Eric D. Smith v. State of Indiana

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not Nov 08 2013, 5:29 am
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:

ERIC D. SMITH GREGORY F. ZOELLER
New Castle, Indiana Attorney General of Indiana

ERIC P. BABBS
Deputy Attorney General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

ERIC D. SMITH, )
)
Appellant-Defendant, )
)
vs. ) No. 49A05-1306-CR-295
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )

APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Lisa F. Borges, Judge
The Honorable Anne Flannelly, Commissioner
Cause No. 49G04-0103-PC-51465

November 8, 2013

MEMORANDUM DECISION – NOT FOR PUBLICATION

BARNES, Judge
 Case Summary

Eric Smith appeals the denial of his petition for modification of placement without

a hearing. We dismiss.

Issue

Although Smith raises two issues related to the denial of his petition for

modification, we address a dispositive issue, which we restate as whether Smith complied

with a 2007 order of this court.

Facts

In 2001, Smith was convicted of Class B felony arson and sentenced to twenty

years. Smith’s conviction was affirmed on direct appeal. Smith then filed several

petitions for post-conviction relief and sought appellate review of the denial of a motion

for modification of his sentence. On December 19, 2007, out of concern for Smith’s

propensity toward endless litigation, we issued an order requiring him to seek leave from

this Court before filing any additional appeals arising from his arson conviction. The

order provided in part:

Accordingly, this court IMPOSES THE FOLLOWING
CONDITIONS upon Appellant with respect to any future
criminal appeals that arise from Appellant’s conviction for
arson:

(a) Appellant must FIRST file a motion for leave of
this Court to file any additional appeal directed to this
Court seeking review of ANY CRIMINAL MATTER
arising out of Appellant’s conviction for arson.

(b) Any motion for leave to file an appeal that is
tendered by Appellant MUST include an Appellant’s
Case Summary, a current certified copy of the

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 Chronological Case Summary, the motion filed with
the trial court, any answer to the motion, a certified
copy of the trial court’s judgment from which
Appellant seeks review, and a copy of the timely filed
Notice of Appeal from the final judgment. Any
motion for leave filed after the date of this order shall
also include a copy of this order. Failure to include
ANY of the above-listed documents shall subject
Appellant’s motion for leave to file an appeal to
DISMISSAL WITH PREJUDICE.

*****

(e) Upon receipt of any filings from Appellant, the
entire matter, including but not limited to . . . all
briefing, shall be automatically HELD in ABEYANCE
until such time as this Court issues an order either
allowing the appeal to go forward or dismissing the
appeal.

Smith v. State, No. 49A04-0706-CR-325, order (Ind. Ct. App. Dec. 19, 2007).

In 2012, Smith filed a petition for modification of his sentence, a petition for

additional credit time, and a motion for placement in community corrections, all of which

were denied by the trial court. Smith filed a notice of appeal and then a motion for leave

to file an appeal. Although we initially denied Smith’s motion for leave to file an appeal,

the case was eventually fully briefed and transmitted to a panel of this court in November

2012. On appeal, we observed that Smith had filed at least fifteen motions for

modification of his sentence and determined that Smith’s motion for leave to file an

appeal was properly denied. See Smith v. State, No. 49A02-1206-CR-460 slip op. at 2

(Ind. Ct. App. Dec. 27, 2012), trans. denied. We also noted that the December 19, 2007

order “remains in effect and will apply to any future appeals arising from Smith’s arson

conviction.” Id. at 3.

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 On May 7, 2013, Smith filed another petition for modification of placement, a

motion to set a hearing, and a motion for telephonic appearance at hearing. On May 20,

2013, the trial court denied these motions without a hearing. On June 17, 2013, Smith

filed a notice of appeal. Instead of seeking leave to file an appeal, Smith filed an

appellant’s brief on August 13, 2013. On September 9, 2013, the State filed an appellee’s

brief, arguing in part that Smith failed to comply with the requirements of the December

19, 2007 order. On September 18, 2013, Smith filed a reply brief and a motion for leave

to file an appeal.

Analysis

Although the case comes to us fully briefed, we reject Smith’s request to address

the merits of claim. As we explained in our 2012 decision, “[t]he purpose of the

December 19, 2007 order is to screen out appeals that are frivolous, repetitive, or clearly

defaulted.” Id. at 2. Smith circumvented the screening process by ignoring the

December 19, 2007 order and filing an appellant’s brief instead of first seeking leave to

file an appeal. Smith’s decision to file an appellant’s brief before seeking leave to file an

appeal shows his blatant disregard for the December 19, 2007 order. Accordingly, we

will not review the merits of his claim or his challenge to the validity of the December

19, 2007 order raised for the first time in his reply brief. Smith’s failure to comply with

the December 19, 2007 order warrants the dismissal of his appeal.

Conclusion

Because Smith did not comply with the procedure set forth in the December 19,

2007 order, we dismiss this appeal.

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 Dismissed.

CRONE, J., and PYLE, J., concur.

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