Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of Aug 22 2013, 10:14 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
APPELLANT PRO SE: ATTORNEYS FOR APPELLEE:
TERRY ELDRIDGE GREGORY F. ZOELLER
Indianapolis, Indiana Attorney General of Indiana
ELIZABETH ROGERS
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
TERRY ELDRIDGE, )
)
Appellant-Petitioner, )
)
vs. ) No. 49A04-1301-CR-24
)
STATE OF INDIANA, )
)
Appellee-Respondent. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Steven R. Eichholtz, Judge
Cause No. 49G20-0602-FA-22219
August 22, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
NAJAM, Judge
STATEMENT OF THE CASE
Terry Eldridge, pro se, appeals the trial court’s denial of his petition for additional
credit time for the completion of a rehabilitative program prior to his sentencing.
Eldridge raises one issue on appeal, namely, whether the trial court should have granted
him additional credit time for the completion of a rehabilitative program prior to
sentencing. However, we consider only the following dispositive issue: whether
Eldridge timely filed his notice of appeal.
We dismiss.
FACTS AND PROCEDURAL HISTORY
On November 9, 2006, Eldridge was sentenced to an executed term of twenty
years in the Indiana Department of Correction for dealing in cocaine as a Class A felony;
possession of cocaine and a firearm, as a Class C felony; and resisting law enforcement,
as a Class A misdemeanor. Prior to sentencing, and while incarcerated, Eldridge
completed “Celebrate Recovery,” a substance abuse recovery program. Appellant’s App.
at 49. At sentencing, Eldridge expressly requested credit time for completion of that
program and submitted documents verifying its completion. The trial court denied
Eldridge’s request for additional credit time, and Eldridge did not appeal the trial court’s
sentencing order.
Nearly six years later, on October 12, 2012, Eldridge again filed a motion for
additional credit time with the trial court based on his completion of Celebrate Recovery
prior to his sentencing. On November 14, the State filed a motion to dismiss for lack of
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jurisdiction or, in the alternative, a motion for summary disposition. On December 21,
the trial court generally denied Eldridge’s motion. Eldridge now appeals.
DISCUSSION AND DECISION
Initially, we note that Eldridge proceeds pro se. Eldridge, however, “cannot take
refuge in the sanctuary of his amateur status.” Peters v. Perry, 873 N.E.2d 676, 677 (Ind.
Ct. App. 2007); Shepherd v. Truex, 819 N.E.2d 457, 463 (Ind. Ct. App. 2004). “As we
have noted many times before, a litigant who chooses to proceed pro se will be held to
the same rules of procedure as trained legal counsel and must be prepared to accept the
consequences of his action.” Id. at 678 (quoting Shepherd, 819 N.E.2d at 463).
Neither party raises the issue of the timeliness of Eldridge’s notice of appeal in the
briefs. Nevertheless, the timely filing of a notice of appeal is a jurisdictional prerequisite
that can be raised sua sponte even if the parties do not question jurisdiction. Tarrance v.
State, 947 N.E.2d 494, 495 (Ind. Ct. App. 2011). In, 2006, Indiana Appellate Rule
9(A)(1) provided that “[a] party initiates an appeal by filing a Notice of Appeal with the
trial court clerk within thirty (30) days after the entry of a Final Judgment.”1 Because the
timely filing of a notice of appeal is a jurisdictional prerequisite and the failure to
conform to the applicable time limits results in forfeiture of an appeal, id., we address the
timeliness of Eldridge’s appeal as a threshold issue.
At his sentencing hearing on November 9, 2006, Eldridge expressly asked the
court to award him credit time for his completion of Celebrate Recovery, a substance
abuse rehabilitative program. The trial court refused to do so, and Eldridge did not
1
Indiana Appellate Rule 9(A)(1) was amended in 2012, effective January 1, 2013, to require appellants to
file the notice of appeal with the Clerk of the Indiana Supreme Court, Court of Appeals and Tax Court.
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appeal the court’s sentencing order. Rather, nearly six years later, Eldridge again asked
the trial court to award him credit time for his completion of the rehabilitative program.
While Eldridge asserts on appeal that the court in 2006 “failed to mention anything
concerning the awarding of credit time,” this is inaccurate. Appellant’s Br. at 6. Indeed,
in his 2012 motion for additional credit time, Eldridge acknowledged that he had
previously “submitted documents at sentencing verifying completion of the
[rehabilitative] program to no avail.” Appellant’s App. at 50.
Thus, Eldridge’s 2012 request was the equivalent of a repetitive motion, which is
governed by Indiana Trial Rule 54.4. In relevant part, this Rule states that a repetitive
motion, “shall not delay the trial or any proceedings in the case, or extend the time for
any further required or permitted action, motion, or proceedings under these rules.” Ind.
Trial Rule 53.4(A). Although Indiana Trial Rule 53.4(A) does not specifically mention
the time for filing a notice of appeal following a repetitive motion, the filing of a
repetitive motion “shall not . . . extend the time” for filing a notice of appeal. See id.; see
also Peters, 873 N.E.2d at 678 (holding that a notice of appeal was not timely filed even
though it was filed within thirty days of the trial court’s denial of a second, repetitive
motion to correct error). Eldridge’s 2012 motion, in which he asked the trial court to
reconsider whether he should be awarded credit time based on his completion of the
rehabilitative program, did not extend the time in which he could file a notice of appeal
from the court’s original, 2006 denial of his request.
In Indiana, timeliness of filing a notice of appeal is of the utmost importance. This
is evidenced in part by Indiana Appellate Rule 9(A)(5), which states that, “[u]nless the
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Notice of Appeal is timely filed, the right to appeal shall be forfeited . . . .” If we were to
consider the trial court’s denial of Eldridge’s second request for additional credit time as
the starting point for calculating when a notice of appeal should have been filed, Eldridge
could avoid Rule 9 indefinitely by repeatedly filing petitions for additional credit time or
motions to reconsider. An open-ended time for appeal is prohibited by our rules. App.
R. 9; see also Garrison v. Metcalf, 849 N.E.2d 1114, 1116 (Ind. 2006) (holding that
notice of appeal must be filed within thirty days of the date on which the motion to
correct error was deemed denied).
We cannot ignore the jurisdictional requirement of Appellate Rule 9. The proper
time for Eldridge to appeal the trial court’s denial of his request for credit time was
within thirty days of the court’s 2006 sentencing order, which he did not do.
Accordingly, we conclude that Eldridge did not timely file his notice of appeal, and we
lack subject matter jurisdiction to consider his appeal.2 We dismiss.
Dismissed.
MATHIAS, J., and BROWN, J., concur.
2
Nothing in our decision shall be interpreted to prohibit Eldridge from filing a petition for a writ of habeas
corpus in a court of competent jurisdiction.
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