Casterlow v. State
| Decision Date | 20 November 1973 |
| Docket Number | No. 2--473A99,2--473A99 |
| Citation | 158 Ind.App. 546,303 N.E.2d 284 |
| Parties | Gary CASTERLOW, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Appellate Court |
Harriette Bailey Conn, Public Defender, Indianapolis, for appellant.
Theodore L Sendak, Atty. Gen., Indianapolis, for appellee.
ON PETITION TO RECONSIDER DENIAL OF PETITION
This is an appeal by Gary Casterlow from a judgment denying his petition for postconviction relief. He is represented by the Public Defender of the State of Indiana who, on August 2, 1973, filed in his behalf the following petition:
'Comes now Harriette Bailey Conn, Public Defender of Indiana, and attorney for Gary Casterlow, and would show the Court that:
'(1) Petitioner was tried and convicted of the crime of Robbery and was sentenced to an indeterminate term of ten (10) to twenty-five (25) years, corrected July 30, 1969, to an indeterminate sentence of not less than ten (10) nor more than twenty (20) years;
'(2) Petitioner appealed to the Supreme Court of Indiana under cause number 1169 S 274, finally affirmed May 17, 1971;
'(3) Thereafter, Petitioner's Petition for Post-Conviction Relief, filed August 28, 1972, was denied November 27, 1972;
'(4) Petitioner's Motion to Correct Errors from denial of his Petition for Post-Conviction Relief was filed January 19, 1973, and overruled on the same date.
'(5) The Record of Proceedings was filed April 19, 1973, with the Clerk of the Court of Appeals of Indiana, although a determination of all of the issues of his Petition for Post-Conviction Relief would be facilitated by reference to the record to prior proceedings.
'WHEREFORE, Petitioner prays for leave to refer to the Record earlier filed under cause number 1169 S 274.'
We denied that petition of August 21, 1973, and the Public Defender has now filed a petition to reconsider. She makes a cogent argument, supported by many citations of authority, to the effect that we can and should take judicial notice of the record of the direct appeal to the Supreme Court since it is a record in the office of the clerk who is clerk for both this court and the Supreme Court. However, no case cited holds that one court may take judicial notice of the records of another court. Nor have we found any authority which even discusses the question of whether the fact that two appellate courts have a common clerk and the second court has succeeded to the jurisdiction of the first court 1 alters what appears to be the general rule that one court may not judicially notice the records of another court. 2 Whether the relationship between this court and the Supreme Court of Indiana with respect to this particular case is such that we can and should judicially notice the higher court's records in the former appeal is a question we are not prepared to answer at this time. But if appellant's thesis is correct we are obliged to take notice of so much of that record as may be called to our attention for any relevant and proper purpose regardless of whether leave to refer to it has been requested and regardless of whether such leave has been granted. Conversely, if we have no right to judicially notice the prior record, our granting leave to refer to it will not create such right.
The petition to reconsider refers to our denial of the petition to refer to the direct appeal record as a 'refusal to allow counsel on appeal to refer to the record of the prior appeal.' Our ruling should not be so interpreted. Rather it should be understood as a refusal to approve, in advance, proposed references to matters dehors the record of this case when we are wholly uninformed of the propriety and relevance of such references. If counsel, in good faith, makes those references in her appellant's brief and convinces us that they are proper and relevant they will be considered. If we are not so convinced, we will disregard them, just as we would reject any allusion to matters outside the record, absent a showing of an exception to the general rule that each appeal is decided on the record brought to the appellate court in the case appealed. Davidson v. Davidson (1950), 120 Ind.App. 253, 90 N.E.2d 821, 91 N.E.2d 796.
In LeFlore v. State (1973), Ind.App., 299 N.E.2d 871, 874, 38 Ind.Dec. 43, 47, in an opinion handed down only a few days before we denied, in this case, the petition to refer to the record of the direct appeal to the Supreme Court, we noted that we had 'improvidently' granted such a petition in that case.
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