Treacy v. State

OPINION BRADFORD, Judge. In this somewhat unusual appeal, attorneys Paul Ogden and Patrick Stern ostensibly contend that the trial court erred in failing to provide Defendant Timothy-Patrick Treacy with representation at public expense. We conclude, however, that the true issue in this appeal has arisen from a fee dispute between Ogden and Stern and the Marion County Public Defender Agency (“the MCPDA”), none of whom is a proper party to this appeal. Concluding that we lack subject matter jurisdiction over this appeal, we dismiss. FACTS AND PROCEDURAL HISTORY On August 26, 2006, the State charged Treacy with Class A misdemeanor operating a vehicle while intoxicated (“OWI”), Class C misdemeanor operating a vehicle with a blood alcohol concentration (“BAC”) of greater than 0.08 but less than 0.15, Class B misdemeanor public intoxication, Class D felony OWI with a prior conviction, and Class D felony operating a vehicle with a BAC of greater than 0.08 but less than 0.15.

On July 31, 2009, a jury found Treacy guilty as charged. On September 9, 2009, the trial court sentenced Treacy to an aggregate sentence of 545 days of incarceration, with 455 suspended to probation, for Class B misdemeanor public intoxication and Class D felony OWI with a prior conviction. (Appellant’s App. 38-39). On September 8, 2010, this court affirmed Treacy’s convictions, which he challenged on the basis that they violated his right to be tried within one year of being charged. Treacy v.

State, Cause No. 49A02-0910-CR-1031, 2010 WL 3496797 (Ind.Ct.App. September 8, 2010). Neither Treacy’s sentence, convictions, nor any collateral attacks thereto are the subject of this appeal. Meanwhile, on January 20, 2009, Stern filed his appearance for Treacy.

At some point Ogden became involved as well, although the record indicates that he never filed an appearance in the trial court. During a pretrial conference on July 14, 2009, Stern indicated that he was not being paid for his representation of Treacy and requested that the trial court appoint him to represent Treacy and order the county to pay his fee, which request the trial court refused. Nevertheless, Stern represented Treacy at his trial on August 27, 2009. On October 7, 2009, Ogden and Stern filed a petition to order the county to pay their fees, to which the MCPDA objected.

Ultimately, the trial court denied Ogden’s and Stern’s petition for attorney’s fees. In an appeal in which Treacy seems to have no involvement, Ogden and Stern challenge the trial court’s denial of their petition for fees. DISCUSSION AND DECISION Although this appeal is styled as a challenge to the trial court’s denial of Treacy’s request for counsel at public expense, no such denial is actually claimed.1 This appeal is, in fact, an appeal prosecuted by Ogden and Stern on their own behalf in an attempt to have the MCPDA reimburse them for representing Treacy. Neither Ogden, Treacy, nor the MCPDA, however, were parties below, and, as such, cannot be proper parties to an appeal from Treacy’s conviction. The Indiana Rules of Appellate Procedure provide that “[a] party of record in the trial court or Administrative Agency shall be a party on appeal.” Ind.

Appellate Rule 17(A). When read together with the other appellate rules, the only reasonable reading of Rule 17 is that it limits the class of parties on appeal to parties of record in the trial court. There are, for example, no appellate rules providing for intervention in an appeal. This interpretation is also consistent with our case law.

In W.J. & M.S. Vesey v. Hillman, 139 Ind.App. 363, 367, 198 N.E.2d 233, 235 (1964), we concluded, in a case where two persons named as parties in the appeal had only been named in a cross-complaint and counter-claim which had been withdrawn before judgment, that “these persons were not parties to the judgment in the court below nor proper parties as appellant or appellee in this court.” Neither Ogden, Stern, nor the MCPDA was a party to the judgment below, and they are therefore not proper parties to this appeal.2 Even if we were otherwise inclined to dispose of an appeal lacking proper parties, we conclude that this lack deprives us of subject matter jurisdiction over this appeal and so cannot. Pursuant to Appellate Rule 5, we have jurisdiction over appeals from final judgments of and interlocutory appeals from trial courts, neither of which applies here.

Although a final judgment “disposes of all claims as to the parties[,]” App. R. 2(H)(1), and the trial court’s order seems to have disposed of all claims between Ogden and Stern and the MCPDA, none of them was a party. Moreover, because the trial court’s order did dispose of all claims, it cannot have been the subject of an interlocutory appeal. As such, we lack subject matter jurisdiction over this appeal and so must dismiss the appeal sua sponte. See Young v.

Estate of Sweeney, 808 N.E.2d 1217, 1221 (Ind.Ct.App.2004). We think it desirable to further address our concerns with Ogden’s and Stern’s attempt to litigate their fee dispute with the MCPDA in the context of Treacy’s criminal case. As previously mentioned, neither Ogden, Stern, nor the MCPDA was a party below. Furthermore, it seems clear that none of them could have become a proper party to the criminal action below, even by using the proper intervention procedure in the trial court, which, of course, none did.

Pursuant to Indiana Trial Rule 24, a potential party may intervene as of right when a statute confers such a right or the applicant claims an interest relating to a property, fund or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect his interest in the property, fund or transaction, unless the applicant’s interest is adequately represented by existing parties. Ind. Trial Rule 24(A). A potential party may be permitted to intervene when a statute confers a conditional right to do so or “an applicant’s claim or defense and the main action have a question of law or fact in common.” T.R. 24(B). No statute confers either an absolute or conditional right to intervene under the circumstances of this case; the criminal action against Treacy does not concern any property, fund, or transaction, much less any in which Ogden, Stern, or the MCPDA has an interest; and Ogden’s and Stern’s claim has no question of law or fact in common with the criminal action.

Indeed, it is difficult to see how the Trial Rules would ever allow a defense attorney to intervene in a criminal case under any circumstances. Ogden’s and Stern’s actions in this matter seem to have been an attempt to litigate their dispute with the MCPDA without having to bother with the expense and trouble of a separate lawsuit, a circumvention that the Trial Rules simply do not allow. The appeal is dismissed. BAKER, J., concurs. MAY, J., dissents with opinion. . Even if this claim had been made, it would have been waived for appellate review, as it was not raised in Treacy’s first direct appeal. “If an issue was known and available, but not raised on direct appeal, it is waived.” Timberlake v.

State, 753 N.E.2d 591, 597 (Ind. 2001). . On March 10, 2011, the motions panel of this court granted the MCPDA’s motion to clarify party status, ruling that the MCPDA could proceed as a party appellee in this case. We may, however, revisit decisions of the motions panel and do so in this case. "It is well established that we may reconsider a ruling by the motions panel.” Cincinnati Ins. Co. v.

Young, 852 N.E.2d 8, 12 (Ind.Ct.App. 2006), trans. denied. While we are reluctant to overrule orders decided by the motions panel, this court has inherent authority to reconsider any decision while an appeal remains in fieri. See Davis v. State, 771 N.E.2d 647, 649 n. 5 (Ind.2002); State v.

Moore, 796 N.E.2d 764, 766 (Ind.Ct.App.2003), trans. denied.