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Court of Appeals of Indiana.

Tracey L. WHEELER, Jr., Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff

Court of Appeals Case No. 22A-CR-1390

Decided: January 26, 2023

Appellant pro se: Tracey L. Wheeler, Jr., Terre Haute, Indiana Attorneys for Appellee: Theodore E. Rokita, Attorney General of Indiana, Indianapolis, Indiana, J.T. Whitehead, Deputy Attorney General, Indianapolis, Indiana


[1] Tracey L. Wheeler, Jr., appeals the dismissal of his motion for return of a car and stereo equipment 1 that Wheeler alleges was seized when Wheeler was arrested in 2003 and charged in the underlying cause number with Class A felony dealing in cocaine.2 Wheeler asserts the trial court erred by dismissing his motion in reliance on an irrelevant small claims action. We reverse and remand.

Facts and Procedural History

[2] Wheeler filed this motion for return of property on October 23, 2020. Included in that motion was a memorandum explaining why Wheeler believed he was entitled to the return of his property under Indiana Code section 35-33-5-5.3 After some procedural confusion,4 on January 7, 2021,5 the trial court entered the following order:

The Court having reviewed the Motion for Return of Defendant's Property filed by Defendant, pro se, now directs the Clerk to forward a copy of same to Deputy Prosecuting [sic] Charles H. Ray. The State of Indiana is ordered to file its written response to same within fifteen (15) days.

(Appellant's App. Vol. 2 at 28.) The State neither filed an appearance nor responded to Wheeler's motion.

[3] On April 18, 2022, Wheeler filed a motion for default judgment that asserted he was entitled to default because the State had not responded to his motion. On May 27, 2022, the trial court entered an order dismissing Wheeler's motion because the “Court is further advised the Defendant has filed Small Claim Notice under cause 84D05 2202 SC 1141 as a means to remedy his prior request[.]” (Id. at 14) (errors in original).

Discussion and Decision

[4] On appeal, Wheeler asserts the trial court erred when it dismissed his motion for return of his car and stereo equipment because the small claims action on which the trial court relied, 84D05-2202-SC-1141, sought return of $750 that was seized from his person during an arrest for which he was charged with dealing in cocaine under a criminal cause number separate from the one at issue herein. The State asserts we should consider Wheeler's motion for return of his car “moot” because the claim is, as the trial court indicated, being addressed in another action. (Appellee's Br. at 7) (citing the trial court's order).

[5] Pursuant to Indiana Evidence Rule 201(b), which permits a court to take judicial notice of “records of a court of this state[,]” we took judicial notice of the records available electronically in 84D05-2202-SC-1141. Those records indicate Wheeler's small claims action sought the return of $750 seized from Wheeler's person when he was arrested in 2001 and charged under criminal cause number 84D05-0103-DF-856. See Notice of Claim Filed at 5, Cause No. 84D05-2202-SC-1141. The records therein make no mention of a car or stereo equipment, nor do they reference this trial court cause number, 84D05-0307-FA-1991. Accordingly, as the disputes were not the same, the trial court's asserted basis for dismissing Wheeler's claim was erroneous. See, e.g., MicroVote General Corp. v. Indiana Election Comm'n, 924 N.E.2d 184, 191 (Ind. Ct. App. 2010) (“The principle behind this doctrine [of res judicata], as well as the doctrine of collateral estoppel, is the prevention of repetitive litigation of the same dispute.”).

[6] The State also claims we should affirm the dismissal of Wheeler's motion because “the underlying criminal cause dates from 2003-2004, and [Wheeler] did not pursue this particular litigation, related to this cause, until 16 years later.” (Appellee's Br. at 6.) The State cites no legal authority in support of this argument. Nevertheless, to the extent the State is attempting to assert the doctrine of laches, we note laches is an affirmative defense that must be pled before the trial court and proven factually. U.S. Research Consultants, Inc. v. County of Lake, 89 N.E.3d 1076, 1085 (Ind. Ct. App. 2017) (“laches is an affirmative defense that must be specifically pled or it is waived”), trans. denied. As the State did not appear or respond to Wheeler's motion before the trial court, we decline to affirm the trial court's dismissal based on the doctrine of laches.

[7] Finally, the State asserts “Defendant's record is bare, and nowhere does it support the proposition that Defendant owned the property, that the property was seized during a search, or that the property remains in the State's possession somewhere.” (Appellee's Br. at 6.) While we agree with the State that the record does not demonstrate these factual issues, an inadequate factual record does not justify dismissal. See, e.g., Richter v. Asbestos Insulating & Roofing, 790 N.E.2d 1000, 1002 (Ind. Ct. App. 2003) (“A motion to dismiss based upon T.R. 12(B)(6) tests the legal sufficiency of a claim, not the facts supporting it․ [A] complaint is subject to dismissal only when it appears to a certainty that the plaintiff would not be entitled to relief under any set of facts.”), trans. denied. The State could have appeared before the trial court and filed a motion for summary judgment to force Wheeler to create genuine issues of material fact -- or to have disputed Wheeler's claim in any other manner -- but it did not. As such, this assertion by the State also does not demonstrate the trial court's dismissal of Wheeler's motion was appropriate.

[8] As Wheeler has demonstrated the trial court committed error, and as the State has not provided any valid legal basis to support the trial court's dismissal of Wheeler's motion, we must reverse the dismissal of Wheeler's motion and remand for further proceedings. On remand, the trial court should grant Wheeler's motion for default judgment against the State.


[9] The trial court erred when it dismissed Wheeler's motion for return of his car and stereo equipment based on the existence of Wheeler's small claim action requesting the return of $750 seized during a different arrest. We accordingly reverse and remand for entry of default judgment against the State and for further proceedings not inconsistent with this opinion.

[10] Reversed and remanded.


1.   In particular, Wheeler alleges police seized a “1990 Oldsmobile Ninety Eight, JBL Amp, Audio Baum w/3 subwoofers, Sony CD player, Pioneer subwoofer and 2 Crunch subwoofers[.]” (Appellant's App. Vol. 2 at 16.)

2.   Ind. Code § 35-48-4-1 (2001).

3.   Indiana Code section 35-33-5-5(c)(1) states:Following the final disposition of the cause at trial level or any other final disposition the following shall be done:(1) Property which may be lawfully possessed shall be returned to its rightful owner, if known. If ownership is unknown, a reasonable attempt shall be made by the law enforcement agency holding the property to ascertain ownership of the property. After ninety (90) days from the time:(A) the rightful owner has been notified to take possession of the property; or(B) a reasonable effort has been made to ascertain ownership of the property;the law enforcement agency holding the property shall, at a convenient time, dispose of this property at a public auction. The proceeds of this property shall be paid into the county general fund.

4.   Wheeler was simultaneously seeking return of property that was seized during separate criminal proceedings in Vigo County. Wheeler requested a copy of the chronological case summary (“CCS”) to determine whether his motions had been filed in the appropriate cause number. Wheeler's motion then appears to have been refiled on January 7, 2021. (See Appellant's App. Vol. 2 at 7, 22-27.)

5.   The order itself indicates it was entered “this 7th day of January, 2020.” (Appellant's App. Vol. 2 at 28.) However, the year was typed onto that order rather than being handwritten by the signing judge, and the CCS indicates the order was filed in 2021, which follows the date on which Wheeler filed his motion.

May, Judge.

Crone, J., and Weissmann, J., concur.

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