Donald Lee Weidenburner v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: November 20, 2015
• Docket: 74A01-1502-CR-81
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), Nov 20 2015, 8:46 am 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 Donald Lee Weidenburner Gregory F. Zoeller Talladega, Alabama Attorney General of Indiana George P. Sherman Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Donald Lee Weidenburner, November 20, 2015 Appellant-Petitioner, Court of Appeals Case No. 74A01-1502-CR-81 v. Appeal from the Spencer Circuit Court State of Indiana, The Honorable William E. Appellee-Respondent Weikert, Senior Judge Trial Court Cause No. 74C01-0201-FA-19

Baker, Judge.

Court of Appeals of Indiana | Memorandum Decision 74A01-1502-CR-81 | November 20, 2015 Page 1 of 5 [1] Donald Weidenburner appeals the judgment of the trial court denying his

motion to compel the Spencer County Prosecutor’s Office to produce certain

documents. Finding no error, we affirm.

Facts [2] On December 28, 2001, Weidenburner was arrested in Spencer County on

numerous drug and weapon charges. Weidenburner claims that he was

interrogated by Detective Kurt Althoff of the Vanderburgh County Sheriff’s

Department. He maintains that he requested an attorney and refused to speak

with Detective Althoff.

[3] That same day, Detective Don Graskewicz of the Illinois State Police applied

for a warrant to search the residence of James Wathen in Gallatin County,

Illinois. Detective Graskewicz stated that a confidential informant had been in

Wathen’s home the previous day and had seen Wathen operating a meth lab.

The search was executed and large amounts of methamphetamine and weapons

were discovered. Weidenburner’s car was parked in Wathen’s driveway.

Weidenburner believes that the confidential informant Detective Graskewicz

was referring to was himself and that Detective Althoff may have falsely

informed Detective Graskewicz that Weidenburner had given a statement while

under arrest in Indiana.

[4] Following the search of Wathen’s home, Weidenburner decided to cooperate

with agents of the Southern Illinois Drug Task Force. He secretly recorded

phone conversations with coconspirators in Illinois and allowed the agents to

Court of Appeals of Indiana | Memorandum Decision 74A01-1502-CR-81 | November 20, 2015 Page 2 of 5 record interviews with him about his observations. Weidenburner’s

cooperation ended in June 2002 when he was again arrested in Indiana on drug

charges. A month later, Weidenburner was indicted in the Southern District of

Illinois on drug charges. Following his indictment, Weidenburner fled to

Kentucky to avoid prosecution, and was not discovered until 2010.

Weidenburner was then tried in Illinois, and a jury found him guilty of

conspiring to manufacture and distribute methamphetamine. The Illinois

district court sentenced him to 360 months imprisonment. 1 In October 2012,

the State filed a motion to dismiss all the charges pending against

Weidenburner in Indiana, which the trial court granted.

[5] In 2014, Weidenburner contacted the Spencer County Prosecutor’s Office

seeking any report that Detective Althoff may have made regarding

Weidenburner’s 2001 arrest. Weidenburner then filed a request for this report

under the Freedom of Information Act. The State informed Weidenburner that

it did not know whether such a report existed and that it did not have any such

report in its possession. Weidenburner then filed a motion to produce and a

memorandum in support of this motion in the trial court. The trial court denied

this motion and Weidenburner now appeals.

1 For a fuller account of the events leading up to Weidenburner’s conviction, see U.S. v. Weidenburner, 550 F. App’x 298 (7th Cir. 2013).

Court of Appeals of Indiana | Memorandum Decision 74A01-1502-CR-81 | November 20, 2015 Page 3 of 5 Discussion and Decision [6] Weidenburner argues that the trial court erred in denying his motion to produce

any report Detective Althoff may have made regarding his 2001 arrest.

Weidenburner believes that Detective Althoff may have passed false

information to agents in Illinois which, in turn, may have led to the search of

Wathen’s home, implicating Weidenburner in the production of

methamphetamine in Illinois and leading to his eventual conviction.

Weidenburner argues that he has a right to know whether Detective Althoff

made false statements and that the trial court has denied him an opportunity to

discover the truth.

[7] We find no error in the trial court’s decision to deny Weidenburner’s motion.

Indiana Code section 5-14-3-9 provides:

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 court 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.

[8] Here, Weidenburner was not denied an opportunity to inspect the records that

the prosecutor’s office possessed. The State informed the trial court that it had

provided Weidenburner with all the information it had in its possession

regarding his case. The State noted, “[i]t is not that the State won’t tell

[Weidenburner] the status of the alleged report; the State can’t tell him because

no such report is in the possession of custody of the Prosecuting Attorney.”

Court of Appeals of Indiana | Memorandum Decision 74A01-1502-CR-81 | November 20, 2015 Page 4 of 5 Appellant’s App. p. 29 (emphasis original). As no one, including

Weidenburner, even knows whether such a report exists, the trial court was well

within its discretion to determine that the State had complied with

Weidenburner’s records request to the fullest extent possible.

[9] Weidenburner makes several other arguments relating to statements Detective

Althoff may have made to agents in Illinois that led to the search of Wathen’s

home. Weidenburner attempts to ground his arguments in several amendments

to the United States Constitution. These arguments are not well developed

and, in any event, they are not properly before us. This Court will not consider

the merits of Weidenburner’s federal convictions. If Weidenburner wished to

argue that the search of Wathen’s home violated his constitutional rights, he

was given an opportunity to do so when he stood trial in the Southern District

of Illinois.

[10] The judgment of the trial court is affirmed.

Bailey, J., and Mathias, J., concur.

Court of Appeals of Indiana | Memorandum Decision 74A01-1502-CR-81 | November 20, 2015 Page 5 of 5