MEMORANDUM DECISION FILED
Sep 27 2017, 10:56 am
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be CLERK
Indiana Supreme Court
regarded as precedent or cited before any Court of Appeals
and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
Timothy Bennington Curtis T. Hill, Jr.
Carlisle, Indiana Attorney General of Indiana
George P. Sherman
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Timothy Bennington, September 27, 2017
Appellant-Petitioner, Court of Appeals Case No.
55A01-1703-PC-708
v. Appeal from the
Morgan Superior Court
State of Indiana, The Honorable
Appellee-Respondent. Brian H. Williams, Judge
Trial Court Cause No.
55D02-0810-PC-423
Kirsch, Judge.
[1] Timothy Bennington (“Bennington”), pro se, appeals following the post-
conviction court’s denial of his motion for relief from judgment under Indiana
Court of Appeals of Indiana | Memorandum Decision 55A01-1703-PC-708 | September 27, 2017 Page 1 of 6
Trial Rule 60(B). On appeal, Bennington raises the following restated issue:
whether the post-conviction court abused its discretion when it did not hold a
hearing in 2010 prior to dismissing Bennington’s petition for post-conviction
relief.
[2] We affirm.
Facts and Procedural History
[3] On March 16, 2007, Bennington pleaded guilty to Class A felony voluntary
manslaughter with a deadly weapon for the act of stabbing his father-in-law
forty-five times with a knife in the presence of Bennington’s wife, son, and
daughter. Bennington v. State, No. 55A05-0707-CR-364, 2008 WL 2042802 at
*1 (Ind. Ct. App. May 14, 2008). On June 1, 2007, the trial court sentenced
Bennington to fifty years in prison. Id. On direct appeal, he challenged his
sentence, which this court affirmed by unpublished decision. Id. at *3.
[4] On October 2, 2008, Bennington, pro se, filed a petition for post-conviction
relief (“P-CR”) and, thereafter, obtained appointed counsel.1 Two years later,
on October 26, 2010, the P-CR court issued a notice of withdrawal (“the
Notice”), informing the parties that the public defender had withdrawn from
1
Bennington’s P-CR petition alleged the following grounds for relief: (1) Bennington’s plea was given no
consideration during sentencing; (2) Bennington’s attorney provided ineffective assistance of counsel by
advising Bennington that if he pleaded guilty, he would not get the maximum sentence; (3) the trial court
abused its discretion by not recognizing mitigating factors; (4) the trial court abused its discretion by
excluding medical records regarding prescribed medications; and (5) the trial judge abused his discretion
when he did not recuse himself, even though he knew the victim.
Court of Appeals of Indiana | Memorandum Decision 55A01-1703-PC-708 | September 27, 2017 Page 2 of 6
the case in accordance with Post-Conviction Rule 1, Section 9(C).2 Appellant’s
App. Vol. II at 11. The Notice ordered Bennington to respond to the P-CR court
within thirty days regarding whether he planned to dismiss the P-CR petition
without prejudice or to proceed without counsel. In its December 6, 2010 order
of dismissal (“Dismissal Order”), the P-CR court explained, “As of 12-6-2010,
[Bennington] has failed to respond to the Court’s Notice, and has failed to elect
whether to dismiss the petition, or proceed in forma pauperis.” Id. at 12. The
P-CR court also said, “Any future request by [Bennington] for a second or
successive Petition for Post-Conviction Relief must comply with the
requirements of Rule P.C. 1, Section 12 (Successive Petitions).” 3 Id.
[5] Six and a half years later, on March 6, 2017, Bennington filed a Motion for
Relief from Judgment pursuant to Trial Rule 60(B), alleging that the P-CR court
erred by dismissing his 2010 P-CR petition without first holding a hearing
2
We note that there is no copy of appointed counsel’s “Withdrawal of Appearance” in the record before us.
Post-Conviction Rule 1, Section 9(C), provides:
(c) Counsel shall confer with petitioner and ascertain all grounds for relief under this rule, amending the petition if
necessary to include any grounds not included by petitioner in the original petition. In the event that counsel
determines the proceeding is not meritorious or in the interests of justice, before or after an evidentiary hearing is
held, counsel shall file with the court counsel’s withdrawal of appearance, accompanied by counsel’s certification
that 1) the petitioner has been consulted regarding grounds for relief in his pro se petition and any other possible
grounds and 2) appropriate investigation, including but not limited to review of the guilty plea or trial and
sentencing records, has been conducted. Petitioner shall be provided personally with an explanation of the reasons
for withdrawal. Petitioner retains the right to proceed pro se, in forma pauperis if indigent, after counsel
withdraws.
(Emphasis added).
3
While the P-CR court did not say whether the dismissal was with or without prejudice, the latter seems
more likely in light of the fact that the court required any future post-conviction relief to comply with the
requirements of a successive petition.
Court of Appeals of Indiana | Memorandum Decision 55A01-1703-PC-708 | September 27, 2017 Page 3 of 6
pursuant to Trial Rule 41(E). Id. at 13-15. On March 7, 2017, the P-CR court
denied Bennington’s motion, explaining: “[Bennington] did not timely present
this claim at the time his case was disposed [sic]. [Bennington] cites caselaw
established years after his case was disposed of, and [Bennington] did not
timely appeal or otherwise contest the Court’s action at the time.” Id. at 16.
Bennington now appeals.
Discussion and Decision
[6] Bennington contends that the P-CR court erred in 2010 by summarily
dismissing his P-CR petition. Appellant’s Br. at 4. Specifically, he challenges the
P-CR court’s failure to comply with Indiana Trial Rule 41(E)’s requirement that
a hearing be held prior to dismissal.4 Appellant’s Br. at 7-8. Bennington,
however, makes no claim that the P-CR court abused its discretion in 2017
when it denied his Trial Rule 60(B) motion for relief from judgment. The
propriety of the 2017 order is the only matter available for appeal, and
accordingly, we address that issue.
4
Indiana Trial Rule 41(E) provides:
(E) Failure to prosecute civil actions or comply with rules. 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.
Court of Appeals of Indiana | Memorandum Decision 55A01-1703-PC-708 | September 27, 2017 Page 4 of 6
[7] The decision of whether to grant a motion under Trial Rule 60(B) is left to the
equitable discretion of the trial court and is reviewable only for abuse of
discretion. State v. Collier, 61 N.E.3d 265, 268 (Ind. 2016). “‘An abuse of
discretion occurs if the decision is clearly against the logic and effect of the facts
and circumstances before the court, or the reasonable, probable, and actual
deductions to be drawn therefrom.’” Id. (quoting McElfresh v. State, 51 N.E.3d
103, 107 (Ind. 2016)). The reviewing court does not reweigh the evidence. Id.
[8] Our court has consistently held that Trial Rule 60(B) cannot be used as a
substitute for a direct appeal or to revive an expired attempt to appeal. State v.
Mooney, 51 N.E.3d 281, 284 (Ind. Ct. App. 2016); J.A. v. State, 904 N.E.2d 250,
254 (Ind. Ct. App. 2009), trans. denied.
The general rule is that one must appeal a judgment within the
time allowed and not sit idly by, letting the time to appeal expire,
and thereafter filing a Rule 60(B) motion in an attempt to revive
his remedy of appeal. . . Relief is only properly provided under
Rule 60(B) after a failure to perfect an appeal when there is some
additional fact present justifying extraordinary relief which allows
a trial court to invoke its equitable powers to do justice. The
additional factors available for providing relief are those found in
subsections (1) through (8).
William F. Harvey, 4 Ind. Prac. 222 (3d ed. 2003) (emphasis in original). “In
other words, Rule 60(B) does not provide for an end-run around the usual
appellate process.” See, e.g., Vazquez v. Dulios, 505 N.E.2d 152, 154 (Ind. Ct.
App. 1987).
Court of Appeals of Indiana | Memorandum Decision 55A01-1703-PC-708 | September 27, 2017 Page 5 of 6
[9] Here, in support of his Rule 60(B) motion, Bennington cited to the P-CR court’s
failure to hold a hearing prior to the 2010 dismissal of his P-CR petition. That
evidence was well known to Bennington within thirty days after the entry of the
2010 Dismissal Order. As such, if Bennington had a problem with the
Dismissal Order, in part or in whole, he could have and should have appealed
that order. He did not. Thus, Rule 60(B) was not a procedural path available
to Bennington on this record. On March 17, 2017, the P-CR court denied
Bennington’s motion for relief from judgment under Rule 60(B), explaining,
“[Bennington] did not timely present this claim at the time his case was
disposed [sic]. [Bennington] cites caselaw established years after his case was
disposed of, and [Bennington] did not timely appeal or otherwise contest the
Court’s action at the time.” Id. at 16. The P-CR court did not abuse its
discretion when it denied Bennington’s motion for relief under Rule 60(B).
[10] Affirmed.
[11] Najam, J., and Brown, J., concur.
Court of Appeals of Indiana | Memorandum Decision 55A01-1703-PC-708 | September 27, 2017 Page 6 of 6