“If an issue was available on direct appeal but not litigated, it is deemed waived.”
How later courts described this case
- “If an issue was available on direct appeal but not litigated, it is deemed waived.”
- stating that an issue known but not raised on direct appeal is waived
Written by the judges who cited it.
The opinion
MEMORANDUM DECISION
May 22 2015, 9:25 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any 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
Dedric Thompson Gregory F. Zoeller
Correctional Industrial Facility Attorney General of Indiana
Pendleton, Indiana
Larry D. Allen
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Dedric Thompson, May 22, 2015
Appellant-Petitioner, Court of Appeals Case No.
89A01-1408-PC-359
v. Appeal from the Wayne Superior
Court
State of Indiana, Lower Court Cause No.
89D03-1401-PC-1
Appellee-Respondent.
The Honorable Gregory A. Horn,
Judge
Pyle, Judge.
Statement of the Case
[1] Appellant/Petitioner, Dedric Thompson (“Thompson”), appeals the post-
conviction court’s order granting Appellee/Respondent, the State’s, motion for
Court of Appeals of Indiana | Memorandum Decision 89A01-1408-PC-359 | May 22, 2015 Page 1 of 8
summary disposition of his petition for post-conviction relief and denying his
petition. In his petition for post-conviction relief, Thompson requested relief
from his convictions for Class D felony operating a vehicle as a habitual traffic
violator and Class D felony operating a vehicle while intoxicated, as well as
relief from his adjudication as a habitual substance offender, on the basis that
the trial court had not possessed subject matter jurisdiction over his case. The
post-conviction court granted the State’s motion for summary disposition and
denied Thompson’s petition, concluding that the trial court had possessed
subject matter jurisdiction. On appeal, Thompson challenges the post-
conviction court’s conclusions on the merits. However, we need not address
his arguments because we conclude that he waived his claims and could not
raise them in his petition for post-conviction relief. Accordingly, we affirm the
post-conviction court’s denial of his petition.
We affirm.
Issue
Whether the post-conviction court erred when it denied Thompson’s
petition for post-conviction relief.
Facts
[2] On March 15, 2012, the State charged Thompson with Count I, Class D felony
operating a vehicle as a habitual traffic violator; Count II, Class D felony
operating a vehicle while intoxicated; Count III, Class D felony operating a
vehicle with an alcohol concentration equivalent of .08; and an habitual
substance offender enhancement. On June 28, 2013, the trial court held a jury
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trial, and the jury found Thompson guilty as charged. On July 25, 2013, the
trial court sentenced Thompson to two and one-half (2½) years for Count I and
two and one-half (2½) years for Count II, enhanced by seven (7) years for the
habitual offender enhancement.1 The trial court also suspended Thompson’s
driving privileges for life.
[3] Subsequently, Thompson filed a direct appeal. However, he later moved to
dismiss the appeal, and this Court granted his motion and dismissed the appeal
with prejudice. He later attempted to file another appeal, but this Court
dismissed the appeal as untimely.
[4] On January 21, 2014, Thompson filed a pro se2 petition for post-conviction
relief, arguing that the trial court had lacked subject matter jurisdiction over his
criminal proceedings. He alleged that he had challenged subject matter
jurisdiction at the trial level on March 5, 2013; March 14, 2013; and June 25,
1
It is apparent that the trial court did not enter a conviction on Count III.
2
It appears that Thompson filed his petition pro se. “Dedric Thompson-Bey©” filed an appearance on
behalf of Thompson (identified as “DEBTOR, DEDRIC THOMPSON©, ENS LEGIS”). In the context of
the record it appears that Dedric Thompson-Bey© is Thompson. (App. 70). In his motion for summary
judgment, Thompson-Bey© qualified his signature block, stating: “Dedric Thompson-Bey©, Petitioner,
Secured Party/Creditor, A Natural Person, In Propria Persona, Sui Heredes, Sui Juris (not to be confused
with nor substituted with Pro Se); and not a Statutory Person.” (App. 127). However, if Thompson does not
wish to be viewed as a person—and therefore pro se—we must still affirm the post-conviction court’s denial
of his post-conviction petition because he has not presented any legal authority for the proposition that any
entity other than a natural “person” may file a petition for post-conviction relief. See Ind. Post-Conviction
Rule 1(1)(a) (stating that a petition for post-conviction relief is available for “[a]ny person who has been
convicted of, or sentenced for, a crime . . . ”); see also State v. Ziliak, 464 N.E.2d 929, 930 (explaining that,
even though corporations are included within the definition of “person” and criminal statutes all begin with
“a person who[,]” corporations are not subject to all criminal statutes). Further, Thompson was convicted as
a natural person and, therefore, may only appeal that conviction as such.
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2013. The State filed its response to Thompson’s petition on March 3, 2014. It
objected to the petition on the grounds that: (1) the signature on the petition
was not verified by a person authorized to administer oaths; (2) the petition
failed to state facts upon which relief could be granted; and (3) the trial court
did have subject matter jurisdiction over Thompson’s criminal proceedings.
[5] Ten days later, on March 13, 2014, Thompson filed a motion for summary
judgment, asserting that there was no genuine issue of material fact because
“without a contract requiring his performance[,] the trial court [was] without
subject matter jurisdiction.” (App. 80) (emphasis removed from original). In
support of this argument, Thompson listed the elements required for the
formation of a contract.
[6] The post-conviction court scheduled a summary judgment hearing for July 29,
2014, but on April 22, 2014, Thompson filed a “Notice of Non-Response and
Non-Opposition to Summary Judgment,” requesting again that the post-
conviction court summarily determine that there was no genuine issue of
material fact because the State had not responded to his motion for summary
judgment as it was required to do within thirty days pursuant to the post-
conviction court’s orders. The next day, he also filed a motion for a default
judgment under Indiana Trial Rule 55. Although the State did not file a
response to Thompson’s motions, it filed a motion for summary disposition on
May 16, 2014, arguing that Thompson had failed to raise a genuine issue of
material fact and re-asserting that the trial court had possessed subject matter
jurisdiction over Thompson’s criminal case.
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[7] On July 29, 2014, the post-conviction court held a hearing on Thompson’s
petition for post-conviction relief and on all of the outstanding motions.
However, it terminated the hearing after Thompson refused to present any
argument or evidence regarding his motions or petition. The next day, on July
30, 2014, it issued findings of fact and conclusions thereon granting the State’s
motion for summary disposition, denying Thompson’s summary judgment and
default judgment motions, and denying Thompson’s petition for post-
conviction relief. It concluded that the trial court had possessed subject matter
jurisdiction over Thompson’s criminal proceedings. Thompson now appeals.
Decision
[8] On appeal, Thompson argues that the post-conviction court erred when it
denied his petition for post-conviction relief. When a petitioner appeals the
denial of post-conviction relief, he appeals from a negative judgment. Allen v.
State, 791 N.E.2d 748, 752 (Ind. Ct. App. 2003), trans. denied. Consequently,
we may not reverse the judgment of the post-conviction court unless the
petitioner demonstrates that the evidence “‘as a whole, leads unerringly and
unmistakably to a decision opposite that reached by the post-conviction court.’”
Id. (quoting Curry v. State, 674 N.E.2d 160, 161 (Ind. 1996)). We accept the
post-conviction court’s findings of fact unless they are clearly erroneous, but we
do not give deference to the court’s conclusions of law. Id.
[9] Post-conviction proceedings afford petitioners a limited opportunity to raise
issues that were unavailable or unknown at trial and on direct appeal. Id. Such
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proceedings are not “super appeals” through which convicted persons can raise
issues that they failed to raise at trial or on direct appeal. Id. Post-conviction
proceedings are civil in nature, and petitioners bear the burden of proving their
grounds for relief by a preponderance of the evidence. Id.
[10] In his petition, Thompson requested post-conviction relief on the basis that the
trial court had not possessed subject matter jurisdiction over his criminal case.
He contests the trial court’s subject matter jurisdiction in several respects, but
we conclude that he waived all of these arguments by failing to raise them on
direct appeal.
[11] On post-conviction review, a petitioner may only raise issues that were
unknown and unavailable at the time of the original trial or direct appeal, aside
from claims of ineffective assistance of counsel. Stephenson v. State, 864 N.E.2d
1022, 1028 (Ind. 2007). The issue of subject matter jurisdiction concerns
whether or not the particular court has jurisdiction over the general class of
actions to which the particular case belongs. K.S. v. State, 849 N.E.2d 538, 542
(Ind. 2006). Subject matter jurisdiction must be derived from the Constitution
or statute and cannot be conferred by the consent or agreement of the parties.
Traux v. State, 856 N.E.2d 116, 122 (Ind. Ct. App. 2006). Thus, the issue of
whether or not the trial court had subject matter jurisdiction was available to
Thompson at the time of trial. In fact, it is undisputed that Thompson objected
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to subject matter jurisdiction at trial.3 As a result, Thompson should have
challenged the subject matter jurisdiction on direct appeal, if at all. Ritchie v.
State, 875 N.E.2d 706, 712 n.1 (Ind. 2007) (stating that an issue known but not
raised on direct appeal is waived), reh’g denied; see also Smith v. State, 774 N.E.2d
1021, 1022 (Ind. Ct. App. 2002) (“If an issue was available on direct appeal but
not litigated, it is deemed waived.”). Because Thompson moved to dismiss his
appeal, he failed to litigate the issue of subject matter jurisdiction on appeal.
Therefore, he waived his arguments on the issue and could not raise them in a
petition for post-conviction relief. See Smith, 774 N.E.2d at 1022.
[12] Nevertheless, Thompson seems to argue that, regardless of whether his petition
had any merit, the post-conviction court should have granted him a default
judgment because the State did not file a response to his motion for summary
judgment. We disagree. A trial court is not required to grant an unopposed
summary judgment, which is essentially what Thompson requests. Murphy v.
Curtis, 930 N.E.2d 1228, 1234 (Ind. Ct. App. 2010), trans. denied. Summary
judgment is awarded on the merits of the motion, not on technicalities. Id.
[13] Further, the only effect of a default judgment on a petition for post-conviction
relief is that the facts as alleged in the petition are deemed admitted. Shoulders
3
The State claims in its brief that Thompson objected to the trial court’s subject matter jurisdiction, but
Thompson did not offer the trial transcript as an exhibit in his post-conviction proceedings. Nevertheless, it
is irrelevant whether Thompson did in fact object at trial because the issue of whether not the trial court
possessed subject matter jurisdiction was available at trial and on direct appeal. See Stephenson, 864 N.E.2d at
1028.
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v. State, 462 N.E.2d 1034, 1035 (Ind. 1984). The court must still determine as a
matter of law whether the facts alleged in the petition entitle the petitioner to
relief. Id. Here, we have determined that the facts in Thompson’s petition did
not entitle him to relief. Accordingly, we also conclude that the post-conviction
court did not abuse its discretion in granting the State’s motion for summary
disposition or err in denying Thompson’s petition for post-conviction relief.
Affirmed.
Crone, J., and Brown, J., concur.
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