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
