                                                                                  FILED
                                                                            Dec 09 2016, 8:49 am

                                                                                  CLERK
                                                                             Indiana Supreme Court
                                                                                Court of Appeals
                                                                                  and Tax Court




      APPELLANT, PRO SE                                         ATTORNEYS FOR APPELLEE
      Gary W. Lowrance                                          Gregory F. Zoeller
      Zionsville, Indiana                                       Attorney General of Indiana
                                                                Ian Alexander Thomas McLean
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Gary W. Lowrance,                                         December 9, 2016
      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                82A01-1601-CR-61
              v.                                                Appeal from the Vanderburgh
                                                                Circuit Court
      State of Indiana,                                         The Honorable David D. Kiely,
      Appellee-Plaintiff.                                       Judge
                                                                Trial Court Cause No.
                                                                82C01-8908-CF-7576



      Pyle, Judge.


                                        Statement of the Case
[1]   Gary Lowrance (“Lowrance”) appeals pro se the trial court’s denial of his

      motion to correct error regarding the denial of his motion for a nunc pro tunc

      order. According to Lowrance, the trial court should have granted both


      Court of Appeals of Indiana | Opinion 82A01-1601-CR-61 | December 9, 2016                      Page 1 of 8
      motions because the trial court’s statement at Lowrance’s 1996 sentencing

      hearing constituted an order to reinstate his right to bear arms. Finding that the

      trial court’s statement at the 1996 sentencing hearing merely set forth the terms

      and conditions of Lowrance’s probation, we affirm the trial court’s denial of

      Lowrance’s motion to correct error.


[2]   We affirm.


                                                      Issue

              Whether the trial court abused its discretion in denying
              Lowrance’s motion to correct error.

                                                      Facts

[3]   The facts as set forth in Lowrance’s direct appeal reveal that:


              [E]arly in the morning of August 5, 1989, [Lowrance] was
              informed that his wife, Leslie Lowrance, was having an affair
              with his best friend, Steven Patterson. Patterson informed
              [Lowrance] that he and Leslie intended to take [Lowrance’s] son
              to Kentucky where Patterson would raise him as his own son.

              That night – after a day filled with chaotic events – all four of the
              above mentioned persons were present in [Lowrance’s]
              apartment. [Lowrance] asked Leslie to come upstairs to kiss
              their son goodnight. As Leslie leaned over to kiss her son,
              [Lowrance] struck her, knocking her to the floor. Patterson
              heard the commotion and ran to Leslie’s aid. [Lowrance]
              brandished a handgun. Patterson begged [Lowrance] not to
              shoot him. [Lowrance] stated “I’m going to kill you, you mother
              f_____,” and shot Patterson in the head numerous times.
              [Lowrance] then turned the gun on Leslie and shot her twice in

      Court of Appeals of Indiana | Opinion 82A01-1601-CR-61 | December 9, 2016       Page 2 of 8
              the head. [Lowrance] ordered Leslie to sit still and watch
              Patterson bleed. [Lowrance] then proceeded to beat Leslie
              brutally about the jaw and face. When [Lowrance’s] and Leslie’s
              son began to cry, [Lowrance] explained they were playing a
              game and asked him if he would like to help.

              Patterson almost died from his wounds. He suffered permanent
              brain damage and faces the prospect of an operation to remove a
              bullet lodged in his spine from which he may not survive. The
              two bullets fired into Leslie’s head ricocheted off. One carried
              away hair and became imbedded in the wall. As a result of the
              beating, Leslie suffered loosened teeth, a cut lip, a swollen jaw, a
              black eye, and a knot the size of a baseball on her face.

      Lowrance v. State, 565 N.E.2d 375, 376-77 (Ind. Ct. App. 1991).


[4]   A jury convicted Lowrance of two counts of attempted murder. The trial court

      sentenced him to concurrent thirty-year sentences. This Court affirmed the

      convictions and sentences on direct appeal. Id. at 376.


[5]   In December 1994, Lowrance filed a petition for post-conviction relief, which

      the post-conviction court granted. Lowrance was retried and convicted of Class

      C felony battery and attempted voluntary manslaughter. On September 20,

      1996, the trial court sentenced Lowrance to an aggregate sentence of thirty

      years with ten years suspended to probation. Regarding the terms and

      conditions of Lowrance’s probation, the trial court stated as follows:


              At the conclusion[] of your executed sentence I’m placing you
              on, suspending the ten years and placing you on probation and
              subject to the following terms, one, and probably the most
              important, is that you shall have no communication . . . with the
              victims . . . . [T]hat you are to obey all the laws of the State of

      Court of Appeals of Indiana | Opinion 82A01-1601-CR-61 | December 9, 2016      Page 3 of 8
               Indiana . . . . I’m going to make this a non-reporting type of
               probation with an exception, I want you to keep the [probation
               department] informed at all times as to your address . . . . There
               are other conditions that we normally impose[], some of them
               I’m not going to apply. . . . I assume you will work at suitable
               employment and meet your family responsibilities. You are not
               to unlawfully use, possess, sell or dispense any drug identified as
               [a] controlled substance. . . . I’m not going to order that you not
               possess a firearm, although there was a deadly weapon involved here,
               there’s evidence that you did like to do hunting and I don’t see why you
               should be prevented from doing that, certainly you are not to illegally
               possess guns and that again if you did would be a violation of the
               State of Indiana which would be a violation of your probation.
               I’m going to ask that you, make it a condition that you continue
               with your counseling . . . .


      (Tr. 8-10) (emphasis added).1 Lowrance did not appeal his convictions or

      sentence.


[6]   Lowrance was released from prison to probation in June 1999. Ten years later,

      in June 2009, he successfully completed probation. In 2014, Lowrance

      attempted to legally purchase a shot gun; however, his application was denied




      1
        Today’s reader will likely be surprised by the trial court’s exclusion of a provision prohibiting firearms
      under its probation order. Putting aside the horrific facts of this case, there was a narrow exception under the
      law that would have allowed Lowrance to legally possess a firearm. In 1996, INDIANA CODE § 35-47-4-4
      permitted a convicted felon to own, carry, or possess a firearm as long as he or she was in their dwelling, on
      their property, or inside their fixed place of business. Federal law prohibited a convicted felon from
      possessing or receiving a firearm only “in or affecting interstate commerce.” 18 U.S.C. §922(g) (1996).
      However, in 1999, our General Assembly enacted what is currently known as Indiana’s serious violent felon
      statute. IND. CODE § 35-47-4-5. Under the current statute, a person convicted of a qualifying felony, like
      attempted voluntary manslaughter, is prohibited from knowingly or intentionally possessing a firearm,
      anywhere.

      Court of Appeals of Indiana | Opinion 82A01-1601-CR-61 | December 9, 2016                           Page 4 of 8
      following a national background check, which revealed his attempted murder

      convictions.


[7]   In December 2014, Lowrance filed a “Motion for Nunc Pro Tunc Docket

      Entries to Accurately Reflect the Actions Take[n] by the Court in this Case,”

      wherein he asked the trial court to enter the following nunc pro tunc entries in

      the docket:


              2. September 20, 1996, Docket Entry should include “defendant
              is not prohibited from possessing firearms, defendant may legally
              possess firearms.”


              3. September 24, 1996, IDC Abstract or Abstract of Judgment
              should be entered reflecting convictions for less[e]r included
              charges of “Battery-Class C and Attempted Voluntary
              Manslaughter-Class A.”


[8]   (App. 13). The motion specifically alleged that the trial court’s statement at

      Lowrance’s 1996 sentencing hearing constituted an order “returning . . .

      Lowrance’s right to bear arms legally.” (App. 13). He asked the trial court to

      direct the clerk or her staff to provide notice to “all appropriate State and

      Federal databases” that his “right to bear arms [was] legally reinstated on

      September 20, 1996.” (App. 14).


[9]   The trial court held a hearing on the petition in March 2015 and, issued an

      amended abstract of judgment that reflected the 1996 battery and attempted

      voluntary manslaughter convictions in April 2015. The abstract of judgment



      Court of Appeals of Indiana | Opinion 82A01-1601-CR-61 | December 9, 2016   Page 5 of 8
       did not address Lowrance’s argument that the trial court had issued an order

       reinstating his right to bear arms in 1996.


[10]   In September 2015, Lowrance filed an “Agreed Motion for Nunc Pro Tunc

       Docket Entry to Accurately Reflect the Actions Taken by the Court in this

       Cause,” wherein he sought a determination that the trial court had reinstated

       his right to bear arms on September 20, 1996. He also asked that the trial

       court’s 1996 statement be entered on the “docket to correct the omissions in the

       September 20, 1996 entry.” (App. 764). Two months later, in November 2015,

       the trial court denied Lowrance’s motion. Lowrance filed a motion to correct

       error, which the trial court also denied. Lowrance now appeals the denial of his

       motion to correct error.


                                                    Decision
[11]   At the outset, we note that Lowrance has chosen to proceed pro se. It is well

       settled that pro se litigants are held to the same legal standards as licensed

       attorneys. Twin Lakes Reg’l Sewer Dist. v. Teumer, 992 N.E.2d 744, 747 (Ind. Ct.

       App. 2013). This means that pro se litigants are bound to follow the established

       rules of procedure and must be prepared to accept the consequences of their

       failure to do so. Shepherd v. Truex, 819 N.E.2d 457, 463 (Ind. Ct. App. 2004).

       We will not become an “advocate for a party, or address arguments that are

       inappropriate or too poorly developed or expressed to be understood.” Perry v.

       Anonymous Physician 1, 25 N.E.3d 103, 105 n. 1 (Ind. Ct. App. 2014), trans.

       denied, cert. denied.


       Court of Appeals of Indiana | Opinion 82A01-1601-CR-61 | December 9, 2016   Page 6 of 8
[12]   Here, Lowrance appeals the denial of his motion to correct error pursuant to

       Indiana Trial Rule 59 regarding the trial court’s denial of his motion for a nunc

       pro tunc order. Our standard of review in such cases is well-established. We

       review a trial court’s ruling on a motion to correct error for an abuse of

       discretion. Old Utica School Preservation, Inc. v. Utica Tp., 7 N.E.3d 327, 330 (Ind.

       Ct. App. 2014), trans. denied. An abuse of discretion occurs when the trial

       court’s decision is contrary to the logic and effect of the facts and circumstances

       before it or the reasonable inferences therefrom. Id.


[13]   As for our standard of review for nunc pro tunc orders, we have explained as

       follows:


               A nunc pro tunc order is an entry made now of something which
               was actually previously done to have effect as of the former date.
               Brimhall v. Brewster, 835 N.E.2d 593, 597 (Ind. Ct. App. 2005)
               (citing Cotton v. State, 658 N.E.2d 898, 900 (Ind. 1995)). A nunc
               pro tunc entry may be used to record an act or event nor recorded
               in the court’s order book or to change or supplement an entry
               already recorded in the order book. Brimhall, 835 N.E.2d at 597.
               The purpose of a nunc pro tunc order is to correct an omission in
               the record of action really had but omitted through inadvertence
               or mistake. Id. But the record must establish that the unrecorded
               act or event actually occurred. Id. A written memorial must
               form the basis for established the error or omission to be
               corrected by a nunc pro tunc entry. Id.


       Grayson v. Union Fed. Savings & Loan Ass’n of Crawfordsville, 851 N.E.2d 1017,

       1020 (Ind. Ct. App. 2006), trans. denied.




       Court of Appeals of Indiana | Opinion 82A01-1601-CR-61 | December 9, 2016    Page 7 of 8
[14]   Lowrance argues that the trial court erred in denying his motion for a nunc pro

       tunc order. He specifically contends that the trial court’s statement at the 1996

       sentencing hearing that it was “not going to order that [Lowrance] not possess a

       firearm” was, in essence, an order reinstating Lowrance’s right to bear arms.

       (Tr. 10). However, our review of the record reveals that the trial court’s

       statement at the sentencing hearing did nothing more than set forth the terms

       and conditions of Lowrance’s probation. The trial court was not reinstating

       Lowrance’s right to bear arms. Accordingly, when Lowrance’s probation

       ended in 2009, so did the applicability of the trial court’s 1996 sentencing

       statement.


[15]   Because the trial court’s sentencing statement did not constitute an order

       reinstating Lowrance’s substantive right to bear arms, there was no “omission

       in the record of action really had.” See Grayson, 851 N.E.2d at 1020. Without

       such an omission, there was nothing for the trial court to correct with a nunc

       pro tunc entry. The trial court did not abuse its discretion in denying the

       motions for nunc pro tunc order and to correct error.2


[16]   Affirmed.


       Kirsch, J., and Riley, J., concur.




       2
         Lowrance raises several other issues which flow from his argument that the trial court’s 1996 sentencing
       statement was an order reinstating Lowrance’s right to bear arms. Because we have concluded that this
       statement did not constitute such an order, we need not address these issues.

       Court of Appeals of Indiana | Opinion 82A01-1601-CR-61 | December 9, 2016                          Page 8 of 8
