POPP v. STATE (2025)

MEMORANDUM DECISION

Case Summary

[1] Charles Popp appeals the trial court's denial of his motion to correct erroneous sentence (Motion) in which he raised double jeopardy issues stemming from his 2012 convictions and sentence. Popp presents one issue for our review which we restate as whether the trial court erred by denying Popp's Motion. We find that Popp waived the issue for appellate review by failing to comply with the Indiana Rules of Appellate Procedure. Waiver notwithstanding, because a motion to correct erroneous sentence is not the proper vehicle by which to raise double jeopardy claims, we affirm the trial court's denial of his motion.

Facts and Procedural History

[2] In March 2012, a jury found Popp guilty of eight counts of Class B felony sexual misconduct with a minor, one count of Class C felony sexual misconduct with a minor, one count of Class B felony attempted rape, and one count of Class A misdemeanor intimidation. The trial court sentenced him to an aggregate of fifty-five years executed. In two separate appeals, our Court affirmed Popp's convictions and denied his petition for post-conviction relief. He did not raise double jeopardy claims in either appeal. From 2021 on, Popp has filed motions with the trial court seeking various forms of sentencing relief: a 2021 motion to run sentences concurrently, a 2022 motion to correct erroneous sentence, and a 2023 petition for modification of sentence. Each of his motions were denied by the trial court. Popp filed, and the trial court denied, his most recent Motion on July 23, 2024. Popp now appeals.

Discussion and Decision

[3] Popp challenges the trial court's denial of his Motion which he claims the court ruled on “without a hearing or reasons.” Appellant's Brief at 4. A trial court's decision on a motion to correct erroneous sentence is reviewed for an abuse of discretion. Davis v. State, 978 N.E.2d 470, 472 (Ind. Ct. App. 2012). “An abuse of discretion occurs when the trial court's decision is against the logic and effect of the facts and circumstances before it.” Id.

[4] We first note that Popp is proceeding pro se in this matter. As our Supreme Court previously held, “a pro se litigant is held to the same standards as a trained attorney and is afforded no inherent leniency simply by virtue of being self-represented.” Zavodnik v. Harper, 17 N.E.3d 259, 266 (Ind. 2014). “[P]ro 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.” Flowers v. State, 250 N.E.3d 507, 509 (Ind. Ct. App. 2025) (quoting Basic v. Amouri, 58 N.E.3d 980, 983-84 (Ind. Ct. App. 2016), reh'g denied).

[5] One such consequence is the waiver of an appellant's argument for failing to comply with our appellate rules, including the presentation of a cogent argument. Ind. Appellate Rule 46(A)(8)(a); see Martin v. Hunt, 130 N.E.3d 135, 138 (Ind. Ct. App. 2019) (holding that appellant waived any issues he attempted to present for multiple violations of our appellate rules); see also Schwartz v. Schwartz, 773 N.E.2d 348, 352 n.5 (Ind. Ct. App. 2002) (failure to make a cogent argument waives the argument). While failure to comply with our appellate rules does not necessarily waive an issue, waiver “is appropriate where noncompliance impedes our review.” In re Moeder, 27 N.E.3d 1089, 1097 n.4 (Ind. Ct. App. 2015), reh'g denied, trans. denied.

[6] Here, Popp's noncompliance with our appellate rules makes review of his claims virtually impossible. For example, Popp claims “the sentencing transcripts show” evidence of “double jeopardy issues” but he does not provide any transcripts. See Appellant's Br. at 4; see also App. R. 22(C) (“[a]ny factual statement shall be supported by a citation to the volume and page where it appears in an Appendix, and if not contained in an Appendix, to the volume and page it appears in the Transcript or exhibits[.]”). “It is a complaining party's duty to direct our attention to the portion of the record that supports its contentions.” Moeder, 27 N.E.3d at 1097 n.4.

[7] In addition to failing to provide several pertinent portions of the record, Popp's brief is deficient in several respects. Popp failed to include the following sections required in an appellate brief: (1) statement of issues; (2) statement of case; (3) statement of facts; (4) summary of argument; (5) word count certificate; and (6) standard of review. See App. R. 46(A). Although Popp's brief includes an argument section, he does not include any citations to the appellate record. See App. R. 46(A)(8)(a) (“[e]ach contention must be supported by citations to the authorities, statutes, and the Appendix or parts of the Record on Appeal relied on[.]”).

[8] Finally, Popp fails to provide a cogent argument for his double jeopardy claim in his brief. See id. (“[t]he argument must contain the contentions of the appellant on the issues presented, supported by cogent reasoning.”). Although he cites three cases that he argues support his position, he does not explain the cases or how they apply to the facts of his case. He also dedicates one sentence to his claim that the trial court's merger of his offenses was insufficient, but again he fails to provide any citations to cases or apply the law to his case.

[9] Popp, even though he is proceeding pro se, is still required to follow our appellate rules—and he has not. Given that Popp's appeal contains a deficient record, an incomplete brief, and lacks cogent reasoning to support his claim, he has waived review of the issue he attempts to present.

[10] Waiver notwithstanding, we note that a motion to correct erroneous sentence is not the proper avenue to raise a double jeopardy claim. “[A] motion to correct sentence may only be used to correct sentencing errors that are clear from the face of the judgment imposing the sentence[.]” Robinson v. State, 805 N.E.2d 783, 787 (Ind. 2004). Since double jeopardy claims “require[ ] consideration of matters outside the face of the sentencing judgment[,]” they are “clearly beyond the purview of a motion to correct erroneous sentence[.]” Micheau v. State, 74 N.E.3d 567, 569 (Ind. Ct. App. 2017), trans. denied. Thus, waiver notwithstanding, the trial court did not abuse its discretion in denying Popp's Motion.

Conclusion

[11] We affirm the trial court's denial of Popp's Motion to correct erroneous sentence.

[12] Affirmed.

DeBoer, Judge.

Bailey, J., and Vaidik, J., concur.