Gregory A. Rose v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: October 26, 2017
• Docket: 20A03-1705-PC-1181
• Status: Published

Opinion

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Oct 26 2017, 10:28 am this Memorandum Decision shall not be CLERK regarded as precedent or cited before any Indiana Supreme Court Court of Appeals court except for the purpose of establishing and Tax Court

the defense of res judicata, collateral estoppel, or the law of the case.

APPELLANT PRO SE Gregory A. Rose Indiana State Prison Michigan City, Indiana

IN THE COURT OF APPEALS OF INDIANA

Gregory A. Rose, October 26, 2017 Appellant-Defendant, Court of Appeals Case No. 20A03-1705-PC-1181 v. Appeal from the Elkhart Circuit Court State of Indiana, The Honorable Michael A. Appellee-Plaintiff Christofeno, Judge Trial Court Cause No. 20C01-1206-FA-35

Crone, Judge.

Court of Appeals of Indiana | Memorandum Decision 20A03-1705-PC-1181 | October 26, 2017 Page 1 of 4 Case Summary [1] Gregory A. Rose filed this pro se appeal following the trial court’s denial of his

motion to compel. We reverse and remand for further proceedings.

Facts and Procedural History [2] In August 2014, Rose was convicted of class A felony child molesting and class

C felony child molesting. He also admitted to being a repeat sexual offender

based on his prior conviction for unlawful deviate conduct. The trial court

sentenced Rose to an aggregate term of fifty-five years. This Court affirmed his

convictions and sentences on direct appeal. See Rose v. State, 36 N.E.3d 1055,

1059 (Ind. Ct. App. 2015).

[3] In January 2016, Rose requested his client file from Richard Mehl, his trial

attorney. Mehl responded that he would provide some documents to Rose for a

$50 production, copying, and mailing fee. Appellant’s App. at 18. In February

2016, Rose made a second request for his “entire client file” pursuant to

Indiana Code Section 33-43-1-9 and Indiana Rule of Professional Conduct

1.16(d). Id. at 19. When Mehl did not respond to his second request, Rose filed

a motion to compel production of documents in the Elkhart Circuit Court on

April 1, 2016. The trial court denied the motion on April 13, 2016, noting that

Rose’s direct appeal had been concluded and that there were “no matters

pending before the Court requiring discovery.” Id. at 15. Rose filed a second

motion to compel, which the trial court deemed moot. Thereafter, Rose filed

Court of Appeals of Indiana | Memorandum Decision 20A03-1705-PC-1181 | October 26, 2017 Page 2 of 4 his notice of appeal, stating that he was appealing the trial court’s denial of his

motion to compel, and naming the State of Indiana as appellee. 1

Discussion and Decision [4] Rose argues that the trial court erred in concluding that, absent a pending

criminal action, it lacked authority to consider the merits of his motion to

compel. We agree.

[5] In support of his motion to compel, Rose relied on Indiana Code Section 33-43-

1-9, which provides:

If, on request, an attorney refuses to deliver over money or papers to a person from whom or for whom the attorney has received them, in the course of the attorney's professional employment, the attorney may be required, after reasonable notice, on motion of any party aggrieved, by an order of the court in which an action, if any, was prosecuted or if an action was not prosecuted, by the order of any court of record, to deliver the money or papers within a specified time, or show cause why the attorney should not be punished for contempt.

[6] By its terms, this statute vests the trial court in which an action was prosecuted

with the authority to consider a motion made pursuant to the statute’s terms.

Our supreme court has explained that this type of document or money request

is civil in nature and is appropriately characterized as a proceeding ancillary to

1 Although the State of Indiana was listed as appellee, the State and the Indiana Attorney General filed a Notice of Non-Involvement and have not participated in this appeal. This Court accepted the notice by order issued on July 28, 2017.

Court of Appeals of Indiana | Memorandum Decision 20A03-1705-PC-1181 | October 26, 2017 Page 3 of 4 the criminal action that resulted in a conviction. Smith v. State, 426 N.E.2d 402,

403 (Ind. 1981). Indeed, the court observed that the “two matters are distinct,”

with the criminal action involving the defendant and the State, and the instant

matter involving the defendant and his attorney. Id. at 403–04.

[7] Similarly, here, the criminal action involved Rose and the State, while the

motion to compel involves Rose and Mehl. Because Rose filed his motion to

compel in the Elkhart Circuit Court as an ancillary proceeding to the criminal

cause in which he had been represented by Mehl, the Smith court instructs that

the trial court “should have caused reasonable notice to have been given to

[Mehl], held a hearing thereon, and then ruled on the motion.” Id. at 404

(citation omitted); see also Ferguson v. State, 773 N.E.2d 877, 881 (Ind. Ct. App.

2002). Accordingly, the trial court should hold a hearing on remand to

determine whether Mehl is in possession of documents to which Rose is

entitled. Therefore, we reverse and remand for proceedings consistent with this

opinion.

[8] Reversed and remanded.

Vaidik, C.J., and Mathias, J., concur.

Court of Appeals of Indiana | Memorandum Decision 20A03-1705-PC-1181 | October 26, 2017 Page 4 of 4