Indiana Court Decisions

For Publication opinions on Indiana cases released by the 7th Circuit Court of Appeals and the Indiana Supreme Court, Court of Appeals and Tax Court during this issue’s reporting period are highlighted in this section of the Indiana Lawyer. To read the complete opinion issued in any of these cases, visit www.theindianalawyer.com and search by case name.

7th Circuit Court of Appeals

January 12

Criminal – Sentencing/Drug Conviction

United States of America v. Michael Redmond and Charles Avery Jr.,

10-1947, 10-3914

In a consolidated appeal, the 7th Circuit Court of Appeals upheld one man’s sentence following a guilty plea to drug offenses, but sent the other man’s case back to the District Court to reconsider his sentence in light of United States v. Corner.

Michael Redmond and Charles Avery Jr. challenged their sentences following guilty pleas to crack cocaine distribution conspiracy and crack cocaine distribution, respectively.

Avery attempted to have his guilty plea withdrawn after learning the prosecution was going to attribute a higher crack cocaine quantity to him. He pleaded guilty without a plea agreement.

The 7th Circuit pointed out that by pleading guilty without the benefit of the plea agreement, he had no guarantees from the government.

“Even if Avery was under a reasonable misapprehension of what quantity would be attributable to him based on his reliance on the government’s representations, Avery’s status as a career offender, which raised his offense level to 34, made the relevant conduct drug weight irrelevant in determining his Guidelines sentencing range,” wrote Judge Joel Flaum.

The judges affirmed his sentence, finding the government set forth facts to establish the amount of cocaine attributable to Avery and the District Court reasonably concluded that the readily provable quantity of crack cocaine attributable to him for purposes of determining his advisory sentencing guideline range was 51.5 grams.

Regarding Redmond, the 7th Circuit remanded his case to the District Court for the limited purpose of allowing the court to consider his sentence in light of Corner, 598 F.3d 411 (7th Cir. 2010), which was decided after Redmond was sentenced.

Redmond was classified as a career offender under 18 U.S.C. Section 4B1.1, with a criminal history category of VI. The advisory guidelines sentencing range was to be 262 to 327 months. While the District Court agreed that Redmond’s career criminal status “may have overstated the seriousness of his arrest history” and that it would “deviate down from the guidelines,” the court still sentenced Redmond to a longer sentence than he expected – 240 months. Redmond wanted a sentence of 15 or 16 years.

In Corner, the 7th Circuit held that a District Court can vary categorically from every guideline, including the career offender guidelines.

“Though the court certainly could have varied its sentence further, Redmond presents little to show that the district court was constrained in its decision making process. Moreover, that the court sentenced Redmond below the advisory career offender range, suggests that it was not constrained by the guideline calculation. Even so, the district court did suggest that Redmond’s status as a career offender was a significant factor in its sentence, and it is not clear that the court recognized its complete discretion to deviate from the Guidelines career-offender calculation,” wrote the judge.
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January 13

Civil – Employment/Discrimination

Kevin Harris v. Warrick County Sheriff’s Department

10-3706

The 7th Circuit Court of Appeals has determined the Warrick County Sheriff’s Department didn’t break the law when it fired a probationary deputy sheriff based on violations of standard operating procedures, failure to follow orders and insufficient commitment to the job.

A unanimous decision was made by a three-judge panel from the Southern District of Indiana. The case involved the termination of Kevin Harris’ employment about five months into his probationary period as a sheriff’s deputy. He sued the department on allegations that the firing was because he’s African-American, but U.S. Chief Judge Richard Young in Evansville granted a motion for summary judgment in favor of the sheriff’s office, finding insufficient evidence of discrimination.

On appeal, the 7th Circuit found Harris didn’t present evidence to support claims and also didn’t advance arguments that he previously made at the District level, waiving them on appeal.

The appellate panel also noted that Young didn’t err in drawing a non-dispositive inference in favor of the sheriff’s department based on the “same-actor” theory, which applied because the same person hired and fired Harris, and therefore it is unlikely that person had a discriminatory motive.
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January 17

Civil – State Authority/Shipping/21st Amendment

Lebamoff Enterprises v. Alex Hurley, in his official capacity as chairman of the Indiana Alcohol and Tobacco Commission

11-1362

The 7th Circuit Court of Appeals has upheld an Indiana statute that prevents alcohol retailers from shipping their products to consumers by using a motor carrier such as UPS, and the state has the authority to regulate those shipments through the 21st Amendment.

In a 36-page opinion, a three-judge panel affirmed a ruling by U.S. Judge Jane Magnus-Stinson in Indianapolis. The District judge had granted judgment for the state defendants and against a northeastern Indiana wine retailer challenging the state statute.

Filed by Cap n’ Cork, a company that owns retail liquor stores in the Fort Wayne area, and joined by two Indianapolis wine consumers, the suit challenged the constitutionality of Indiana Code 7.1-3-15-3(d) that forbids delivery of wine, liquor and beer by anyone other than the seller of the wine or an employee. The plaintiffs argued the state law is preempted by federal statute regulating motor carriers and also contended that it restricts intrastate commerce and goes against their 21st Amendment right to regulate alcohol sales.

The majority judges found that Cap n’ Cork’s federal preemption argument fails because the statute isn’t attempting to regulate motor carriers. The judges also applied a 1970 ruling from the Supreme Court of the United States, Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970), to balance the circumstances at issue in the case between the statute and how caselaw interacts with the 21st Amendment.

“The case comes down to a complaint that state law is preventing Cap n’ Cork from enlarging its sales area to encompass parts of Indiana remote from Fort Wayne,” Judge Richard Posner wrote in the opinion, joined by Judge Diane Sykes. “If true that is an effect on intrastate commerce, not interstate commerce. No effect on interstate commerce has been shown … The absence of even an incidental effect on interstate commerce excuses us from having to wrestle with the continued applicability of the Pike standard to state laws that while they discriminate incidentally against interstate commerce are at the same time within the Twenty-First Amendment’s gravitational field.”

Judge David Hamilton issued a separate lengthy opinion that concurred in judgment, but reached the conclusion based on a different approach than his colleagues. He found that the Pike balancing test is intrusive and shouldn’t be applied, and that the 21st Amendment trumps these balancing tests when looking at state powers to regulate alcohol transportation and importation.

Indiana Supreme Court

January 12

Civil Tort – Medical Malpractice/Appealable Judgment

Keith M. Ramsey, M.D., The Methodist Hospitals, Inc. v. Shella Moore

45S05-1105-CT-281

The Indiana Supreme Court has vacated transfer to a case involving a proposed medical malpractice claim, finding that the trial court order at issue is not a final appealable judgment.

Shella Moore filed a medical malpractice complaint in 2006 regarding the death of Creshonda Clark and the stillbirth of her fetus. She did not timely file her case to the medical review panel as required by statute, so defendants Dr. Keith Ramsey and the hospital sought a preliminary determination and dismissal of Moore’s proposed complaint. The trial court dismissed the portion of Moore’s proposed complaint dealing with the death of the fetus, but refused to dismiss her complaint in its entirety based on the lateness of her submission.

Ramsey and the hospital argued that this action is appealable and was a final judgment by the trial court; Moore has claimed that the trial court decision wasn’t a final appealable judgment. A divided panel of the Indiana Court of Appeals affirmed the order as to the hospital but reversed as to Ramsey. The justices, however, agreed with Moore that the trial court order isn’t appealable.

Justice Steven David, writing for the court, looked at the relevant portions of the state’s Medical Malpractice Act and whether the order falls under Indiana Appellate Rule 2(H) as a final judgment. Neither Appellate Rule 2(H)(1) nor 2(H)(2) apply in the instant case, the justices found. They dismissed the appeal for lack of subject matter jurisdiction.

Criminal – Sentence Enhancement

Thomas Dexter v. State of Indiana

79S05-1106-CR-367

Because the state didn’t offer allowable evidence of a man’s previous theft conviction to support a habitual offender enhancement, the Indiana Supreme Court reversed the enhancement.

Thomas Dexter challenged his conviction of Class A felony neglect of a dependent resulting in death of the dependent and the jury finding that he is a habitual offender. He was sentenced to 30 years for the Class A felony, which was enhanced by 30 years based on his habitual offender status. Five years of his sentence were suspended to probation.

To prove Dexter had been previously convicted of two unrelated felonies – a felony theft conviction in 2000 and felony theft and residential entry convictions in 2005 – the state used a copy of the order entering judgment of conviction in the 2000 case that was not signed by the trial judge. The state also used a “rules of probation” form, the presentence investigation from the 2005 conviction and the testimony of a probation officer. Dexter claimed this was insufficient evidence to prove beyond a reasonable doubt the existence of the 2000 theft conviction.

The justices found that the documentary evidence presented by the state was not sufficient to establish the fact of the alleged 2000 conviction.

“In view of our insistence that proper documentary evidence be submitted to prove the existence of a prior conviction and the important rationale underlying that rule, we hold that a judgment must be signed by the trial judge to constitute substantial evidence of probative value sufficient to sustain a habitual-offender enhancement. Accordingly, the unsigned order of judgment was not probative of the fact of Dexter’s alleged theft conviction in 2000,” wrote Justice Frank Sullivan.

The high court also found that the “rules of probation” form, a presentence investigation report filed prior to sentencing on the 2005 convictions and the testimony of the chief probation officer for Tippecanoe County cannot support the habitual offender finding. But, double jeopardy principles do not preclude the state from retrying Dexter on the enhancement, the justices held.

To read two Supreme Court opinions pertaining to attorney discipline, turn to Disciplinary Actions, page 12.

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January 18

Civil Tort – Personal Injury Dismissal/Attorney Actions

Rickey D. Whitaker v. Travis M. Becker

02S03-1201-CT-27

The majority of Indiana Supreme Court justices found the trial court was within its discretion to dismiss a personal injury action because of the plaintiff’s attorney’s actions.

The justices granted transfer to the Allen County case, but came to different conclusions as to how the actions of Rickey Whitaker’s attorney should be handled. Whitaker filed a personal injury lawsuit against Travis Becker following a car accident. Whitaker’s attorney ignored repeated requests to provide information about his client’s medical treatment, and when he did respond, the attorney gave false and misleading information. Whitaker claimed he was waiting to have back surgery because he didn’t have any money to pay for the surgery when at the time of the sworn response, he already had the surgery scheduled.

Becker’s attorney didn’t find out about the surgery until Whitaker’s attorney sent a letter – the day the surgery happened. Becker’s counsel argued that the surgery seriously undermined the value of a post-operative examination in helping to establish whether the accident or Whitaker’s preexisting degenerative disc disease caused his bulging disc condition because the surgery would have removed part of the disc.

The Allen Circuit Court granted Becker’s attorney’s request for dismissal of the case. The Indiana Court of Appeals reversed, reinstating the case and ordering Whitaker to pay $625 of Becker’s attorney fees. Justice Frank Sullivan agreed with the COA’s decision, but three of the justices agreed that the trial court’s dismissal was the appropriate action.

“We think an experienced trial judge could easily conclude that a surgery to remove a disc and fuse two vertebrae together would generate evidentiary problems for a defendant trying to prove that the plaintiff’s need for surgery really resulted from a preexisting condition — a degenerative disc disease,” wrote Chief Justice Randall T. Shepard for the majority.

Justice Robert Rucker also dissented without opinion.

Juvenile – Determinate Commitment

A.T. v. State of Indiana

49S02-1201-JV-26

In a three-page per curiam opinion, the Indiana Supreme Court reversed a juvenile’s determinate commitment to the Department of Correction for committing what would be felony murder if committed by an adult.

The justices cited their recent decision in D.C. v. State, 958 N.E.2d 757, 761 (Ind. 2011), to reverse A.T.’s determinate commitment. A.T. was ordered by a juvenile court to both a determinate and indeterminate commitment to the DOC, but he only appealed his determinate commitment. The Indiana Court of Appeals affirmed.

His determinate commitment was imposed under Indiana Code 31-37-19-9(b), which provides that after a juvenile court makes a determination under I.C. 11-8-8-5, a determinate commitment may be imposed for juveniles of certain ages who commit certain crimes. I.C. 11-8-8-5 involves sex and violent offender registrations; A.T. hadn’t been determined to be a sex or violent offender under this section.

The justices in D.C. addressed a similar situation and even though the applicable statutes seemed antithetical to the purposes of the statute, the justices noted they were bound by the clear and unambiguous statutory language.

Because A.T. doesn’t meet the criteria of Section 9, a determinate commitment under that section may not be imposed. The justices ordered the trial court to vacate that portion of its order committing A.T. to the DOC until his 18th birthday.
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January 19

Agency Appeal – Unemployment Benefits

Chrysler Group, LLC v. Review Board of the Indiana Dept. of Workforce Development and T.A., et al.

93S02-1109-EX-565

The Indiana Supreme Court has affirmed the decision by the Review Board of the Indiana Department of Workforce Development granting unemployment benefits to Chrysler workers who took voluntary buyouts.

In 2008 and 2009, Chrysler offered a buyout program – the Enhanced Voluntary Termination of Employment Program – to employees in Kokomo. Employees who participated in the EVTEP relinquished all recall and seniority rights with Chrysler. The Indiana Department of Workforce Development then terminated unemployment benefits for those employees who had been on layoff prior to accepting the EVTEP, and it denied unemployment benefits to the employees who had been actively working for Chrysler prior to accepting EVTEP. Both groups appealed to an administrative law judge, who determined that those employees who were on indefinite layoff before accepting the EVTEP were entitled to continued unemployment benefits, but the employees who were actively working or on temporary layoff were not. Chrysler and the employees then appealed to DWD’s review board, which found that all employees who accepted the buyout were eligible for benefits under Indiana Code 22-4-14-1(c) despite a lack of good cause for leaving their job.

Subsection (c) said that “[e]xcept as provided in IC 22-4-5-1, a person who: (1) accepts an offer of payment or other compensation offered by an employer to avert or lessen the effect of a layoff or plant closure; and (2) otherwise meets the eligibility requirements established by this article; is entitled to receive benefits in the same amounts, under the same terms, and subject to the same conditions as any other unemployed person.”

Even though the provision at issue has been repealed, the justices ruled on the case because it’s a matter of real consequence to the parties involved, wrote Chief Justice Randall T. Shepard for the unanimous court.

The justices agreed with Chrysler’s argument that I.C. 22-4-14-1(c) requires a desire to avert or lessen the effect of a layoff or plant closure be viewed from the perspective of the employer. But the justices didn’t accept Chrysler’s argument that it hadn’t explicitly announced the particular plant closure or layoffs, so the provision at issue shouldn’t apply.

The high court didn’t see why such an explicit declaration of the employer’s intent is necessary under the provision, and “Chrysler’s approach would undermine these humanitarian purposes, allowing a disingenuous employer to side-step its responsibilities under the Act by simply choosing its words carefully to avoid an explicit declaration of intent,” wrote the chief justice.

The justices also found no reason that Chrysler must have intended to close the plants where the employees worked or lay off additional people at those plants for the provision to apply. The EVTEP did ultimately avert or lessen the effects of the layoffs, and there is substantial evidence that Chrysler intended for the program to lessen the effect of the layoffs or plant closure.  
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January 20

Civil – Wrongful Death/Indiana Patient’s Compensation Fund

Indiana Dept. of Insurance, Indiana Patient’s Compensation Fund v. Robin Everhart, Personal Rep. of the Estate of James K. Everhart Jr.

84S01-1105-CV-282

The Indiana Supreme Court has affirmed a $1 million excess damages award from the Indiana Patient’s Compensation Fund to the estate of a man who died following a truck accident, determining the fund is not entitled to a reduction of the award to account for the 20 percent chance the man would have died even without the doctor’s negligence.

James Everhart was riding his motorcycle when he was hit by a semi-truck driven by an employee of Standard Forwarding Co. Inc. Everhart was alive when he was taken to the hospital, but later died of cardiac arrest while in the care of Dr. C. Bilston Clarke, the doctor in the emergency room.

James Everhart’s wife, Robin, filed a wrongful death lawsuit, and the truck driver and Standard Forwarding settled for $1.9 million. Clarke settled for a lump-sum and future payments with a total present value of $187,001. Robin Everhart added a claim against the Patient’s Compensation Fund to recover the excess damages above her settlement with Clarke.

It was determined that James Everhart would have had an 80 percent chance of surviving his injuries had he received proper medical care. The estate was awarded $3.15 million, which the trial court refused to reduce by 20 percent, as the fund argued. The trial court awarded the estate the remaining $1 million of the statutory cap.

The Indiana Court of Appeals reversed based on the line of Mayhue cases and remanded for further proceedings.

The justices affirmed the trial court, looking at Cahoon v. Cummings, 734 N.E.2d 535 (Ind. 2000), in which the high court held that a successful Mayhue claim for causing an increased risk of harm entitled a plaintiff to damages in proportion to that increased risk. But all of the decisions in the Mayhue line of cases involved patients who stood a 50 percent or worse chance of recovering before suffering the medical negligence, wrote Chief Justice Randall T. Shepard.

But Cahoon doesn’t apply to cases in which a plaintiff stood a better-than-even chance of recovering before suffering some form of medical negligence. In addition, Robin Everhart’s case differs from the Mayhue line of cases in that joint tortfeasors negligently caused James Everhart an indivisible harm.

“That latter distinguishing fact triggers our rules on joint and several liability, which make it unnecessary for us to decide today whether to extend Cahoon to better-than-even cases,” he wrote.

The justices decided the rule for calculating set-offs could decide the instant matter, and it found that even if Cahoon required a reduction of the award, the fund would still have to pay the statutory maximum in excess damages. The trial court found that Robin Everhart and her son suffered injuries of at least $3.15 million, so the trial court should have reduced its finding on total injuries by $1.9 million because of the Standard Forwarding settlement and $250,000 for the settlement with Clarke’s insurance company. The result: $1 million in uncompensated damages, the exact statutory limit of the fund’s liability for excess damages, wrote Shepard.

“Reducing the finding on injuries by twenty percent and then subtracting the full $1.9 million from the remainder, and then another $250,000, as the PCF asks, effectively ignores that Standard Forwarding, not Robin and Troy, should bear the remaining loss,” he wrote.
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January 24

Post Conviction – Ineffective Assistance of Counsel

Antoine Hill v. State of Indiana

45S03-1105-PC-283

The Indiana Supreme Court was divided in two ways in a case involving Indiana Post-Conviction Rule 2: on what standard to use to judge the performance of PCR 2 counsel and whether a defendant should be allowed to appeal the denial of his petition to file a belated direct appeal.

Antoine Hill’s attorney, Tasha Reed, filed a PCR 2 petition, asking permission to file a belated notice of appeal of Hill’s 52-year sentence following a guilty plea. The trial court denied permission and Reed did not timely appeal the denial. Through a different counsel, Hill filed a PCR 1 petition, alleging that Reed was ineffective for not timely appealing the denial of permission to file a belated notice of appeal. The trial court denied the petition, concluding that Hill couldn’t satisfy the ineffective assistance of counsel test set forth in Strickland v. Washington, 466 U.S. 668 (1984).

The Indiana Court of Appeals reversed and ordered the trial court to grant the PCR 1 petition so Hill could appeal the denial of his PCR petition. The COA also used the standard set forth in Baum v. State, 533 N.E.2d 1200 (Ind. 1989), to hold that Reed’s performance prevented Hill from appealing the PCR 2 petition denial.

Chief Justice Randall T. Shepard and Justices Brent Dickson, Robert Rucker and Steven David – who authored the majority opinion – agreed that the attorney performance standard from Baum should be used to judge the performance of a PCR 2 counsel. Shepard, David and Dickson held that Reed in this case didn’t violate Baum because she represented Hill in a procedurally fair setting which resulted in a judgment of the court.

Rucker dissented on this point, agreeing with the COA decision that would allow Hill to appeal the denial of his petition to file a belated appeal.

Justice Frank Sullivan concurred in result with the majority in affirming the denial of Hill’s PCR 1 petition, but wrote separately to dissent from the standard used by the other justices. He is in favor of using the standard outlined in Strickland.

Indiana Court of Appeals

January 13

Civil – Judicial Review

Utility Center, Inc., d/b/a Aqua Indiana, Inc. v. City of Fort Wayne, Indiana

No. 90A04-1101-PL-15

State law allows a trial court to decline to hold a jury trial and limit its review of a local municipality’s administrative decision, according to the Indiana Court of Appeals.

This decision affirms the ruling by a special judge serving in Wells Circuit Court. Specifically, the appellate court affirmed the trial court’s judgment relating to a public utility’s property condemnation that was before the Fort Wayne Board of Public Works. The city board determined the amount due by Aqua Indiana, and the company appealed that administrative decision in court. The trial court determined it would review the board’s decision under the abuse of discretion standard and the company wasn’t entitled to a jury trial.

The Court of Appeals looked at statute and state and federal caselaw to determine judicial review is limited to the facts in the agency record. The judges also concluded when a municipality actively seeks to avoid the appearance of impropriety when there is no evidence of impropriety, due process rights are not violated if a municipality’s employees serve as advocates and different employees of the same municipality serve as decision-makers in administrative proceedings.

“Neither Indiana Code chapter 32-24-2, nor the due process clauses under the United States Constitution or the Indiana Constitution, require a trial court reviewing an administrative determination of just compensation to conduct an evidentiary hearing or jury trial,” Chief Judge Margret Robb wrote.
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January 18

Criminal – Motion for Discharge/Speedy Trial

Corey Fletcher v. State of Indiana

79A02-1009-CR-1096

An Indiana Court of Appeals judge dissented from his colleagues in a Criminal Rule 4(B) motion for discharge case, disagreeing with the interpretation of language in Jenkins v. State regarding the relevant time for purposes of determining whether a defendant can file a pro se motion for a speedy trial.

Corey Fletcher was charged Oct. 28, 2009, with various drug offenses. A public defender was appointed for him Feb. 19, 2010, and he was scheduled to go to trial May 11, 2010. Two weeks later, the appointed public defender was removed and the court appointed a new public defender. That same day, Fletcher filed a pro se motion for a fast and speedy trial. Fletcher’s new public defender didn’t file an appearance form until March 5, 2010, three days after Fletcher filed the pro se motion.

At a telephone status conference in April, Fletcher’s attorney objected to resetting the trial date past May 11. On May 12, the attorney filed a motion for discharge under Ind. Criminal Rule 4(B), which was denied. Fletcher was later convicted of two of the charges.

The issue is whether the trial court improperly denied Fletcher’s motion to discharge. The majority, after analyzing Jackson v. State, 663 N.E.2d 766, 769 (Ind. 1996), Underwood v. State, 722 N.E.2d 828, 832 (Ind. 2000), and Jenkins v. State, 809 N.E.2d 361 (Ind. Ct. App. 2004), ruled the trial court did err. The majority disagreed with the holding in Jenkins to the extent that it implies that the appointment of counsel and not the appearance of counsel is the relevant time period for determining whether a defendant may file a pro se motion for a speedy trial.

The state had argued that, as was ruled in Underwood, “once counsel was appointed, Defendant spoke to the court through counsel.” Judge Ezra Friedlander agreed with the state’s position, writing in his dissent that Fletcher didn’t clearly object to the appointment of counsel, nor did he unequivocally express that he wanted to proceed with a hybrid representation, so it leads to the conclusion Fletcher acquiesced in representation by appointed counsel.

Because counsel had been appointed before Fletcher filed his early trial motion, the court wasn’t required to accept the motion for filing or grant it, he wrote.

The majority reversed the denial of Fletcher’s motion for discharge.

Civil Tort – Negligent Hiring

Holiday Hospitality Franchising, Inc. v. AMCO Company, et al.

33A01-1103-CT-104

The Indiana Court of Appeals affirmed its decision to reverse the grant of an insurer’s motion for summary judgment against the parent company of a hotel. On rehearing, the appellate court denied that the other defendants involved in the lawsuit should benefit from the decision regarding Holiday Hospitality Franchising because the other parties didn’t appeal the original ruling.

Holiday Inn Express of New Castle and Anil Megha argued on rehearing that the reversal of summary judgment with regards to Holiday Hospitality should apply to them as well. The three were parties in a negligent hiring suit, in which the parent of R.H.M., a 15-year-old guest at the New Castle hotel, sued after the teen was molested by a hotel employee. The trial court ruled that the molestation wasn’t an “occurrence” as that term is defined in the hotel’s insurance policy with AMCO Insurance Co.

Only Holiday Hospitality appealed the trial court ruling, but now the other defendants claimed the reversal of summary judgment should apply to them as well, citing Appellate Rule 17(A), which says “a party of record in the trial court … shall be a party on appeal.”

“We agree with the Petitioners that, contrary to the footnote in our opinion, all parties to the trial court proceeding below are parties on appeal. However, this does not necessitate that the procedural disposition of our opinion, the reversal of summary judgment as to Holiday Hospitality, apply to any party other than Holiday Hospitality,” wrote Chief Judge Margret Robb. “The other Petitioners forfeited the right to appeal the trial court’s grant of summary judgment against them.”
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January 19

Criminal – Intoxication Defense

Tommy D. Alfrey v. State of Indiana

54A01-1104-CR-169

The Indiana Court of Appeals rejected a man’s argument that he should be allowed to use intoxication as a defense to his criminal charges because the prescription medication that caused his strange behavior was taken for valid medical purposes.

Tommy Alfrey, who has multiple health problems, had valid prescriptions for Oxycontin and Oxycodone to help manage pain. He appeals his convictions in three separate matters. Alfrey’s actions led to convictions of felony theft and residential entry, among other convictions, and to his probation being revoked.

While taking his prescribed drugs, Alfrey was acting strange and ended up breaking into an apartment and stealing pudding. In another incident, he entered a neighbor’s home and thought he was supposed to be there to perform maintenance requested by Alfrey’s landlord. The homeowner said Alfrey was mumbling but did leave her home when asked.

After he was convicted of the two residential entry incidents, the trial court revoked his probation.

Alfrey appealed, claiming the trial court’s instruction regarding the defense of intoxication constituted fundamental error. He argued that the defense has “its roots in drunkenness” and doesn’t apply to prescription medications taken for medical purposes. Indiana Code 35-41-3-5 establishes only two circumstances in which intoxication may be used as a defense: if the intoxication resulted from the introduction of a substance into the body without consent or when the person didn’t know the substance might cause intoxication.

Alfrey voluntarily took the medication that caused his intoxication and knew it could cause impairment, so the judges declined to create a third exception. The trial court’s instructions were consistent with the law.
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January 20

Juvenile – Burglary/Theft

K.F. v. State of Indiana

49A02-1103-JV-290

There was sufficient evidence to support the findings that a teenage girl committed what would be burglary and theft if committed by an adult, the Indiana Court of Appeals ruled. The judges overturned the finding she carried a handgun without a license and ordered that the juvenile court correct its dispositional order.

K.F. challenged the findings she committed burglary, theft and carried a handgun without a license, arguing that she couldn’t have committed theft or burglary because she was accused of breaking into her own home and stealing items. K.F. ran away from home, so her mother and her mother’s boyfriend changed the locks and garage code, but didn’t change the alarm code. K.F.’s mother put a bag of K.F.’s clothes in the garage. When the two were at work, the house was broken into and electronics, video games, jewelry, firearms and the bag of clothes were taken.

The bag of clothes was later discovered at K.F.’s friend’s house. When K.F. was found by police and taken to the police station, she met in a room alone with her mother before speaking to police. In the room, K.F. admitted that she went to her house on the day of the burglary but said the door was already open, although nothing had been taken. She claimed she went there just to get her belongings.

At a denial hearing, the juvenile court allowed testimony from the police officer who responded to the burglary, where he recounted what the mother had told him about the burglary and items missing. The juvenile court also allowed the mother to testify as to what K.F. told her in the room at the police station.

The appellate court upheld the findings she committed theft and burglary, rejecting K.F.’s arguments that she couldn’t be found to have committed the acts because they involved her own home. The judges did reverse the finding she committed what would be carrying a handgun without a license because the evidence didn’t show she had actual or constructive possession of a gun.

Turning to the admittance of her mother’s testimony, the appellate court affirmed, finding the juvenile waiver statute to be inapplicable because K.F. wasn’t subject to an interrogation when she spoke to her mother. The mother’s statements to police, as testified by the officer, should not have been allowed because they were hearsay, but the admission was a harmless error.

The COA remanded with instructions for the juvenile court to correct the Feb. 23, 2011, dispositional order and chronological case summary entry to accurately reflect the true findings that were entered by the court.

Civil Plenary – Arbitration Agreement

Apex 1 Processing, Inc. v. Akeala Edwards, on Behalf of Herself and Others Similarly Situated

49A05-1103-PL-85

The Indiana Court of Appeals has affirmed the denial of a payday loan company’s motion to compel arbitration in a lawsuit filed by a customer. The COA relied on a nearly identical case involving the same plaintiff in which another appellate panel found that since the arbitrator named in the agreement is no longer available, the arbitration provision is null and void on grounds of impossibility.

Akeala Edwards filed a class-action lawsuit against Apex 1 Processing Inc., alleging it engaged in unfair trade practices. She got a payday loan through Apex’s company doing business as Paycheck Today, and she was charged $360 in finance charges on her $300 loan. The suit has not yet been certified as a class action.

Apex sought to compel Edwards to arbitrate her claim individually based on a provision in the loan agreement. The National Arbitration Forum was named as the arbitrator to be used, but the NAF has been ordered to not participate in any arbitration of consumer disputes after July 2009 based on a suit filed by the Minnesota attorney general.

This suit is similar to one Edwards filed against Geneva-Roth Capital Inc. An appellate panel in November found that the arbitration provision in that suit was null and void on the grounds of impossibility because NAF is no longer available to arbitrate. At the time, the issue was one of first impression in Indiana. In Geneva-Roth Capital v. Edwards, No. 49A02-1101-PL-43, the COA also found that 9 U.S.C.A. Section 5 of the Federal Arbitration Act does not oblige the trial court to appoint a substitute arbitrator.

“The language of the Apex contract, like that in the Geneva-Roth contract, provides claims ‘shall be resolved by binding . . . arbitration by and under the Code of Procedure of [NAF],’” wrote Judge Melissa May. “Thus, the identification of NAF as the arbitrator was integral to the contract, and the arbitration provision fails.”

The panel in the instant case adopted the reasoning in Geneva-Roth and affirmed the denial of Apex 1’s motion to compel arbitration.

Criminal – Miranda Warning/Motor Vehicle Stop

Jose Castillo-Aguilar v. State of Indiana

20A04-1003-CR-195

The Indiana Court of Appeals found police should have given a Spanish-speaking man arrested for driving without receiving a license a Miranda warning before he filled out an information sheet. As a result of his answers, police later charged him with forgery because his name on the sheet didn’t match what he provided to his employer.

Jose Castillo-Aguilar was stopped by police because his car had a cracked windshield. He provided identification cards with two different names. Because he speaks little English and the police officer didn’t speak Spanish, the officer brought Castillo-Aguilar to the police station to find out his identity. Castillo-Aguilar was given an “information sheet” in Spanish to fill out, which asked for data such as his full name and address, time living in Goshen, the name of his car insurance company and the name and location of his employer. He was not given a Miranda warning prior to filing out the sheet.

Based on the information he provided, police charged Castillo-Aguilar with Class C felony forgery because his employer identified Castillo-Aguilar as an employee named Gilberto Beltran. Castillo-Aguilar filed a motion to suppress his answers on the sheet and evidence collected thereafter, but the trial court denied it.

On interlocutory appeal, the COA concluded Castillo-Aguilar should have been given Miranda warnings before filling out the sheet because certain questions on it – such as where he worked – were used to elicit an incriminating response that was later the basis for the charges against him. Castillo-Aguilar was subject to an “interrogation” when he was asked to fill out the information sheet at the police station, wrote Judge Melissa May.

The COA reversed the denial of his motion to suppress.
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January 24

Criminal – Waiver of Right to Appeal

Jessica Bowling v. State of Indiana

35A04-1107-CR-407

The Indiana Court of Appeals affirmed the denial of a defendant’s petition for permission to file a belated notice of appeal, finding that she waived the right to challenge her sentence in a direct appeal.

Jessica Bowling agreed to plead guilty to Class A felony neglect of a dependent in exchange for a 40-year cap on the executed portion of her sentence. Along with the plea agreement, Bowling signed a written advisement and waiver of rights that contained the following provision in paragraph 10: “By pleading guilty you have agreed to waive your right to appeal your sentence so long as the Judge sentences you within the terms of your plea agreement.” She was sentenced to 40 years, executed.

She later filed a petition for permission to file a belated notice of appeal pursuant to Indiana Post-Conviction Rule 2, which was denied. She believed the waiver – specifically paragraph 10 – is a misstatement of law.

The appellate court noted that Bowling freely signed the advisement, in which she acknowledged that she “agreed” to waive her right to appeal the sentence. During the hearing, Bowling agreed that she had received the advisement, read it, gone over it with her attorney, understood it and signed it. The content and language of the advisement and the trial court’s discussion with Bowling at the guilty plea hearing are sufficient to support enforcement of the waiver in paragraph 10, held the judges.

“… paragraph 10 sufficiently informs a defendant that although she has a right to appeal an open sentence, she is agreeing to waive that right as part of her plea agreement,” wrote Judge Terry Crone. “That said, to avoid even the possibility of confusion, such a waiver provision would be improved by using the following language or language similar thereto: ‘As a condition of entering this plea agreement, I knowingly and voluntarily agree to waive my right to appeal my sentence on the basis that it is erroneous or for any other reason so long as the Judge sentences me within the terms of my plea agreement.’ In addition, it would be helpful to include a waiver of the right to appeal an open sentence in the plea agreement itself, as well as any written advisement and waiver of rights that is executed along with the plea agreement.”

Civil Tort – Attorney Fees

Violet M. Lockett v. Peggy Hoskins a/k/a Peggy J. Smith

49A02-1106-CT-552

The Indiana Court of Appeals reversed the award of attorney fees to a daughter who was sued by her mother following a fall, finding there were no valid legal conclusions justifying the award.

Mother Violet Lockett sued her daughter Peggy Hoskins for negligence after Lockett tripped and fell on a ridge of concrete that was concealed by carpet while she was walking through a breezeway that connected the homes of the two women. Lockett, who rented her home from Hoskins, broke her hip.

Hoskins filed a counterclaim, arguing that her mother’s case was frivolous and asked for attorney fees and costs; she later moved for summary judgment on the negligence claim, which was granted. Lockett appealed, but the case was dismissed for inactivity. The trial court granted Hoskins’ request for attorney fees and costs, finding that Lockett’s lawsuit was unreasonable and frivolous, that Lockett continued to litigate after the claim became groundless or that the case was brought in bad faith. Hoskins was awarded nearly $23,000 in attorney fees.

The Indiana Court of Appeals reversed, finding that although Lockett’s claim was ultimately meritless, her arguments were logical and supported by citation to precedent. Lockett also made a good faith and rational argument on the merits of the action, and there’s no evidence she was acting in bad faith by filing the suit against her daughter.

“In the absence of valid legal conclusions justifying an award of attorney’s fees, the trial court’s grant of fees to Hoskins was an abuse of discretion and must be reversed. Furthermore, because this appeal is resolved in favor of Lockett, Hoskins’ request for appellate attorney’s fees is without merit and must be denied,” wrote Senior Judge Betty Barteau.

Post Conviction – Guilty Plea/Molestation

James R. Johnson v. State of Indiana

44A04-1105-PC-264

Because a defendant repeatedly maintained his innocence to Class A felony child molesting at his guilty plea hearing but also pleaded guilty to the charge, the trial court erred in accepting his plea, the Indiana Court of Appeals ruled.

James Johnson was charged with Class A felony child molesting for allegedly using his tongue to touch the vagina of a girl under the age of 14. At his guilty plea hearing, Johnson said he would plead guilty to the charge, but he denied touching her with his tongue. He claimed he only used his hand, which would have been a Class C felony.

The trial court accepted his guilty plea, found him to be a habitual offender and sentenced him to 30 years for child molesting and a 30-year enhancement for his habitual-offender status.

The Court of Appeals reversed, pointing out that caselaw has insisted that a factual basis must exist for a guilty plea and a judge may not accept a guilty plea while a defendant claims actual innocence. During the hearing, Johnson consistently maintained his innocence to Class A felony child molesting. Although he did admit to Class C felony child molesting for touching the child’s vagina with his hand, the trial court accepted the guilty plea and entered a judgment of conviction for a Class A felony.

The trial court may accept Johnson’s guilty plea to the Class C felony or set the matter for trial on the Class A felony, the appellate court held.
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January 25

Criminal – Trafficking with an Inmate

Natalie E. Murrell v. State of Indiana

67A01-1106-CR-251

The Indiana Court of Appeals rejected a defendant’s argument that her Class C felony conviction of attempted trafficking with an inmate violates the proportionality clause of the Indiana Constitution.

Natalie Murrell attempted to bring a bag of tobacco and four cell phones into the Putnamville Correctional Facility while visiting an inmate. She was charged with Class C felony attempted trafficking with an inmate for trying to bring in the cell phones; she was charged with the same crime as a Class A misdemeanor for trying to sneak in the tobacco.

At her bench trial, Murrell asserted a defense of duress, saying she was threatened by unknown people to smuggle in the items. She was convicted of the two charges.

The Court of Appeals affirmed the rejection of Murrell’s duress defense, finding that while she was threatened over the telephone to bring in the items, she was also promised she would receive money for medicine in exchange for delivering the contraband. Also, at any time, she could have called the police.

Murrell’s claim that her Class C felony conviction violates the proportionality clause of the state constitution has two aspects. She argued since cell phones aren’t as dangerous as weapons or controlled substances – the other items that also would warrant a Class C felony charge – it is constitutionally inappropriate to impose the same penalty. She also argued she is being punished more harshly for bringing in a cell phone than an inmate would be for possessing one.

The judges found the presence of a cell phone in prison can undermine discipline and facilitate other misconduct, as well as allow inmates to direct criminal activity from behind bars. Therefore, the Class C felony conviction is not disproportionate merely because trafficking in cell phones is treated similarly to bringing controlled substances and weapons.

With regards to Murrell’s argument she’s receiving a harsher punishment for trafficking than an inmate would for possessing a cell phone, the judges noted that it would be difficult, if not impossible, for an inmate to get a cell phone if a visitor didn’t bring one into the prison.

“Therefore, the legislature could have reasonably decided it is easier to deter contraband by punishing most harshly those who attempt to bring contraband into a prison,” wrote Senior Judge Betty Barteau.

The COA ordered the trial court to resentence her because at a hearing, the trial court said the sentences would be served concurrently, but in the final order, the court ordered Murrell to serve them consecutively. The judges found the concurrent sentence order to be more appropriate.

Criminal – Sentencing

Timothy Long v. State of Indiana

49A02-1105-CR-381

The Indiana Court of Appeals found a Marion Superior judge did not err when she rejected a master commissioner’s sentence of a man who pleaded guilty to a drunk-driving charge because the master commissioner didn’t have the authority to enter a final judgment on the sentence.

Timothy Long appealed the sentence imposed by Marion Superior Judge Linda Brown following Long’s guilty plea to Class A misdemeanor operating a vehicle while intoxicated and being a habitual substance offender. Marion County Master Commissioner Teresa Hall accepted Long’s guilty plea and sentenced him to one year executed in the Marion County Jail, enhanced by one year executed in jail and two years executed in the Marion County Community Corrections work release program for being a habitual substance offender.

But Brown declined to approve Hall’s sentencing recommendation and instead sentenced Long to one year executed in jail, enhanced by two years executed in the Indiana Department of Correction and one year executed in the work release program.

Long argued that Hall was statutorily authorized to impose his sentence and Brown erred by rejecting it. But the statute only allows a master commissioner to impose a sentence on a person if the master commissioner presides at a criminal trial. In this case, Long pleaded guilty before Hall; she did not preside over a trial for him.

The judges rejected Long’s argument that Boyer v. State, 883 N.E.2d 158 (Ind. Ct. App. 2008), or Ivy v. State, 947 N.E.2d 496 (Ind. Ct. App. 2011), supported his claim.•