IN THE INDIANA SUPREME COURT
LLOYD JOHNSON, ) Supreme Court
appellant, ) cause no. 47S04-0110-PC-478
v. )
) Court of Appeals
STATE OF INDIANA, ) cause no. 47A04-0103-PC-112
appellee. )
) Trial Court
) cause no. 47D01-9708-DF-553
PUBLISHED ORDER
The appellant herein, Lloyd Johnson, was given two consecutive twenty-
year sentences of imprisonment for dealing in a controlled substance and
for conspiracy to deal in a controlled substance. On appeal, the
conspiracy conviction was reversed. Johnson v. State, Cause No. 47A01-9911-
CR-384 (Memo. Dec. Ind. Ct. App., October 27, 2000).
A few months later, Johnson filed a motion seeking an order from the
trial court to compel his former appellate counsel to produce certain
documents. The trial court denied that motion by order dated January 18,
2001, and Johnson, acting pro se, initiated this attempted appeal from that
denial by filing a Notice of Appeal on February 8. See Ind. Appellate Rule
9.
No Transcript was requested or necessary to the appeal and the Notice
of Completion of Clerk’s Record was issued March 5. See App. R. 10(C),
45(B)(1)(a). After obtaining an extension of time, Johnson filed his
appellant’s brief on May 8. Johnson did not file an Appendix with his
brief, as required by Appellate Rules 49(A) and 50(B)(1).
On June 27, the State of Indiana, by its Attorney General, filed a
“Motion For Order Directing Defendant To File Conforming Appendix And
Permission To File A Late Brief Of Appellee Due To Non-Service.” In the
motion, the State advised the Court of Appeals that it had not been served
with the appellant’s brief. Noting also Johnson’s failure to file an
Appendix, the State requested that the Court of Appeals enter an order that
would direct Johnson to file an Appendix and grant the State additional
time to file the brief of the appellee. Alternatively, the State asked
that the appeal be dismissed for failure to file an Appendix.
The Court of Appeals opted for the latter remedy. Johnson v. State,
Cause No. 47A01-0103-PC-112 (Memo. Dec. Ind. Ct. App. July 23, 2001). In
dismissing the appeal, the Court of Appeals stated, “Because Johnson has
failed to comply with the appellate rules and file an Appendix with his
brief, his appeal is dismissed.” Memo. Dec. at 3. On motion from the
State, the Court of Appeals decided to publish the opinion, now reported as
Johnson v. State, ___ N.E.2d ___, 2001 WL 1047404 (Ind. Ct. App. 2001).
Rehearing was denied by the Court of Appeals. Johnson then petitioned to
transfer jurisdiction to this Court pursuant to Appellate Rules 56(B) and
57.
At this point we pause to note that an order denying a motion to
compel an attorney to produce documents, unless entered as a written
judgment expressly determining that there is no just cause for delay in
accordance with Trial Rule 54(B), is not a final judgment. See App. R
2(H). Neither is it an interlocutory order appealable as a matter of
right. See App. R. 14(A). Therefore, appellate jurisdiction is in doubt.
But see McKim v. State, 528 N.E.2d 484 (Ind. Ct. App. 1988) (assuming
without deciding that denial of a motion to compel an attorney to produce
documents brought pursuant to statute is immediately appealable). We elect
not to address that question at this time, however, and focus instead on a
specific point of appellate procedure that has arisen under the
substantially revised rules that went into effect January 1, 2001.
The opinion of the Court of Appeals suggests that the failure to file
an Appendix is always fatal to an appeal. Appellate Rule 49(A) does state,
“The appellant shall file its Appendix with its appellant’s brief.”
(Emphasis added) Further, Appellate Rule 50(B)(1) states, “The appellant’s
Appendix in a criminal appeal shall contain [documents listed].”
Nevertheless, the failure to file an Appendix is not necessarily automatic
cause for dismissal. In this instance, the State moved to compel Johnson
to file a conforming Appendix. The Court of Appeals could have granted
that motion and required compliance with the order within a specific time
period. See App. R. 27 (“Any provision of these Rules regarding
preparation of the Record on Appeal may be enforced by order of the Court
on Appeal.”)
We find that requiring compliance with the rules in criminal appeals,
rather than dismissing the appeal, is further supported by Appellate Rule
49(B), which provides, “Any party’s failure to include any item in an
Appendix shall not waive any issue or argument.” Because the Appendix is
part of the physical Record on Appeal presented to the appellate court,
this new rule represents a departure from some of the prior case law, and
signals a preference for an ameliorative approach toward failures by the
parties to provide a complete record. See, e.g., Lee v. State, 694 N.E.2d
719, 721, n. 6 (Ind. 1998) (“[I]t is defendant’s duty to present this Court
with an adequate record on appeal and when defendant fails to do so, the
issue is deemed waived. See Stallings v. State, 508 N.E.2d 550, 552 (Ind.
1987); Jackson v. State, 496 N.E.2d 32, 33 (Ind. 1986).”). We note
further that the rules also provide opportunities for the appellee to file
an Appendix containing materials not found in the appellant’s Appendix, and
for the filing of supplemental appendices. See App. R. 50(A)(3), 50(B)(2),
50(D).
The 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. If 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.
We grant transfer of jurisdiction and pursuant to Appellate Rule
58(A), vacate the Court of Appeals’ opinion and remand the appeal to the
Court of Appeals for further proceedings consistent with this order.
The Clerk is directed to send a copy of this order to Lloyd Johnson,
to all counsel of record, to the Hon. Raymond L. Kern, to Hon. John T.
Sharpnack, Chief Judge of the Court of Appeals; to Steve Lancaster, Court
of Appeals Administrator; to Janet Roberts Blue, Commissioner of the Court
of Appeals; to the Attorney General of Indiana, to the Indiana Public
Defender, to West Group for publication among the reported decisions of
this Court, and to LexisNexis.
Done at Indianapolis, Indiana this 22nd day of October, 2001.
/s Randall T. Shepard
Chief Justice of Indiana
All Justices concur.