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. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

  2. Seventh Circuit Court Judge Diane Wood has stated in “The Rule of Law in Times of Stress” (2003), “that neither laws nor the procedures used to create or implement them should be secret; and . . . the laws must not be arbitrary.” According to the American Bar Association, Wood’s quote drives home this point: The rule of law also requires that people can expect predictable results from the legal system; this is what Judge Wood implies when she says that “the laws must not be arbitrary.” Predictable results mean that people who act in the same way can expect the law to treat them in the same way. If similar actions do not produce similar legal outcomes, people cannot use the law to guide their actions, and a “rule of law” does not exist.

  3. Linda, I sure hope you are not seeking a law license, for such eighteenth century sentiments could result in your denial in some jurisdictions minting attorneys for our tolerant and inclusive profession.

  4. Mazel Tov to the newlyweds. And to those bakers, photographers, printers, clerks, judges and others who will lose careers and social standing for not saluting the New World (Dis)Order, we can all direct our Two Minutes of Hate as Big Brother asks of us. Progress! Onward!

  5. My daughter was taken from my home at the end of June/2014. I said I would sign the safety plan but my husband would not. My husband said he would leave the house so my daughter could stay with me but the case worker said no her mind is made up she is taking my daughter. My daughter went to a friends and then the friend filed a restraining order which she was told by dcs if she did not then they would take my daughter away from her. The restraining order was not in effect until we were to go to court. Eventually it was dropped but for 2 months DCS refused to allow me to have any contact and was using the restraining order as the reason but it was not in effect. This was Dcs violating my rights. Please help me I don't have the money for an attorney. Can anyone take this case Pro Bono?

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