Oct 31 2013, 5:28 am
FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
ELIZABETH C. MILLIKEN GREGORY F. ZOELLER
Indianapolis, Indiana Attorney General of Indiana
IAN MCLEAN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
DAVID WISE, )
)
Appellant-Defendant, )
)
vs. ) No. 49A02-1301-CR-1
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Kurt M. Eisgruber, Judge
Cause No. 49G01-1108-FB-59703
October 31, 2013
OPINION – FOR PUBLICATION
MATHIAS, Judge
David C. Wise (“Wise”) brings this interlocutory appeal from the order of the
Marion Superior Court denying his pre-trial motion in limine which sought to exclude
evidence regarding video recordings of video files found on Wise’s mobile phone.
Concluding sua sponte that Wise’s motion to certify the trial court’s order for
interlocutory appeal was deemed denied by operation of Indiana Appellate Rule
14(B)(1)(e), we dismiss.1
Facts and Procedural History
On May 10, 2011, Wise’s wife, M.W., informed the police that she had discovered
video files on Wise’s mobile phone that depicted a man she identified as Wise
performing sexual acts on her while she was unconscious. She also suspected that Wise
had been drugging her so that he could perform these sexual acts on her. Because she did
not have the proper cable to connect Wise’s phone to a computer and did not otherwise
know how to move the files off the phone, M.W. decided to use a camcorder to record
video of these files playing on Wise’s telephone. M.W. also altered the names of the files
on the phone to indicate to Wise that she had found the videos and considered Wise to be
a rapist.
On August 25, 2011, the State charged Wise with one count of Class B felony rape
and five counts of criminal deviate conduct. On September 6, 2012, Wise filed a motion
in limine seeking to exclude from evidence the video M.W. had taken of the video files
1
The State argues that we should reconsider our motions panel’s acceptance of discretionary
interlocutory jurisdiction, but does not argue that the trial court’s certification was improper. Regardless,
without proper certification, we are without jurisdiction to consider a discretionary interlocutory appeal.
Wesley v. State, 696 N.E.2d 882, 883 (Ind. Ct. App. 1998). And jurisdiction is an issue that we can, and
indeed must, consider sua sponte. See Tarrance v. State, 947 N.E.2d 494, 495 (Ind. Ct. App. 2011).
2
playing on the phone. The trial court held a hearing on the motion in limine on
September 26, 2012, after which it denied the motion. Wise filed a motion to reconsider
on October 22, 2012, along with a motion requesting that the trial court certify its order
for interlocutory appeal. On November 14, 2012, the trial court denied Wise’s motion to
reconsider. But the trial court did not grant Wise’s motion to certify its earlier order for
interlocutory appeal until December 4, 2012. On February 8, 2013, our motions panel
accepted interlocutory jurisdiction of this case,2 and this appeal ensued.
Discussion and Decision
All parties agree that this case is controlled by Appellate Rule 14(B), which
governs discretionary interlocutory appeals.3 This rule generally provides that “[a]n
appeal may be taken from other interlocutory orders if the trial court certifies its order
and the Court of Appeals accepts jurisdiction over the appeal.” App. R. 14(B). The rule
provides for a two-step process to initiate a discretionary interlocutory appeal: first the
trial court must certify its order for interlocutory appeal; then, if the trial court does so,
this court may accept interlocutory jurisdiction over the case. See App. R. 14(B); State v.
Foy, 862 N.E.2d 1219, 1223 (Ind. Ct. App. 2007).
Appellate Rule 14(B)(1) sets forth the process involved in certifying a trial court’s
order for interlocutory appeal. First, the party seeking certification must file a motion
requesting certification within thirty days after the date the interlocutory order is noted in
2
Judge Bailey and Senior Judge Barteau voted to accept jurisdiction, but Judge Barnes voted to deny
jurisdiction.
3
There is no suggestion that the trial court’s order on Wise’s motion in limine was an order from which
an interlocutory appeal can be taken as of right pursuant to Appellate Rule 14(A).
3
the Chronological Case Summary (“CCS”). App. R. 14(B)(1)(a). Here, the trial court’s
order denying Wise’s motion in limine was noted in the CCS on September 26, 2012.
Wise’s motion to certify was filed on October 22, 2012, within this thirty-day period.
Next, any response to the motion to certify must be filed within fifteen days after service
of the motion. App. R. 14(B)(1)(d). Here, the State filed its response on October 24,
2012, which was well within this time limit.
At issue here is Appellate Rule 14(B)(1)(e), which provides:
Ruling on Motion by the Trial Court. In the event the trial court fails for
thirty (30) days to set the motion for hearing or fails to rule on the motion
within thirty (30) days after it was heard or thirty (30) days after it was filed,
if no hearing is set, the motion requesting certification of an interlocutory
order shall be deemed denied.
The CCS in the present case does not indicate that the trial court set a hearing on
Wise’s motion to certify.4 Therefore, his motion was deemed denied thirty days after it
was filed, i.e., November 22, 2012. Nevertheless, the trial court purported to grant the
motion on December 4, 2012. Although Wise filed a motion with this court within thirty
days of the trial court’s order purporting to grant certification, Wise’s motion had already
been deemed denied by operation of Appellate Rule 14(B)(1)(e).
We are unable to conclude that the trial court’s belated certification complies with
Appellate Rule 14(B)’s time limitations. To hold otherwise would effectively nullify the
“deemed denied” provision of Appellate Rule 14(B)(1)(e), the clear purpose of which is
4
The parties did discuss the possibility of an interlocutory appeal at a pretrial hearing on October 17,
2012, before Wise filed his motion to certify. The parties also briefly discussed the question of an
interlocutory appeal at the pretrial hearing held on November 15, 2012. But the CCS does not indicate
that the trial court ever set a hearing on the motion to certify.
4
to limit the amount of time a trial court has to rule on a motion to certify. We therefore
conclude that, by operation of Appellate Rule 14(B)(1)(e), Wise’s motion to certify was
deemed denied, and the trial court could not resuscitate Wise’s motion by belatedly
granting it after it had been deemed denied.5
It is well established that we may reconsider a ruling by our motions panel.
Treacy v. State, 953 N.E.2d 634, 636 n.2 (Ind. Ct. App. 2011), trans. denied. More
specifically, we have the authority to reconsider our motions panel’s initial ruling on a
motion to accept interlocutory jurisdiction. Bridgestone Americas Holding, Inc. v.
Mayberry, 854 N.E.2d 355, 358-59 (Ind. Ct. App. 2006) (holding that this court had
authority to reconsider our motions panel’s initial refusal to accept interlocutory
jurisdiction), summarily aff’d in relevant part, 878 N.E.2d 189, 191 n.2 (Ind. 2007).
Here, our review of the record reveals that Wise’s motion to certify the trial
court’s order for interlocutory appeal was deemed denied. Without proper certification,
we have no jurisdiction to entertain an interlocutory appeal. Wesley v. State, 696 N.E.2d
882, 883 (Ind. Ct. App. 1998). Thus, our earlier decision to accept jurisdiction was
improper, and we accordingly dismiss this appeal.
Dismissed.
NAJAM, J., and BROWN, J., concur.
5
The fact that Wise filed a motion to reconsider the trial court’s denial of his motion in limine does not
alter our analysis in any way. Indiana Trial Rule 53.4(A) plainly states that a motion to reconsider “shall
not . . . extend the time for any further required or permitted action, motion, or proceeding under these
rules,” which includes the Appellate Rules. See Johnson v. Estate of Brazill, 917 N.E.2d 1235, 1239 (Ind.
Ct. App. 2009).
5