Lewis F. Kriete, Jr. v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: November 21, 2019
• Docket: 19A-CR-475
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Nov 21 2019, 10:33 am

court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case.

APPELLANT, PRO SE ATTORNEYS FOR APPELLEE Lewis Kriete Curtis T. Hill, Jr. Carlisle, Indiana Attorney General of Indiana Evan Matthew Comer Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Lewis F. Kriete, Jr., November 21, 2019 Appellant-Defendant, Court of Appeals Case No. 19A-CR-475 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Lisa F. Borges, Appellee-Plaintiff. Judge Trial Court Cause No. 49G04-1604-FA-12351

Pyle, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-475 | November 21, 2019 Page 1 of 5 Statement of the Case [1] Lewis F. Kriete, Jr. (“Kriete”), pro se, appeals the trial court’s order denying his

motion requesting transcripts from his guilty plea hearing, sentencing hearing,

and all other previous hearings. Because the trial court’s ruling was neither a

final judgment nor an appealable interlocutory order, we dismiss the appeal.

[2] We dismiss.

Issue Whether Kriete’s appeal should be dismissed because the trial court’s denial of his motion requesting transcripts was neither a final judgment nor an appealable interlocutory order.

Facts [3] Initially, we note that Kriete did not file an Appellant’s Appendix. We are,

however, able to provide the following facts based on the Appellee’s Appendix

filed by the State.

[4] In April 2016, the State charged Kriete with Count 1, Class A felony child

molesting; Counts 2-4, Class A felony attempted child molesting; Count 5-6,

Class C felony child molesting; and Count 7, Class B misdemeanor failure to

make a report. In November 2016, Kriete entered into a plea agreement with

the State and agreed to plead guilty to the Class A felony child molesting

charges in exchange for the State’s dismissal of the remaining six charges. The

plea agreement provided that Kriete’s executed sentence would be capped at

Court of Appeals of Indiana | Memorandum Decision 19A-CR-475 | November 21, 2019 Page 2 of 5 forty-five (45) years and that he would waive his right to appeal his sentence so

long as the trial court sentenced him within the terms of the plea agreement.

Thereafter, the trial court imposed a sentence of forty-five (45) years for Kriete’s

Class A felony child molesting conviction. Kriete did not file a direct appeal.

[5] A couple of years later, Kriete filed three pro se motions requesting the

transcripts from his guilty plea hearing, sentencing hearing, and all other

previous hearings. He filed the first motion in August 2018, the second in

November 2018, and the third in February 2019. In his three motions, Kriete

stated that he wanted the transcripts to prepare a post-conviction petition that

he was planning to file in the future. The trial court denied Kriete’s the three

motions by stamping them with the following: “DENIED. Nothing is

pending.” (Appellee’s App. Vol. 2 at 79, 84, 86). Kriete now attempts to

appeal the trial court’s denial of his third motion requesting transcripts.

Decision [6] Kriete argues that the trial court erred by denying his third pro se motion

requesting transcripts of guilty plea hearing, sentencing hearing, and all other

previous hearings. Kriete argues that he is entitled to the transcripts of the

various hearings and cites to Rush v. U.S., 559 F.2d 455 (7th Cir. 1977) in

support of his argument.1

1 In Rush, the Seventh Circuit held that incarcerated petitioners who no longer had counsel when they were preparing a collateral attack of their convictions had “an absolute personal right to reasonable access to the

Court of Appeals of Indiana | Memorandum Decision 19A-CR-475 | November 21, 2019 Page 3 of 5 [7] We, however, decline to review Kriete’s challenge at this juncture because the

trial court’s denial of the motion that he is now attempting to appeal was

neither a final judgment nor an appealable interlocutory order. See In re

Adoption of S.J., 967 N.E.2d 1063, 1065-66 (Ind. Ct. App. 2012). As set forth in

Indiana Appellate Rule 2(H), a judgment is a “final judgment” if:

(1) it disposes of all claims as to all parties; [or]

(2) the trial court in writing expressly determines under Trial Rule 54(B) or Trial Rule 56(C) that there is no just reason for delay and in writing expressly directs the entry of judgment (i) under Trial Rule 54(B) as to fewer than all the claims or parties, or (ii) under Trial Rule 56(C) as to fewer than all the claims or parties[.]

Ind. Appellate Rule 2(H). If an order is not a final judgment, then an appellant

may appeal the order only if it is an appealable interlocutory order. See

Adoption of S.J., 967 N.E.2d at 1066.

[8] Here, the trial court’s challenged ruling was not a final judgment for purposes of

appeal. First, the trial court’s ruling was not a “final judgment” under

Appellate Rule 2(H)(1). Indeed, as noted by the trial court, there is currently no

pending case. Kriete filed his motion in his underlying criminal case in which a

judgment and sentence had been entered in 2016. Additionally, the trial court’s

ruling at issue here is not an appealable interlocutory order. The ruling is not

pre-existing files and records of their underlying case[,]” which included the trial transcript that had already been prepared for use in their direct appeal. Rush, 559 F.2d 458 (emphasis added).

Court of Appeals of Indiana | Memorandum Decision 19A-CR-475 | November 21, 2019 Page 4 of 5 an interlocutory order as of right under Appellate Rule 14(A) because it does

not fall within one of the categories of Rule 14(A). Nor is it a discretionary

interlocutory appealable order under Appellate Rule 14(B) because Kriete did

not request the trial court to certify the interlocutory order nor sought

permission from our Court to accept the interlocutory appeal. See Adoption of

S.J., 967 N.E.2d at 1066; see also App. R. 14. Because the trial court’s order is

not a final appealable order or an appealable interlocutory order and there is no

pending case, we dismiss this appeal. See D.J. v. Ind. Dep’t of Child Servs., 68

N.E.3d 574, 578-79 (Ind. 2017).

[9] Dismissed.

Robb, J., and Mathias, J., concur.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-475 | November 21, 2019 Page 5 of 5