Court of Appeals of Indiana | Memorandum Decision 20A03-1705-PC-1181 | October 26, 2017 Page 1 of 4

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

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

Gregory A. Rose

Indiana State Prison

Michigan City, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Gregory A. Rose,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff

October 26, 2017

Court of Appeals Case No.

20A03-1705-PC-1181

Appeal from the Elkhart Circuit 

Court

The Honorable Michael A. 

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 2 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 3 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.
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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.