Date: 05-04-2022

Case Style:

Alan Kreilein v. Tracy Berry, et al.

Case Number: 21A-PL-862

Judge: Melissa S. May

Court:

COURT OF APPEALS OF INDIANA

On appeal from The Madison Circuit Court

Plaintiff's Attorney:

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Defendant's Attorney: Theodore E. Rokita
Attorney General of Indiana

Abigail R. Recker
Deputy Attorney General

Description:

Indianapolis, IN - Criminal Defense lawyer represented defendant with filing a petition for postconviction relief.

In 2002, Kreilein committed Class B felony criminal deviate conduct.
Following conviction, the court sentenced him to a term of thirty years in the
Indiana Department of Correction (“DOC”). While Kreilein was incarcerated,
the DOC informed him of his classifications as both a sexually violent predator
(“SVP”)2 and an offender against children.3
Kreilein was released from prison
and placed on parole in 2015. He was required to abide by additional special
conditions while on parole because of his SVP and offender-against-children
classifications. Kreilein violated those conditions and was reincarcerated in
2016. Thereafter, he filed a petition for postconviction relief challenging the
revocation of his parole and his SVP and offender-against-children
classifications. The postconviction court denied Kreilein’s petition and granted
summary disposition in favor of the State “because [Kreilein] pleaded guilty to
parole [v]iolation, thereby waiving the opportunity to challenge it.” (Appellee’s
App. Vol. II at 28.) Kreilein subsequently made repeated requests for
permission to file a successive petition for postconviction relief, but this Court
has denied each of his requests.
[3] On December 7, 2020, Kreilein filed suit against various employees of the DOC
and the Indiana Parole Board (collectively, “State”). Kreilein titled his action a
1 Ind. Code § 35-42-4-2(a)(1) (1998).
2 Ind. Code § 35-38-1-7.5 (2006).
3 Ind. Code § 35-42-4-11 (2014).
Court of Appeals of Indiana | Memorandum Decision 21A-PL-862 | April 28, 2022 Page 3 of 6
“Petition for Declaratory Judgment and Injunctive Relief,” (Appellant’s App.
Vol. II at 10), and alleged he was neither a SVP nor an offender against
children. The State moved to dismiss Kreilein’s complaint on the basis it
constituted an unauthorized successive petition for postconviction relief.4
The
trial court granted the State’s motion to dismiss on March 19, 2021. On April
9, 2021, Kreilein filed a “Motion to Reconsider Dismissal of Action” in which
he asserted: “Comes now Plaintiff, Alan Kreilein, pro se, asks this court under
trial rule 60 to reconsider its dismissal ruling in this action.” (Id. at 87.) The
trial court denied Kreilein’s motion to reconsider on April 12, 2021.
[4] On April 21, 2021, Kreilein delivered his notice of appeal to appropriate staff at
the New Castle Correctional Facility for them to mail. Kreilein specified in his
notice of appeal that the order being appealed was the trial court’s March 19,
2021, order denying his motion to dismiss.
4 The State explained in its motion to dismiss:
Mr. Kreilein has challenged his parole revocation in more than a dozen other matters
over the past decade. See Cause Nos. 62C01-0308-PC-000565; 59A01-0311-PC-00455;
19D01-1103-PC-000040; 19D01-1103-PC-000041; 19D01-1103-PC-000042; 82D03-1105-
PC-00003; 82A01-1107-PC-00311; 82C01-1706-PC-003168; 48C03-1708-PC-000036;
48C03-1709-PC-000043; 48C03-1710-PC-000047; 48A02-1712-PC-02987; 19D01-1712-
PC-000753; 18A-PC-00997; 18A-PC-03008; 19A-SP-00931; 20A-SP-00193, No. 48C03-
2003-PC-000014; and 33C02-2011-PC-000010.
Mr. Kreilein has not obtained leave from the Court of Appeals to file a successive PCR
petition.
(Appellant’s App. Vol. II at 19.)
Court of Appeals of Indiana | Memorandum Decision 21A-PL-862 | April 28, 2022 Page 4 of 6
Discussion and Decision
[5] Initially, we note that, like he did before the trial court, Kreilein proceeds pro se
on appeal. We hold pro se litigants to the same standard as trained attorneys
and afford them no inherent leniency because of their self-represented status.
Zavodinik v. Harper, 17 N.E.3d 259, 266 (Ind. 2014). Pro se litigants “are bound
to follow the established rules of procedure and must be prepared to accept the
consequences of their failure to do so.” Basic v. Amouri, 58 N.E.3d 980, 983-84
(Ind. Ct. App. 2016), reh’g denied. “One of the risks that a [litigant] takes when
he decides to proceed pro se is that he will not know how to accomplish all of
the things that an attorney would know how to accomplish.” Smith v. Donahue,
907 N.E.2d 553, 555 (Ind. Ct. App. 2009), trans. denied, cert. denied, 558 U.S.
1074 (2009).
[6] The State asks us to dismiss Kreilein’s appeal because he did not timely file his
notice of appeal. Indiana Rule of Appellate Procedure 9(A)(1) states:
A party initiates an appeal by filing a Notice of Appeal with the
Clerk (as defined in Rule 2(D)) within thirty (30) days after the
entry of a Final Judgment is noted in the Chronological Case
Summary. However, if any party files a timely motion to correct
error, a Notice of Appeal must be filed within thirty (30) days
after the court’s ruling on such motion is noted in the
Chronological Case Summary or thirty (30) days after the motion
is deemed denied under Trial Rule 53.3, whichever occurs first.
The chronological case summary notes the trial court granted the State’s
motion to dismiss Kreilein’s complaint on March 19, 2021, and therefore,
Court of Appeals of Indiana | Memorandum Decision 21A-PL-862 | April 28, 2022 Page 5 of 6
Kreilein had until April 19, 2021, to timely file his notice of appeal. Because
Kreilein is incarcerated, we credit him with filing his notice of appeal on the
date he gave it to correctional staff to mail to the court and opposing parties.
See Dowell v. State, 922 N.E.2d 605, 607 (Ind. 2010) (explicitly adopting “prison
mailbox rule”). Kreilein certified on his notice of appeal that he delivered the
notice to correctional staff on April 21, 2021, which is two days after his
deadline for filing a notice of appeal expired.
[7] A motion to correct error under Trial Rule 59 tolls the deadline for filing a
notice of appeal. See Ind. Appellate Rule 9. However, Kreilein chose not to file
a motion under Trial Rule 59. Instead, he filed a motion to reconsider invoking
Trial Rule 60. It is well-settled that a motion to reconsider does not toll the
deadline for filing a notice of appeal. See Huber v. Montgomery Cnty. Sheriff, 940
N.E.2d 1182, 1185 n. 1 (Ind. Ct. App. 2010) (“[P]ursuant to Indiana Trial Rule
53.4(A), a motion to reconsider ‘does not toll the time period within which an
appellant must file a notice of appeal.’” (quoting Johnson v. Est. of Brazill, 917
N.E.2d 1235, 1239 (Ind. Ct. App. 2009))). Likewise, a Trial Rule 60 motion
does not toll the deadline for initiating an appeal of the underlying judgment.
See In re Paternity of P.S.S., 934 N.E.2d 737, 740 (Ind. 2010) (“But a motion for
relief from judgment under Indiana Trial Rule 60(B) is not a substitute for a
direct appeal.”). As Kreilein appeals the order dismissing his complaint and
filed his notice of appeal after the deadline for initiating an appeal of that order
Court of Appeals of Indiana | Memorandum Decision 21A-PL-862 | April 28, 2022 Page 6 of 6
expired, we dismiss his appeal.5
See Cooper’s Hawk Indianapolis, LLC v. Ray, 162
N.E.3d 1097, 1098 (Ind. 2021) (dismissing the appellant’s untimely initiated
appeal after stating “it is never error for an appellate court to dismiss an
untimely appeal”.

Outcome: Kreilein’s motion to reconsider did not toll his deadline for initiating an appeal
from the trial court’s order dismissing his complaint, and Kreilein filed his
notice of appeal after the deadline to appeal said order passed. Therefore, we
dismiss his appeal.

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