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

• Court: Indiana Court of Appeals
• Decided: September 24, 2015
• Docket: 33A04-1411-MI-516
• Status: Published

Opinion

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

Court of Appeals of Indiana | Memorandum Decision 33A04-1411-MI-516 | September 24, 2015 Page 1 of 5 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

Court of Appeals of Indiana | Memorandum Decision 33A04-1411-MI-516 | September 24, 2015 Page 2 of 5 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.

Court of Appeals of Indiana | Memorandum Decision 33A04-1411-MI-516 | September 24, 2015 Page 3 of 5 [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

Court of Appeals of Indiana | Memorandum Decision 33A04-1411-MI-516 | September 24, 2015 Page 4 of 5 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.

Court of Appeals of Indiana | Memorandum Decision 33A04-1411-MI-516 | September 24, 2015 Page 5 of 5