      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                         FILED
      regarded as precedent or cited before any                               May 08 2019, 8:43 am
      court except for the purpose of establishing                                  CLERK
      the defense of res judicata, collateral                                  Indiana Supreme Court
                                                                                  Court of Appeals
      estoppel, or the law of the case.                                             and Tax Court




      APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
      Charles Edward Sweeney, Jr.                              Curtis T. Hill, Jr.
      Carlisle, Indiana                                        Attorney General of Indiana
                                                               J.T. Whitehead
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Charles Edward Sweeney, Jr.,                             May 8, 2019
      Appellant-Plaintiff,                                     Court of Appeals Case No.
                                                               18A-PL-2593
              v.                                               Appeal from the
                                                               Sullivan Circuit Court
      Curtis T. Hill Jr., et al.,                              The Honorable
      Appellee-Defendant.                                      Robert E. Hunley, II, Judge
                                                               Trial Court Cause No.
                                                               77C01-1808-PL-436



      Kirsch, Judge.


[1]   Charles Edward Sweeney, Jr. (“Sweeney”) appeals from the trial court’s order

      dismissing his action against Curtis T. Hill, Jr., et al. (“the State”) for


      Court of Appeals of Indiana | Memorandum Decision 18A-PL-2593 | May 8, 2019                      Page 1 of 7
      declaratory judgment. He raises the following restated issue for our review:

      whether the trial court erred in granting the State’s motion to dismiss his

      declaratory judgment action for failure to state a claim.


[2]   We affirm.


                                 Facts and Procedural History
[3]   Sweeney was found guilty of murder in November 1995 and was sentenced to

      sixty years in the Indiana Department of Correction. Sweeney v. State, 704

      N.E.2d 86, 91 (Ind. 1998), cert. denied, 527 U.S. 1035 (1999). Sweeney filed a

      direct appeal with the Indiana Supreme Court, which had jurisdiction due to

      the length of his sentence, and the Supreme Court affirmed both his conviction

      and sentence in 1998. Id. at 112. Sweeney filed a petition for writ of habeas

      corpus, which was denied by the district court in 2001, and that denial was

      affirmed by the Seventh Circuit. Sweeney v. Carter, 361 F.3d 327, 334 (7th Cir.

      2004), cert. denied, 543 U.S. 1020 (2004). Sweeney later pursued a petition for

      post-conviction relief, which was denied by the post-conviction court. Sweeney

      v. State, 886 N.E.2d 1, 6 (Ind. Ct. App. 2008), trans. denied, cert. denied, 555 U.S.

      1003 (2008). Sweeney appealed the denial of his petition for post-conviction

      relief, and this court affirmed the denial. Id. at 10. In each of these appeals,

      Sweeney has argued ineffective assistance of counsel, and in each case, his

      contentions have failed for various reasons.


[4]   Sweeney has also filed multiple other motions and pleadings in various venues

      and jurisdictions. The United States Supreme Court, in its order denying

      Court of Appeals of Indiana | Memorandum Decision 18A-PL-2593 | May 8, 2019   Page 2 of 7
      Sweeney’s motion to proceed in forma pauperis and his petition for writ of

      habeas corpus, stated that Sweeney “has repeatedly abused [that] Court’s

      process” and directed the clerk of that court to not accept any petitions from

      Sweeney in any non-criminal matters unless the docketing fee is paid and the

      petition is submitted in compliance with United States Supreme Court rules. In

      re Sweeney, 134 S. Ct. 2690 (2014).


[5]   In Sweeney v. State, case number 10A01-1308-SP-367, Sweeney sought leave to

      file a successive petition for post-conviction relief, which was denied by this

      court. In Sweeney v. State, case number 10A01-1503-CR-121, Sweeney appealed

      the denial of a Trial Rule 60(B) motion, and the State moved for dismissal on

      grounds that the action was not a proper avenue to attack a criminal conviction.

      In Sweeney v. State, case number 10A01-1405-SP-199, Sweeney again sought

      leave to file a successive petition for post-conviction relief, which was denied by

      this court. Sweeney again sought leave to file successive petitions for post-

      conviction relief in Sweeney v. State, case number 10A05-1507-SP-975, and in

      Sweeney v. State, case number 10A05-1511-SP-2037, which were both denied.


[6]   On August 21, 2018, Sweeney filed a motion for declaratory judgment in the

      Sullivan Circuit Court, in which he requested a declaratory judgment that the

      holding in Jewell v. State, 957 N.E.2d 625, 635 (Ind. 2011) had retroactive effect

      and allowed him to file a successive petition for post-conviction relief.

      Appellant’s App. at 176-82. On September 21, 2018, the State filed a motion to

      dismiss for failure to state a claim pursuant to Indiana Trial Rule 12(B)(6). Id.

      at 30-39. The trial court issued its order dismissing Sweeney’s action with

      Court of Appeals of Indiana | Memorandum Decision 18A-PL-2593 | May 8, 2019   Page 3 of 7
      prejudice on October 10, 2018. Id. at 20. In the order, the trial court stated that

      Sweeney’s action “is a prohibited attempt to circumvent the established post-

      conviction procedure by an action for a declaratory judgment and is, therefore,

      not justiciable.” Id. Sweeney now appeals.


                                     Discussion and Decision
[7]   A motion to dismiss for failure to state a claim upon which relief can be granted

      tests the legal sufficiency of a claim, not the supporting facts. Thornton v. State,

      43 N.E.3d 585, 587 (Ind. 2015) (citing Kitchell v. Franklin, 997 N.E.2d 1020,

      1025 (Ind. 2013)). When ruling on a motion to dismiss, we view the pleadings

      in the light most favorable to the non-moving party and draw every reasonable

      inference in favor of that party. Id. We review a trial court’s grant or denial of

      a Trial Rule 12(B)(6) motion de novo. Id. “We will not affirm such a dismissal

      ‘unless it is apparent that the facts alleged in the challenged pleading are

      incapable of supporting relief under any set of circumstances.’” Id. (quoting

      City of E. Chicago, Ind. v. E. Chicago Second Century, Inc., 908 N.E.2d 611, 617

      (Ind. 2009) (internal quotation omitted)). In making this determination, we

      look only to the complaint and may not resort to any other evidence in the

      record. Chenore v. Plantz, 56 N.E.3d 123, 126 (Ind. Ct. App. 2016).


[8]   In ruling on a Trial Rule 12(B)(6) motion to dismiss, the trial court “may look

      only at the pleadings, with all well-pleaded material facts alleged in the

      complaint taken as admitted, supplemented by any facts of which the court can

      take judicial notice.” Davis ex rel. Davis v. Ford Motor Co., 747 N.E.2d 1146,


      Court of Appeals of Indiana | Memorandum Decision 18A-PL-2593 | May 8, 2019    Page 4 of 7
       1149 (Ind. Ct. App. 2001) (citing Anderson v. Anderson, 399 N.E.2d 391, 406

       (Ind. Ct. App. 1979)), trans. denied. Pursuant to Indiana Evidence Rule 201(d),

       the “court may take judicial notice at any stage of the proceeding.” A court

       may take judicial notice of “records of a court of this state.” Ind. Evidence

       Rule 201(b)(5).


[9]    Sweeney takes issue with the State’s inclusion in its motion to dismiss of prior

       pleadings and actions Sweeney has filed in which he raised the exact, or

       basically the same, claim as that raised in the present case. However, such

       pleadings and actions are obtainable from Odyssey, the statewide electronic

       case management system. In Horton v. State, 51 N.E.3d 1154, 1160-61 (Ind.

       2016), our Supreme Court observed that Evidence Rule 201(b)(5) “now permits

       courts to take judicial notice of ‘records of a court of this state’” and that such

       records are presumptively sources of facts “that cannot reasonably be

       questioned.” Therefore, the trial court could take judicial notice of the

       pleadings and actions included by the State and such judicially noticed

       pleadings and actions could be reviewed in ruling on the motion to dismiss.

       Davis, 747 N.E.2d at 1149.


[10]   Sweeney argues that the trial court erred in dismissing his motion for

       declaratory judgment for failure to state a claim. He contends that his

       declaratory judgment action is not a collateral attack on his conviction and

       should not have been dismissed. He asserts that his motion for declaratory

       judgment is a request to determine whether Jewell v. State, 957 N.E.2d 625, 635



       Court of Appeals of Indiana | Memorandum Decision 18A-PL-2593 | May 8, 2019   Page 5 of 7
       (Ind. 2011) has retroactive effect and allows him to file a successive petition for

       post-conviction relief. Appellant’s App. at 176-82.


[11]   In Saylor v. State, 81 N.E.3d 228 (Ind. Ct. App. 2017), trans. denied, a panel of

       this court concluded that the State was entitled to judgment on the pleadings

       where the defendant brought an action for declaratory relief, which actually

       repeated past arguments raised in previous attacks on his conviction, because

       the defendant’s action constituted a collateral and non-justiciable attack on his

       conviction. Id. at 232. In Saylor, the defendant had previously challenged his

       convictions and lost on both direct appeal and in post-conviction proceedings,

       and, therefore, his only avenue to seek relief was through a successive petition

       for post-conviction relief. Id. Although the defendant claimed that he was only

       seeking a declaration of his rights and not challenging his convictions, this court

       found that he was, in fact, attempting to challenge his convictions, and even if

       he was merely seeking a clarification of the law, he could not be granted relief

       from such a clarification because it would not have affected his convictions and

       would have been only an advisory opinion, which does not address a justiciable

       claim. Id.


[12]   Here, Sweeney is attempting to do the same thing that the defendant in Saylor

       attempted. Sweeney is using a motion for declaratory judgment to again

       attempt to challenge his murder conviction by raising his past arguments again.

       In his past appeals and attempts to obtain permission to file successive petitions

       for post-conviction relief, Sweeney has repeatedly raised issues regarding

       ineffective assistance of counsel. His motion for declaratory judgment,

       Court of Appeals of Indiana | Memorandum Decision 18A-PL-2593 | May 8, 2019   Page 6 of 7
       although phrased as a request that this court declare that Jewell has retroactive

       effect, is again an attempt to challenge his conviction with a claim of ineffective

       assistance of counsel. Appellant’s App. at 176-82. In its motion to dismiss, the

       State correctly alerted the trial court to the prior actions Sweeney had filed and

       correctly sought judicial notice of the actions. We conclude that, as in Saylor,

       Sweeney’s claim is seeking a declaration clarifying the law, which is merely

       advisory and would not change or affect his conviction. “An opinion is

       ‘advisory’ when it ‘would not change or affect legal relations’ between the

       parties.” Saylor, 81 N.E.2d at 232. Such cases are generally not justiciable. Id.

       We, therefore, conclude that the trial court properly found Sweeney’s action to

       be non-justiciable. The trial court did not err in granting the State’s motion to

       dismiss Sweeney’s action for failure to state a claim.


[13]   Affirmed.


       Bradford, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-PL-2593 | May 8, 2019   Page 7 of 7
