Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before                                      Jul 15 2014, 10:14 am
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.


APPELLANT PRO SE:                                   ATTORNEYS FOR APPELLEE:

BRIAN BAXTER                                        GREGORY F. ZOELLER
Carlisle, Indiana                                   Attorney General of Indiana

                                                    CYNTHIA L. PLOUGHE
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

BRIAN BAXTER,                                       )
                                                    )
       Appellant-Defendant,                         )
                                                    )
               vs.                                  )      No. 49A05-1306-CR-285
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Plaintiff.                          )


                     APPEAL FROM THE MARION SUPERIOR COURT
                        The Honorable Steven J. Rubick, Magistrate
                            Cause No. 49G01-0110-CF-197915



                                          July 15, 2014


                MEMORANDUM DECISION - NOT FOR PUBLICATION


BRADFORD, Judge
                                   CASE SUMMARY

       In 2003, Appellant-Defendant Brian Baxter was convicted under cause number

49G01-0110-CF-197915 (“Cause No. CF-197915”) of numerous offenses including three

counts of murder, conspiracy to commit robbery, resisting law enforcement, and carrying a

handgun without a license. On April 30, 2013, Baxter filed a motion to compel various

public agencies to produce copies of certain public records. The Marion County Clerk’s

Office (“Clerk’s Office”) docketed the motion under Cause No. CF-197915. The trial court

subsequently denied Baxter’s motion. On appeal, Baxter contends that his due process rights

were violated by both the Clerk’s Office’s act of docketing his motion to compel under Cause

No. CF-197915 and the trial court’s denial of his motion to compel. We affirm.

                       FACTS AND PROCEDURAL HISTORY

       The memorandum decision of another panel of this Court, which was handed down on

June 4, 2004, instructs us as to the underlying factual background leading to the instant

appeal.

               On October 5, 2001, Baxter, Terrance Thomas, and Larry Mitchell,
       armed with a gun, went to Edward Green’s apartment to rob him. Green was
       at his apartment with Antonio McGregor and Anthony Ashmore. During the
       robbery, Baxter shot and injured Green and fled from the apartment. While
       Baxter was waiting for Thomas and Mitchell in the car, Edward Gilbert
       entered the apartment. Thomas then shot and killed Green, Gilbert, and
       McGregor, and injured Ashmore.
               Later that night, Baxter and Thomas went to an apartment complex
       carrying a white bag containing the guns used in the crime. At the same time,
       Officer Kenneth Kunz arrived at the apartment complex in pursuit of two
       suspects unrelated to Baxter and Thomas, who had stolen a car, caused a police
       chase, and abandoned the car in the vicinity of the apartment complex. The
       suspects in the car theft were described as two black males. As Officer Kunz
       pulled into the apartment complex, he observed Baxter and Thomas, two black
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       men, running between two apartment buildings toward his police car.
       Believing that Baxter and Thomas were the men involved in the car theft,
       Officer Kunz turned his spot light on them. Baxter and Thomas then turned
       and ran in the other direction. Officer Kunz ran after them. He identified
       himself as a police officer and ordered them to stop several times. Officer
       Kunz chased Baxter and Thomas into an apartment building and eventually
       apprehended them with the grocery bag containing two handguns in an
       apartment in the complex.

Baxter v. State, 49G04-0309-CR-444 *2-3 (Ind. Ct. App. June 4, 2004) (“Baxter I”), trans.

denied.

       On October 10, 2001, under Cause No. CF-197915, Baxter was charged with three

counts of felony murder, one count of attempted murder, conspiracy to commit robbery,

robbery, resisting law enforcement, and carrying a handgun without a license. Id. at 3.

Baxter was subsequently found guilty as charged and sentenced to an aggregate sentence of

140 years. Id. at 3-4. On direct appeal, a panel of this court reversed Baxter’s attempted

murder conviction and concluded that the trial court did not abuse its discretion in sentencing

Baxter. Id. at 12. The panel also remanded the matter to the trial court with instructions for

the trial court to vacate the robbery conviction and to reduce the conspiracy to commit

robbery charge to a Class B felony. Id. The Indiana Supreme Court denied Baxter’s transfer

petition. Baxter v. State, 49A02-0702-PC-128 *1 (Ind. Ct. App. Nov. 20, 2007) (“Baxter

II”), trans. denied.

       Baxter later filed a petition for post-conviction relief. Id. at 2. Baxter’s petition was

denied by the post-conviction court. Id. at 2. A panel of this court affirmed the denial of

Baxter’s petition in Baxter II. Id. at 3-4. The Indiana Supreme Court once again denied


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Baxter’s transfer petition. Id. at 1.

       On April 30, 2013, Baxter filed a “Motion to Compel Public Agencies to Produce

Copies of Public Records” (“motion to compel”). Appellant’s App. p. 46. Baxter’s motion

to compel alleged that various public agencies, including the Indianapolis Metropolitan

Police Department, the Marion County Forensic Agency, and the Marion County

Prosecutor’s Office, had violated the Indiana Access to Public Records Act. Baxter’s motion

to compel requested that the trial court order these agencies to produce copies of the results

of certain gunshot residue tests conducted in connection to Cause No. CF-197915, claiming

that the failure to produce these test results “infringes upon [his] ability to access the courts.”

Appellant’s App. p. 46. Baxter’s motion to compel referred to certain “Exhibits” which he

claims support his various assertions. Appellant’s App. pp. 46-48. These exhibits, however,

were not attached to Baxter’s motion to compel.

       In filing his motion to compel, Baxter did not file an appearance or a summons as

required by the Indiana trial rules for initiating a new civil action. Baxter did provide funds,

seemingly for payment of the required filing fee. The Clerk’s Office did not docket Baxter’s

motion to compel as a new civil action. Instead, it docketed the motion to compel under

Cause No. CF-197915. The trial court subsequently denied Baxter’s motion to compel. This

appeal follows.

                              DISCUSSION AND DECISION

       Baxter contends that his due process rights were violated when the Clerk’s Office

docketed his motion to compel under Cause No. CF-197915 rather than under a new civil

                                                4
cause number. Baxter also contends that his due process rights were violated by the trial

court’s denial of his motion to compel. We will address each contention in turn.

                        I. The Indiana Access to Public Records Act

       Indiana Code section 5-14-3-3 provides that “[a]ny person may inspect and copy the

public records of any public agency during the regular business hours of the agency, except

as provided in section 4 of this chapter.” Indiana Code section 5-14-3-4(a) provides that

certain public records are excepted from Indiana Code section 5-14-3-3 and may not be

disclosed by a public agency unless access to the records is specifically required by a state or

federal statute or is ordered by a court under the rules of discovery. Indiana Code section 5-

14-3-4(b) provides that certain public records, including investigatory records of law

enforcement agencies, shall be excepted from Indiana Code section 5-14-3-3 at the discretion

of the public agency.

       A request for inspection or copying of public records “must: (1) identify with

reasonable particularity the record being requested; and (2) be, at the discretion of the

agency, in writing on or in a form provided by the agency.” Ind. Code § 5-14-3-3(a). “A

person who has been denied the right to inspect or copy a public record by a public agency

may file an action in the circuit or superior court of the county in which the denial occurred

to compel the public agency to permit the person to inspect and copy the public record.” Ind.

Code § 5-14-3-9(e). “Whenever an action is filed under this subsection, the public agency

must notify each person who supplied any part of the public record at issue: (1) that a request

for release of the public record has been denied; and (2) whether the denial was in

                                               5
compliance with an informal inquiry response or advisory opinion of the public access

counselor.” Id. “The person who has been denied the right to inspect or copy need not allege

or prove any special damage different from that suffered by the public at large.” Id. “The

court shall determine the matter de novo, with the burden of proof on the public agency to

sustain its denial.” Ind. Code § 5-14-3-9(f). In Marion County, an action alleging a violation

of the Access to Public Records Act is to be decided by the Environmental Court. See LR49-

TR3-200.

              II. Motion to Compel Docketed Under Cause No. CF-197915

       Baxter contends that his due process rights were violated by the Clerk’s Office’s act of

docketing his motion to compel under Cause No. CF-197915 rather than under a new civil

cause number. With respect to the initiation of a civil action, Indiana Trial Rule 3 provides

as follows:

       A civil action is commenced by filing with the court a complaint or such
       equivalent pleading or document as may be specified by statute, by payment of
       the prescribed filing fee or filing an order waiving the filing fee, and, where
       service of process is required, by furnishing to the clerk as many copies of the
       complaint and summons as are necessary.

The party shall also file a summons which includes certain information relating to the other

party, whom must be provided with service of the complaint. Ind. Trial Rule 4(B). Indiana

Trial Rule 3.1 further provides that the party “shall file with the clerk of the court an

appearance form” at the time an action is commenced.

       In the instant matter, Baxter filed a document entitled “Motion to Compel.” Baxter

also provided funds which were seemingly intended to pay the filing fee. Baxter, however,

                                              6
did not file a summons or appearance. Accordingly, we determine that Baxter did not

comply with all of the requirements for the initiation of a new civil action.

       Furthermore, the language included in Baxter’s motion to compel does not clearly

indicate that Baxter intended for the motion to compel to be considered a new civil complaint

rather than a pleading relating to Cause No. CF-197915. In light of Baxter’s failure to meet

the requirements for initiating a new civil action and the lack of a clear indication that Baxter

intended for the motion to compel to be treated as a new civil complaint, we conclude that

the Clerk’s Office reasonably docketed the motion to compel under Cause No. CF-197915

rather than under a new civil cause number. As such, Baxter’s due process rights were not

violated by the Clerk’s Office’s act of docketing the motion to compel under Cause No. CF-

197915.

                         II. Denial of Baxter’s Motion to Compel

       Baxter also contends that his due process rights were violated by the trial court’s

denial of his motion to compel. On appeal, we review a trial court’s ruling on a motion to

compel de novo. See Novotny v. Renewal by Andersen Corp., 861 N.E.2d 15, 20 (Ind. Ct.

App. 2007). A de novo review is non-deferential to the trial court’s decision. See generally

BLACK’S LAW DICTIONARY 864 (8th ed. 2004).

       While Baxter’s motion to compel asserts that he has been denied access to copies of

the results from certain gunshot residue tests conducted in connection to Cause No. CF-

197915, the motion to compel does not indicate what attempts Baxter made to obtain the

records or fully indicate why his request was denied. Thus, we are unable to determine

                                               7
whether Baxter complied with the requirements of the Access to Public Records Act in

making his request or whether the requested records were exempt from the Act’s disclosure

requirements. Further, as the trial court noted, Baxter had previously been provided with

numerous opportunities to challenge any and all aspects of his conviction, including a direct

appeal and various post-conviction proceedings. Baxter’s motion to compel does not indicate

what he hoped to glean from the copies of the requested records or argue that any of the

information potentially gleaned from these documents would, in turn, justify additional

successive post-conviction proceedings. As such, we conclude that Baxter’s due process

rights were not violated by the trial court’s denial of his motion to compel.

       The judgment of the trial court is affirmed.

RILEY, J., and ROBB, J., concur.




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