Gregory A. Rose v. State of Indiana (mem. dec.) ( 2017 )

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.
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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
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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.
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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.
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