Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before 

any court except for the purpose of 

establishing the defense of res judicata, 

collateral estoppel, or the law of the case.

APPELLANT PRO SE: ATTORNEYS FOR APPELLEE:

BRIAN BAXTER GREGORY F. ZOELLER

Carlisle, Indiana Attorney General of Indiana

CYNTHIA L. PLOUGHE

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

BRIAN BAXTER, )

)

Appellant-Defendant, )

)

vs. ) No. 49A05-1306-CR-285

)

STATE OF INDIANA, )

)

Appellee-Plaintiff. )

APPEAL FROM THE MARION SUPERIOR COURT

The Honorable Steven J. Rubick, Magistrate

Cause No. 49G01-0110-CF-197915

July 15, 2014

MEMORANDUM DECISION - NOT FOR PUBLICATION

BRADFORD, Judge 
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CASE SUMMARY

In 2003, Appellant-Defendant Brian Baxter was convicted under cause number 

49G01-0110-CF-197915 (“Cause No. CF-197915”) of numerous offenses including three 

counts of murder, conspiracy to commit robbery, resisting law enforcement, and carrying a 

handgun without a license. On April 30, 2013, Baxter filed a motion to compel various

public agencies to produce copies of certain public records. The Marion County Clerk’s 

Office (“Clerk’s Office”) docketed the motion under Cause No. CF-197915. The trial court 

subsequently denied Baxter’s motion. On appeal, Baxter contendsthat his due process rights 

were violated by both the Clerk’s Office’s act of docketing his motion to compel under Cause 

No. CF-197915 and the trial court’s denial of his motion to compel. We affirm.

FACTS AND PROCEDURAL HISTORY

The memorandum decision of another panel of this Court, which was handed down on 

June 4, 2004, instructs us as to the underlying factual background leading to the instant 

appeal. 

On October 5, 2001, Baxter, Terrance Thomas, and Larry Mitchell, 

armed with a gun, went to Edward Green’s apartment to rob him. Green was 

at his apartment with Antonio McGregor and Anthony Ashmore. During the 

robbery, Baxter shot and injured Green and fled from the apartment. While 

Baxter was waiting for Thomas and Mitchell in the car, Edward Gilbert 

entered the apartment. Thomas then shot and killed Green, Gilbert, and 

McGregor, and injured Ashmore. 

Later that night, Baxter and Thomas went to an apartment complex 

carrying a white bag containing the guns used in the crime. At the same time, 

Officer Kenneth Kunz arrived at the apartment complex in pursuit of two 

suspects unrelated to Baxter and Thomas, who had stolen a car, caused a police 

chase, and abandoned the car in the vicinity of the apartment complex. The 

suspects in the car theft were described as two black males. As Officer Kunz 

pulled into the apartment complex, he observed Baxter and Thomas, two black 
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men, running between two apartment buildings toward his police car. 

Believing that Baxter and Thomas were the men involved in the car theft, 

Officer Kunz turned his spot light on them. Baxter and Thomas then turned 

and ran in the other direction. Officer Kunz ran after them. He identified 

himself as a police officer and ordered them to stop several times. Officer 

Kunz chased Baxter and Thomas into an apartment building and eventually 

apprehended them with the grocery bag containing two handguns in an 

apartment in the complex. 

Baxter v. State, 49G04-0309-CR-444 *2-3 (Ind. Ct. App. June 4, 2004) (“Baxter I”), trans. 

denied.

On October 10, 2001, under Cause No. CF-197915, Baxter was charged with three 

counts of felony murder, one count of attempted murder, conspiracy to commit robbery, 

robbery, resisting law enforcement, and carrying a handgun without a license. Id. at 3. 

Baxter was subsequently found guilty as charged and sentenced to an aggregate sentence of 

140 years. Id. at 3-4. On direct appeal, a panel of this court reversed Baxter’s attempted 

murder conviction and concluded that the trial court did not abuse its discretion in sentencing 

Baxter. Id. at 12. The panel also remanded the matter to the trial court with instructions for 

the trial court to vacate the robbery conviction and to reduce the conspiracy to commit 

robbery charge to a Class B felony. Id. The Indiana Supreme Court denied Baxter’s transfer 

petition. Baxter v. State, 49A02-0702-PC-128 *1 (Ind. Ct. App. Nov. 20, 2007) (“Baxter 

II”), trans. denied.

Baxter later filed a petition for post-conviction relief. Id. at 2. Baxter’s petition was 

denied by the post-conviction court. Id. at 2. A panel of this court affirmed the denial of 

Baxter’s petition in Baxter II. Id. at 3-4. The Indiana Supreme Court once again denied 
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Baxter’s transfer petition. Id. at 1.

On April 30, 2013, Baxter filed a “Motion to Compel Public Agencies to Produce 

Copies of Public Records” (“motion to compel”). Appellant’s App. p. 46. Baxter’s motion 

to compel alleged that various public agencies, including the Indianapolis Metropolitan 

Police Department, the Marion County Forensic Agency, and the Marion County 

Prosecutor’s Office, had violated the Indiana Access to Public Records Act. Baxter’s motion 

to compel requested that the trial court order these agencies to produce copies of the results 

of certain gunshot residue tests conducted in connection to Cause No. CF-197915, claiming 

that the failure to produce these test results “infringes upon [his] ability to access the courts.” 

Appellant’s App. p. 46. Baxter’s motion to compel referred to certain “Exhibits” which he 

claims support his various assertions. Appellant’s App. pp. 46-48. These exhibits, however, 

were not attached to Baxter’s motion to compel. 

In filing his motion to compel, Baxter did not file an appearance or a summons as 

required by the Indiana trial rules for initiating a new civil action. Baxter did provide funds, 

seemingly for payment of the required filing fee. The Clerk’s Office did not docket Baxter’s 

motion to compel as a new civil action. Instead, it docketed the motion to compel under 

Cause No. CF-197915. The trial court subsequently denied Baxter’s motion to compel. This 

appeal follows.

DISCUSSION AND DECISION

Baxter contends that his due process rights were violated when the Clerk’s Office 

docketed his motion to compel under Cause No. CF-197915 rather than under a new civil 
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cause number. Baxter also contends that his due process rights were violated by the trial 

court’s denial of his motion to compel. We will address each contention in turn.

I. The Indiana Access to Public Records Act

Indiana Code section 5-14-3-3 provides that “[a]ny person may inspect and copy the 

public records of any public agency during the regular business hours of the agency, except 

as provided in section 4 of this chapter.” Indiana Code section 5-14-3-4(a) provides that 

certain public records are excepted from Indiana Code section 5-14-3-3 and may not be 

disclosed by a public agency unless access to the records is specifically required by a state or 

federal statute or is ordered by a court under the rules of discovery. Indiana Code section 5-

14-3-4(b) provides that certain public records, including investigatory records of law 

enforcement agencies, shall be excepted from Indiana Code section 5-14-3-3 at the discretion 

of the public agency. 

A request for inspection or copying of public records “must: (1) identify with 

reasonable particularity the record being requested; and (2) be, at the discretion of the 

agency, in writing on or in a form provided by the agency.” Ind. Code § 5-14-3-3(a). “A 

person who has been denied the right to inspect or copy a public record by a public agency 

may file an action in the circuit or superior court of the county in which the denial occurred 

to compel the public agency to permit the person to inspect and copy the public record.” Ind. 

Code § 5-14-3-9(e). “Whenever an action is filed under this subsection, the public agency 

must notify each person who supplied any part of the public record at issue: (1) that a request 

for release of the public record has been denied; and (2) whether the denial was in 
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compliance with an informal inquiry response or advisory opinion of the public access 

counselor.” Id. “The person who has been denied the right to inspect or copy need not allege 

or prove any special damage different from that suffered by the public at large.” Id. “The 

court shall determine the matter de novo, with the burden of proof on the public agency to 

sustain its denial.” Ind. Code § 5-14-3-9(f). In Marion County, an action alleging a violation 

of the Access to Public Records Act is to be decided by the Environmental Court. See LR49-

TR3-200. 

II. Motion to Compel Docketed Under Cause No. CF-197915

Baxter contends that his due process rights were violated by the Clerk’s Office’s act of 

docketing his motion to compel under Cause No. CF-197915 rather than under a new civil 

cause number. With respect to the initiation of a civil action, Indiana Trial Rule 3 provides 

as follows:

A civil action is commenced by filing with the court a complaint or such 

equivalent pleading or document as may be specified by statute, by payment of 

the prescribed filing fee or filing an order waiving the filing fee, and, where 

service of process is required, by furnishing to the clerk as many copies of the 

complaint and summons as are necessary.

The party shall also file a summons which includes certain information relating to the other 

party, whom must be provided with service of the complaint. Ind. Trial Rule 4(B). Indiana 

Trial Rule 3.1 further provides that the party “shall file with the clerk of the court an 

appearance form” at the time an action is commenced. 

In the instant matter, Baxter filed a document entitled “Motion to Compel.” Baxter 

also provided funds which were seemingly intended to pay the filing fee. Baxter, however, 
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did not file a summons or appearance. Accordingly, we determine that Baxter did not 

comply with all of the requirements for the initiation of a new civil action. 

Furthermore, the language included in Baxter’s motion to compel does not clearly 

indicate that Baxter intended for the motion to compel to be considered a new civil complaint 

rather than a pleading relating to Cause No. CF-197915. In light of Baxter’s failure to meet 

the requirements for initiating a new civil action and the lack of a clear indication that Baxter 

intended for the motion to compel to be treated as a new civil complaint, we conclude that 

the Clerk’s Office reasonably docketed the motion to compel under Cause No. CF-197915 

rather than under a new civil cause number. As such, Baxter’s due process rights were not 

violated by the Clerk’s Office’s act of docketing the motion to compel under Cause No. CF197915.

II. Denial of Baxter’s Motion to Compel 

Baxter also contends that his due process rights were violated by the trial court’s 

denial of his motion to compel. On appeal, we review a trial court’s ruling on a motion to 

compel de novo. See Novotny v. Renewal by Andersen Corp., 861 N.E.2d 15, 20 (Ind. Ct. 

App. 2007). A de novo review is non-deferential to the trial court’s decision. See generally

BLACK’S LAW DICTIONARY 864 (8th ed. 2004).

While Baxter’s motion to compel asserts that he has been denied access to copies of 

the results from certain gunshot residue tests conducted in connection to Cause No. CF197915, the motion to compel does not indicate what attempts Baxter made to obtain the 

records or fully indicate why his request was denied. Thus, we are unable to determine 
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whether Baxter complied with the requirements of the Access to Public Records Act in 

making his request or whether the requested records were exempt from the Act’s disclosure 

requirements. Further, as the trial court noted, Baxter had previously been provided with 

numerous opportunities to challenge any and all aspects of his conviction, including a direct 

appeal and various post-conviction proceedings. Baxter’s motion to compel does not indicate 

what he hoped to glean from the copies of the requested records or argue that any of the 

information potentially gleaned from these documents would, in turn, justify additional 

successive post-conviction proceedings. As such, we conclude that Baxter’s due process 

rights were not violated by the trial court’s denial of his motion to compel.

The judgment of the trial court is affirmed.

RILEY, J., and ROBB, J., concur.