Dunbar v. State, 2--174--A--22
| Decision Date | 21 May 1974 |
| Docket Number | No. 2--174--A--22,2--174--A--22 |
| Citation | 160 Ind.App. 191,311 N.E.2d 447 |
| Parties | Steven DUNBAR, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Appellate Court |
Charles S. Gleason, Gleason, Woods & Johnson, Herbert W. Johnson, Jr., White, Johnson & LeMay, Indianapolis, for appellant.
Theodore L. Sendak, Atty. Gen., of Ind., John L. William, Asst. Atty. Gen., Indianapolis, for appellee.
ON THE APPELLEE'S MOTION TO DISMISS
This cause is pending before the Court on the appellee's Motion to Dismiss Appeal, which alleges as cause therefor that the record herein is defective in that it does not contain a transcript of the proceedings at trial, nor a statement of the evidence or proceedings when the transcript is unavailable, as provided for by Rule AP 7.2(A)(3)(c), nor a statement of the case as provided for by Rule AP 7.3. We have examined the record of the proceedings in this cause and find that appellee's allegations are true. At the outset, we not that these deficiencies do not deprive this Court of jurisdiction and are not therefore cause for dismissal. These defects in the record are, however, cause for affirmance. Therefore, the Court, sua sponte, will treat appellee's motion to dismiss as a motion to affirm.
The defendant-appellant was convicted in the Municipal Court of Marion County, Room No. 9, of disorderly conduct and fleeing from a police officer. Upon his conviction, defendant was sentenced to confinement in the Marion County jail for 30 days and fined the sum of fifty dollars on each of the two charges. The appellant appealed his conviction to the Criminal Court of Marion County, Division One, 1 wherein the conviction of fleeing from a police officer was reversed and the conviction on the count of disorderly conduct was affirmed. This appeal is from the judgment of the Criminal Court of Marion County and was first filed in the Supreme Court of Indiana, which at that time had exclusive jurisdiction of criminal appeals. Thereafter, pursuant to its amendment of Rule AP 4, the Supreme Court ordered this case transferred to the Court of Appeals, since by reason of the sentence imposed, this case did not come within the class of cases in which the Supreme Court retained original appellate jurisdiction. 2
The errors which appellant attempts to raise on appeal are the following:
1. The Trial Court's decision was reversible error in that Defendant should have been advised of his right to counsel at trial.
2. The decision of the Court was contrary to law in that Defendant was prejudiced at trial by not being advised of his right to counsel.
3. The Trial Court erred in that the State failed to prove all the elements of the crime charged against Defendant by credible material evidence of probative value.
None of these errors is supported by the record filed by the appellant. The record does not contain the evidence nor any of the proceedings at trial in the Municipal Court. Therefore, there is nothing in the record from which we can determine whether the appellant was, or was not, advised of his right to counsel at trial. There is nothing in the record from which we can determine whether the State did, or did not, prove all of the elements of the crime charged against the defendant by credible material evidence of probative value.
All appeals are tried on the record. The cases are legion which hold that the burden is on the party seeking reversal of the judgment to present a record showing error in the trial court. Unless the record is sufficient to make manifest an error, the judgment must be affirmed. 3
The record in this cause contains what is denominated an 'Affidavit In Lieu of Transcript of the Evidence', executed by John J. Rochford, Judge of the Municipal Court of Marion County, Room 9, before whom the case was tried. This affidavit states that the official tape recording has been destroyed, the official reporter who recorded the evidence is unavailable, there can be no certification of a complete and typewritten transcript of said proceedings, and that the evidence that was offered and introduced in hearing in this cause is not, and will not be available. This affidavit is not, of course, the type of document contemplated by Rule AP 7.2(A)(3)(c), in that it does not contain any recitation of the evidence, proceedings or rulings which took place prior to, or at the time of trial. There is nothing in this document from which we can determine whether the trial court did, or did not, commit error.
In such a situation as this, the appealing party is not left without a remedy. By its Rules AP 7.2(A)(3)(c) and 7.3, the Supreme Court has provided a procedure whereby in those instances in which a transcript of the evidence is unavailable, or when an appeal can be determined without a consideration of all the pleadings, evidence and proceedings below, the parties may fabricate a transcript of the evidence or a statement of the case, have the same approved and settled by the trial judge, filed by the trial court clerk and certified to the Court on appeal as the record on appeal.
Rule AP 7.2(A)(3)(c) reads as follows:
'(c) Statement of the evidence or proceedings when no report was made or when the transcript is unavailable. If no report of all or part of the evidence or proceedings at the hearing or trial was or is being made, or if a transcript is unavailable, a party may prepare a statement of the evidence or proceedings from the best available means, including his recollection. If submitted contemporaneously with the matter complained of, the statement may be settled and approved by the trial court. If submitted thereafter, the statement shall be served on other parties who may serve objections or prepare amendments thereto within ten (10) days after service. The statement and any objections or prepared amendments shall be submitted to the trial court for settlement and approval and as settled and approved shall become a part of the record and be included by the clerk of the trial court in the record.
By adopting this rule the Supreme Court modified the former practice wherein in those cases in which no transcript of the evidence was available, and the parties and the judge could not agree on a statement of the evidence, a new trial was granted. 4
The case of Quinn v. State (1972), Ind., 281 N.E.2d 478, was an appeal to the Supreme Court of Indiana from a judgment of the Criminal Court of Marion County in an action which was an appeal from the Minicipal Court of Marion County. In Quinn the majority opinion recites that the record of the proceedings did not contain either the disc recordings in the Municipal Court, nor a transcript thereof, nor a statement of the evidence pursuant to Rule AP 7.2(A)(3)(c). However, the Supreme Court was able to decide that case without the evidence. The first issue was the question of whether the acts of the defendants constituted a violation of Burns' Ind.Ann.Stat. § 10--4534, IC 1971, 35--19--4--4. The Supreme Court accepted as the facts the statement of facts contained in the appellants' briefs and decided the issue adversely to the appellants. The last three issues raised for decision were questions of law concerning the constitutionality of Ind.Ann.Stat. Burns' § 4--5811 (1969--1970 Supp.), not questions of fact, and therefore did not require a consideration of the evidence for their determination. The Court held, inter alia, that it was unable to find § 4--5811 unconstitutional because it does not mandatorily provide a method for furnishing a transcript. The Court set out the text of Rule AP 7.2(A)(3)(c) and observed the appellants did not avail themselves of the opportunities there presented to obtain a statement of fact or a transcript.
Unlike Quinn, the case now before us requires a consideration of the evidence, in whatever form it might take, in order to decide the alleged errors appellant urges on appeal. Like Quinn, the appellant has failed to avail himself of the opportunities presented by Rule AP 7.2(A)(3)(c). At page three of the appellant's brief herein appears the following statement:
'The transcribed record of this hearing is no longer available (see Affidavit in Lieu of Transcript, p. 51). Defendant has prepared and signed a sworn affidavit stating his recollections of that hearing.
(H. I.)'
We have searched the record of the proceedings in this case and we do not find any such sworn affidavit of the defendant's recollection. We further do not find any order book entry evidencing that such a statement was ever submitted to the trial judge, approved, settled and ordered by him to be filed, or that such a statement was ever filed with the trial court clerk and certified as a part of the record in this case.
This Court cannot consider any matters outside the record in its determination of an appeal. While appellant claims he has made a sworn statement of his recollections, no such statement appears in the record and we cannot consider it. 5 In the case of McWhirt v. Fearnow (1973) Ind.App., 301 N.E.2d 810, the appellant attempted to supply a void in the record by inserting an affidavit in his brief. This Court stated:
'No transcript of the proceedings, bill of exceptions, or agreed statement of what transpired at the contempt proceedings is in the record. McWhirt has made an effort to fill that void by inserting in his appellant's brief, on page two thereof, his own affidavit in which he says merely:
'A. That he is the defendant in Wabash Circuit Court Cause Number C--71--179, and the Appellant in Court of Appeals Number 2--872A--42.
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