Court of Appeals of Indiana | Memorandum Decision 35A05-1705-PC-1058 | December 27, 2017 Page 1 of 8

MEMORANDUM DECISION

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

Anthony W. Smith

Bunker Hill, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr. 

Attorney General of Indiana

Angela N. Sanchez

Supervising Deputy Attorney 

General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Anthony W. Smith,

Appellant-Petitioner,

v.

State of Indiana,

Appellee-Respondent.

December 27, 2017

Court of Appeals Case No.

35A05-1705-PC-1058

Appeal from the Huntington 

Circuit Court

The Honorable Thomas M. Hakes

Trial Court Cause No.

35C01-1511-PC-24

Najam, Judge.
Court of Appeals of Indiana | Memorandum Decision 35A05-1705-PC-1058 | December 27, 2017 Page 2 of 8

Statement of the Case

[1] Anthony W. Smith appeals the post-conviction court’s dismissal of his petition 

for post-conviction relief for failure to prosecute. Smith presents the following

dispositive issue for our review: whether the post-conviction court erred when 

it did not hold a hearing before dismissing his petition under Trial Rule 41(E).1 

We reverse and remand with instructions.

Facts and Procedural History

[2] The facts underlying Smith’s convictions were stated by this court on direct 

appeal:

In 2010, Misty Sell was living with David Smith.[] In November 

2010, she broke up with David and began dating Anthony. In 

December 2010, she stopped dating Anthony and moved back in 

with David. When Sell broke up with Anthony, he threatened to 

kill Sell, David, and himself. Less than a week later, on 

December 17, 2010, Sell retrieved some of her belongings from 

Anthony, and Sell told Anthony that she did not want to get back 

together with him. She returned to David’s apartment, and they 

went to sleep.

In the early morning hours of December 18, 2010, Anthony left 

his house with a steak knife in the waistband of his pants, and 

McDaniel, Anthony’s stepson, followed Anthony. Sell and 

David awoke to someone beating on the front door. As David 

put on his pants, Sell opened the door to Anthony and 

McDaniel. They pushed Sell out of the way and went into the 

 

1

 Because we reverse and remand, we need not address the second issue raised by Smith, namely, whether 

the post-conviction court erred when it did not make findings of fact or conclusions of law.
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apartment. David backed into a corner and asked what they 

were doing there. Anthony said, “shut up you f****** faggot I’m 

going to kill you.” Tr. p. 494. Anthony and David fought until 

Sell started to call the police, and then Anthony went toward the 

door. At that point, McDaniel and David began fighting.

Anthony went toward David, but Sell yelled at him and shoved 

him out of the apartment.

Sell saw Anthony and McDaniel each stab David on his left side. 

David was stabbed a total of three times and suffered a lacerated 

spleen and diaphragm, which required surgery to suture. Two 

knives were recovered from the scene.

The State initially charged Anthony and McDaniel with Class B 

felony aggravated battery. The informations were amended to 

include charges of Class A felony attempted murder and Class C 

felony battery, and the aggravated battery charges were 

dismissed. Anthony and McDaniel were jointly tried, and a jury 

found them guilty as charged. At sentencing, the trial court 

vacated the battery convictions. For the attempted murder 

convictions, Anthony was sentenced to forty-five years, with ten 

years suspended to probation, for an executed sentence of thirtyfive years, and McDaniel was sentenced to thirty-five years, with 

fifteen years suspended to probation, for an executed sentence of 

twenty years.

Smith v. State, No. 35A04-1112-CR-662, 2012 WL 3222382, at *1 (Ind. Ct. App. 

Aug. 9, 2012). We affirmed his convictions and sentence. Id. at *6.

[3] On November 25, 2015, Smith filed a pro se petition for post-conviction relief, 

and the post-conviction court appointed a public defender to represent Smith. 

However, on January 19, 2016, the public defender filed a notice of 

nonrepresentation under Post-Conviction Rule 1(9)(c), whereby he declined to 
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represent Smith. Two months later, Smith requested new counsel, but the trial 

court denied that request.

[4] On October 13, 2016, the State moved to dismiss Smith’s petition for failure to 

prosecute under Trial Rule 41(E). On October 14, the trial court ordered the 

parties to submit evidence by affidavits. On November 15, Smith filed a motion 

for additional time to respond to the State’s motion to dismiss, and he filed an 

affidavit stating his intention to prosecute his petition and stating his reasons for 

asking for an additional sixty days to respond. The trial court granted Smith’s 

motion and ordered him to respond to the motion to dismiss by January 14, 

2017.

[5] On January 31, 2017, the State filed a notice to inform the post-conviction court 

that Smith had not filed a response by the January 14 deadline, and the State 

moved the court to grant its motion to dismiss. On February 21, Smith filed a 

motion for an evidentiary hearing on his petition for post-conviction relief, and 

he asked the court to issue subpoenas for witnesses to attend that hearing. On 

March 2, the post-conviction court granted the State’s motion to dismiss 

without first holding a hearing. This appeal ensued.

Discussion and Decision

[6] Smith contends that the post-conviction court erred when it dismissed his 

petition for post-conviction relief pursuant to Indiana Trial Rule 41(E) without 

holding a hearing on the State’s motion. We will reverse a Trial Rule 41(E) 

dismissal for failure to prosecute “only for a clear abuse of discretion.” 
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Caruthers v. State, 58 N.E.3d 207, 210 (Ind. Ct. App. 2016) (quoting Robertson v. 

State, 687 N.E.2d 223, 224 (Ind. Ct. App. 1997), trans. denied). “An abuse of 

discretion occurs if the decision of the trial court is against the logic and effect 

of the facts and circumstances before it.” Id.

[7] Indiana Trial Rule 41(E) provides as follows:

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.

(Emphasis added.)

[8] In Caruthers, 58 N.E.3d at 211-14, we addressed whether Trial Rule 41(E)

requires a hearing and held as follows:

Caruthers argues that Trial Rule 41(E) requires a court to hold a 

hearing prior to dismissing a case for failure to prosecute. We 

agree, based on our supreme court’s decision in Rumfelt v. Himes, 

438 N.E.2d 980 (Ind. 1982). . . .

* * *

. . . Our supreme court rejected the defendants’ argument [that 

the Rumfelts had waived any right to a hearing and had not 
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shown prejudice], observing that “[t]he language of Trial Rule 

41(E) is explicit: ‘the court, on motion of a party or on its own 

motion shall order a hearing for the purpose of dismissing such 

case.’” Id. at 983. The court explained, “‘If the failure to obey 

the clear, explicit dictates of the Indiana Rules of Procedure can 

be simply dismissed as harmless error, then, the erosion of an 

orderly judicial system has begun.’” Id. (quoting Otte v. Tessman, 

426 N.E.2d 660, 662 (Ind. 1981)). . . . The Rumfelt court . . .

concluded that the trial court had not satisfied the requirements 

of Trial Rule 41(E), reversed the trial court’s dismissal, and 

remanded with instructions to order a hearing on the defendants’

motion to dismiss in accordance with Trial Rule 41(E).

* * *

[In a dissenting opinion in Metcalf v. Estate of Hastings, 726 N.E.2d 

372 (Ind. Ct. App. 2000), trans. denied,] Judge Sullivan . . . 

opin[ed] that Trial Rule 41(E) “clearly contemplate[s] that a hearing 

not only be scheduled, but that it be conducted unless, and only unless the 

plaintiff has, prior to the hearing, been afforded opportunity to 

demonstrate sufficient good cause for the delay and has in fact done so.”

Id. at 374-75 (Sullivan, J. dissenting). We believe that Judge 

Sullivan’s dissent is not only a correct reading of the rule but is 

also consistent with Rumfelt, which we are bound to follow as 

controlling supreme court precedent.

. . . Trial Rule 41(E) does not require the plaintiff to wait until the 

scheduled hearing to show cause but clearly anticipates that a 

plaintiff may show cause at or before the hearing. [Here, t]he 

trial court did not rule on [Caruthers’] April 20, 2015[,] motion to 

show cause. Caruthers also filed a motion for evidentiary 

hearing and a request for transport order, which the trial court 

did not rule on. There were multiple mechanisms that were available 

to the court to address Caruthers’s motions, such as arranging a telephone 

conference or directing Caruthers to submit his case by affidavit.

However, the trial court dismissed his action without holding a 

hearing as required by Trial Rule 41(E).[] See Rumfelt, 438 
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N.E.2d at 983. Accordingly, we reverse the postconviction

court’s summary dismissal of Caruthers’s PCR action and 

remand for either a Trial Rule 41(E) hearing or reinstatement of 

his action.

(Emphases added, some citations omitted.)

2

[9] The State suggests that our holding in Caruthers permits a post-conviction court 

to rule on a Trial Rule 41(E) motion without a hearing, where the court directs 

the parties to submit their cases by affidavit, “exactly as this Court suggested in 

Caruthers.” Appellee’s Br. at 9. But the State misconstrues our reference in 

Caruthers to “other mechanisms” available to the post-conviction court, such as 

affidavits. The Caruthers court was referring to other mechanisms for 

responding to the petitioner’s motions, not the State’s motion to dismiss.

[10] Further, the State ignores our explicit holding that Trial Rule 41(E) requires 

that “‘a hearing not only be scheduled, but that it be conducted unless, and only 

unless the plaintiff has, prior to the hearing, been afforded opportunity to 

demonstrate sufficient good cause for the delay and has in fact done so.’” 

Caruthers, 58 N.E.3d at 214 (quoting Metcalf, 726 N.E.2d at 374-75 (Sullivan, J., 

dissenting)). Here, as in Rumfelt and Caruthers, because the post-conviction 

court did not hold a hearing on the State’s motion to dismiss, the court erred 

when it dismissed Smith’s petition. Accordingly, we reverse the postconviction 

 

2

 As we noted in Caruthers, our Supreme Court recently cited its opinion in Rumfelt with approval in Wright v. 

Miller, 989 N.E.2d 324, 328 n.3 (Ind. 2013).
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court’s dismissal of Smith’s petition for post-conviction relief and remand for 

either a Trial Rule 41(E) hearing or reinstatement of his action.

[11] Reversed and remanded with instructions.

Mathias, J., and Barnes, J., concur.