Robert L. Gunnell v. State of Indiana - IN.gov
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.
PRO SE APPELLANT:
ATTORNEYS FOR APPELLEE:
ROBERT L. GUNNELL Carlisle, Indiana
GREGORY F. ZOELLER Attorney General of Indiana ELIZABETH ROGERS Deputy Attorney General Indianapolis, Indiana
FILED Mar 17 2009, 9:11 am
IN THE COURT OF APPEALS OF INDIANA ROBERT L. GUNNELL, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff.
) ) ) ) ) ) ) ) )
No. 29A02-0810-CV-911
APPEAL FROM THE HAMILTON SUPERIOR COURT The Honorable Steven R. Nation, Judge The Honorable David K. Najjar, Magistrate Cause No. 29D01-0508-CC-722
March 17, 2009 MEMORANDUM DECISION - NOT FOR PUBLICATION VAIDIK, Judge
CLERK
of the supreme court, court of appeals and tax court
Case Summary After he was arrested for several offenses, including dealing in cocaine, the State and Hamilton County Drug Task Force filed a forfeiture complaint against Robert L. Gunnell for $278.00. Although Gunnell was in the Hamilton County Jail at the time, service of process was made to an Indianapolis address. When Gunnell did not respond to the forfeiture complaint, a default judgment was entered against him. Three years later, Gunnell filed a pro se motion, which we construe on appeal as a motion to set aside the default judgment on the ground that it is void for lack of personal jurisdiction. The trial court denied the motion, and Gunnell, pro se, now appeals. We find that Indiana Trial Rule 4.3 governs this case. Trial Rule 4.3 provides that “service of summons upon a person who is imprisoned or restrained in an institution shall be made by delivering or mailing a copy of the summons and complaint to the official in charge of the institution.” Because this was not accomplished here, service on Gunnell at the Indianapolis address was defective, and the default judgment is thus void. We therefore reverse the trial court. Facts and Procedural History On June 29, 2005, Gunnell was arrested in Hamilton County, Indiana, and was subsequently charged with two counts of dealing in cocaine.1 At the time of his arrest,
1
According to Gunnell, the dealing in cocaine charges were ultimately dismissed in March 2007. See Appellant‟s App. p. 8. Also related to this incident, Gunnell pled guilty to felony murder: While working undercover, Detective Scott Jackson purchased drugs from Gunnell on June 23 and 28, 2005. Jackson set up another deal with Gunnell on June 29. While delivering the drugs, Gunnell disregarded a stop sign and struck a car driven by Alyssa McCann, who sustained fatal injuries. Gunnell was charged with felony murder and attempted dealing in a narcotic drug. On March 5, 2007, Gunnell agreed to plead guilty to felony murder.
2
officers seized $278.00 in U.S. currency from Gunnell. On August 25, 2005, the State and the Hamilton County Drug Task Force (collectively, “the State”) filed a Complaint for Forfeiture against Gunnell. In its forfeiture complaint, the State alleged that the $278.00 was “traceable” to the proceeds of cocaine dealing and that forfeiture of the money was authorized by Indiana Code chapter 34-24-1. Appellant‟s App. p. 1. On August 26, 2005, the Hamilton County Sheriff‟s Department attempted to serve Gunnell with a summons and forfeiture complaint but could not do so because Gunnell‟s alleged address as listed on the summons was in Marion County, not Hamilton County. Appellee‟s App. p. 5. As such, service was then requested by the Marion County Sheriff‟s Department. Id. at 4. On September 20, 2005, the Marion County Sheriff‟s Department left a copy of the summons and forfeiture complaint at Gunnell‟s alleged address, 711 South Keystone Avenue in Indianapolis. Id. at 6; see also id. at 2. A copy was also mailed. Id. at 6, see also id. at 2. When Gunnell did not respond to the forfeiture complaint, the State filed a motion for default judgment on October 13, 2005. The State also mailed a copy of this motion to 711 South Keystone Avenue. Appellant‟s App. p. 7. The trial court granted a default judgment on October 17, 2005. Nearly three years later, on August 21, 2008, Gunnell filed a pro se Motion for Return of Currency. In his motion, Gunnell alleged, among other things, that he was incarcerated in the Hamilton County Jail when the Marion County Sheriff‟s Department left a copy of the summons and forfeiture complaint at the Indianapolis address. He
Gunnell v. State, No. 29A05-0707-CR-377 (Ind. Ct. App. Feb. 20, 2008) (footnote omitted).
3
claimed this amounted to “a deliberate attempt to hide the Forfeiture proceedings from” him. Id. at 9. Gunnell also alleged that the motion for default judgment was mailed to the Indianapolis address when he was still incarcerated in the Hamilton County Jail. The State filed a Motion to Summarily Deny Defendant‟s Motion for Return of Currency. In its motion, the State first alleged that it “served [Gunnell] at his dwelling house by personal service through the Marion County Sheriff‟s Department.” Id. at 11 (emphasis added).
However, as explained above, the Marion County Sheriff‟s
Department did not personally serve Gunnell. See Ind. Trial Rule 4.1(A)(2). Rather, the Marion County Sheriff‟s Department left a copy of the summons and complaint at the Indianapolis address and also mailed a copy. See Ind. T.R. 4.1(A)(3), (B). The State then alleged: That counsel . . . was not aware of Defendant’s incarceration as alleged in his motion and it is the policy of the Hamilton County Prosecutor‟s office and counsel . . . to maintain separate the civil action against a Defendant arising out of criminal investigation so as not to taint any potential criminal prosecution. Appellant‟s App. p. 11 (emphasis added).
As such, the State alleged that default
judgment was properly entered, that the $278.00 had been distributed and was no longer in the State‟s possession, and that, therefore, Gunnell‟s motion is “untimely and/or moot.” Id. at 12. Gunnell filed a response in which he alleged: 3) Counsel for [the State] . . . claims that he was not aware of the Defendant‟s incarceration, but it was his client[] who had arrested the defendant. . . . a) It was [counsel‟s] responsibility to ensure that service was made to a proper „place of abode‟. b) All [counsel] had to do was contact his client[] to have known that the Defendant was incarcerated in the Hamilton County Jail. 4
Id. at 14. On September 8, 2008, the trial court issued the following order: Come now the Plaintiffs, State of Indiana and Hamilton County Drug Task Force, by their attorney . . . , and file their Motion to Summarily Deny Defendant‟s Motion for Return of Currency. And the Court having read said Motion and being duly advised in the premises, now denies Defendant‟s Motion for Return of Currency. Id. at 16. Gunnell, pro se, now appeals. Discussion and Decision Gunnell contends that the trial court erred in denying his Motion for Return of Currency. Gunnell argues, among other things, that service of process to the Indianapolis address was ineffective because he was held in the Hamilton County Jail from June 29, 2005 until [he] was convicted of Murder on July 29, 2007. It was the Appellee in this case that put Gunnell in the Hamilton County Jail, thus making Gunnell[‟s] place of residence the Hamilton County Jail and not anywhere in Marion [C]ounty. Appellant‟s Reply Br. p. 2. The State argues that it properly served Gunnell by leaving a copy of the summons and forfeiture complaint at the Indianapolis address and by mailing a copy pursuant to Indiana Trial Rule 4.1(A)(3) and (B). The State does not acknowledge or respond to Gunnell‟s assertion that he was in the Hamilton County Jail at the time the summons and forfeiture complaint were left at and mailed to the Indianapolis address. We first note that although Gunnell styled his motion as a motion for return of currency, it is, in substance, a motion to set aside default judgment pursuant to Indiana Trial Rule 60(B). See Maust v. Estate of Bair ex rel. Bair, 859 N.E.2d 779, 783 (Ind. Ct. App. 2007) (noting that proper procedure to set aside default judgment is to file Trial Rule 60(B) motion in the trial court).
Gunnell essentially argues that the default
judgment is void for lack of personal jurisdiction. 5
See Appellant‟s Reply Br. p. 1
(arguing that “he had no notice of the proceedings” because “the State failed to properly serve him.”). According to Trial Rule 60(B)(6): On motion and upon such terms as are just the court may relieve a party or his legal representative from an entry of default, final order, or final judgment, including a judgment by default, for the following reasons: ***** (6) the judgment is void; (emphasis added). We review a trial court‟s denial of a motion to set aside a default judgment for an abuse of discretion. Goodson v. Carlson, 888 N.E.2d 217, 220 (Ind. Ct. App. 2008). We determine whether the trial court‟s judgment is clearly against the logic and effect of the facts and inferences before the court. Id. However, the existence of personal jurisdiction over a defendant is a question of law, which we review de novo. Id. A plaintiff is responsible for presenting evidence of a trial court‟s personal jurisdiction over a defendant, but the defendant ultimately bears the burden of proving lack of personal jurisdiction by a preponderance of the evidence, unless that lack is apparent from the face of the complaint. Id. Ineffective service of process prohibits a trial court from having personal jurisdiction over a defendant. Id. Furthermore, “a judgment entered against a defendant over whom the trial court did not have personal jurisdiction is void.” Id. Because a void judgment is a complete nullity and without legal effect, it may be collaterally attacked at any time, and the “reasonable time” limitation under Indiana Trial Rule 60(B)(6) does not apply. In re Adoption of D.C., 887 N.E.2d 950, 955 (Ind. Ct. App. 2008) (citing Stidham v. Whelchel, 698 N.E.2d 1152, 1154, 1156 (Ind. 1998)).
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The general method for serving process on an individual is outlined in Trial Rule 4.1: (A) In General. Service may be made upon an individual, or an individual acting in a representative capacity, by: (1) sending a copy of the summons and complaint by registered or certified mail or other public means by which a written acknowledgment of receipt may be requested and obtained to his residence, place of business or employment with return receipt requested and returned showing receipt of the letter; or (2) delivering a copy of the summons and complaint to him personally; or (3) leaving a copy of the summons and complaint at his dwelling house or usual place of abode; or (4) serving his agent as provided by rule, statute or valid agreement. (B) Copy Service to Be Followed With Mail. Whenever service is made under Clause (3) or (4) of subdivision (A), the person making the service also shall send by first class mail, a copy of the summons without the complaint to the last known address of the person being served, and this fact shall be shown upon the return. The State argues that it properly served Gunnell by leaving a copy of the summons and forfeiture complaint at Gunnell‟s alleged “dwelling house or usual place of abode” in Indianapolis pursuant to Trial Rule 4.1(A)(3) and then by sending it by first class mail to his “last known address” pursuant to Trial Rule 4.1(B). Gunnell does not contest that the State took these measures2 but rather argues that he was incarcerated in the Hamilton County Jail at the time on charges of dealing in cocaine and felony murder. The State filed a motion in the trial court alleging: That counsel . . . was not aware of Defendant’s incarceration as alleged in his motion and it is the policy of the Hamilton County Prosecutor‟s office and counsel . . . to maintain separate the civil action against a Defendant Gunnell also alleges on appeal that 711 South Keystone Avenue was a “vacant rental” when the Marion County Sheriff‟s Department left the summons and forfeiture complaint there on September 20, 2005, Appellant‟s Reply Br. p. 2; however, there is no evidence in the record to support this claim. Therefore, we only address his argument that he was incarcerated at the time. 2
7
arising out of criminal investigation so as not to taint any potential criminal prosecution. Appellant‟s App. p. 11 (emphasis added). Notably, the State did not argue in this motion that Gunnell was not incarcerated or out on bond following his June 2005 arrest for dealing in cocaine, felony murder, and attempted dealing in a narcotic drug.3
The
Hamilton County Prosecutor‟s Office would have been aware of Gunnell‟s incarceration status, and this information must be imputed to the prosecutor‟s office‟s agents. Here, that agent is the attorney who filed the forfeiture complaint on behalf of the State of Indiana and the Hamilton County Drug Task Force.4
The attorney who filed the
forfeiture complaint cannot claim ignorance on the ground that forfeiture is a civil matter when the $278.00 sought stems from the very criminal matter for which Gunnell was incarcerated. We thus find that the State knew that Gunnell was incarcerated in the Hamilton County Jail when he was served at the Indianapolis address. Because Gunnell was incarcerated in the Hamilton County Jail at the time of service, Trial Rule 4.3, not Trial Rule 4.1, governs this case. Trial Rule 4.3 provides: Service of summons upon a person who is imprisoned or restrained in an institution shall be made by delivering or mailing a copy of the summons 3
In addition, at no time has the State, either before the trial court or on appeal, argued that Gunnell was not incarcerated in the Hamilton County Jail from his June 2005 arrest until his 2007 conviction for felony murder. 4
According to Paragraph 4 of the Motion for Default Judgment:
That your undersigned, Bruce E. Petit, attorney for Plaintiffs is under cont[r]act with the Hamilton County Prosecutor‟s Office to represent Hamilton County in all forfeiture actions and pursuant to that contract, is entitled to one-third of the fair market value of any property seized and forfeited in Hamilton County. Appellant‟s App. p. 6.
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and complaint to the official in charge of the institution. It shall be the duty of said official to immediately deliver the summons and complaint to the person being served and allow him to make provisions for adequate representation by counsel. The official shall indicate upon the return whether the person has received the summons and been allowed an opportunity to retain counsel. Because the summons and forfeiture complaint were not delivered or mailed to the official in charge of the Hamilton County Jail and then immediately delivered to Gunnell, service on Gunnell at the Indianapolis address was defective. The default judgment is void based on the improper service. The trial court therefore erred in denying Gunnell‟s motion to set aside the default judgment. Reversed. RILEY, J., and DARDEN, J., concur.
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PRO SE APPELLANT:
ATTORNEYS FOR APPELLEE:
ROBERT L. GUNNELL Carlisle, Indiana
GREGORY F. ZOELLER Attorney General of Indiana ELIZABETH ROGERS Deputy Attorney General Indianapolis, Indiana
FILED Mar 17 2009, 9:11 am
IN THE COURT OF APPEALS OF INDIANA ROBERT L. GUNNELL, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff.
) ) ) ) ) ) ) ) )
No. 29A02-0810-CV-911
APPEAL FROM THE HAMILTON SUPERIOR COURT The Honorable Steven R. Nation, Judge The Honorable David K. Najjar, Magistrate Cause No. 29D01-0508-CC-722
March 17, 2009 MEMORANDUM DECISION - NOT FOR PUBLICATION VAIDIK, Judge
CLERK
of the supreme court, court of appeals and tax court
Case Summary After he was arrested for several offenses, including dealing in cocaine, the State and Hamilton County Drug Task Force filed a forfeiture complaint against Robert L. Gunnell for $278.00. Although Gunnell was in the Hamilton County Jail at the time, service of process was made to an Indianapolis address. When Gunnell did not respond to the forfeiture complaint, a default judgment was entered against him. Three years later, Gunnell filed a pro se motion, which we construe on appeal as a motion to set aside the default judgment on the ground that it is void for lack of personal jurisdiction. The trial court denied the motion, and Gunnell, pro se, now appeals. We find that Indiana Trial Rule 4.3 governs this case. Trial Rule 4.3 provides that “service of summons upon a person who is imprisoned or restrained in an institution shall be made by delivering or mailing a copy of the summons and complaint to the official in charge of the institution.” Because this was not accomplished here, service on Gunnell at the Indianapolis address was defective, and the default judgment is thus void. We therefore reverse the trial court. Facts and Procedural History On June 29, 2005, Gunnell was arrested in Hamilton County, Indiana, and was subsequently charged with two counts of dealing in cocaine.1 At the time of his arrest,
1
According to Gunnell, the dealing in cocaine charges were ultimately dismissed in March 2007. See Appellant‟s App. p. 8. Also related to this incident, Gunnell pled guilty to felony murder: While working undercover, Detective Scott Jackson purchased drugs from Gunnell on June 23 and 28, 2005. Jackson set up another deal with Gunnell on June 29. While delivering the drugs, Gunnell disregarded a stop sign and struck a car driven by Alyssa McCann, who sustained fatal injuries. Gunnell was charged with felony murder and attempted dealing in a narcotic drug. On March 5, 2007, Gunnell agreed to plead guilty to felony murder.
2
officers seized $278.00 in U.S. currency from Gunnell. On August 25, 2005, the State and the Hamilton County Drug Task Force (collectively, “the State”) filed a Complaint for Forfeiture against Gunnell. In its forfeiture complaint, the State alleged that the $278.00 was “traceable” to the proceeds of cocaine dealing and that forfeiture of the money was authorized by Indiana Code chapter 34-24-1. Appellant‟s App. p. 1. On August 26, 2005, the Hamilton County Sheriff‟s Department attempted to serve Gunnell with a summons and forfeiture complaint but could not do so because Gunnell‟s alleged address as listed on the summons was in Marion County, not Hamilton County. Appellee‟s App. p. 5. As such, service was then requested by the Marion County Sheriff‟s Department. Id. at 4. On September 20, 2005, the Marion County Sheriff‟s Department left a copy of the summons and forfeiture complaint at Gunnell‟s alleged address, 711 South Keystone Avenue in Indianapolis. Id. at 6; see also id. at 2. A copy was also mailed. Id. at 6, see also id. at 2. When Gunnell did not respond to the forfeiture complaint, the State filed a motion for default judgment on October 13, 2005. The State also mailed a copy of this motion to 711 South Keystone Avenue. Appellant‟s App. p. 7. The trial court granted a default judgment on October 17, 2005. Nearly three years later, on August 21, 2008, Gunnell filed a pro se Motion for Return of Currency. In his motion, Gunnell alleged, among other things, that he was incarcerated in the Hamilton County Jail when the Marion County Sheriff‟s Department left a copy of the summons and forfeiture complaint at the Indianapolis address. He
Gunnell v. State, No. 29A05-0707-CR-377 (Ind. Ct. App. Feb. 20, 2008) (footnote omitted).
3
claimed this amounted to “a deliberate attempt to hide the Forfeiture proceedings from” him. Id. at 9. Gunnell also alleged that the motion for default judgment was mailed to the Indianapolis address when he was still incarcerated in the Hamilton County Jail. The State filed a Motion to Summarily Deny Defendant‟s Motion for Return of Currency. In its motion, the State first alleged that it “served [Gunnell] at his dwelling house by personal service through the Marion County Sheriff‟s Department.” Id. at 11 (emphasis added).
However, as explained above, the Marion County Sheriff‟s
Department did not personally serve Gunnell. See Ind. Trial Rule 4.1(A)(2). Rather, the Marion County Sheriff‟s Department left a copy of the summons and complaint at the Indianapolis address and also mailed a copy. See Ind. T.R. 4.1(A)(3), (B). The State then alleged: That counsel . . . was not aware of Defendant’s incarceration as alleged in his motion and it is the policy of the Hamilton County Prosecutor‟s office and counsel . . . to maintain separate the civil action against a Defendant arising out of criminal investigation so as not to taint any potential criminal prosecution. Appellant‟s App. p. 11 (emphasis added).
As such, the State alleged that default
judgment was properly entered, that the $278.00 had been distributed and was no longer in the State‟s possession, and that, therefore, Gunnell‟s motion is “untimely and/or moot.” Id. at 12. Gunnell filed a response in which he alleged: 3) Counsel for [the State] . . . claims that he was not aware of the Defendant‟s incarceration, but it was his client[] who had arrested the defendant. . . . a) It was [counsel‟s] responsibility to ensure that service was made to a proper „place of abode‟. b) All [counsel] had to do was contact his client[] to have known that the Defendant was incarcerated in the Hamilton County Jail. 4
Id. at 14. On September 8, 2008, the trial court issued the following order: Come now the Plaintiffs, State of Indiana and Hamilton County Drug Task Force, by their attorney . . . , and file their Motion to Summarily Deny Defendant‟s Motion for Return of Currency. And the Court having read said Motion and being duly advised in the premises, now denies Defendant‟s Motion for Return of Currency. Id. at 16. Gunnell, pro se, now appeals. Discussion and Decision Gunnell contends that the trial court erred in denying his Motion for Return of Currency. Gunnell argues, among other things, that service of process to the Indianapolis address was ineffective because he was held in the Hamilton County Jail from June 29, 2005 until [he] was convicted of Murder on July 29, 2007. It was the Appellee in this case that put Gunnell in the Hamilton County Jail, thus making Gunnell[‟s] place of residence the Hamilton County Jail and not anywhere in Marion [C]ounty. Appellant‟s Reply Br. p. 2. The State argues that it properly served Gunnell by leaving a copy of the summons and forfeiture complaint at the Indianapolis address and by mailing a copy pursuant to Indiana Trial Rule 4.1(A)(3) and (B). The State does not acknowledge or respond to Gunnell‟s assertion that he was in the Hamilton County Jail at the time the summons and forfeiture complaint were left at and mailed to the Indianapolis address. We first note that although Gunnell styled his motion as a motion for return of currency, it is, in substance, a motion to set aside default judgment pursuant to Indiana Trial Rule 60(B). See Maust v. Estate of Bair ex rel. Bair, 859 N.E.2d 779, 783 (Ind. Ct. App. 2007) (noting that proper procedure to set aside default judgment is to file Trial Rule 60(B) motion in the trial court).
Gunnell essentially argues that the default
judgment is void for lack of personal jurisdiction. 5
See Appellant‟s Reply Br. p. 1
(arguing that “he had no notice of the proceedings” because “the State failed to properly serve him.”). According to Trial Rule 60(B)(6): On motion and upon such terms as are just the court may relieve a party or his legal representative from an entry of default, final order, or final judgment, including a judgment by default, for the following reasons: ***** (6) the judgment is void; (emphasis added). We review a trial court‟s denial of a motion to set aside a default judgment for an abuse of discretion. Goodson v. Carlson, 888 N.E.2d 217, 220 (Ind. Ct. App. 2008). We determine whether the trial court‟s judgment is clearly against the logic and effect of the facts and inferences before the court. Id. However, the existence of personal jurisdiction over a defendant is a question of law, which we review de novo. Id. A plaintiff is responsible for presenting evidence of a trial court‟s personal jurisdiction over a defendant, but the defendant ultimately bears the burden of proving lack of personal jurisdiction by a preponderance of the evidence, unless that lack is apparent from the face of the complaint. Id. Ineffective service of process prohibits a trial court from having personal jurisdiction over a defendant. Id. Furthermore, “a judgment entered against a defendant over whom the trial court did not have personal jurisdiction is void.” Id. Because a void judgment is a complete nullity and without legal effect, it may be collaterally attacked at any time, and the “reasonable time” limitation under Indiana Trial Rule 60(B)(6) does not apply. In re Adoption of D.C., 887 N.E.2d 950, 955 (Ind. Ct. App. 2008) (citing Stidham v. Whelchel, 698 N.E.2d 1152, 1154, 1156 (Ind. 1998)).
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The general method for serving process on an individual is outlined in Trial Rule 4.1: (A) In General. Service may be made upon an individual, or an individual acting in a representative capacity, by: (1) sending a copy of the summons and complaint by registered or certified mail or other public means by which a written acknowledgment of receipt may be requested and obtained to his residence, place of business or employment with return receipt requested and returned showing receipt of the letter; or (2) delivering a copy of the summons and complaint to him personally; or (3) leaving a copy of the summons and complaint at his dwelling house or usual place of abode; or (4) serving his agent as provided by rule, statute or valid agreement. (B) Copy Service to Be Followed With Mail. Whenever service is made under Clause (3) or (4) of subdivision (A), the person making the service also shall send by first class mail, a copy of the summons without the complaint to the last known address of the person being served, and this fact shall be shown upon the return. The State argues that it properly served Gunnell by leaving a copy of the summons and forfeiture complaint at Gunnell‟s alleged “dwelling house or usual place of abode” in Indianapolis pursuant to Trial Rule 4.1(A)(3) and then by sending it by first class mail to his “last known address” pursuant to Trial Rule 4.1(B). Gunnell does not contest that the State took these measures2 but rather argues that he was incarcerated in the Hamilton County Jail at the time on charges of dealing in cocaine and felony murder. The State filed a motion in the trial court alleging: That counsel . . . was not aware of Defendant’s incarceration as alleged in his motion and it is the policy of the Hamilton County Prosecutor‟s office and counsel . . . to maintain separate the civil action against a Defendant Gunnell also alleges on appeal that 711 South Keystone Avenue was a “vacant rental” when the Marion County Sheriff‟s Department left the summons and forfeiture complaint there on September 20, 2005, Appellant‟s Reply Br. p. 2; however, there is no evidence in the record to support this claim. Therefore, we only address his argument that he was incarcerated at the time. 2
7
arising out of criminal investigation so as not to taint any potential criminal prosecution. Appellant‟s App. p. 11 (emphasis added). Notably, the State did not argue in this motion that Gunnell was not incarcerated or out on bond following his June 2005 arrest for dealing in cocaine, felony murder, and attempted dealing in a narcotic drug.3
The
Hamilton County Prosecutor‟s Office would have been aware of Gunnell‟s incarceration status, and this information must be imputed to the prosecutor‟s office‟s agents. Here, that agent is the attorney who filed the forfeiture complaint on behalf of the State of Indiana and the Hamilton County Drug Task Force.4
The attorney who filed the
forfeiture complaint cannot claim ignorance on the ground that forfeiture is a civil matter when the $278.00 sought stems from the very criminal matter for which Gunnell was incarcerated. We thus find that the State knew that Gunnell was incarcerated in the Hamilton County Jail when he was served at the Indianapolis address. Because Gunnell was incarcerated in the Hamilton County Jail at the time of service, Trial Rule 4.3, not Trial Rule 4.1, governs this case. Trial Rule 4.3 provides: Service of summons upon a person who is imprisoned or restrained in an institution shall be made by delivering or mailing a copy of the summons 3
In addition, at no time has the State, either before the trial court or on appeal, argued that Gunnell was not incarcerated in the Hamilton County Jail from his June 2005 arrest until his 2007 conviction for felony murder. 4
According to Paragraph 4 of the Motion for Default Judgment:
That your undersigned, Bruce E. Petit, attorney for Plaintiffs is under cont[r]act with the Hamilton County Prosecutor‟s Office to represent Hamilton County in all forfeiture actions and pursuant to that contract, is entitled to one-third of the fair market value of any property seized and forfeited in Hamilton County. Appellant‟s App. p. 6.
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and complaint to the official in charge of the institution. It shall be the duty of said official to immediately deliver the summons and complaint to the person being served and allow him to make provisions for adequate representation by counsel. The official shall indicate upon the return whether the person has received the summons and been allowed an opportunity to retain counsel. Because the summons and forfeiture complaint were not delivered or mailed to the official in charge of the Hamilton County Jail and then immediately delivered to Gunnell, service on Gunnell at the Indianapolis address was defective. The default judgment is void based on the improper service. The trial court therefore erred in denying Gunnell‟s motion to set aside the default judgment. Reversed. RILEY, J., and DARDEN, J., concur.
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