Court of Appeals of Indiana | Memorandum Decision 15A01-1511-PC-1859 | November 22, 2016 Page 1 of 7

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 Stansbury

Michigan City, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Eric P. Babbs

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Anthony Stansbury,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

November 22, 2016

Court of Appeals Case No.

15A01-1511-PC-1859

Appeal from the Dearborn 

Superior Court

The Honorable Jonathan N. 

Cleary, Judge

Trial Court Cause No.

15D01-1505-PC-6

Robb, Judge.
Court of Appeals of Indiana | Memorandum Decision 15A01-1511-PC-1859 | November 22, 2016 Page 2 of 7

Case Summary and Issues

[1] Anthony Stansbury, pro se, appeals the post-conviction court’s denial of his 

petition for post-conviction relief, raising two issues for our review, which we 

restate as (1) whether the post-conviction court abused its discretion in denying 

Stansbury’s motion for continuance, and (2) whether the post-conviction court 

erred in denying his petition without first holding an evidentiary hearing. 

Concluding the post-conviction court did not abuse its discretion in denying 

Stansbury’s motion for continuance nor did it err in denying his petition, we 

affirm.

Facts and Procedural History

[2] On September 14, 2011, Stansbury was convicted of attempted robbery and 

aggravated battery as Class B felonies. He was also found to be an habitual 

offender, and the trial court sentenced him to an executed term in the Indiana 

Department of Correction. We affirmed his convictions on appeal, but 

remanded to the trial court to correct an error in the sentencing order. Stansbury 

v. State, No. 15A05-1111-CR-585, slip op. at 1 (Ind. Ct. App. May 31, 2012), 

trans. denied. 

[3] In October 2012, Stansbury filed a petition for post-conviction relief under 

cause number 15D01-1209-PC-0008, alleging he received ineffective assistance 

of trial and appellate counsel. The post-conviction court appointed a public 

defender, and after conducting an appropriate investigation and consulting with 
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Stansbury, the public defender withdrew his appearance. On September 8, 

2014, Stansbury filed a pro se motion to withdraw his petition, which the postconviction court granted without prejudice.

[4] On May 6, 2015, Stansbury filed a petition for post-conviction relief under the 

current cause number. This petition also alleged Stansbury received ineffective 

assistance of trial and appellate counsel. Stansbury requested the postconviction court appoint a public defender, which the post-conviction court 

granted. On June 4, 2015, the public defender filed a notice of nonrepresentation, citing the fact Stansbury’s allegations from the 2012 petition had 

not changed; Stansbury proceeded pro se. 

[5] On June 5, 2015, the post-conviction court ordered Stansbury to submit his case

by affidavit within sixty days. On July 23, 2015, Stansbury moved for a 

continuance, claiming he had not yet received the clerk’s record. The postconviction court granted the motion and extended Stansbury’s deadline to

submit affidavits to October 5, 2015. 

[6] On October 2, 2015, Stansbury filed a second motion for continuance, claiming 

a lock-down at the prison and supervisor unavailability severely limited his 

access to the prison law libraries. On October 5, 2015, the post-conviction court 

denied Stansbury’s motion for continuance1 and denied his petition for post-

 

1 We note Stansbury’s second motion for continuance was never entered in the Chronological Case 

Summary. The State did not receive notice or a copy of the motion and did not have the opportunity to 

respond. Regardless, the post-conviction court noted in its October 5 order it received the motion and denied 

the motion. In addition, the motion was not included in the clerk’s record on appeal and Stansbury did not 
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conviction relief. As to the denial of Stansbury’s petition, the post-conviction 

court concluded Stansbury did not submit his case by affidavits as ordered and 

failed to produce sufficient evidence to support his petition. This appeal 

ensued. 

Discussion and Decision

I. Motion for Continuance

[7] Stansbury argues that the trial court abused its discretion in denying his motion 

for continuance. Rulings upon non-statutory motions for continuance are 

within the discretion of the post-conviction court and will be reversed only for 

an abuse of that discretion. Tapia v. State, 753 N.E.2d 581, 586 (Ind. 2001). An 

abuse of discretion occurs only where the evidence is clearly against the logic 

and effect of the facts and circumstances. Id at 585.

[8] We cannot say the post-conviction court abused its discretion in denying the 

motion for continuance. In early June 2015, the post-conviction court ordered 

Stansbury to submit his case by affidavit by early August. Nearly two weeks 

prior to the August deadline, Stansbury moved for a continuance, which the 

post-conviction court granted. In so doing, the post-conviction court extended 

the deadline for Stansbury to submit his case by affidavit to October 5, 2015. 

 

include the motion in his appendix. After submission of the parties’ briefs, Stansbury filed a motion for leave 

to amend the record and submitted a supplemental appendix including a file-stamped copy of the motion. In 

a separate order, we grant his motion for leave to amend and we address the merits of his claims herein.
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Just three days prior to this deadline, on October 2, 2015, Stansbury filed a 

second motion for continuance. The motion alleges a lockdown at the prison 

and supervisor unavailability hampered his access to the law library. Although 

we have no reason to question the veracity of Stansbury’s claims, the motion 

lacks any specificity that would show he was unable to access the law library at 

any time during the two additional months he was granted to submit his case. 

For example, the motion does not detail the length of the lock-down. We 

conclude the post-conviction court’s denial of Stansbury’s motion for 

continuance is not clearly against the logic and effect of the facts and 

circumstances.

II. Petition for Post-Conviction Relief

A. Standard of Review

[9] Defendants who have exhausted the direct appeal process may challenge the 

correctness of their convictions and sentence by filing a post-conviction 

petition. Ind. Post-Conviction Rule 1(1). A petitioner for post-conviction relief 

has the burden of establishing his grounds for relief by a preponderance of the 

evidence. Timberlake v. State, 753 N.E.2d 591, 597 (Ind. 2001), cert. denied, 537 

U.S. 839 (2002). Because Stansbury is appealing from a negative judgment, he 

must convince this court the evidence as a whole unmistakably and unerringly 

points to a conclusion contrary to the post-conviction court’s decision. See id.
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B. Submission by Affidavit

[10] Stansbury argues the post-conviction court erred in denying his petition. 

Specifically, he argues the denial was improper without holding an evidentiary 

hearing. We disagree.

[11] Indiana Post-Conviction Rule 1(9)(b) “clearly and plainly provides that when a 

petitioner proceeds pro se, the PCR court has the discretion to order the cause 

submitted upon affidavit.” Smith v. State, 822 N.E.2d 193, 201 (Ind. Ct. App. 

2005), trans. denied. This rule is a “distinct way for a PCR court to rule on a 

petition without an evidentiary hearing.” Id. A post-conviction court is only 

required to hold an evidentiary hearing after ordering a case be submitted by 

affidavit if (1) affidavits are, in fact, submitted, (2) either party moves for 

summary disposition, and (3) there is a genuine issue of material fact. See PC.R. 1(4)(g). 

[12] Here, the post-conviction court exercised its discretion in ordering Stansbury to 

submit his case by affidavit pursuant to Rule 1(9)(b).

2

 Despite having nearly 

four months to submit his case by affidavit, Stansbury did not submit any 

affidavits. As a result, Stansbury offered no evidence in support of his petition 

and the post-conviction court never had the opportunity to determine whether 

 

2

 Stansbury does not argue the post-conviction court abused its discretion in ordering his case be submitted 

by affidavit. 
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an evidentiary hearing was required. See P-C.R. 1(4)(g). We conclude the postconviction court did not err in denying Stansbury’s petition.

Conclusion

[13] The post-conviction court did not abuse its discretion in denying Stansbury’s 

motion for continuance nor did it err in denying his petition. Accordingly, we 

affirm.

[14] Affirmed.

Mathias, J., and Brown, J., concur.