MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
Mar 31 2015, 10:10 am
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
Rodney S. Perry, Sr.
Michigan City, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Rodney S. Perry, Sr., March 31, 2015
Appellant-Defendant, Court of Appeals Case No.
45A03-1412-CR-448
v. Appeal from the Lake Superior
Court
State of Indiana, The Honorable Natalie Bokota,
Appellee-Plaintiff Judge Pro Tempore
The Honorable Kathleen A.
Sullivan, Magistrate
Cause No. 45G02-9701-CF-2
Najam, Judge.
Statement of the Case
[1] Rodney S. Perry, Sr. appeals the trial court’s order in which the court refused to
allow Perry to file a motion to correct erroneous sentence. In particular, the
trial court stated that it was without jurisdiction to consider the motion because
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Perry “had previously filed a similar pleading” and had appealed the court’s
order denying that motion, which appeal was still pending. Appellant’s App. at
55. Still, Perry frames the issue here as whether the trial court erred when it
denied his motion to correct erroneous sentence. But the order makes clear that
the court refused to permit Perry to file the motion entirely and did not consider it on
its merits. Because the trial court correctly determined that it lacked jurisdiction
to consider the motion, we affirm.
Facts and Procedural History
[2] The underlying facts were summarized in Perry’s direct appeal as follows:
On January 6, 1997, Perry broke into the house of his estranged
wife, Marsheila Perry, after his mother-in-law, Florida Clark,
refused to let him in. Marsheila struck Perry with a baseball bat,
but Perry then took the bat away. When Clark attempted to
make a phone call, Perry struck her in the head with the bat at
least four times. He then struck Marsheila in the head with the
bat at least five times. Both Clark and Marsheila died. Perry’s
three children were present when he killed Clark and Marsheila.
The State charged Perry with two counts of murder. On June 26,
1997, Perry agreed to plead guilty to two counts of Class A
felony voluntary manslaughter. The agreement left sentencing
entirely to the trial court’s discretion[.]
On July 24, 1997, the trial court sentenced Perry to thirty-five
years for each voluntary manslaughter conviction, to be served
consecutively for a total sentence of seventy years[.]
Perry v. State, 845 N.E.2d 1093, 1094-95 (Ind. Ct. App. 2006) (“Perry I”).
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[3] Perry subsequently filed a petition for post-conviction relief, which the post-
conviction court denied. We affirmed the post-conviction court on appeal.
Perry v. State, 904 N.E.2d 302 (Ind. Ct. App. 2009) (“Perry II”).
[4] Thereafter, on August 19, 2014, Perry filed a pro se motion to correct erroneous
sentence. The trial court summarily denied that motion, and, on September 16,
Perry filed a notice of appeal. That appeal is currently pending with this court.
Notwithstanding the pending appeal, on November 20, 2014, Perry filed
another pro se motion to correct erroneous sentence. The trial court refused to
allow Perry to file that motion, stating that it lacked jurisdiction because Perry
had “previously filed a similar pleading, which that matter [sic] is currently on
appeal.” Appellant’s App. at 55. This appeal ensued. 1
Discussion and Decision
[5] We note that the State has not filed an appellee’s brief. When an appellee fails
to submit a brief, we do not undertake the burden of developing the appellee’s
arguments, and we apply a less stringent standard of review, that is, we may
reverse if the appellant establishes prima facie error. Zoller v. Zoller, 858 N.E.2d
124, 126 (Ind. Ct. App. 2006). This rule was established so that we might be
relieved of the burden of controverting the arguments advanced in favor of
1
It is well settled that 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. Shepherd v. Truex, 819
N.E.2d 457, 463 (Ind. Ct. App. 2004).
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reversal where that burden properly rests with the appellee. Wright v. Wright,
782 N.E.2d 363, 366 (Ind. Ct. App. 2002).
[6] Here, Perry filed a motion to correct erroneous sentence on August 19, 2014,
and filed a notice of appeal after the trial court summarily denied that motion.
On September 30, the trial court clerk issued its notice of completion of clerk’s
record. In Jernigan v. State, 894 N.E.2d 1044, 1046 (Ind. Ct. App. 2008), we
reiterated that,
[p]ursuant to Indiana Appellate Rule 8, “[t]he Court on Appeal
acquires jurisdiction on the date the trial court clerk issues its
Notice of Completion of Clerk's Record.” See also Clark v.
State, 727 N.E.2d 18, 20 (Ind. Ct. App. 2000) (once an appeal is
perfected, trial court loses subject matter jurisdiction over the
case), trans. denied. A judgment made when the court lacks
subject matter jurisdiction is void. Id. The policy underlying the
rule is to facilitate the efficient presentation and disposition of the
appeal and to prevent the simultaneous review of a judgment by
both a trial and appellate court. Id. at 21.
. . . . However, there are exceptions to this general rule which
permit the trial court to retain jurisdiction notwithstanding an
appeal. Id. “For example, a trial court may retain jurisdiction to
reassess costs, correct the record, enforce a judgment, continue
with a trial during an interlocutory appeal concerning venue, or
preside over matters which are independent of and do not
interfere with the subject matter of the appeal.” Id.; see
also Bradley v. State, 649 N.E.2d 100, 106 (Ind. 1995) (holding that
trial court retained jurisdiction to proceed with criminal trial
during pending appeal of denial of bail, because the bail appeal
was entirely independent of the trial and would not intermeddle
with the subject matter of the appeal); Clark, 727 N.E.2d at
21 (holding that trial court retained jurisdiction to proceed with
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probation revocation hearing during pendency of direct appeal
from drug convictions, because appeal was entirely independent
of revocation proceeding).
[7] Here, when Perry filed his second motion to correct erroneous sentence on
November 20, 2014, he had a pending appeal from the trial court’s denial of his
first motion to correct erroneous sentence. And, unlike the matters before the
court in Bradley and Clark, the matter presented to the trial court
by Perry’s motion was not independent of the issue Perry presented in the
pending appeal. Instead, the issue presented in Perry’s pending appeal is
identical to the issue presented in his November 20, 2014, motion to correct
erroneous sentence.
[8] By operation of Appellate Rule 8, then, this court had jurisdiction over the
subject matter of his motion to correct erroneous sentence on September 30,
2014. Accordingly, when Perry filed his second motion to correct erroneous
sentence on November 20, the trial court correctly determined that it was
without jurisdiction to consider the subject matter of that motion.
[9] Affirmed.
Baker, J., and Friedlander, J., concur.
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