650 N.E.2d 1138, 1138 (Ind.
1995). “Criminal defendants may not circumvent these procedures by seeking
remedies under the civil law.” Id.2 Post-Conviction Rule 1 § 12(b) allows a
petitioner to file a request for a successive PCR petition, subject to the PCR
court’s authorization, where “the petitioner establishes a reasonable possibility
that [he] is entitled to post-conviction relief.”
[11] Pirant correctly submits that he is not attempting to relitigate a claim that was
dismissed with prejudice by this Court, as his current claim of ineffectiveness
involves the performance of his waiver counsel in the juvenile court as opposed
to the ineffectiveness of trial counsel during plea negotiations. Even so, he was
required to raise any collateral challenges to his convictions through post-
conviction proceedings, meaning that he is limited to filing a request for a
2
In J.W. v. State, No. 19S-JV-12 2019 WL 140041 (Ind. Jan. 9, 2019), our supreme court, noting that PCR
proceedings apply only to adult criminal convictions, held that “Trial Rule 60 is an appropriate avenue
through which a juvenile must raise any and all claims premised on the illegality of an agreed delinquency
adjudication.” Id. at *4. J.W. is distinguishable because here, Pirant seeks to vacate his convictions entered
after he pled guilty in adult court, and as such, must raise his claims through PCR proceedings. Ind. Post-
Conviction Rule 1 § 1(b); Van Meter, 650 N.E.2d at 1138.
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successive PCR petition, subject to the parameters and procedures outlined in
Post-Conviction Rule 1 §§ 8 and 12.3 Because Pirant was required to raise his
collateral challenge to his convictions through post-conviction proceedings, the
trial court acted within its discretion in denying his Trial Rule 60(B) motion to
vacate them. Accordingly, we affirm the trial court’s denial, without prejudice
to Pirant’s ability to pursue relief subject to the rules and procedures governing
successive PCR petitions.
[12] Affirmed.
Vaidik, C.J., and Mathias, J., concur.
3
Post-Conviction Rule 1 § 8 states,
All grounds for relief available to a petitioner must be raised in his original petition. Any ground
finally adjudicated on the merits or not so raised and knowingly, voluntarily and intelligently
waived in the proceeding that resulted in the conviction or sentence, or in any other proceeding
the petitioner has taken to secure relief, may not be the basis for a subsequent petition, unless
the court finds a ground for relief asserted which for sufficient reason was not asserted or was
inadequately raised in the original petition.
(Emphasis added.) We note that the issue of ineffective assistance of waiver counsel was available when
Pirant filed his 2011 PCR petition.
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