Edward Lee Smith, Sr. v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: October 2, 2019
• Docket: 19A-PC-772
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Oct 02 2019, 9:02 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

APPELLANT PRO SE ATTORNEYS FOR APPELLEE Edward Smith Curtis T. Hill, Jr. New Castle, Indiana Attorney General of Indiana Michael Vo Sherman Certified Legal Intern Evan Matthew Comer Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Edward Lee Smith, Sr., October 2, 2019 Appellant-Petitioner, Court of Appeals Case No. 19A-PC-772 v. Appeal from the Lake Superior Court State of Indiana, The Honorable Kathleen A. Appellee-Respondent Sullivan, Magistrate Trial Court Cause No. 45G01-1806-PC-6

Baker, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-PC-772 | October 2, 2019 Page 1 of 4 [1] Edward Smith appeals the post-conviction court’s dismissal of his petition for

post-conviction relief, arguing that the post-conviction court erroneously failed

to follow the prison mailbox rule. Finding no error, we affirm.

[2] On June 30, 2016, a jury found Smith guilty of Class C felony child molesting

and two counts of Class C criminal confinement. This Court later affirmed

Smith’s convictions. Smith v. State, 45A03-1609-CR-1974 (Ind. Ct. App. Mar.

15, 2017). On June 5, July 17, and October 30, 2018, Smith, pro se, filed three

different amended petitions for post-conviction relief, alleging each time that he

was denied the effective assistance of trial counsel. On November 2, 2018, the

post-conviction court ordered that Smith include findings of fact and

conclusions of law in his petition by December 2, 2018.

[3] The post-conviction court then granted, in part, Smith’s motion for enlargement

of time on January 7, 2019. The new filing deadline was set for January 18,

2019. Smith once again moved for an enlargement of time, which the post-

conviction court granted and set the final filing deadline for February 8, 2019.

After Smith failed to file the required documents, the post-conviction court

dismissed with prejudice Smith’s petition for post-conviction relief on February

20, 2019. Smith finally submitted his findings of fact and conclusions of law on

February 22, 2019, without any explanation for the delay. Smith now appeals.

[4] Smith’s sole argument on appeal is that the post-conviction court erroneously

failed to follow the prison mailbox rule. A post-conviction petitioner bears the

burden of establishing grounds for relief by a preponderance of the evidence.

Court of Appeals of Indiana | Memorandum Decision 19A-PC-772 | October 2, 2019 Page 2 of 4 Henley v. State, 881 N.E.2d 639, 643 (Ind. 2008). To prevail on appeal from the

denial of post-conviction relief, the petitioner must show that the evidence as a

whole leads unerringly and unmistakably to a conclusion opposite that reached

by the post-conviction court. Id. at 643-44.

[5] The prison mailbox rule says that a “pro se incarcerated litigant who delivers [a

document] to prison officials for mailing on or before its due date accomplishes

a timely filing.” Dowell v. State, 922 N.E.2d 605, 607 (Ind. 2010). However, “a

pro se prisoner [must] provide reasonable, legitimate, and verifiable

documentation supporting a claim that a document was timely submitted to

prison officials for mailing.” Id. “Where a prisoner’s proof is lacking, however,

the opposite result obtains.” Id. at 608.

[6] Here, Smith points to no reasonable, legitimate, or verifiable documentation

proving that he had submitted the required documents before the final February

8, 2019, deadline. Rather, Smith proffered only “a copy of the remittance slip

Dated February 7th 2018 and secondly, the Certificate of Service also dated

February 7th 2018.” Appellant’s Br. p. 5. Indiana courts have, in the past,

recognized sworn affidavits from prison officials, legal mail logs from law

librarians, and letterhead statements as examples of reasonable, legitimate, or

verifiable documents that invoke the prison mailbox rule. See Dowell, 922

N.E.2d at 608; see also Harkins v. Westmeyer, 116 N.E.3d 461, 469-70 (Ind. Ct.

App. 2018). Because Smith has not provided any such documentation, we find

that Smith failed to submit his findings of fact and conclusions of law on time.

Court of Appeals of Indiana | Memorandum Decision 19A-PC-772 | October 2, 2019 Page 3 of 4 [7] Moreover, it is clear that the post-conviction court exhibited patience and gave

Smith multiple opportunities to file his findings of fact and conclusions of law,

all to no avail. Smith failed to submit documents necessary for post-conviction

proceedings, and after these delays, the post-conviction court reasonably

dismissed his petition. And, any argument that the post-conviction court should

have shown Smith leniency because of his pro se status is without merit. Pro se

litigants are held to the same standards as trained counsel and must follow all

procedural rules. Wright v. State, 772 N.E.2d 449, 463 (Ind. Ct. App. 2002). In

sum, there was no error.

[8] The judgment of the post-conviction court is affirmed.

Kirsch, J., and Crone, J., concur.

Court of Appeals of Indiana | Memorandum Decision 19A-PC-772 | October 2, 2019 Page 4 of 4