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FOR PUBLICATION

ATTORNEY FOR APPELLANT: MICHAEL G. MOORE Indianapolis, Indiana

ATTORNEYS FOR APPELLEE: STEVE CARTER Attorney General of Indiana ELLEN H. MEILAENDER Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
TRAVIS MARLETT, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 18A04-0703-CR-131

APPEAL FROM THE DELAWARE CIRCUIT COURT The Honorable Peter Haviza, Special Judge Cause No. 18C02-0509-JD-208 18C03-0605-FA-7

December 28, 2007 OPINION - FOR PUBLICATION BARNES, Judge

Case Summary Travis Marlett appeals his twenty-year sentence for Class B felony criminal confinement, as well as the requirement that he register as a sexual or violent offender and the finding that he is a sexually violent predator. We affirm in part, reverse in part, and remand. Issues The State presents one cross-appeal issue, which is whether Marlett's appeal must be dismissed because his notice of appeal was not timely filed. The issues Marlett raises are: I. II. whether his sentence is inappropriate; whether the sex and violent offender registry is unconstitutional as applied to him; and whether there is sufficient evidence to support the determination that he is a sexually violent predator. Facts On September 26, 2005, seventeen-year-old Marlett was attending school at Muncie Central High School. At approximately 8:45 a.m., he obtained a pass to leave his class and go to the nurse's office. He did not go straight to the nurse's office, and while walking the halls he saw fellow student L.A.V., who was sixteen years old, alone in a classroom. He then retrieved a knife from his backpack, entered the classroom,

III.

approached L.A.V. from behind, and put one hand over her mouth and placed the knife against her neck. He told her to be quiet or he would kill her, and he then cut L.A.V.'s neck. Marlett and L.A.V. struggled, and L.A.V. was able to take the knife from Marlett. 2

A teacher soon intervened, who was able to hold Marlett until police arrived. The record is unclear as to the extent of L.A.V.'s injury or whether it was life threatening. On September 29, 2005, the State filed a juvenile delinquency petition against Marlett. However, the State later sought and obtained Marlett's waiver into adult court. On May 12, 2006, it charged Marlett with attempted murder, Class B felony criminal confinement, and Class C felony battery. At the waiver hearing, extensive evidence was presented regarding Marlett's mental health. Specifically, a psychiatrist and a

psychologist identified Marlett as having Asperger's Disorder, which is an autism spectrum disorder but not autism itself. Persons with Asperger's often develop obsessive interests, and Marlett has an obsessive interest in knives. Police recovered over fifty knives, swords, and machetes from Marlett's bedroom. Marlett's full scale IQ is

approximately eighty-three, which places him in the bottom fifteen percent of the population. On August 7, 2006, Marlett agreed to plead guilty but mentally ill to Class B felony criminal confinement. The State agreed to dismiss the attempted murder and Class C felony battery charges. Sentencing was left to the trial court's discretion. After being advised of the plea agreement, the trial court appointed a psychiatrist and a psychologist to examine Marlett and determine whether he should be classified as a sexually violent predator. The trial court accepted the plea and conducted a sentencing hearing on December 1, 2006. It indicated that it found the nature and circumstances of the crime to be aggravating, and Marlett's lack of criminal history to be mitigating. It also stated, based 3

on the reports of the doctors appointed to examine Marlett, that his mental illness made it likely that he would re-offend. It then proceeded to impose an executed term of twenty years. The court also found that Marlett was a sexually violent predator, based on the doctors's reports, and that he was required to register as an ordinary sex offender and as a sexually violent predator. Marlett now appeals. Analysis I. Timelieness of Notice of Appeal We first address the State's cross-appeal issue that Marlett's notice of appeal was untimely filed, thus requiring dismissal of the appeal. The State previously filed a motion to dismiss, which the motions panel of this court denied. We are not precluded from reconsidering that decision. See Davis v. State, 771 N.E.2d 647, 649 n.5 (Ind. 2002). Nonetheless, we generally are reluctant to reverse a ruling of the motions panel unless it clearly erred as a matter of law. See Oxford Financial Group, Ltd. v. Evans, 795 N.E.2d 1135, 1141 (Ind. Ct. App. 2003). Indiana Appellate Rule 9(A)(1) requires a party to file a notice of appeal, with the trial court clerk, within thirty days of a final judgment. "Unless the Notice of Appeal is timely filed, the right to appeal shall be forfeited except as provided by [Post-Conviction Rule 2]." Ind. Appellate Rule 9(A)(5). This court lacks subject matter jurisdiction over appeals that are not timely initiated. See Davis, 771 N.E.2d at 648. Post-Conviction Rule 2(1) allows a criminal defendant seeking to purse a direct appeal from a conviction or sentence, but who failed to file a timely notice of appeal, to seek permission from the trial court to file a belated notice of appeal. 4

Here, Marlett was sentenced on December 1, 2006, and the thirty-day deadline for filing a notice of appeal began to run on that date. December 31, 2006, a Sunday, and January 1, 2007, New Year's Day, were both non-business days; thus, any notice of appeal was due to be filed on January 2, 2007. See Ind. App. R. 25(A) & (B). The trial court did not receive and file stamp Marlett's notice of appeal until January 3, 2007. Marlett never sought permission from the trial court to file a belated notice of appeal. Ordinarily, these facts might have required us to dismiss Marlett's appeal. However, Marlett has provided documentation to this court that he mailed his notice of appeal to the trial court clerk, via United States Postal Service first class mail, on December 29, 2006. Indiana Trial Rule 5(F)(3) requires, in order for a filing by mail to be deemed to have occurred on the date of mailing, that the mailing be "by registered, certified or express mail." By contrast, Indiana Appellate Rule 23(A)(2) states, "All papers will be deemed filed with the Clerk when they are . . . deposited in the United States Mail, postage prepaid, properly addressed to the Clerk . . . ." Thus, under Trial 5(F)(3), Marlett's notice of appeal properly was deemed not filed until the trial court actually received it on January 3, 2007, because the mailing was not by registered, certified, or express mail, whereas under Appellate Rule 23(A)(2) the filing date would be deemed to be December 29, 2006, because that rule does not require mailing by the Post Office to be by registered, certified, or express mail. We hold that, for purposes of determining the timeliness of a filing required by the Appellate Rules, the filing provisions of those rules trump those of the Trial Rules. It is true that "the Clerk" referred to in Appellate Rule 23(A) is the Clerk of the Supreme 5

Court, Court of Appeals, and Tax Court. See Ind. App. R. 2(D). Nonetheless, in crafting the Appellate Rules a conscious decision was made that filings made by any type of United States Mail service would be deemed filed on the date of mailing, so long as postage was paid and it was addressed correctly. 1 The Notice of Appeal is a requirement of appellate practice, not trial practice. Applying Appellate Rule 23(A)(2) in this case would not undermine the goals of strictly enforcing time limits for notice of appeals, among which are to ensure the expeditious processing of appeals and to ensure the finality of judgments. We deem Marlett's notice of appeal to have been filed on

December 29, 2006, or less than thirty days after he was sentenced. We decline to dismiss his appeal. II. Sentence Marlett first challenges the imposition of a twenty-year sentence. We engage in a four-step process when evaluating a sentence under the current "advisory" sentencing scheme. See Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007). First, a trial court must issue a sentencing statement that includes "reasonably detailed reasons or circumstances for imposing a particular sentence." Id. Second, the reasons or omission of reasons given for choosing a sentence are reviewable on appeal for an abuse of discretion. Id. Third, the weight given to those reasons, i.e. to particular aggravators or mitigators, is not subject to appellate review. Id. Fourth, the merits of a particular

1

There is no indication here that proper postage was not paid or the notice of appeal was not correctly addressed to the trial court clerk.

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sentence are reviewable on appeal for appropriateness under Indiana Appellate Rule 7(B). Id. Marlett, who filed his brief before Anglemyer was decided, primarily claims the trial court abused its discretion in its weighing of aggravating and mitigating circumstances. As Anglemyer made clear, that no longer is a viable argument. We will proceed to consider whether Marlett's sentence is inappropriate under Appellate Rule 7(B) in light of his character and the nature of the offense. Although Rule 7(B) does not require us to be "extremely" deferential to a trial court's sentencing decision, we still must give due consideration to that decision. Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007). We also understand and recognize the unique perspective a trial court brings to its sentencing decisions. Id. "Additionally, a defendant bears the burden of persuading the appellate court that his or her sentence is inappropriate." Id. Marlett received the maximum possible sentence for a Class B felony, to be fully executed. See Ind. Code

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