Lewis F. Kriete, Jr. v. State of Indiana (mem. dec.) ( 2019 )

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.
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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
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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
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[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).
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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.
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