Pursuant to Ind.Appellate Rule 65(D),

this Memorandum Decision shall not be regarded as precedent or cited bef ore any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

APPELLANT PRO SE : ATTORNEY S FOR APPELLEE :
K.T. GREGORY F. ZOELLER Michigan City, Indiana Attorney General of Indiana
ERIC P. BABBS Deputy Attorney General Indianapolis, Indiana


## IN THE COURT OF APPEALS OF INDIANA

K.T., ) ) Appellant

- Resp onde nt, ) ) vs. ) No. 20A03

- 1311

- JV

- 453 ) STATE OF INDIANA, ) ) Appellee

- Petitioner

. )

APPEAL FROM THE ELKHART CIRCUIT COURT The Honorable Terry C. Shewmaker , Judge The Honorable Deborah Domine, Magistrate Cause No. 20C01

- 9606

- JD

- 380

September 3 0. 2014
MEMORANDUM DECIS ION

– NOT FOR PUBLICATION BARNES, Judge2 Case Summary K.T. appeals the trial court ’ s denial of his motion for relief from judgment regarding his 1996 delinquency adjudication for what would have been Class C felony
child molesti ng if committed by an adult . We affirm.
Issue
K.T. raises several issues . The dispositive issue we address is whether K.T. ’ s motion for relief from judgment was timely.
Facts In 1996, K.T. was adjudicated delinquent for what would have been Class C felony child molesting if committed by an adult based upon his admission that he had a seven or eight

- year
- old child touch his penis

. In September 2013, K.T. filed a motion for relief from judgment pursuant to Indiana Trial Rule 60(B). K.T. alleged that his 1996 adjudication was improper because he did not have legal representation at the hearing, the State violated the guilty plea, and he was not properly advised of his rights. The trial court denied the motion for relief from judgment. The trial court noted that a motion for relief from judgment under Trial Rule 60(B) must be sought within a reasonable amount
of time and found that the seventeen

- year delay was not reasonable. The trial court also
noted that some of K.T. ’ s allegations were based on fra ud and misrepresentation and that relief under those circumstances must be sought within one year. Consequently, the trial
court denied K.T. ’ s motion. K.T. also filed a motion for reconsideration arguing that the delay was due to “ extenuating circumstanc es. ” Appellant ’ s Br. p. 33. According to K.T., he believed that he had only admitted to battery and incorrigibility and learned of the3

child molesting adjudication in 2008. K.T. alleged that his juvenile adjudication was used “ to enhance [his] sentence of [his] current case. ” Id. at 34. The trial court denied the motion for reconsideration, finding that the seventeen

- year delay was unreasonable
and that the defense of laches was also applicable. K.T. now appeals. Analysis
Post

- conviction procedures a re not available to challenge a juvenile delinquency adjudication, which is civil in nature. A.S. v. State , 923 N.E.2d 486, 489 (Ind. Ct. App. 2010). Thus, Trial Rule 60( B) is the appropriate means to challenge an adjudication of delinquency. J.A. v. St ate , 904 N.E.2d 250, 254 (Ind. Ct. App. 2009), trans. denied

. A Trial Rule 60(B) motion cannot be used as a substitute for a direct appeal, nor can it be used to revive an expired attempt to appeal. Id. T rial Rule 60(B) provides:

On motion and upon suc h terms as are just the court may relieve a party or his legal representative from a judgment, including a judgment by default, for the following reasons: (1) mistake, surprise, or excusable neglect; (2) any ground for a motion to correct error, including withou t limitation newly discovered evidence, which by due diligence could not have been discovered in time to move for a motion to correct errors under Rule 59; (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other miscondu ct of an adverse party; (4) entry of default or judgment by default was entered against such party who was served only by publication and who was without actual knowledge of the action and judgment, order or proceedings;4 (5) except in the case of a divorce decre e, the record fails to show that such party was represented by a guardian or other representative, and if the motion asserts and such party proves that (a) at the time of the action he was an infant or incompetent person, and (b) he was not in fact represented by a guardian or other representative, and (c) the person against whom the judgment, order or proceeding is being avoided procured the judgment with notice of such infancy or incompetency, and, as against a successor of such person, that such successor acquir ed his rights therein with notice that the judgment was procured against an infant or incompetent, and (d) no appeal or other remedies allowed under this subdivision have been taken or made by or on behalf of the infant or incompetent person, and (e) the motion was made within ninety [90] days after the disability was removed or a guardian was appointed over his estate, and (f) the motion alleges a valid defense or claim; (6) the judgment is void; (7) the judgment has been satisfied, released, or discharged, or a prior ju dgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (8) any reason justifying relief from the operation of the judgment, other than those reasons set fort h in sub

paragraphs (1), (2), (3), and (4).
The motion shall be filed within a reasonable time for reasons (5), (6), (7), and (8), and not more than one year after the5 judgment, order or proceeding was entered or taken for reasons (1), (2), (3), and (4). A movant filing a motion for reasons (1), (2), (3), (4), and (8) must allege a meritorious claim or defense.
The burden is on the movant to establish the ground for Trial Rule 60(B) relief. In re Paternity of P.S.S. , 934 N.E.2d 737, 740 (Ind. 2010). A trial court ’ s ruling on a Trial Rule 60(B) motion for relief from judgment will be disturbed only for an abuse of
discretion. Id. at 740

- 41. An abuse of discretion will be found only when the trial court ’ s action is clearly erroneous, that is, against th e logic and effect of the facts before it and the inferences which may be drawn therefrom. Id. at 741.
The trial court determined that K.T. ’ s motion was not filed within a reasonable time for reasons (5), (6), (7), and (8) or within one year for reasons ( 1), (2), (3) , and (4). Clearly, K.T. did not file his motion within one year; thus, the issue is whether he filed
his motion within a reasonable time. The determination of what period constitutes a
reasonable time varies with the circumstances of each ca se. D.D.J. v. State , 640 N.E.2d 768, 769 (Ind. Ct. App. 1994) , trans. denied . In making its determination, the court must consider the length of time that elapsed from the date of the judgment to the date of the filing of the T rial Rule 60 motion, the ci rcumstances of the delay, the diligence exercised by the movant, and the possibility of prejudice to the opposing party. Jordan v. State , 549 N.E.2d 382, 384 (Ind. Ct. App. 1990) , trans. denied

. Seventeen years elapsed from the time of the delinquency a djudication until K.T. filed his Trial Rule 60(B) motion. Even if we accept K.T. ’ s assertion that he was unaware of his child molesting adjudication until 2008, K.T. still waited another five6

years before challenging the adjudication. Further, K.T. ’ s att orney in 1996 is now deceased, the juvenile court judge is no longer on the bench, and the child victims are
now adults. The State clearly would be prejudiced by the substantial delay. We conclude that the trial court did not abuse its discretion by deny ing K.T. ’ s motion for relief from judgment under Trial Rule 60(B). See, e.g. , D.D.J. , 640 N.E.2d at 770 (holding that the juvenile court did not abuse its discretion by denying a motion for relief from judgment
after a two

- year delay); Jordan , 549 N.E.2d at 384 (holding that the trial court did not abuse its discretion by denying a motion for relief from judgment after a twenty

- three

year delay).
Conclusion The trial court properly denied K.T. ’ s motion for relief from judgment, which was brought sevente en years after his juvenile adjudication. We affirm.
Affirmed. BRADFORD, J., and BROWN, J., concur.