Brandon v. State, No. 674S116

Docket NºNo. 674S116
Citation264 Ind. 177, 340 N.E.2d 756
Case DateFebruary 04, 1976
CourtSupreme Court of Indiana

Page 756

340 N.E.2d 756
264 Ind. 177
Phillip Morris BRANDON, Appellant,
v.
STATE of Indiana, Appellee.
No. 674S116.
Supreme Court of Indiana.
Feb. 4, 1976.
Rehearing Denied March 25, 1976.

[264 Ind. 178]

Page 757

Harriette Bailey Conn, Public Defender, David P. Freund, Deputy Public Defender, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Robert F. Colker, Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Justice.

In July, 1967, following a trial by jury, appellant was convicted of second degree murder. He was sentenced to life imprisonment. In January, 1973, pursuant to Post Conviction Remedy Rule 2, § 1, appellant filed a petition for permission to file a belated motion to correct error. That petition was denied in September, 1973, and this is an appeal from that decision.

Post Conviction Remedy Rule 2, § 1, is available to 'any defendant convicted after a trial or plea of guilty,' where he was convicted before or after the adoption of the Rule. The right to the benefit of a newly-adopted post conviction remedy is not in question. E.g., Frazier v. State, (1975) Ind., 335 N.E.2d 623; Langley v. State, (1971) 256 Ind. 199, 267 N.E.2d 538; State ex rel. Macon v. Orange Circuit Court, (1964) 245 Ind. 269, 195 N.E.2d 352, 198 N.E.2d 229. The trial court will permit the defendant to file a belated motion to correct error, pursuant to Ind. R.P.C. 2, § 1, if

'(a) no timely and adequate motion to correct error was filed for the defendant;

(b) the failure to file a timely motion to correct error was not due to the fault of the defendant; and

(c) the defendant has been diligent in requesting permission to file a belated motion to correct error under this rule.'

Appellant's January, 1973, petition for permission to file was submitted with attached exhibits. The State filed no answer and asserted no legal defenses. On September 19th, after several months of

Page 758

inaction by the State, appellant moved [264 Ind. 179] for summary judgment on his petition, asserting that there was 'no genuine issue (of) material fact.' Trial Rule 56. The State again made no response to the motion. On September 25th, on the basis of appellant's petition for permission and the supporting matter, the trial court denied his motion for summary judgment and also his petition for permission to file. By denying appellant's petition for permission to file on the basis of the pleadings and exhibits without further proceedings, the trial court granted summary judgment for the non-moving State, as Trial Rule 56(B) permits.

The order of the trial court does not state that the trial judge found no genuine issue of material fact. Nor does the order identify the legal basis relied upon in granting summary judgment for the State. The order should include an affirmative finding that there is no genuine issue of material fact and a statement of the legal grounds. Singh v. Interstate Finance of Indiana No. 2, Inc., (1969) 144 Ind.App. 444, 246 N.E.2d 776; Harris v. Young Women's Christian Association of Terre Haute, (1968) 250 Ind. 491, 237 N.E.2d 242. If appellate review is frustrated by the lack of such statements, remand to the trial court is proper. Barron & Holtzoff, Federal Practice and Procedure § 1242, at 139 n. 56.1 (1970 Pocket Part). However, in this case, review is not impossible.

First, we note that appellant appeals the denial of his petition for permission to file (the summary judgment for the State), not the denial of his motion for summary judgment. We note also, that, upon review of a grant of summary judgment, the appellate court has before it the same issues as were before the trial court, that is, (1) is there any issue of material fact; (2) was the law applied correctly. 10 Wright & Miller, Federal Practice and Procedure § 2716 (1973).

To grant or deny a summary judgment, the trial court must take certain steps. Those steps may be described briefly as follows:

[264 Ind. 180] Identify the legal issues;

Identify the nature of the material facts;

Identify the material facts presented by the parties;

Determine whether the material facts presented are in genuine issue, and, if they are, deny summary judgment;

If the material facts presented are not in genuine issue, apply the law and grant or deny summary judgment.

Accordingly, the trial court must first determine what legal issues are presented by the pleadings. In this case, the legal issues are: whether or not (1) a timely motion to correct error was filed, (2) failure to timely was the fault of the defendant, and (3) defendant was diligent in requesting a belated motion.

Second, the court should determine what types of facts would be material to the determination of the issues. A fact is material if it tends to facilitate resolution of any of the issues either for or against the party having the burden of persuasion on that issue. In this case, the following types of facts would be material: (1) a record of the filing of a motion to correct error in the trial court within thirty days of the rendition of the verdict, per former Rule 1--14a; (2) evidence of appellant's awareness or lack of awareness, during the thirty-day period after conviction, of his right to file a motion to correct error in order to preserve appellate rights; and (3) evidence of any acts or knowledge by appellant which indicate purposeful delay in requesting permission to file a belated motion to correct error (that is, abuse of process) or which indicate purposeful attempts to follow the procedures to get appellate review.

Third, the court shouls identify the material facts included in the pleadings and other matter presented by either party. In

Page 759

this case, the material fact presented with regard to a timely filing is that no motion was filed in the trial court within thirty days. With regard to the second issue, whether defendant was at fault for not filing a motion to correct error within thirty days, the evidence shows: In 1966, [264 Ind. 181] when he was fifteen years old, appellant was indicted for first degree murder, in a 1965 homicide. He was tried when he was seventeen years old, and, at trial, he was represented by pauper counsel. Neither at conviction nor at sentencing, in July, 1967, did the trial court inform appellant of his right to file a...

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51 practice notes
  • Judy v. State, No. 580S128
    • United States
    • January 30, 1981
    ...trial court's sentencing decision. Proffitt v. Florida, supra. See Page v. State, (1980) Ind., 410 N.E.2d 1304; Brandon v. State, (1976) 264 Ind. 177, 340 N.E.2d 756; Love v. State, (1971) 257 Ind. 57, 272 N.E.2d Our review of these various constitutional and statutory requirements and our ......
  • City of Fort Wayne v. Cameron, No. 3--275A23
    • United States
    • Indiana Court of Appeals of Indiana
    • June 15, 1976
    ...judgment and the facts asserted by such respondent supported by affidavit must be taken as true.' In Brandon v. State (1976), Ind., 340 N.E.2d 756, 758, the Indiana Supreme Court 'To grant or deny a summary judgment, the trial court must take certain steps. Those steps may be described brie......
  • Brewer v. State, No. 678
    • United States
    • Indiana Supreme Court of Indiana
    • March 6, 1981
    ...sentencing decision. Judy, supra; Proffitt v. Florida, supra; Page v. State, (1980) Ind., 410 N.E.2d 1304; Brandon v. State, (1976) 264 Ind. 177, 340 N.E.2d 756; Love v. State, (1971) 257 Ind. 57, 272 N.E.2d 456. This statute was designed Page 900 to restrict trial courts to the rational ex......
  • Coghill v. Badger, No. 2-379A51
    • United States
    • Indiana Court of Appeals of Indiana
    • April 13, 1981
    ...to determine if there is a genuine issue of material fact and if the trial court correctly applied the law. Brandon v. State (1976), 264 Ind. 177, 340 N.E.2d 756. See also Boswell v. Lyon (1980), Ind.App., 401 N.E.2d 735; Richards v. Goerg Boat & Motors, Inc. (1979), Ind.App., 384 N.E.2d 10......
  • Request a trial to view additional results
51 cases
  • Judy v. State, No. 580S128
    • United States
    • January 30, 1981
    ...trial court's sentencing decision. Proffitt v. Florida, supra. See Page v. State, (1980) Ind., 410 N.E.2d 1304; Brandon v. State, (1976) 264 Ind. 177, 340 N.E.2d 756; Love v. State, (1971) 257 Ind. 57, 272 N.E.2d Our review of these various constitutional and statutory requirements and our ......
  • City of Fort Wayne v. Cameron, No. 3--275A23
    • United States
    • Indiana Court of Appeals of Indiana
    • June 15, 1976
    ...judgment and the facts asserted by such respondent supported by affidavit must be taken as true.' In Brandon v. State (1976), Ind., 340 N.E.2d 756, 758, the Indiana Supreme Court 'To grant or deny a summary judgment, the trial court must take certain steps. Those steps may be described brie......
  • Brewer v. State, No. 678
    • United States
    • Indiana Supreme Court of Indiana
    • March 6, 1981
    ...sentencing decision. Judy, supra; Proffitt v. Florida, supra; Page v. State, (1980) Ind., 410 N.E.2d 1304; Brandon v. State, (1976) 264 Ind. 177, 340 N.E.2d 756; Love v. State, (1971) 257 Ind. 57, 272 N.E.2d 456. This statute was designed Page 900 to restrict trial courts to the rational ex......
  • Coghill v. Badger, No. 2-379A51
    • United States
    • Indiana Court of Appeals of Indiana
    • April 13, 1981
    ...to determine if there is a genuine issue of material fact and if the trial court correctly applied the law. Brandon v. State (1976), 264 Ind. 177, 340 N.E.2d 756. See also Boswell v. Lyon (1980), Ind.App., 401 N.E.2d 735; Richards v. Goerg Boat & Motors, Inc. (1979), Ind.App., 384 N.E.2d 10......
  • Request a trial to view additional results

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