Timothy Bennington v. State of Indiana (mem. dec.)
55A01-1703-PC-708
| Ind. Ct. App. | Sep 27, 2017Background
- In 2007 Timothy Bennington pleaded guilty to Class A felony voluntary manslaughter and was sentenced to 50 years. He unsuccessfully appealed his sentence.
- Bennington filed a pro se petition for post-conviction relief (P-CR) on October 2, 2008 and later received appointed counsel.
- On October 26, 2010 the P-CR court issued a notice that counsel had withdrawn under Post-Conviction Rule 1 §9(C) and ordered Bennington to state within 30 days whether he would dismiss the petition or proceed without counsel.
- Bennington did not respond, and on December 6, 2010 the P-CR court dismissed the P-CR petition and warned that any future petition must meet the successive-petition requirements.
- In March 2017 Bennington filed a Trial Rule 60(B) motion arguing the 2010 dismissal was improper because the court failed to hold a Trial Rule 41(E) hearing; the P-CR court denied relief as untimely and Bennington appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the P-CR court abused its discretion by denying Bennington’s T.R. 60(B) motion | Bennington: 2010 dismissal was improper because the court failed to hold a T.R. 41(E) hearing; relief under 60(B) is warranted | State: 60(B) cannot substitute for a direct appeal or revive an expired appeal; Bennington knew of the alleged error in 2010 and did not timely appeal | The trial court did not abuse its discretion; 60(B) relief was unavailable because Bennington failed to timely challenge the 2010 order |
Key Cases Cited
- State v. Collier, 61 N.E.3d 265 (Ind. 2016) (standard for reviewing trial court’s discretionary denial of Rule 60(B) relief)
- McElfresh v. State, 51 N.E.3d 103 (Ind. 2016) (defining abuse-of-discretion standard)
- State v. Mooney, 51 N.E.3d 281 (Ind. Ct. App. 2016) (Rule 60(B) cannot replace a direct appeal)
- J.A. v. State, 904 N.E.2d 250 (Ind. Ct. App. 2009) (same principle regarding Rule 60(B) limitations)
- Vazquez v. Dulios, 505 N.E.2d 152 (Ind. Ct. App. 1987) (Rule 60(B) is not an end-run around the appellate process)