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Indiana Court Decisions - March 20-April 2

IL Staff
April 10, 2013
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7th Circuit Court of Appeals

March 29

Civil – Mortgage/Quiet Title

Phillip Jackson and Deborah Jackson v. Bank of America Corp., et al.

12-3338

A Hamilton County couple who went into default on their home mortgage loan had the dismissal of their action to quiet title and claims of negligence and unconscionability upheld by the 7th Circuit Court of Appeals.

Phillip and Deborah Jackson received a $282,500 home mortgage refinancing loan with a 30-year fixed interest rate of 5.875 percent from Countrywide Home Loans. They used a mortgage broker to apply for the loan. They made payments on the loan for several years until the loan went into default in March 2010. Foreclosure proceedings were not initiated, but the Jacksons initiated a quiet title on their property in state court. They also alleged the mortgage defendants negligently evaluated their ability to repay the loan and that the loan contract was substantively and procedurally unconscionable.

The action was moved to federal court, where Judge William T. Lawrence dismissed the Jacksons’ claims.

The 7th Circuit held that the Jacksons can’t move forward on their negligence claims because they can’t show that the financial institutions actually owed them a duty. Without a duty, there is no cognizable negligence claim, Judge Michael Kanne wrote.

The couple was also unable to allege facts that would support that the loan contract was substantively unconscionable or procedural unconscionable, the judges ruled.

“There is nothing in the record to indicate that the Jacksons did not understand the terms of their loan, or that the mortgage process itself was somehow irregular. The contention that the Jacksons did not understand the potential consequences of defaulting on their loan is similarly unsupported,” Kanne wrote.

And although the Jacksons’ arguments regarding the action to quiet title were novel, the judges were unconvinced that they constitute a valid quiet title action under Indiana law.

“Although there is no pending foreclosure, the Jacksons attempt to construct a quiet title action out of two legal theories that have been used with limited success in other jurisdictions to forestall immediate foreclosure (but have not yet been raised, so far as we can tell, in Indiana under these precise circumstances): (1) that the bifurcation of the mortgage and the note (in order to package the latter into larger securities) prevents any party from claiming strong enough title to foreclose, and (2) that no party could produce the original note, which should be required to properly foreclose,” he continued.

“To the extent that these theories have legs (a question very much in dispute), they might protect a debtor from foreclosure by a particular party at a particular time. … They do not, however, ‘prove that [the plaintiff] was the owner of the land in controversy.’ As such, these theories are not sufficient to support a quiet title action in Indiana.”

Criminal – Sentence/Drugs

United States of America v. Aswan D. Scott

12-2555

The 7th Circuit Court of Appeals affirmed the denial of a defendant’s request to reduce his sentence after he pleaded guilty to distributing crack cocaine. The judges also pointed out concerns with the use of a form order in his case.

Aswan Scott pleaded guilty to distributing at least 50 grams of crack cocaine, and his agreement specified a term of 192 months in prison. He accepted the binding sentence in order to induce the government to dismiss a repeat-offender notice it had filed under 21 U.S.C. Section 851.

Scott filed a motion seeking a reduction based on Amendment 711 to the sentencing guidelines that retroactively lowered the base offense level for some drug crimes involving crack. Judge Sarah Evans Barker denied the motion because Scott was not eligible for a deduction based on the binding plea agreement.

Instead of appealing, Scott then filed another motion seeking a reduction under Amendment 750. That was also denied, with the only explanation appearing on a form with boxes, with the box checked that said, “The defendant is eligible for a reduction under this amendment, but the Court has determined that such a reduction is not appropriate because of the nature and seriousness of the danger to any person or the community that may be posed by a reduction in sentence. (Application Note 1(B) of U.S.S.G. § 1B1.10.)”

Scott argued that the District Court didn’t adequately explain its reason for denying his second motion, which hinders meaningful appellate review.  

“We share his concern with the use of a form order like this. The whole point of the district court’s duty to take into account the factors outlined by section 3553(a) is to apply them to the particulars of a defendant’s case. A form might be an acceptable starting point, but an explanation of the reason why a particular factor applies, rather than a flat statement that it does, will normally be necessary both to guide the district court’s choices and to provide a basis for appellate review,” Judge Diane Wood wrote.

“Indeed, here the form introduced an error into the district court’s analysis, because it stated that he was eligible for a reduction in his sentence, and as we explain in a moment, he was not.”

But the form’s use doesn’t drive the outcome of the case, the judges held, because Scott’s plea agreement makes him ineligible for a sentence reduction.
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April 2

Civil – Legal Malpractice

Koransky, Bouwer & Poracky P.C. v. The Bar Plan Mutual Insurance Co.

12-1579

The 7th Circuit Court of Appeals agreed with a Northern District judge’s conclusion that a Dyer law firm’s professional liability insurer did not have to cover a mistake by an associate in a client’s failed business deal because the firm didn’t timely notify its insurer of a potential malpractice claim.

Koransky Bouwer & Poracky P.C. represented George Novogroder when he sought to buy four drugstores in Ohio from Newtown Oldacre McDonald LLC. Three of the four sales closed without issue; the fourth sale never came to fruition because an associate at the law firm inadvertently misfiled the executed contract. On Feb 22, 2007, Newton’s attorney sent a letter to the firm saying the seller rescinds its signature and declares the contract null and void since it did not receive the executed contract. The associate attempted to fix the problem by sending the contract, but the seller still did not want to continue the sale.

This led to litigation being filed in both Alabama and Ohio in March of that year. Also during this time, Koransky Bouwer & Poracky renewed its professional liability insurance with The Bar Plan Mutual Insurance Co., but did not notify the firm of a potential malpractice claim from Novogroder. When the Alabama court, which concluded it had jurisdiction over the case, ruled in favor of Newtown, Novogroder told the firm he was going to file a malpractice claim over the failed transaction. After receiving a formal notice of claim, the firm notified its insurer in August.

But The Bar Plan concluded through an investigation that the firm knew of the potential malpractice claim in February, before it renewed its policy for another year. Based on language in the policy, the insurer declined to represent the firm or indemnify it. Judge William Lee ruled in favor of the insurer on its motion for summary judgment.

The 7th Circuit looked at the language of the policy in effect at the time the law firm made its claim and agreed with Lee that the firm did not timely notify The Bar Plan as soon as it had reason to think that the failure to deliver the contract to the seller might result in a claim. The policy required the insurer to be notified if an act or omission “may” give rise to a claim, not just when one is filed.

“It may well be difficult to determine exactly when an act or omission ‘might reasonably be expected to be the basis of’ a malpractice claim. But this case is not a close one. Buyer believed that the parties had formed a binding agreement. However, as a result of Koransky & Bouwer’s failure to deliver the executed contract, Seller refused to complete the deal and active litigation ensued,” Judge Daniel Manion wrote.

“Once the Alabama case was filed, Koransky & Bouwer knew or should have known that the only thing standing between it and a probable malpractice claim was the question of whether the Alabama state court would exercise jurisdiction. No matter how we construe the record, it is clear that a reasonable attorney would have recognized that his failure to deliver the contract, in light of the communications and legal activity that quickly followed, was an omission that could reasonably be expected to be the basis of a malpractice claim.”

Indiana Supreme Court

March 21

Criminal – Rehearing/Habitual Offender Sentences

Anthony H. Dye v. State of Indiana

20S04-1201-CR-5

The Indiana Supreme Court granted the state’s request for a rehearing in a case in which the justices determined that Anthony Dye’s sentence for unlawful possession of a firearm by a serious violent felon, which was enhanced under the general habitual offender statute, was an impermissible double enhancement. The justices used the rehearing to reiterate that a person convicted of unlawful possession of a firearm by a SVF may not have his or her sentence enhanced under the general habitual offender statute by proof of the same felony used to establish that the person was a SVF.

The state petitioned for rehearing contending the court’s decision in Dye’s case was a departure from Mills v. State, 868 N.E.2d 446, 452 (Ind. 2007), in that the justices held that serious violent felons who possess firearms cannot be punished as habitual offenders.

In Mills, the court held “a person convicted of unlawful possession of a firearm by a serious violent felon may not have his or her sentence enhanced under the general habitual offender statute by proof of the same felony used to establish that the person was a ‘serious violent felon.’” The justices reaffirmed the ruling, but pointed out that Dye is not entitled to relief on this ground.

Instead, the felony used to establish that Dye was a habitual offender was part of the same res gestae, and the enhancements must be based on two unrelated prior felonies. Dye’s stemmed from a confrontation between Dye and an Elkhart Police officer in 1997, where he pleaded guilty to possession of a handgun, possession of a handgun within 1,000 feet of a school, and attempted battery while armed with a deadly weapon. The state used the possession within 1,000 feet of a school and a 1993 conviction for forgery to seek to have his sentenced enhanced under the general habitual offender statute. He was charged in 2007 - the conviction at issue in this case - with unlawful possession of a firearm by a SVF based on his conviction of attempted battery with a deadly weapon stemming from the 1997 incident.

“The State is not be permitted to support Dye’s habitual offender finding with a conviction that arose out of the same res gestae that was the source of the conviction used to prove Dye was a serious violent felon,” Justice Robert Rucker wrote.

Justice Mark Massa concurred with his colleagues that the original opinion didn’t extend Mills to situations where different prior unrelated convictions are used to establish a habitual offender finding and the elements of the SVF statue, but continued to “dissent from the ultimate result on rehearing for reasons previously explained” in the original opinion.

Criminal – Resentencing/Habitual Offender Sentences

Todd J. Crider v. State of Indiana

91S05-1206-CR-306

The Indiana Supreme Court reversed the part of a White Superior Court’s sentencing order that a man who pleaded guilty to theft and being a habitual offender must serve his sentence consecutively with a case out of Tippecanoe County.

“In this case we conclude that the waiver of the right to appeal contained in a plea agreement is unenforceable where the sentence imposed is contrary to law and the Defendant did not bargain for the sentence,” Justice Robert Rucker wrote.

Todd Crider appealed White Superior Judge Robert Mrzlack’s ruling that his three-year sentence for theft, enhanced by three years for the habitual offender adjudication, be served consecutively to the sentence imposed in Tippecanoe County. When Crider entered into his plea agreement in the White County case, he had been convicted in Tippecanoe County of theft, attempted fraud and found to be a habitual offender. He was ordered in that case to serve a partially suspended 545-day sentence.

When Crider entered into the plea agreement in White County, the trial court asked if Crider understood because of the Tippecanoe County convictions, part or all of his sentences may have to be served consecutively. Mrzlack concluded Crider entered the plea voluntarily and knowingly. The agreement also said Crider waived his right to appeal any sentence imposed within the range set forth in the plea agreement. But on the day of sentencing, Crider argued that the habitual offender enhancement in White County couldn’t be ordered to be served consecutively with the habitual offender enhancement in Tippecanoe County. The trial court rejected his argument and ordered him to serve consecutive sentences in the two cases.

The state concedes there is a general rule that a trial court may not impose consecutive habitual offender enhancements, but that doesn’t apply in this case because a defendant may not enter into a plea agreement calling for an illegal sentence, benefit from it, and then complain it was illegal later.

But the plea agreement Crider entered into didn’t provide for an illegal sentence, so he is entitled to presume that the trial court would sentence him in accordance with the law, Rucker wrote.

“Crider’s waiver of appeal in his plea agreement therefore applied only to sentences imposed in accordance with the law,” he wrote. “Because the law does not permit the imposition of consecutive habitual offender sentences and Crider did not agree to consecutive habitual offender sentences, his waiver of appeal is thus invalid and his habitual offender sentences must be ordered to run concurrently.”
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March 26

Civil Plenary – School Vouchers

Teresa Meredith, et al. v. Mike Pence, et al.

49S00-1203-PL-172

See story on page 4
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March 27

Criminal – Prosecutor/Use Immunity

In Re: Prosecutor’s Subpoena Regarding S.H. and S.C.; S.H. v. State of Indiana

73S01-1209-CR-563

The Indiana Supreme Court held that a prosecutor can’t petition a court to compel a party to testify under the grant of use immunity when the party is the primary target of the investigation and has invoked his constitutional right against self-incrimination if no charges have been filed or a grand jury proceeding hasn’t been initiated.

The issue arose when the Shelby County Prosecutor’s Office was investigating multiple puncture wounds on the back of S.H.’s and S.C.’s newborn. S.C. gave birth to the child alone in their apartment; when S.H. returned and took the mother and child to the hospital, the staff saw the wounds. This led to an investigation and removal of the baby from her parents’ care.

The county prosecutor petitioned for subpoenas to compel the parents to testify. The day before they were set to testify, their attorney moved to quash the subpoenas under their constitutional rights against self-incrimination. The prosecutor then petitioned for grant of use immunity, which the trial court granted. The court also denied the parents’ motion to correct error, holding the authority to compel testimony through use immunity was implicit in the office of the prosecutor itself.

The Indiana Court of Appeals affirmed on other grounds, but the justices disagreed, reversing the trial court and sending the case back to Shelby Superior Court. Justice Mark Massa, writing for the court, held that the prosecutor had no statutory authority under I.C. 35-34-2 or 35-37-3 to request the grant of use immunity. These statutes allow a petition for grant of use immunity only when either a grand jury has been convened or the prosecutor has filed an indictment or information.

They also held that I.C. 33-39-1-4 doesn’t extend to a request for grant of use immunity. They rejected the state’s argument that In re Order for Indiana Bell Telephone to Disclose Records, 274 Ind. 131, 409 N.E.2d 1089 (1980), or any other precedent confers prosecutorial authority in the absence of express statutory language.

“We will not use Indiana Bell as a justification for a judicial expansion of that authority in contravention of the General Assembly’s express instructions. To do so would be an encroachment into the legislative purview incompatible with our constitutionally-mandated separation of powers,” he wrote.

“We also recognize that the General Assembly may have had good reason to restrict use immunity – a potent tool that permits courts to override an individual’s constitutional right against self-incrimination – to contexts in which there is substantial judicial oversight,” Massa continued. “Both grand jury proceedings and post-charge hearings and trials provide that oversight.” 

Indiana Tax Court

March 28

Tax – Foreign Source Dividends

Caterpillar, Inc. v. Indiana Department of State Revenue

49T10-0812-TA-70

Indiana Tax Judge Martha Wentworth granted summary judgment to Caterpillar Inc., finding the company’s foreign source dividends are deductible in calculating its state net operating losses available for carryover as a deduction from taxable income in future years.

For tax years 2000 through 2003, when Caterpillar calculated its Indiana adjusted gross income tax liability, it started with its federal taxable income, which did not include its U.S. source dividends under I.R.C. § 243(a). Caterpillar’s federal taxable income did include, however, its foreign source dividends. As a result, Caterpillar took the foreign source dividend deduction under I.C. 6-3-2-12 and reported Indiana net operating losses on a separate company basis in each of those years, referred to in the opinion as the loss years.

The company also amended its returns for 1996 through 1999 to carryback the unused Indiana NOLs reported on its 2000 through 2002 loss year returns. Caterpillar sought a refund for overpaid taxes.

Both sides filed for summary judgment. The Department of Revenue claimed that Caterpillar was not entitled to deduct its FSDs in calculating its Indiana NOLs because the NOL statute neither expressly incorporates the FSD statute nor specifically references deducting FSDs as a modification in I.C. 6-3-1-3.5. Caterpillar contended that the method of calculating Indiana NOLs necessarily triggered the statutory deduction of FSDs because its FSD income was included in its adjusted gross income in calculating its Indiana NOL for 2000 through 2003.

Wentworth determined that “adjusted gross income” is a component of the Indiana NOL Statute and that Caterpillar’s FSD income is included in that adjusted gross income.

“The plain language of the Indiana NOL Statute itself requires the federal NOL to be modified under Indiana Code § 6-3-1-3.5; thus, the resulting calculations contain ‘adjusted gross income.’ Consequently, even though the term ‘adjusted gross income’ is not used in the Indiana NOL Statute, the components of the NOL calculation establish its presence,” she wrote.

“Federal taxable income is gross income minus the deductions allowed by the Internal Revenue Code. Caterpillar’s gross income (‘all income from whatever source derived’) included its FSD income. The facts further reveal that in calculating its federal taxable income for the Loss Years, Caterpillar did not deduct its FSDs from its gross income under I.R.C. § 245,” she continued. “Finally, the statutory adjustments delineated in Indiana Code § 6-3-1-3.5 did not require the subtraction of FSD income. As a result, Caterpillar’s FSDs were included in its federal taxable income, in its federal NOL, and in its adjusted gross income within the Indiana NOL Statute. Caterpillar was therefore entitled to deduct its FSD income under Indiana Code § 6-3-2-12 in calculating its Indiana NOLs.”

Indiana Court of Appeals

March 20

Juvenile – Delinquency Petitions

State of Indiana v. I.T.

20A03-1202-JV-76

The Indiana Court of Appeals ruled that the state has no statutory right to appeal a juvenile court’s decision to rescind an order approving the filing of a delinquency petition against a teen accused of molesting two children.

I.T. already was adjudicated as a delinquent for committing what would be Class B felony child molesting if committed by an adult when he admitted during a court-ordered polygraph examination to molesting his younger brother and a cousin. He was required as part of his treatment program to undergo the polygraph tests.

I.T.’s statements were reported to the Department of Child Services and police. He was later interviewed by a police detective and admitted to molesting the children. The state then filed a delinquency petition alleging he committed what would be child molesting if committed by an adult. The juvenile court originally approved the filing of the delinquency petition, but later rescinded it after I.T. filed a motion to dismiss.

I.T. argued that the allegations arose from his disclosures during his treatment and they are inadmissible under Indiana Code 31-37-8-4.5. Elkhart Circuit Judge Terry Shewmaker concluded the statute confers immunity with respect to the statements I.T. made during his polygraph test and any evidence gained as a result of those disclosures.

Juvenile law allows for appeals to be taken as provided by law, which incorporates existing law found outside the juvenile code. This includes the procedural rule requiring statutory authorization for the state to appeal in criminal matters. The state may appeal from an order granting a motion to dismiss an indictment or information.

The Court of Appeals decided that the juvenile order doesn’t constitute an order granting a motion to dismiss.

“Prior to the commencement of juvenile delinquency proceedings, however, the filing of a delinquency petition must be approved by the juvenile court,” Judge Ezra Friedlander wrote. “It seems evident to us that a juvenile court’s order declining to approve the filing of a delinquency petition under I.C. § 31-37-10-2 is not ‘an order granting a motion to dismiss an indictment or information’ for the purposes of I.C. § 35-38-4-2(1). Rather, a juvenile court’s decision not to approve the filing of a juvenile delinquency petition prevents the initiation of juvenile proceedings in the first place. One cannot dismiss a proceeding that was really never commenced to begin with.”
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March 21

Civil Plenary – Eminent Domain/Legal Error

Clark County Board of Aviation Commissioners v. Dennis Dreyer and Margo Dreyer as Co-Personal Representatives of the Estate of Margaret A. Dreyer

10A01-1206-PL-288

In a case involving the use of eminent domain to acquire land to expand the runway at the Clark County Airport, the Indiana Court of Appeals encouraged lawyers and the courts to stop using the phrase “jurisdiction over a particular case” when the term “legal error” should be used.

The Clark County Board of Aviation Commissioners filed a Trial Rule 60(B) motion for partial relief from a judgment in favor of Margaret Dreyer. The commissioners entered into an agreement to purchase land from Dreyer to expand the airport runway, but they could not agree on the appraised value of two tracts. This led to the commissioners filing a complaint for eminent domain.

Three-court appointed appraisers valued the property and filed their report April 24, 2009, but Dreyer didn’t file her objections until July 2009, outside the 20-day statutory time frame. But the commissioners never objected to this until after she was awarded, at trial, $865,000 plus attorney fees. The commissioners appealed, but the judgment was upheld by the Court of Appeals.

The Board of Aviation Commissioners later filed the Rule 60(B) motion when Dreyer sought to collect on the judgment after the commissioners hadn’t paid the full amount.

The Board of Aviation Commissioners argued that the judgment should be set aside because it was void, insofar as the trial court lacked subject matter jurisdiction.

“Subject matter jurisdiction and legal error are distinct concepts. Here, at most, there was legal error when the trial court permitted Dreyer to file her objections in July 2009,” Judge John Baker wrote. “Because legal error may not be collaterally attacked, and the Commissioners did not object to Dreyer’s July 2009 objections and did not raise the issue in the first appeal, the trial court did not err by denying their Rule 60(B) motion.”

“To be sure if statutory procedures are not followed, the trial court may not be permitted to hear the issue of damages; however, this is not because the trial court lost jurisdiction, but rather, because legal error was committed,” he continued. “…practitioners and the judiciary, including ourselves, should stop using the phrase ‘jurisdiction over a particular case,’ rather than ‘legal error,’ which is what occurred in the instant case.”

Civil Plenary – Home Rule Act/Parks Department

Town of Cedar Lake v. Gina Alessia, Candi Reiling, Andrew Balkema, Individually and as Members of the Town of Cedar Lake Park Board

45A03-1207-PL-316

A Lake Superior judge erred when she used Dillon’s Rule to determine the scope of the town of Cedar Lake’s legal authority to dissolve its park board and Parks Department, the Indiana Court of Appeals ruled. The proper legal inquiry is based on the state’s Home Rule Act.

Terminated park board members Gina Alessia, Candi Reiling and Andrew Balkema filed a complaint against the town after their positions on the board were terminated and the Parks Department was dissolved by ordinance. They sought reinstatement, back pay and an injunction against Cedar Lake to prohibit it from taking any action that would hinder or prevent the board members from acting in their official capacity.

The terminated board members alleged the ordinance dissolving the board and the department was improper and not authorized by statute.

Lake Superior Judge Diane Kavadias-Schneider granted partial summary judgment in favor of the board members, finding the ordinance was improper and beyond the scope of the Town Council’s authority under Indiana Code. She ordered the terminated board members reinstated. She also held that law firm Austgen Kuiper & Associates P.C. may continue to represent the town in this action, but cannot represent the board members because of conflict of interest.

In making her ruling, Kavadias-Schneider relied on Dillon’s Rule to determine the town’s authority, but the Power of Cities Act, and later the Home Rule Act, changed the legal landscape of the relationship between the state and its political subdivisions, Judge Edward Najam wrote. Pursuant to the Home Rule Act, there is not statutory prohibition against the town’s exercise to dissolve the park board or the Parks Department, and Cedar Lake’s exercise of that authority by enacting the ordinance was lawful, the judges held.

They reversed summary judgment for the board members on their claims for illegal termination, declaratory judgment on the validity of the ordinance and injunctive relief. The COA ordered the trial court to enter summary judgment for the town on these issues.

But, the judges did affirm the order that Austgen Kuiper & Associates may not continue to represent the park board and its members in any matter based on the current conflict of interest.
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March 25

Civil Tort – Malpractice/Juror Admonishment

Maria Upham, as Surviving Spouse and Personal Rep. of the Estate of Wilbur A. Upham, Deceased v. Morgan County Hospital, Richard J. Eisenhut, M.D., Unity Physicians, Kendrick Family Practice, et al.

55A01-1202-CT-53

When a prospective juror in a wrongful death lawsuit against a hospital said he believed a lawyer was suing to make money, that attorney’s failure to ask the judge for an admonishment of the jury pool waived her later argument for a mistrial, the Court of Appeals ruled.

Wilbur Upham went to the emergency room of Morgan County Hospital on April 16, 1997, complaining of vomiting, abdominal pain, diarrhea and chills and was dismissed with a diagnosis of acute gastroenteritis. He went to a doctor elsewhere later that day, and was found dead in a chair that night due to a ruptured abdominal aortic aneurism.

After a medical review board ruled the evidence supported a conclusion that the hospital met the applicable standard of care, Upham’s family sued the hospital, and a jury in 2011 ruled for the hospital.

On appeal, the estate argued the trial court should have declared a mistrial after a prospective juror identified as a former attorney retired from Eli Lilly opined that malpractice suits were “the goose that laid the golden egg for trial attorneys and specifically plaintiff attorneys.” The plaintiff’s attorney continued, asking the would-be juror if he believed she was “taking this case just because I want an attorney’s figure that I apparently don’t believe in the justice of that.”

Juror 35 replied, “I suspect you’re getting one-third of any … any judgment, so yes.”

“Only then did Counsel turn her attention to other prospective jurors. Upham’s counsel did not ask the trial court to admonish the prospective jurors regarding the statements. After Upham’s counsel spoke with some other prospective jurors, Juror 35 was excused and Upham moved for a mistrial based on his statements,” Judge Melissa May wrote for the panel. “The trial court denied the motion, saying Upham’s ‘counsel invited much of that.’

“We hold Upham has waived her allegation of error for appeal because she did not ask the trial court to admonish the venire,” May wrote.

The court also found no abuse of discretion regarding jury instructions or the trial court’s limitation on discovery of interrogatories of Dr. Richard Eisenhut on whether he had been counseled for substance abuse, whether he had emotional, personal, psychiatric or family problems or a criminal record. That information had been considered by the trial court in camera, which the COA previously upheld.

“We decline to revisit our decision that release of the information could compromise the Appellees’ legitimate interests in non-disclosure of privileged or confidential information and that the information would be unlikely to support the issues Upham asserted in her motion to release the information,” May wrote.
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March 27

Post Conviction – Ineffective Assistance of Counsel

State of Indiana v. Antonio Gonzalez-Vazquez

09A02-1210-PC-792

The Indiana Court of Appeals held that the post-conviction court erred in striking as untimely the state’s response to a man’s motion for summary judgment on his post-conviction relief petition. The judges also refused to grant the state’s request to hold that it is relieved of the time constraints of Indiana Trial Rule 56.

The state appealed the denial of its motion to correct error challenging the grant of summary judgment to Antonio Gonzalez-Vazquez on his petition for post-conviction relief. Gonzalez-Vazquez alleged he received ineffective assistance of counsel.

Gonzalez-Vazquez’s convictions were affirmed on direct appeal. He filed his petition for post-conviction relief in 2011 and filed his motion for summary judgment pursuant to Trial Rule 56 and Post-Conviction Rule 1(4)(g) on July 17, 2012. The state received his motion by certified mail.

On Aug. 20, the state requested an extension of time to respond; the court gave the state until Aug. 24, when it filed its response. Gonzalez-Vazquez claimed the state’s request for more time and its response were untimely; the state countered that the motion for enlargement of time was timely because the state was entitled to add three days for mail service based on Trial Rule 6(E) and the 33rd day fell on a Sunday.

The post-conviction court rejected the state’s argument and granted summary judgment for Gonzalez-Vazquez. That court excluded the state’s response on the grounds that Rule 6(E) was inapplicable, but that was erroneous as a matter of law, the judges ruled, citing DeLage Landen Fin. Servs. Inc v. Cmty. Mental Health Ctr., 965 N.E.2d 693 (Ind. Ct. App. 2012).

The state also argued that Trial Rule 56(C) and (I) shouldn’t be applicable to post-conviction proceedings because “significant prosecutions could be undone without any basis simply because a prosecutor’s office fails to respond in thirty days.” The state pointed to PCR 1(4)(g) that gives the trial court discretion to consider all pleadings and other matters, whereas Rule 56(C) limits consideration to the designated evidentiary matter.

“We are not in a position to carve out an exception to redress the State’s concern that mere negligence on its part might result in a windfall to a petitioner and a danger to the public,” Judge L. Mark Bailey wrote.

“Although the State may have a valid concern that a lack of diligent responses in post-conviction proceedings could result in the reversal of some criminal convictions, it would be an extremely rare occasion upon which a petitioner would be able to show an absence of an issue of material fact and further show his entitlement to judgment as a matter of law without a hearing and the presentation of evidence. Indeed, in this particular case, Vazquez focused upon alleged omissions but largely ignored the requirement of showing prejudice. In light of the foregoing, we decline the State’s invitation to hold that it is relieved of the time constraints of Trial Rule 56.”

Criminal – Social Media/Sex Offender Registry

Michael L. Harris v. State of Indiana

20A04-1204-CR-225

Two months after the 7th Circuit Court of Appeals struck down the state’s law prohibiting sex offenders from using certain social media sites, the Indiana Court of Appeals ruled that Indiana Code 35-42-4-12 violates an Elkhart County man’s First Amendment rights.

Convicted sex offender Michael Harris appealed his convictions and sentence for Class D felony failure to register as a sex offender under I.C. 11-8-8-17 and Class A misdemeanor sex offender Internet offense under I.C. 35-42-4-12. Harris is required to register and report for life. After he was released from incarceration, he filled out an offender registration form, but left blank the spaces for “E-mail/Chat room/Instant Messaging/Social Networking Site Names.”

Police later discovered Harris had a MySpace profile and several email addresses. The AOL account used was registered under Harris’ wife’s name and paid for by her. The state then charged Harris with failure to register and a sex offender Internet offense. He claimed the charges should be dismissed based on ex post facto and free speech violations. He was convicted as charged.

The judges rejected Harris’ claim that I.C. 11-8-8-8(a)(7) chills his expression under the First Amendment. They pointed out that disclosure of online identifiers does not “unnecessarily interfere with his First Amendment freedom to speak anonymous,” citing Doe v. Shurtleff, 628 F.3d 1217 (10th Cir. 2010). They also found the state produced sufficient evidence to support Harris’ conviction of failure to register.

The COA acknowledged the recent 7th Circuit decision in John Doe v. Prosecutor, Marion County, Indiana, 12-2512, which held the law regulating social media use by sex offenders is unconstitutional, but pointed out the state court isn’t constrained by the federal court’s decision. Judges Patricia Riley and L. Mark Bailey noted that the parties in this case and remedy afforded differ from Doe, but still concluded that the state’s proffered narrow tailoring justifying the law is unsustainable in light of Doe. The law is unconstitutional as applied to Harris.

Judge Terry Crone concurred in result on this issue, writing, “I acknowledge that we are not bound by the Seventh Circuit’s holding and that Doe is both factually and procedurally distinguishable, but I see no reason to reinvent the wheel here and would reverse Harris’s conviction under Indiana Code Section 35-42-4-12 based on Judge Flaum’s persuasive analysis in that case.”

He concurred with the majority on all other matters.

Guardianship – Grandparent Visitation

In Re The Guardianship of A.J.A. and L.M.A., J.C. v. J.B. and S.B.

48A02-1204-GU-326

Even though a grandmother lacked standing to pursue a grandparent visitation order when it was granted, the trial court erred in later vacating the order, the Indiana Court of Appeals ruled. The grandchildren’s guardians’ objections to the grandmother’s lack of standing were waived when they failed to appeal the original order.

J.C. is the mother of M.A., who had two daughters with his wife. The girls were home when he shot and killed his wife. M.A. went to prison and the girls moved in with M.A.’s half brother J.B. and his partner S.B. The couple later filed for guardianship of the girls, in which the grandmother filed to intervene and a petition for visitation.

J.C. was eventually granted unsupervised grandparent visitation on a strict schedule. The guardians didn’t appeal the original order or an amended order. After the grandmother initiated a telephone call between one of the girls and her incarcerated father, the guardians sought to terminate J.C.’s visitation. They claimed she never had standing under the grandparent visitation statute. J.C. argued that the guardians waived their standing by consenting to the provisional visitation agreement and by not appealing the original visitation order.

The trial court ruled in favor of the guardians and vacated the visitation order.

The Court of Appeals reversed, pointing out that the grandmother’s appeal is not moot because the girls were adopted by J.B., who is the girls’ uncle. It does not matter that S.B. is not biologically related to the girls.

J.C. does not have standing under the Act because she is the parent of M.A., who is still alive, and her son’s marriage was not dissolved at the time of his wife’s death. But although the initial visitation order was erroneous, the guardians waived their objections to J.C.’s standing when they failed to appeal.

“Given that nearly a year has passed since the grandparent visitation order has been vacated, it may be wise for the trial court to schedule a hearing sua sponte on the children’s best interests to determine whether and to what extent grandparent visitation should occur in the future,” Judge John Baker wrote.

Post Conviction – Ineffective Counsel/Resentencing

Joseph J. Scott v. State of Indiana

45A04-1208-PC-420

The Indiana Court of Appeals ordered a Lake Superior court to resentence a man to 23 years for his convictions stemming from a drunken-driving accident that killed another man. Joseph Scott’s trial attorney was ineffective because he failed to inform Scott of the correct maximum sentence he could face.

Scott pleaded guilty to four counts, but only two were accepted by the trial court: Class B felony operating a vehicle with a BAC of at least 0.18 grams per deciliter causing death, and Class B felony resisting law enforcement causing death. A Merrillville police officer tried to pull Scott’s car over, but Scott fled and struck and killed Kirk Mitchell.

Scott’s attorney, Bruce Parent, advised him that the maximum sentence he could receive for pleading guilty would be 30 years. Scott was sentenced to 15 years each on the operating charge and resisting charge, to be served concurrently, with five years of Count II suspended to a diversion program.

Scott did not appeal his sentence. Instead, three years later he filed his petition for post-conviction relief, alleging ineffective assistance of trial counsel and that the consecutive sentences are fundamental error. The post-conviction court denied the request.

The Court of Appeals only addressed Scott’s claim of ineffective assistance of trial counsel. The judges ruled that Parent was ineffective for advising Scott that the maximum sentence he could receive was 30 years in prison. Caselaw says that Scott’s two convictions can’t both be enhanced by Mitchell’s death. Without those enhancements, Scott’s BAC conviction would have been a Class A misdemeanor and his resisting conviction would have been a Class D felony.

If he had gone to trial, his resisting conviction would have been reduced at trial to avoid punishing Scott twice for Mitchell’s death, Judge Cale Bradford wrote. Parent’s failure to inform Scott of this rendered Scott’s plea unintelligent.

Scott is entitled to a sentence reduction to no greater than 23 years in prison, so the judges ordered the trial court to impose that sentence, all executed.
__________

April 1

Miscellaneous – Copyright Infringement

Michael L. Curtis v. State of Indiana

49A02-1203-MI-271

The Indiana Court of Appeals granted the state’s petition for rehearing in a case in which the judges ruled a man shouldn’t have had his truck taken by the state because he sold pirated movies from it. But the appellate court again ruled in favor of Michael Curtis.

The judges reaffirmed their decision to reverse the denial of Curtis’ motion for relief from judgment after the state successfully petitioned to seize Curtis’ truck following his guilty plea to one count of fraud. They held in their January ruling that copyright infringement does not constitute theft.

The state argued that Yao v. State, 975 N.E.2d 1273 (Ind. 2012), would require the court to uphold the forfeiture of Curtis’ truck. In that case, the Indiana justices ruled that the trademarks alleged to be stolen could constitute property depending on the evidence presented at trial.

But Yao doesn’t necessarily answer the forfeiture question, Senior Judge John Sharpnack pointed out.

“We find that where the underlying offense actually charged is, as here, fraud (knowingly or intentionally selling a recording for commercial gain or personal financial gain that does not conspicuously display the true name and address of the manufacturer of the recording) and not theft (knowingly or intentionally exerting unauthorized control over another person’s property with intent to deprive that person of any part of its value or use) or conversion (knowingly or intentionally exerting unauthorized control over another person’s property), there is no predicate for forfeiture,” he wrote.•
 

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  1. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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