Shorter and not so sweet?

June 17, 2008
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Short and straight to the point. That describes a not-for-publication opinion from the Court of Appeals Monday, in Evan Erby v. State of Indiana, No. 18A02-0711-CR-977. Two sentences sum up this case, referring to an Indiana Supreme Court ruling last year about sentencing in a post-Blakely world. This time, Erby challenged a 10-year sentence for armed robbery, and the COA panel noted that the justices specifically rejected a similar argument in Anglemeyer v. State, 868 N.E.2d 482, 491 (Ind. 2007), in holding that trial courts no longer have to “properly weigh” aggravators and mitigators in sentencing.

While this may not be unique in that it’s the shortest opinion ever, it’s the shortest we can recall seeing in awhile. Sure, it’s an NFP and isn’t citable or precedent-setting. Maybe this shortness also signals a trend we’ll be seeing more at our intermediate appellate court, where caseloads continue increasing to the tune of an expected 3,100-plus opinions by the end of the year – an average of about 2.2 opinions per judge per day. That means less time and less review for each case, though not necessarily less quality. While it may not be evident here, some could probably raise the quantity vs. quality argument when pondering the increasing workload. We have a story in our latest issue of Indiana Lawyer about how the COA focused in 2007 on improving efficiency in the wake of higher caseloads. Will this be used as ammunition in the case for a new sixth appellate panel, which has been discussed for some time and is being explored by an interim legislative study committee?

A recent post on the Carroll County Courts blog noted the consequences of budgetary problems and how a judge might feel without adequate staff. We wondered if this is how the Court of Appeals and other judges feel about their increasing caseloads. Take a look. (http://carrollcountycourts.blogspot.com/2008/06/what-happens-when-you-cant-keep-up.html)
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  • A fuller explanation of the reasons for the 1-page opinion is not hard to find. A recent opinion HIGHLY critical of the same public defender in another appeal shows the reason. See State v. Matthew Johnson, http://www.in.gov/judiciary/opinions/pdf/05290802mgr.pdf.
    Although the opinions contains other critical comments as well, the following footnote best illustrates why the court gave such short shrift to this PD\'s argument in the 1 paragraph opinion.

    5. We note that this court has found it necessary on several previous occasions to remind Johnson’s counsel that arguments must be supported by cogent argument and applicable authority. See Tamsett v. State, 879 N.E.2d 1231, 2008 WL 204698 (Ind. Ct. App. 2008) (unpublished opinion) (noting that counsel cited an outdated version of Rule 7(B)); Gray v. State, 876 N.E.2d 387, 2007 WL 3244230 (Ind. Ct. App. 2007) (unpublished opinion) (noting that counsel cited an outdated version of Rule 7(B), and “caution[ing] counsel to conduct a more thorough legal research process in the future”); Stanley v. State, 874 N.E.2d 650, 2007 WL 2916451 (Ind. Ct. App. 2007) (unpublished opinion) (holding issue waived based on failure to make a cogent argument or cite to relevant authority); Ruble v. State, 873 N.E.2d 202, 2007 WL 2473232 (Ind. Ct. App. 2007) (unpublished opinion) (indicating that counsel “misstates the issue,” and cites authorities that are “either obsolete, inapplicable, repealed or replaced by other authorities,” and declining to address the merits based on counsel’s failure to make cogent argument); Sharp v. State, 835 N.E.2d 1079, 1084 n.8 (Ind. Ct. App. 2005) (holding argument waived based on failure to make cogent argument). We urge counsel to perform adequate research and put forth cogent arguments for his clients, who have a constitutional right to effective assistance of appellate counsel.

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  1. Bob Leonard killed two people named Jennifer and Dion Longworth. There were no Smiths involved.

  2. Being on this journey from the beginning has convinced me the justice system really doesn't care about the welfare of the child. The trial court judge knew the child belonged with the mother. The father having total disregard for the rules of the court. Not only did this cost the mother and child valuable time together but thousands in legal fees. When the child was with the father the mother paid her child support. When the child was finally with the right parent somehow the father got away without having to pay one penny of child support. He had to be in control. Since he withheld all information regarding the child's welfare he put her in harms way. Mother took the child to the doctor when she got sick and was totally embarrassed she knew nothing regarding the medical information especially the allergies, The mother texted the father (from the doctors office) and he replied call his attorney. To me this doesn't seem like a concerned father. Seeing the child upset when she had to go back to the father. What upset me the most was finding out the child sleeps with him. Sometimes in the nude. Maybe I don't understand all the rules of the law but I thought this was also morally wrong. A concerned parent would allow the child to finish the school year. Say goodbye to her friends. It saddens me to know the child will not have contact with the sisters, aunts, uncles and the 87 year old grandfather. He didn't allow it before. Only the mother is allowed to talk to the child. I don't think now will be any different. I hope the decision the courts made would've been the same one if this was a member of their family. Someday this child will end up in therapy if allowed to remain with the father.

  3. Ok attorney Straw ... if that be a good idea ... And I am not saying it is ... but if it were ... would that be ripe prior to her suffering an embarrassing remand from the Seventh? Seems more than a tad premature here soldier. One putting on the armor should not boast liked one taking it off.

  4. The judge thinks that she is so cute to deny jurisdiction, but without jurisdiction, she loses her immunity. She did not give me any due process hearing or any discovery, like the Middlesex case provided for that lawyer. Because she has refused to protect me and she has no immunity because she rejected jurisdiction, I am now suing her in her district.

  5. Sam Bradbury was never a resident of Lafayette he lived in rural Tippecanoe County, Thats an error.

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