                                                      Oct 28 2014, 9:21 am
FOR PUBLICATION


ATTORNEY FOR APPELLANT:                       ATTORNEY FOR APPELLEE:

DALE W. ARNETT                                GREGORY F. ZOELLER
Winchester, Indiana                           Attorney General of Indiana




                               IN THE
                    COURT OF APPEALS OF INDIANA

ARTHUR DALE MILLER,                           )
                                              )
      Appellant-Defendant,                    )
                                              )
              vs.                             )       No. 38A02-1403-CR-141
                                              )
STATE OF INDIANA,                             )
                                              )
      Appellee-Plaintiff.                     )


                      APPEAL FROM THE JAY SUPERIOR COURT
                          The Honorable Max C. Ludy, Judge
                             Cause No. 38D01-1209-FC-2


                                   October 28, 2014

                             OPINION - FOR PUBLICATION

PYLE, Judge
                             STATEMENT OF THE CASE

       This case is a reminder that we will not allow a defendant to have two bites at the

proverbial appellate apple, especially when it happens with the assistance of a trial court

that should have dismissed the underlying motion for lack of jurisdiction.

       Arthur Dale Miller (“Miller”) previously initiated an appeal of the trial court’s

denial of his motion to hold the Jay County Sheriff in contempt for failing to transport

him to the Department of Correction within five days of his sentencing. Our Court

dismissed his appeal based on his failure to properly serve the proper party with his

notice of appeal. Miller then sought to set aside the order denying his contempt motion

and to have the trial court re-enter a judgment on his contempt motion so that he could re-

appeal the trial court’s order. The trial court granted Miller’s request, and Miller now

attempts to re-appeal the denial of his contempt motion.

       Because we find that the trial court did not have jurisdiction to rule on Miller’s

contempt motion based on Miller’s lack of standing and because Miller’s challenge was

nevertheless rendered moot when he was transferred to the Department of Correction, we

dismiss this appeal.

       We dismiss.

                                         ISSUE

       Whether the trial court erred by ruling on Miller’s motion to find the Jay
       County Sheriff in contempt.




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                                                FACTS

        As this is the second time that this case has appeared before us on appeal, we refer

to our prior opinion for the underlying facts:

        On September 19, 2012, the State charged Miller with operating a motor
        vehicle after forfeiture of license for life as a Class C felony, criminal
        recklessness as a Class A misdemeanor, and failure to stop after an accident
        resulting in damage to an attended vehicle as a Class C misdemeanor.
        Miller signed a plea agreement on October 4, 2012, in which he agreed to
        plead guilty to Count I and serve a four-year executed sentence, in
        exchange for the State dismissing Counts II and III. The court accepted
        Miller’s guilty plea and, on November 13, 2012, ordered the Jay County
        Sheriff to deliver Miller to the Department of Correction within five
        business days. Appellant’s App at 4–5.

        On November 30, 2012, seventeen days after sentencing, Miller had not yet
        been delivered to the Department of Correction, and he filed a pro se
        “Petition of Alligations (sic) of Contempt of Court.” Id. at 34–35.[1] In the
        petition, Miller alleged that his due process rights were being violated
        because the Jay County Sheriff was ignoring the trial court’s order. He
        asked that the Jay County Sheriff be found in contempt of court and be
        fined $5,000 per day, or the maximum allowed by law.

        The trial court held a hearing on the petition on December 3, 2012, and
        found that the Jay County Sheriff was not in contempt.[2] Miller asked to
        appeal the court’s decision, and the trial court appointed appellate counsel
        to represent Miller. Miller’s Notice of Appeal, which was mailed on
        January 2, 2013, named the State of Indiana as Appellee. Miller did not
        serve Notice of Appeal upon the Jay County Sheriff. See id. at 40. On
        June 27, 2013, the Indiana Attorney General (“Attorney General”) filed a
        special appearance in order to file a Notice of Non–Involvement of Indiana
        Attorney General (“Notice of Non–Involvement”). In the Notice of Non–
        Involvement, the Attorney General argued that the State is not involved in


1
  Although this appeal involves the review of a trial court’s judgment on a civil contempt petition, our
appellate cause number is indicated as a criminal or “CR” cause because Miller filed his contempt petition
as part of his criminal case, and the trial court did not transfer the petition or assign it a civil cause
number.
2
  During the December 2012 hearing, the Jay County Sheriff testified that his office had sent the
necessary paperwork to the Department of Correction but could not transport Miller until the Department
of Correction notified the sheriff that it was ready for Miller.
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        the appeal because the only relief Miller requested is against the Jay County
        Sheriff, who the Attorney General does not represent. The Attorney
        General further noted that the State had no involvement in the matter at the
        trial court.

Miller v. State, No. 38A04-1301-CR-8, *1 (Ind. Ct. App. Aug. 14, 2013). On January 23,

2013, while this first appeal was pending, the Jay County Sheriff transported Miller to the

Department of Correction’s Reception Diagnostic Center (“RDC”). On August 14, 2013,

another panel of this Court dismissed Miller’s appeal based on his failure to serve his

notice of appeal on the proper party in this appeal (i.e., the Jay County Sheriff). 3 Miller

neither sought rehearing nor petitioned for transfer of this Court’s dismissal.4

        Five months later, on February 5, 2014, Miller’s appointed counsel filed a Trial

Rule 60(B) motion to set aside the trial court’s December 2012 order, which denied

Miller’s motion to find the Jay County Sheriff in contempt. In his motion, Miller

acknowledged that our Court had dismissed his appeal but argued that, “[a]s a matter of

equity,” Miller “should be allowed to have his day in court[.]” (App. 73). Miller also

argued that if his counsel “was ineffective for not properly pursuing the appeal, then this

cause falls within the parameters of T.R. 60(B)(8)[.]” (App. 73). He further contended


3
  Specifically, the panel of our Court held that Miller’s failure to serve the notice of appeal on the proper
party was a failure to perfect his appeal that required it to dismiss Miller’s appeal “for lack of
jurisdiction.” Miller, No. 38A04-1301-CR-8, slip op at *2. We note that, pursuant to our Indiana
Supreme Court’s recent opinion of In re Adoption of O.R, Miller’s failure to serve the notice of appeal on
the proper party may have been more appropriately considered a procedural default, rather than a lack of
jurisdiction. See generally In re Adoption of O.R., --- N.E.3d ---, 2014 WL 4783378 (Ind. 2014)
(explaining that an untimely filing of a notice of appeal was not a “jurisdictional” bar precluding appellate
review). Nevertheless, as explained below, this case should have been dismissed based on a lack of
jurisdiction but for other reasons.
4
 Nor did Miller file any motion with this Court seeking permission to serve his notice of appeal on the
proper party.

                                                     4
that he had filed his motion to set aside within a reasonable time and that he had a

meritorious defense because the Sheriff had failed to comply with the trial court’s

sentencing order and with INDIANA CODE § 35-38-3-4, both of which required the Sheriff

to transport Miller to the Department of Correction within five days of sentencing.5

         On February 11, 2014, the trial court held a hearing on Miller’s motion. During

the hearing, Miller appeared telephonically from his Department of Correction facility

and was represented by counsel.             The Jay County Sheriff was neither present nor

represented by counsel. During the hearing, Miller and the prosecutor agreed that the

contempt motion was a civil matter even though it was filed under Miller’s criminal

cause. The trial court judge stated that if he were to set aside the judgment then it would

give Miller “a chance . . . to get a new appeal” and that “hopefully the Court of Appeals

wouldn’t frown upon [him] if [he] did do that.” (Tr. 45-46) (font altered to lower case).

When discussing whether to set aside the judgment to allow Miller a second chance to

appeal the trial court’s denial of his contempt motion, the trial judge stated that “the only

damage [he] would do” would be to “aggravate the Court of Appeals by letting this thing

come back through” and “upset[ting]” the Sheriff because he would “have to hire an

attorney or do something to represent him in the appeal.” (Tr. 48) (font altered to lower

case).

         On February 12, 2014, the trial court entered an order granting Miller’s Trial Rule

60(B) motion to set aside the December 2012 judgment and noted that it was doing so


5
 INDIANA CODE § 35-38-3-4 provides that a sheriff “shall transport the convicted person within five (5)
days after the day of sentencing, unless the court orders the sheriff to transport the person within some
other specified period.”
                                                   5
“[i]n fairness” to Miller. (App. 6). The trial court also took judicial notice of the

December 2012 hearing on Miller’s contempt motion and then re-denied Miller’s motion.

On March 5, 2014, Miller filed a notice of appeal to commence a second appeal of the

denial of his contempt motion. Miller served his notice of appeal on the Jay County

Sheriff but did not name the Sheriff as a party.

                                        DECISION

       Before addressing Miller’s argument, we observe that the Jay County Sheriff has

not filed an appellate brief. When an appellee fails to submit an appellate brief “we need

not undertake the burden of developing an argument on the [A]ppellee’s behalf.” Trinity

Homes, LLC v. Fang, 848 N.E.2d 1065, 1068 (Ind. 2006). Instead, “we will reverse the

trial court’s judgment if the appellant’s brief presents a case of prima facie error.” Id.

“Prima facie error in this context is defined as, ‘at first sight, on first appearance, or on

the face of it.’” Id. (quoting Santana v. Santana, 708 N.E.2d 886, 887 (Ind. Ct. App.

1999)). When the appellant is unable to meet this burden, we will affirm the trial court’s

ruling. Id.

       Miller argues that the trial court erred by re-denying his motion to hold the Jay

County Sheriff in contempt. We agree that the trial court erred but conclude that the trial

court did so for other reasons.

       Aside from the fact that the trial court should not have granted Miller’s Trial Rule

60(B) motion in order to allow him to circumvent this Court’s dismissal order and to




                                             6
have a second chance at appeal,6 the trial court did not have jurisdiction—either the first

time or the second time—to rule on Miller’s motion seeking to have the Sheriff held in

contempt because Miller failed to show that he had standing to bring such a motion.

        “The judicial doctrine of standing focuses on whether the complaining party is the

proper person to invoke the court’s power.” Schloss v. City of Indianapolis, 553 N.E.2d

1204, 1206 (Ind. 1990), reh’g denied. “The standing requirement is a limit on the court’s

jurisdiction which restrains the judiciary to resolving real controversies in which the

complaining party has a demonstrable injury.” Id. “Under our general rule of standing,

only those persons who have a personal stake in the outcome of the litigation and who

show that they have suffered or were in immediate danger of suffering a direct injury as a

result of the complained-of conduct will be found to have standing.” State ex rel.

Cittadine v. Ind. Dep’t of Transp., 790 N.E.2d 978, 979 (Ind. 2003) (emphasis added).

“Absent this showing, complainants may not invoke the jurisdiction of the court.” Id.

        Here, Miller filed a pro se motion to find the Sheriff in civil contempt and filed

this motion in his criminal cause. Aside from Miller’s generic assertion that his due

process rights were violated because the Sheriff had not transported him to the

Department of Correction within five days of sentencing, Miller made no specific

showing that he had a demonstrable or direct injury. Furthermore, the trial court’s order

directing the Sheriff to transport Miller and the statute addressing the duties of a sheriff

appear to be merely administrative directives, and Miller did not show that they confer


6
  See Snider v. Gaddis, 413 N.E.2d 322, 324 (Ind. Ct. App. 1980) (explaining that a motion for relief from
judgment under Indiana Trial Rule 60(B) may not be used as a substitute for a direct appeal nor used to
revive an expired attempt to appeal).
                                                    7
any specific right or a private right of action to a defendant such as him. See, e.g., Blanck

v. Ind. Dep’t of Corr., 829 N.E.2d 505, 509 (Ind. 2005) (explaining that while certain

statutes impose various duties on the Department of Correction, inmates do not have a

corresponding right where the legislature did not intent for the inmates to have a private

right of action to enforce these statutes). Because Miller did not have standing to bring

his contempt motion, the trial court did not have jurisdiction and should have dismissed

his motion.

       Moreover, even if Miller had a private right of action and we were to consider the

lack of transfer to Department of Correction within five days as an injury to Miller

sufficient enough to find that he had standing to challenge the Sheriff’s compliance with

a trial court order, Miller’s argument was rendered moot when the Sheriff transferred

Miller to RDC on January 23, 2013. “The long-standing rule in Indiana has been that a

case is deemed moot when no effective relief can be rendered to the parties before the

court.” Matter of Lawrance, 579 N.E.2d 32, 37 (Ind. 1991). When a dispositive issue in

a case has been resolved in such a way as to “‘render it unnecessary to decide the

question involved,’ the case will be dismissed.” Id. (quoting Dunn v. State, 163 Ind. 317,

321, 71 N.E. 890, 894 (1904)). “The existence of an actual controversy is an essential

requisite to appellate jurisdiction.” DeSalle v. Gentry, 818 N.E.2d 40, 49 (Ind. Ct. App.

2004). Because the Sheriff already transferred Miller to the Department of Correction,




                                             8
his argument is moot. Furthermore, because Miller’s argument does not meet the public

interest exception to mootness, we dismiss his appeal.7

       Dismissed.

NAJAM, J., and BAILEY, J., concur.




7
  “[A]lthough moot cases are usually dismissed, Indiana courts have long recognized that a case may be
decided on its merits . . . when the case involves questions of ‘great public interest.’” Matter of
Lawrance, 579 N.E.2d at 37. “Cases found to fall within the public interest exception typically contain
issues likely to recur.” Id.

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