      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
      Court of Appeals of Indiana | Memorandum Decision 45A03-1412-CR-448 | March 31, 2015        Page 1 of 5
      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”).


      Court of Appeals of Indiana | Memorandum Decision 45A03-1412-CR-448 | March 31, 2015   Page 2 of 5
[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).

      Court of Appeals of Indiana | Memorandum Decision 45A03-1412-CR-448 | March 31, 2015                  Page 3 of 5
      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

      Court of Appeals of Indiana | Memorandum Decision 45A03-1412-CR-448 | March 31, 2015   Page 4 of 5
              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.




      Court of Appeals of Indiana | Memorandum Decision 45A03-1412-CR-448 | March 31, 2015   Page 5 of 5
