Jeffrey Settle v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this Sep 24 2015, 8:31 am
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
Jeffrey Settle Gregory F. Zoeller
New Castle Correctional Facility Attorney General of Indiana
New Castle, Indiana
Kristin Garn
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jeffrey Settle, September 24, 2015
Appellant, Court of Appeals Case No.
33A04-1411-MI-516
v. Appeal from the Henry Circuit Court
Trial Court Cause No.
State of Indiana, 33C02-1407-MI-72
The Honorable Kit C. Dean Crane,
Appellee.
Judge
Pyle, Judge.
Statement of the Case
[1] Appellant/Petitioner, Jeffery Settle (“Settle”), appeals the trial court’s denial of
his petition to remove his designation as a sex offender. On appeal, Settle
argued that the parole board’s requirement that he register as a sex offender
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violated the Indiana Constitution’s prohibition on ex post facto penalties.
However, Settle did not include several documents in his Appellant’s Appendix
that were necessary for our review. We held his appeal in abeyance for thirty
days and ordered him to file a supplemental appendix with those documents
within that time, but he did not do so. As a result, we now dismiss his appeal.
[2] We dismiss with prejudice.
Issue
Whether Settle fulfilled his burden of supporting his appeal with
the documents necessary for review.
Facts
[3] Because Settle failed to include documentation relating to his prior and current
convictions in his Appellant’s Appendix, other than documentation of his
current credit time on various offenses, the specific facts regarding those
convictions are not a part of the record. However, he alleges that prior to the
enactment of the Indiana statutory scheme requiring sex offenders to register on
the sex offender registry, he was convicted of a sex offense and escape. At the
time of this appeal, he was still serving his sentence for escape.
[4] On September 2, 2014, Settle filed a “Supplement [sic] Petition to Remove the
Designation as Sex Offender” in which he alleged that, as a result of his sex
offense, he had been required to register as a sex offender and participate in the
Sex Offender Management and Monitoring Program in the Indiana
Department of Correction. He argued that this requirement violated Indiana’s
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constitutional prohibitions against ex post facto application of penalties as he
was convicted of his sex offense prior to Indiana’s statutory requirement to
register as a sex offender. On October 8, 2014, the trial court denied Settle’s
petition to remove his designation as a sex offender.
[5] Subsequently, Settle appealed the trial court’s order denying his petition. In his
Appellant’s Brief, he argued that the parole board’s requirement that he register
as a sex offender violated the Indiana Constitution’s prohibition on ex post
facto penalties.1 However, Settle did not include several documents in his
Appellant’s Appendix that were necessary for our review. As a result, on July
21, 2015, we entered an order holding Settle’s appeal in abeyance for thirty (30)
days and ordering him to file a supplemental appendix including: (a) Executive
Directive 12-53, which was mentioned in an “Offender Grievance Response
Report” that Settle included in his Appellant’s Appendix; (b) Exhibits A and B
of his “Supplement [sic] Petition to Remove the Designation as Sex Offender;”
(c) the judgments of conviction for his convictions; (d) the sentencing orders for
his convictions; (e) any documents showing whether he had been discharged,
on parole, and/or had his parole revoked under any cause number; and (f) the
chronological case summaries for his criminal cases within thirty (30) days or
face dismissal.
1
Notably, this is a different argument than his argument before the trial court.
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[6] On August 27, 2015, Settle tendered his supplemental appendix. However, in
addition to being untimely, the appendix did not comply with our appellate
rules, and it was not considered filed.
Decision
[7] On appeal, Settle has not provided us with a sufficient record to review his case.
Although he acknowledges that he was convicted of a sex offense, he has not
included any documents in the record relating to that offense, such as the
judgment of conviction, chronological case summary, or any documents
concerning his discharge of, or parole on, the offense. He contends that he
should not be required to register as a sex offender because his conviction
occurred prior to the Indiana statutory requirement to register as a sex offender,
but there is nothing in the record to even show the date of his conviction.
[8] It is the appellant’s duty to present an adequate record clearly showing an
alleged error, and failure to do so waives the issue. Thompson v. State, 761
N.E.2d 467, 471 (Ind. Ct. App. 2002). Although Settle is representing himself,
we hold pro se litigants to the same standards regarding rule compliance as
attorneys duly admitted to the practice of law, and pro se litigants must comply
with the appellate rules to have their appeals determined on the merits. Smith v.
State, 822 N.E.2d 193, 203 (Ind. Ct. App. 2005), trans. denied.
[9] Pursuant to Indiana Appellate Rule 49(B), “[a]ny party’s failure to include any
item in an Appendix shall not waive any issue or argument.” In Johnson v.
State, 756 N.E.2d 965, 967 (Ind. 2001), our supreme court indicated that “[t]he
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better practice for an appellate court to follow in criminal appeals where an
Appendix is not filed or where an Appendix is missing documents required by
rule is to order compliance with the rules within a reasonable period of time,
such as thirty days.” However, the Johnson Court also held that “[i]f an
appellant inexcusably fails to comply with an appellate court order, then more
stringent measures, including dismissal of the appeal, would be available as the
needs of justice might dictate.” Id.[10] Here, we held Settle’s appeal in abeyance and ordered him to file a
supplemental appendix including the documents necessary for our review
within thirty (30) days or face dismissal. He did not timely file a supplemental
appendix within those thirty days, and the supplemental appendix he eventually
tendered still failed to comply with the appellate rules. Accordingly, because
we do not have the necessary information upon which to base a decision, we
dismiss Settle’s appeal. See id.[11] Dismissed with prejudice.
Crone, J., and Brown, J., concur.
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