Gary W. Lowrance v. State of Indiana

FILED
Dec 09 2016, 8:49 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
APPELLANT, PRO SE ATTORNEYS FOR APPELLEE
Gary W. Lowrance Gregory F. Zoeller
Zionsville, Indiana Attorney General of Indiana
Ian Alexander Thomas McLean
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Gary W. Lowrance, December 9, 2016
Appellant-Defendant, Court of Appeals Case No.
82A01-1601-CR-61
v. Appeal from the Vanderburgh
Circuit Court
State of Indiana, The Honorable David D. Kiely,
Appellee-Plaintiff. Judge
Trial Court Cause No.
82C01-8908-CF-7576
Pyle, Judge.
Statement of the Case
[1] Gary Lowrance (“Lowrance”) appeals pro se the trial court’s denial of his
motion to correct error regarding the denial of his motion for a nunc pro tunc
order. According to Lowrance, the trial court should have granted both
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motions because the trial court’s statement at Lowrance’s 1996 sentencing
hearing constituted an order to reinstate his right to bear arms. Finding that the
trial court’s statement at the 1996 sentencing hearing merely set forth the terms
and conditions of Lowrance’s probation, we affirm the trial court’s denial of
Lowrance’s motion to correct error.
[2] We affirm.
Issue
Whether the trial court abused its discretion in denying
Lowrance’s motion to correct error.
Facts
[3] The facts as set forth in Lowrance’s direct appeal reveal that:
[E]arly in the morning of August 5, 1989, [Lowrance] was
informed that his wife, Leslie Lowrance, was having an affair
with his best friend, Steven Patterson. Patterson informed
[Lowrance] that he and Leslie intended to take [Lowrance’s] son
to Kentucky where Patterson would raise him as his own son.
That night – after a day filled with chaotic events – all four of the
above mentioned persons were present in [Lowrance’s]
apartment. [Lowrance] asked Leslie to come upstairs to kiss
their son goodnight. As Leslie leaned over to kiss her son,
[Lowrance] struck her, knocking her to the floor. Patterson
heard the commotion and ran to Leslie’s aid. [Lowrance]
brandished a handgun. Patterson begged [Lowrance] not to
shoot him. [Lowrance] stated “I’m going to kill you, you mother
f_____,” and shot Patterson in the head numerous times.
[Lowrance] then turned the gun on Leslie and shot her twice in
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the head. [Lowrance] ordered Leslie to sit still and watch
Patterson bleed. [Lowrance] then proceeded to beat Leslie
brutally about the jaw and face. When [Lowrance’s] and Leslie’s
son began to cry, [Lowrance] explained they were playing a
game and asked him if he would like to help.
Patterson almost died from his wounds. He suffered permanent
brain damage and faces the prospect of an operation to remove a
bullet lodged in his spine from which he may not survive. The
two bullets fired into Leslie’s head ricocheted off. One carried
away hair and became imbedded in the wall. As a result of the
beating, Leslie suffered loosened teeth, a cut lip, a swollen jaw, a
black eye, and a knot the size of a baseball on her face.
Lowrance v. State, 565 N.E.2d 375, 376-77 (Ind. Ct. App. 1991).
[4] A jury convicted Lowrance of two counts of attempted murder. The trial court
sentenced him to concurrent thirty-year sentences. This Court affirmed the
convictions and sentences on direct appeal. Id. at 376.
[5] In December 1994, Lowrance filed a petition for post-conviction relief, which
the post-conviction court granted. Lowrance was retried and convicted of Class
C felony battery and attempted voluntary manslaughter. On September 20,
1996, the trial court sentenced Lowrance to an aggregate sentence of thirty
years with ten years suspended to probation. Regarding the terms and
conditions of Lowrance’s probation, the trial court stated as follows:
At the conclusion[] of your executed sentence I’m placing you
on, suspending the ten years and placing you on probation and
subject to the following terms, one, and probably the most
important, is that you shall have no communication . . . with the
victims . . . . [T]hat you are to obey all the laws of the State of
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Indiana . . . . I’m going to make this a non-reporting type of
probation with an exception, I want you to keep the [probation
department] informed at all times as to your address . . . . There
are other conditions that we normally impose[], some of them
I’m not going to apply. . . . I assume you will work at suitable
employment and meet your family responsibilities. You are not
to unlawfully use, possess, sell or dispense any drug identified as
[a] controlled substance. . . . I’m not going to order that you not
possess a firearm, although there was a deadly weapon involved here,
there’s evidence that you did like to do hunting and I don’t see why you
should be prevented from doing that, certainly you are not to illegally
possess guns and that again if you did would be a violation of the
State of Indiana which would be a violation of your probation.
I’m going to ask that you, make it a condition that you continue
with your counseling . . . .
(Tr. 8-10) (emphasis added).1 Lowrance did not appeal his convictions or
sentence.
[6] Lowrance was released from prison to probation in June 1999. Ten years later,
in June 2009, he successfully completed probation. In 2014, Lowrance
attempted to legally purchase a shot gun; however, his application was denied
1
Today’s reader will likely be surprised by the trial court’s exclusion of a provision prohibiting firearms
under its probation order. Putting aside the horrific facts of this case, there was a narrow exception under the
law that would have allowed Lowrance to legally possess a firearm. In 1996, INDIANA CODE § 35-47-4-4
permitted a convicted felon to own, carry, or possess a firearm as long as he or she was in their dwelling, on
their property, or inside their fixed place of business. Federal law prohibited a convicted felon from
possessing or receiving a firearm only “in or affecting interstate commerce.” 18 U.S.C. §922(g) (1996).
However, in 1999, our General Assembly enacted what is currently known as Indiana’s serious violent felon
statute. IND. CODE § 35-47-4-5. Under the current statute, a person convicted of a qualifying felony, like
attempted voluntary manslaughter, is prohibited from knowingly or intentionally possessing a firearm,
anywhere.
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following a national background check, which revealed his attempted murder
convictions.
[7] In December 2014, Lowrance filed a “Motion for Nunc Pro Tunc Docket
Entries to Accurately Reflect the Actions Take[n] by the Court in this Case,”
wherein he asked the trial court to enter the following nunc pro tunc entries in
the docket:
2. September 20, 1996, Docket Entry should include “defendant
is not prohibited from possessing firearms, defendant may legally
possess firearms.”
3. September 24, 1996, IDC Abstract or Abstract of Judgment
should be entered reflecting convictions for less[e]r included
charges of “Battery-Class C and Attempted Voluntary
Manslaughter-Class A.”
[8] (App. 13). The motion specifically alleged that the trial court’s statement at
Lowrance’s 1996 sentencing hearing constituted an order “returning . . .
Lowrance’s right to bear arms legally.” (App. 13). He asked the trial court to
direct the clerk or her staff to provide notice to “all appropriate State and
Federal databases” that his “right to bear arms [was] legally reinstated on
September 20, 1996.” (App. 14).
[9] The trial court held a hearing on the petition in March 2015 and, issued an
amended abstract of judgment that reflected the 1996 battery and attempted
voluntary manslaughter convictions in April 2015. The abstract of judgment
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did not address Lowrance’s argument that the trial court had issued an order
reinstating his right to bear arms in 1996.
[10] In September 2015, Lowrance filed an “Agreed Motion for Nunc Pro Tunc
Docket Entry to Accurately Reflect the Actions Taken by the Court in this
Cause,” wherein he sought a determination that the trial court had reinstated
his right to bear arms on September 20, 1996. He also asked that the trial
court’s 1996 statement be entered on the “docket to correct the omissions in the
September 20, 1996 entry.” (App. 764). Two months later, in November 2015,
the trial court denied Lowrance’s motion. Lowrance filed a motion to correct
error, which the trial court also denied. Lowrance now appeals the denial of his
motion to correct error.
Decision
[11] At the outset, we note that Lowrance has chosen to proceed pro se. It is well
settled that pro se litigants are held to the same legal standards as licensed
attorneys. Twin Lakes Reg’l Sewer Dist. v. Teumer, 992 N.E.2d 744, 747 (Ind. Ct.
App. 2013). This means that pro se litigants are bound to follow the established
rules of procedure and must be prepared to accept the consequences of their
failure to do so. Shepherd v. Truex, 819 N.E.2d 457, 463 (Ind. Ct. App. 2004).
We will not become an “advocate for a party, or address arguments that are
inappropriate or too poorly developed or expressed to be understood.” Perry v.
Anonymous Physician 1, 25 N.E.3d 103, 105 n. 1 (Ind. Ct. App. 2014), trans.
denied, cert. denied.
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[12] Here, Lowrance appeals the denial of his motion to correct error pursuant to
Indiana Trial Rule 59 regarding the trial court’s denial of his motion for a nunc
pro tunc order. Our standard of review in such cases is well-established. We
review a trial court’s ruling on a motion to correct error for an abuse of
discretion. Old Utica School Preservation, Inc. v. Utica Tp., 7 N.E.3d 327, 330 (Ind.
Ct. App. 2014), trans. denied. An abuse of discretion occurs when the trial
court’s decision is contrary to the logic and effect of the facts and circumstances
before it or the reasonable inferences therefrom. Id.[13] As for our standard of review for nunc pro tunc orders, we have explained as
follows:
A nunc pro tunc order is an entry made now of something which
was actually previously done to have effect as of the former date.
Brimhall v. Brewster, 835 N.E.2d 593, 597 (Ind. Ct. App. 2005)
(citing Cotton v. State, 658 N.E.2d 898, 900 (Ind. 1995)). A nunc
pro tunc entry may be used to record an act or event nor recorded
in the court’s order book or to change or supplement an entry
already recorded in the order book. Brimhall, 835 N.E.2d at 597.
The purpose of a nunc pro tunc order is to correct an omission in
the record of action really had but omitted through inadvertence
or mistake. Id. But the record must establish that the unrecorded
act or event actually occurred. Id. A written memorial must
form the basis for established the error or omission to be
corrected by a nunc pro tunc entry. Id.Grayson v. Union Fed. Savings & Loan Ass’n of Crawfordsville, 851 N.E.2d 1017,
1020 (Ind. Ct. App. 2006), trans. denied.
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[14] Lowrance argues that the trial court erred in denying his motion for a nunc pro
tunc order. He specifically contends that the trial court’s statement at the 1996
sentencing hearing that it was “not going to order that [Lowrance] not possess a
firearm” was, in essence, an order reinstating Lowrance’s right to bear arms.
(Tr. 10). However, our review of the record reveals that the trial court’s
statement at the sentencing hearing did nothing more than set forth the terms
and conditions of Lowrance’s probation. The trial court was not reinstating
Lowrance’s right to bear arms. Accordingly, when Lowrance’s probation
ended in 2009, so did the applicability of the trial court’s 1996 sentencing
statement.
[15] Because the trial court’s sentencing statement did not constitute an order
reinstating Lowrance’s substantive right to bear arms, there was no “omission
in the record of action really had.” See Grayson, 851 N.E.2d at 1020. Without
such an omission, there was nothing for the trial court to correct with a nunc
pro tunc entry. The trial court did not abuse its discretion in denying the
motions for nunc pro tunc order and to correct error.2
[16] Affirmed.
Kirsch, J., and Riley, J., concur.
2
Lowrance raises several other issues which flow from his argument that the trial court’s 1996 sentencing
statement was an order reinstating Lowrance’s right to bear arms. Because we have concluded that this
statement did not constitute such an order, we need not address these issues.
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