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
