MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                    Jan 13 2016, 7:56 am
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
John Mazurak                                             Gregory F. Zoeller
Westville, Indiana                                       Attorney General of Indiana
                                                         Michael Gene Worden
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

John Mazurak,                                            January 13, 2016
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         57A03-1502-CR-42
        v.                                               Appeal from the Noble Circuit
                                                         Court
State of Indiana,                                        The Honorable Michael J. Kramer,
Appellee-Respondent.                                     Special Judge
                                                         Trial Court Cause No.
                                                         57C01-1301-FC-2



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 57A03-1502-CR-42 | January 13, 2016           Page 1 of 7
                                          Case Summary
[1]   Subsequent to his plea of guilty to Theft, as a Class D felony, 1 John Mazurak

      (“Mazurak”) filed a variety of pro se motions, including a Motion for Acquittal

      of Burglary, a Motion for Default Summary Judgment for Acquittal of

      Burglary, a Motion to Withdraw Plea, a Motion for Leave to Add Exhibits, a

      request for alleged exculpatory materials, a Motion for Abeyance of

      Withdrawal of Guilty Plea, and a Petition for Order to Delite Non Convictions

      of Non Crimes. The trial court entered an order purportedly denying all

      pending motions, but simultaneously appointed counsel to pursue appropriate

      motions and represent Mazurak at a future hearing. Mazurak appeals. We

      dismiss.



                                                     Issue
[2]   Mazurak contends that the trial court erred by refusing to allow him to

      withdraw a guilty plea that was entered involuntarily. He also articulates a

      second issue, claiming that he should have been acquitted of Burglary.2 We

      address the sole dispositive issue: whether there is an appealable final order in

      this case.




      1
          Ind. Code § 35-43-4-2.
      2
          I.C. § 35-43-2-1.


      Court of Appeals of Indiana | Memorandum Decision 57A03-1502-CR-42 | January 13, 2016   Page 2 of 7
                              Facts and Procedural History
[3]   On December 29, 2012, Kendallville Police officers discovered a hole in the

      fence around the Dalton Foundry. Mazurak was discovered inside, dragging

      copper wire.3


[4]   On January 2, 2013, the State charged Mazurak with Theft, Trespass, and

      Resisting Law Enforcement. On the following day, the State filed a Burglary

      charge. On November 14, 2013, Mazurak pled guilty to Theft and the

      remaining charges were dismissed. Mazurak was sentenced to three years

      imprisonment, to be served consecutive to a sentence incurred in another

      county.


[5]   On May 23, 2014, Mazurak filed a motion to withdraw his guilty plea. He

      alleged that his plea was involuntary due to incorrect advice from his counsel,

      that the judgment was voidable because of changes to the Indiana Criminal

      Code, and that the theft statute was unconstitutionally vague and ambiguous.

      He filed numerous other pro-se motions, and successfully secured a change of

      judge. Ultimately, the matter was set for a hearing on January 9, 2015 to

      determine which motions were pending before the new judge.




      3
       According to Mazurak, he had a “blackout spell” inside the foundry; he was “snapped out of his blackout
      spell by [an] invasion force raid;” he fled from police while in a disoriented state; and, unbeknownst to him,
      he was dragging something caught on his pant leg. (Appellant’s Brief at 5.)

      Court of Appeals of Indiana | Memorandum Decision 57A03-1502-CR-42 | January 13, 2016               Page 3 of 7
[6]   At the hearing, Mazurak was afforded the opportunity to proceed pro-se but –

      after some discussion of his limited access to a law library and his difficulty

      with writing due to a stroke – Mazurak reluctantly requested representation by

      appointed counsel. The trial court stated to Mazurak: “I’m just informing you

      that I’m not going to rule on … any sort of pro se motions they need to be filed

      by your attorney at this point. … I will wait for your attorney to request a

      hearing and depending upon what motions and how much time the attorney

      thinks it will take I’ll set it then.” (Tr. at 60-62.) However, the trial court

      entered a written order of denial:

              As a result of the numerous and confusing motions Defendant
              has filed pro se, and currently being represented by counsel, the
              court now denies all pending motions. Defendant’s counsel may
              file any motions he or she deems appropriate.


      (Appellee’s App. at 9; Appellant’s Brief at 22.) Mazurak filed a Notice of

      Appeal.



                                 Discussion and Decision
[7]   It is the duty of the Court of Appeals to determine whether it has jurisdiction

      before proceeding to determine the merits of any case. Montgomery, Zukerman,

      Davis, Inc. v. Chubb Grp. of Ins. Cos., 698 N.E.2d 1251, 1252-53 (Ind. Ct. App.

      1998), trans. denied. When the Court determines that it does not have

      jurisdiction, it shall dismiss the appeal. Id. at 1253.




      Court of Appeals of Indiana | Memorandum Decision 57A03-1502-CR-42 | January 13, 2016   Page 4 of 7
[8]    A final appealable order or judgment is one that disposes of all of the issues as

       to all of the parties and puts an end to the particular case. Id. The sufficiency of

       a judgment is to be tested by its substance rather than its form. Id. The

       judgment must show distinctly, and not inferentially, that the matters litigated

       have been disposed of in favor of one of the parties and the rights of the parties

       have been finally adjudicated. Id. Even where the trial court’s order lacks some

       of the details or formalities generally required in a judgment, the order is

       nevertheless a final appealable judgment where it disposes of all claims of all of

       the parties. Id.


[9]    Indiana Trial Rule 58 provides in pertinent part as follows:

               Entry of judgment. Subject to the provisions of Rule 54(B), upon
               a verdict of a jury, or upon a decision of the court, the court shall
               promptly prepare and sign the judgment, and the clerk shall
               thereupon enter the judgment in the Record of Judgments and
               Orders and note the entry of the judgment in the Chronological
               Case Summary and Judgment Docket.


[10]   Indiana Trial Rule 54(B) provides in pertinent part as follows:

               A judgment as to one or more but fewer than all of the claims or
               parties is final when the court in writing expressly determines
               that there is no just reason for delay, and in writing expressly
               directs entry of judgment, and an appeal may be taken upon this
               or other issues resolved by the judgment; but in other cases a
               judgment, decision or order as to less than all the claims and
               parties is not final.




       Court of Appeals of Indiana | Memorandum Decision 57A03-1502-CR-42 | January 13, 2016   Page 5 of 7
[11]   Here, the trial court and Mazurak discussed and clearly anticipated further

       proceedings to address the merits of Mazurak’s motion for withdrawal of his

       guilty plea. The trial court found the contentions of Mazurak’s numerous

       motions to be confusing and inquired as to whether Mazurak wished to

       continue to pursue his claims pro-se. Mazurak related several concerns as to his

       health, abilities, and access to legal materials and eventually expressed his

       desire to have counsel appointed for him. The trial court verbally assured

       Mazurak that an evidentiary hearing would be scheduled upon proper motion

       from his attorney. In these unique circumstances, the trial court did not finally

       dispose of all claims and put an end to the particular case. Accordingly, we

       dismiss the purported appeal.


[12]   Dismissed.


       Vaidik, C.J., concurs.


       Crone, J., dissents with separate opinion.




       Court of Appeals of Indiana | Memorandum Decision 57A03-1502-CR-42 | January 13, 2016   Page 6 of 7
                                                  IN THE
           COURT OF APPEALS OF INDIANA

       John Mazurak,                                            Court of Appeals Case No.
                                                                57A03-1502-CR-42
       Appellant-Petitioner,

               v.

       State of Indiana,
       Appellee-Respondent.




       Crone, Judge, dissenting.


[13]   I respectfully dissent. In concluding that the trial court’s judgment does not

       finally dispose of all of Mazurak’s claims, the majority has elevated form over

       substance and unnecessarily prolonged this litigation. The gravamen of

       Mazurak’s numerous motions is that he should be allowed to withdraw his

       guilty plea. The trial court denied those motions, and Mazurak appealed that

       ruling. I would affirm the ruling on the merits for the reasons capably advanced

       by the State in its appellee’s brief. That Mazurak’s appointed counsel can file

       additional motions is irrelevant.




       Court of Appeals of Indiana | Memorandum Decision 57A03-1502-CR-42 | January 13, 2016   Page 7 of 7
