Terry L. Abbott, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2026)

MEMORANDUM DECISION

Case Summary

[1] Terry L. Abbott appeals the trial court's forfeiture order, claiming that his request for court-appointed counsel was improperly denied and that the trial court abused its discretion in excluding evidence and exhibits from prior proceedings. Abbott further contends that the forfeiture order was not supported by sufficient evidence.

[2] We affirm.

Facts and Procedural History

[3] In 2015, following two controlled buys where Abbott sold drugs to a confidential informant, police executed a search warrant of Abbott's residence. During the search, officers seized drugs, paraphernalia, and a variety of firearms. Officers also seized $9,185 in cash. The bulk of the cash—$6,760—was found in Abbott's pockets. The remainder was seized from a safe in Abbott's residence.

[4] Abbott was arrested and later convicted of several offenses including dealing in methamphetamine and dealing in a controlled substance. Abbott appealed to this court and during the pendency thereof, the State filed a civil forfeiture action against Abbott, seeking forfeiture of the firearms and cash that police seized during the search of Abbott's residence. Although Abbott was initially represented by counsel, his attorney withdrew in October 2015, and he thereafter proceeded pro se.

[5] On July 30, 2018, the State filed a motion for summary judgment, arguing that Abbott was “engaged in a pattern of racketeering” and that he used the cash and firearms to deal illegal drugs. Appellant's Appendix Vol. II at 8. In response, Abbott designated an affidavit, averring that he earned the cash legally through his employment and that he was going to use the money that was seized to purchase a motorcycle.

[6] On January 24, 2019, Abbott requested court-appointed counsel, claiming that he did not have the means to hire an attorney.  ¹ Abbott further argued that he was likely to prevail on the merits of the case. The trial court denied Abbott's request a month later, determining that Abbott was “the most qualified individual” to defend himself and that “the likelihood of prevailing on the merits is slim based on the evidence before the court.” Id. at 15.

[7] Following a hearing, the trial court granted the State's motion for summary judgment on June 26, 2019, concluding that the undisputed evidence established Abbott's racketeering activity and that his designated evidence failed to create a genuine issue of material fact. Abbott appealed, and a panel of this court reversed in part, holding that Abbott's income documentation that he set forth in his affidavit created a factual dispute as to the source of the seized funds. Abbott v. State, 164 N.E.3d 736, 739 (Ind. Ct. App. 2021), trans. granted (Abbott I). The panel also determined that Abbott would be permitted to access the seized funds to retain counsel or pay litigation costs. Id. at 744–45. As a result, the case was remanded with instructions that the trial court “adopt reasonable procedures to supervise [Abbott's] expenditures of the [funds]. ” Id. at 749. Our Supreme Court granted transfer in July 2021, affirming in part and reversing in part. Abbott v. State, 183 N.E.3d 1074 (Ind. 2022) (Abbott II).

[8] More particularly, the Abbott II Court recognized that no statute authorized the release of seized property to fund a defense. Id. at 1083. It further concluded that the trial court did not abuse its discretion in denying Abbott's request for appointment of counsel, explaining that even though there were “exceptional circumstances” justifying appointment of counsel in the action, Abbott was “unlikely to prevail” on his defense based upon the evidence before the court. Id. at 1085. Indeed, the evidence showed that police officers executed a search warrant of Abbott's residence following two controlled drug buys and seized drugs, firearms, and nearly $10,000 in cash, thus establishing a connection between the seized property and Abbott's drug dealing activity.

[9] Abbott II also agreed with this court's determination that Abbott's evidence created a factual dispute as to the source of the seized funds. Id. at 1079. Thus, the Supreme Court affirmed the denial of appointment of counsel, agreed that the denial of summary judgment was appropriate, and remanded the case for further proceedings. Id. at 1085–86.

[10] On remand, Abbot moved for appointment of counsel twice, both of which the trial court denied, citing Abbott II. The case proceeded to a jury trial and following the presentation of evidence, the jury returned a verdict in favor of the State, finding that Abbott had forfeited $8,923 ² of the seized currency.

[11] Abbott filed a notice of appeal on November 12, 2024, and requested the transcript of the trial. He also filed a motion requesting that this court order the court reporter to file the transcript and exhibits. We granted Abbott's motion in part, directing him to first make satisfactory payment arrangements for document preparation with the court reporter. In May and June 2025, this court ordered Abbott to provide evidence of such payment. Abbott failed to do so, and we directed the appeal to proceed without a transcript.

[12] This appeal ensued.

Discussion and Decision

I. Request for Appointment of Counsel

[13] Abbott argues that the trial court abused its discretion in denying his request for appointment of counsel. Specifically, Abbott contends that the denial of counsel violated his due process rights under the United States and Indiana Constitutions.

[14] Notwithstanding Abbott's contention, we note that his request for appointment of counsel in this matter has already been litigated and decided adversely to him. Thus, the law of the case doctrine controls in these circumstances. The doctrine is a discretionary tool by which appellate courts will not revisit legal issues already determined on appeal in the same case and on substantially the same facts. Wells Fargo Bank, N.A. v. Summers, 974 N.E.2d 488, 502 (Ind. Ct. App. 2012), trans. denied. In accordance with the law of the case doctrine, an appellate court's decision “governs the case throughout all of its subsequent stages, as to all questions which were presented and decided, both directly and indirectly.” Maciaszek v. State, 113 N.E.3d 788, 791 (Ind. Ct. App. 2018), trans. denied.

[15] In this case, our Supreme Court in Abbott II reviewed Abbott's request for counsel claim under Ind. Code § 34-10-1-2 and concluded that although Abbott's incarceration created “exceptional circumstances,” the trial court did not abuse its discretion in denying his request for appointed counsel. Indeed, the trial court previously determined that based on the evidence before it, Abbott's likelihood of success was “slim,” and the Supreme Court agreed with that determination. Abbott II, 183 N.E. 3d at 1085.

[16] Abbott's renewed request for appointed counsel merely repeated the same arguments that the Supreme Court in Abbott II previously rejected. Abbott's most recent request did not identify any new facts or evidence, i.e., “extraordinary circumstances,” that would make prevailing on his claim any more probable at trial. While the procedural posture changed from summary judgment to a jury trial, the underlying evidence did not. Therefore, the law of the case doctrine supports the trial court's denial of Abbott's renewed request for court-appointed counsel.

II. Exclusion of Evidence and Sufficiency of the Evidence

[17] Abbott challenges the sufficiency of the evidence regarding the forfeiture order and the trial court's exclusion of evidence and exhibits from prior proceedings. We note, however, that Abbott's arguments rely on information that he failed to present to this court.

[18] Ind. Appellate Rule 9(F)(5) provides that a notice of appeal must designate “all portions of the transcript necessary to present fairly and decide the issues on appeal.” The rule further states that if an “appellant intends to urge on appeal that a finding of fact or conclusion thereon is unsupported by the evidence or is contrary to the evidence,” he must request a transcript of all the evidence in his notice of appeal. Id. Although not “fatal to the appeal ․ failure to include a transcript works a waiver of any specifications of error which depend upon the evidence.” Campbell v. Criterion Grp., 605 N.E.2d 150, 160 (Ind. 1992).

[19] Alternatively, if no transcript is available—including unavailability due to indigency—Ind. Appellate Rule 31(A) provides that a party “may prepare a verified statement of the evidence from the best available sources, which may include the party's or the attorney's recollection. The party shall then file a motion to certify the statement of evidence with the trial court or Administrative Agency.” App. R. 31(A). Abbott's pro se status does not excuse his obligation to comply with the appellate rules, as pro se litigants “are held to the same standards as licensed attorneys, and thus, they are required to follow procedural rules.” See, e.g., DeCola v. Steinhilber, 207 N.E.3d 440, 443 (Ind. Ct. App. 2023) (recognizing that “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”) (cleaned up).

[20] Abbott failed to provide a transcript for our review. Although he requested that we order the court reporter to file the transcript and exhibits, Abbott did not file evidence of satisfactory payment as he was ordered to do. And there is no indication that Abbott attempted to produce a statement of the evidence in accordance with App. R. 31. That said, we cannot review Abbott's claims because they rest on information that we do not have. In short, Abbott has waived his claims. See, e.g., Maw v. Pringle, 263 N.E.3d 790, 792 (Ind. Ct. App. 2025). (holding that father's arguments that required review of the evidence or testimony presented at the parenting time hearing were waived because he failed to produce a transcript or statement of the evidence).

[21] Judgment affirmed.

FOOTNOTES

1.   There is no absolute right to court-appointed counsel in civil matters. See, e.g., Terpstra v. Farmers and Merchants Bank, 483 N.E.2d 749, 759 (Ind. Ct. App. 1985), trans. denied. A party who seeks civil counsel appointment bears the burden to demonstrate that he is indigent and without sufficient means to hire independent counsel. Sholes v. Sholes, 760 N.E.2d 156, 160 (Ind. 2001). In accordance with Ind. Code § 34-10-1-2(b), when the court is satisfied that the litigant lacks “sufficient means to prosecute or defend the action,” it “may under exceptional circumstances,” appoint counsel. In making that determination, the trial court may consider “(1) [t]he likelihood of the applicant prevailing on the merits of the applicant's claim or defense,” and “(2) [t]he applicant's ability to investigate and present the applicant's claims or defenses without an attorney, given the type and complexity of the facts and legal issues in the action.” I.C. § 34-10-1-2(c). A court “shall deny” an application for appointment of counsel if it determines that ․ “[t]he applicant is unlikely to prevail on the applicant's claim or defense.” I.C. § 34-10-1-2(d).

2.   Abbott never challenged $261 of the seized cash that the trial court awarded to the State on summary judgment.

Altice, Judge.

May, J. and Foley, J., concur.