Delmas Sexton, II v. Keith A. Barand, Brian T. Taylor, and Ryan A. Masoner (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: February 18, 2016
• Docket: 38A04-1504-CT-145
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any Feb 18 2016, 9:25 am court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

APPELLANT PRO SE Delmas Sexton, II New Castle Correctional Facility New Castle, Indiana

IN THE COURT OF APPEALS OF INDIANA

Delmas Sexton, II, February 18, 2016 Appellant-Plaintiff, Court of Appeals Case No. 38A04-1504-CT-145 v. Appeal from the Jay Superior Court Keith A. Barand, Brian T. The Honorable Terry C. Taylor, and Ryan A. Masoner, Shewmaker, Special Judge Appellee-Defendants Trial Court Cause No. 38D01-1007-CT-6

Crone, Judge.

Court of Appeals of Indiana | Memorandum Decision 38A04-1504-CT-145 | February 18, 2016 Page 1 of 4 Case Summary [1] Delmas Sexton, II, was convicted of felony murder in 2011 and is now serving

a sixty-five-year sentence for that crime. He has been jailed since at least 2009

and, during that time, he has filed numerous unrelated civil causes of action

against various defendants, and several appeals of the lower court decisions in

those cases. The current appeal involves a defamation claim filed by Sexton in

July 2010. Specifically, he is now appealing the trial court’s order denying his

repetitive motion for change of judge, as well as his motion for relief from

judgment, motion for evidentiary hearing, and numerous other motions.

Concluding that he has waived our review of his claimed errors, we affirm the

judgment of the trial court.

Discussion and Decision [2] We begin by noting that Sexton proceeds in this appeal pro se. A pro se litigant

is held to the same standards as a trained attorney and is afforded no inherent

leniency simply by virtue of being self-represented. Zavodnik v. Harper, 17

N.E.3d 259, 266 (Ind. 2014). One risk a litigant takes when he proceeds pro se

is that he will not know how to accomplish all the things an attorney would

know how to accomplish. Smith v. Donahue, 907 N.E.2d 553, 555 (Ind. Ct.

App. 2009), trans. denied. Because the same standards apply to pro se appellants

as to others, any alleged errors are waived if applicable rules are not complied

with. Foley v. Mannor, 844 N.E.2d 494, 496 n.1 (Ind. Ct. App. 2006).

Court of Appeals of Indiana | Memorandum Decision 38A04-1504-CT-145 | February 18, 2016 Page 2 of 4 [3] Although failure to comply with the appellate rules does not necessarily result

in waiver of the issues presented, it is appropriate where, as here, such

noncompliance impedes our review. See In re Moeder, 27 N.E.3d 1089, 1097

(Ind. Ct. App. 2015), trans. denied. First, Indiana Appellate Rule 43(C) states

that an appellate brief “shall be produced in a neat and legible manner using

black print” and “may be copied by any copying process that produces a

distinct black image on white paper.” The handwritten text in Sexton's thirty-

page appellate brief is virtually illegible, and the copying process he used

produced indistinct images. Consequently, there are countless words and

sentences that we are unable to decipher or understand.

[4] Additionally, Indiana Appellate Rule 46(A)(8) requires that contentions in an

appellant's briefs be supported by cogent reasoning and citations to authorities,

statutes, and the appendix or parts of the record on appeal. Sexton’s brief is

replete with bald statements and assertions unsupported by cogent argument or

citation to relevant authority. Sexton repeatedly directs us to items that were

not properly submitted to this Court and therefore are not part of the record on

Court of Appeals of Indiana | Memorandum Decision 38A04-1504-CT-145 | February 18, 2016 Page 3 of 4 appeal. 1 Moreover, his mere citation to authority in support of an argument is

insufficient because it is not also supported by cogent reasoning. Sexton’s

reasoning, as far as we can discern from his illegible brief, is illogical. Failure to

provide cogent argument has resulted in waiver of Sexton’s claims on appeal.

See, e.g., Wingate v. State, 900 N.E.2d 468, 475 (Ind. Ct. App. 2009). The

judgment of the trial court is affirmed in all respects.

[5] Affirmed.

Vaidik, C.J., and Bailey, J., concur.

1 From what we are able to decipher, the crux of Sexton’s primary claim is that he is entitled to a change of judge because he has proof that the trial judge is biased against him, but the trial judge used “his power as a judge to strike legitimate and admissible evidence” of that bias. Appellant’s Br. at 14. This so-called legitimate and admissible evidence consists of copies of various affidavits containing what the trial court described as “scandalous and indecent allegations” against the trial judge and other court officers. Appellant’s App. at 11. The trial court twice instructed Sexton that if he wanted the court to consider any affidavits, he needed to file original affidavits with original signatures of the affiants. When Sexton again filed copies that merely purported to be originals, the court deemed the affidavits inadmissible. Sexton urges that if this Court would just review the trial court clerk’s record, we would determine that the affidavits he tendered to the trial court are in fact originals. However, Sexton did not properly request a copy of the clerk’s record from the clerk of the Jay Circuit and Superior Courts pursuant to Indiana Appellate Rule 12(A), and our motions panel has denied his repeated requests for this Court to simply “order” transmittal of that record. “It is the responsibility of the appellant to present a record which reveals the error complained of.” Garage Doors of Indianapolis, Inc. v. Morton, 682 N.E.2d 1296, 1299, n.1 (Ind. Ct. App. 1997), trans. denied (1998).

Court of Appeals of Indiana | Memorandum Decision 38A04-1504-CT-145 | February 18, 2016 Page 4 of 4