Indiana Court Decisions - 3/25/15

March 4 to 17, 2015

March 25, 2015

Indiana Supreme Court

March 12

Civil Plenary – Insurance/Duty to Advise

Indiana Restorative Dentistry, P.C. v. The Laven Insurance Agency, Inc. and ProAssurance Indemnity Co., Inc. F/K/A the Medical Assurance Co., Inc.


The Indiana Supreme Court reset the issues before a trial court in a dispute arising from a shortage in contents insurance after a fire at a dental office.

Justices reversed in part, affirmed in part and remanded entry of partial summary judgment in favor of insurer ProAssurance Indemnity Co. Inc. Indiana Restorative Dentistry P.C. sued ProAssurance as well as its representative, The Laven Insurance Agency, after a fire caused more than $704,000 in damage to contents that were insured for just more than $204,000.

The dental office claimed a special relationship with Laven after carrying insurance with the company for more than 30 years established a duty for Laven to advise regarding insufficient coverage. Chief Justice Loretta Rush wrote that summary judgment in favor of Laven on that question was improper because there are questions as to whether a special relationship existed.

Rush also wrote for the unanimous court that Laven did not breach a duty to IRD because there was no implied contract or a meeting of the minds that required Laven to provide full coverage.   

“We therefore reverse summary judgment regarding Laven’s duty to advise but affirm summary judgment against IRD regarding Laven’s contractual duty to procure full coverage,” Rush wrote. “On remand, the parties may continue to litigate Laven’s duty to advise; Laven’s alleged contractual duty to procure $350,000 in office contents coverage; and ProAssurance’s vicarious liability for Laven’s alleged wrongdoing.”

Indiana Court of Appeals

March 4

Criminal – Prison Credit Time

Christopher Harding v. State of Indiana


A trial court incorrectly calculated the amount of credit for the time a man had served prior to the revocation of his probation as well as the sentence imposed after the revocation, the Indiana Court of Appeals ruled.

In April 2012, Christopher Harding was charged with drug-related offenses and was incarcerated for 181 days from April 19, 2012, through October 16, 2012. He pleaded guilty to Class B and D felonies, and on October 17, 2012, the trial court sentenced him to 5,110 days in the Department of Correction with 3,285 days executed, including 2,555 days in the DOC, followed by 730 days on in-home detention; as well as 1,825 days suspended to probation. Harding was incarcerated at the DOC from October 17, 2012, until February 12, 2014, which is a total of 483 days.

His sentence was later modified and he was placed on supervised probation, but less than two months later he violated the terms and conditions of the re-entry program. He evaded arrest from April 4, 2014, to May 30, 2014. His probation and suspended sentence were revoked and he was ordered to serve 3,633 days in the DOC with 264 days credited to him.

Both the state and Harding agree he is entitled to at least 1,592 days of credit time, but Harding also argued that he is entitled to credit time for when he was on probation from Feb. 13, 2014, until his April 4 violation, and from that date until May 30 while he evaded the arrest warrant. The COA ruled he is not entitled to credit time for these periods.

The parties also disputed the balance of the executed days to which the 1,592 days of credit should be applied. The revocation of the suspended sentence conforms to the original 5,100-day sentence imposed, so the 1,592 days of credit time should be applied to that.

The COA remanded with instructions to award Harding 1,592 days of credit time and apply it to his original sentence for a sentence of 3,518 days.

March 6

Criminal – Excessive Sentence/Drugs

John Norris v. State of Indiana


The 20-year executed sentence a Kokomo man received after pleading guilty to selling an undercover police officer 10 hydrocodone pills for $6 each was excessive, the Indiana Court of Appeals ruled.

The court remanded the case with instructions to enter a 12-year sentence with eight years executed at the Department of Correction.

While the panel noted John Norris had several previous convictions for drug offenses and a few minor crimes, he hadn’t spent a lot of time at DOC and also had physical and mental health issues.

“But what convinces us that Norris’s sentence is inappropriate and excessive is the relatively innocuous nature of this offense,” Chief Judge Nancy Vaidik wrote for the panel. “That is, Norris sold ten hydrocodone tablets for $60 to a confidential informant during a controlled buy that was closely monitored by the police. Given the small amount of drugs, we find that the maximum twenty-year executed sentence is inappropriate.”  

March 10

Criminal – Expungement

J.B. v. State of Indiana


A man’s 1999 misdemeanor battery conviction that was dismissed when he completed his one-year probation sentence must be expunged, the Indiana Court of Appeals ruled, reversing a trial court that denied his petition.

J.B. pleaded guilty to the Class A misdemeanor which he sought to remove from his permanent record. Monroe Superior Judge Marc R. Kellams III denied the petition, reasoning that because J.B. earned a dismissal of the conviction in 2006, he was “not eligible for expungement of conviction as there is no conviction to expunge.”

Writing for the panel, Judge Patricia Riley noted the public policy interest in removing the stigma associated with a criminal conviction for those who have a clean record for years afterward. The expungement statute prohibits public release of records related to an arrest and/or conviction.

“In this case, it is undisputed that the requisite amount of time has passed, that no charges are currently pending against J.B., that J.B. has paid all fees and he satisfactorily completed his probation, and that he has not been convicted of any crimes within the previous five years,” Riley wrote. “Accordingly, the only question before our court is whether the trial court’s 2006 dismissal of J.B.’s conviction disqualifies him from having his conviction expunged. We hold that it does not.

“(W)e find that the dismissal of J.B.’s conviction would be meaningless if the records concerning that conviction were to remain accessible, and we cannot conclude that the General Assembly would have intended such a result. Accordingly, we remand with instructions for the trial court to order the conviction records described in Indiana Code section 35-38-9-2(b) to be expunged in accordance with Indiana Code section 35-38-9-6,” she wrote.

Juvenile – Termination of Parental Rights

In the Matter of the Term. of the Parent-Child Relationship of M.N., A Minor Child, and M.C., Her Father L.N. and Heartland Adoption Agency v. M.C.


A trial court erred when it denied a mother’s consensual termination of parental rights petition against the father due to concerns of a potential risk of conflict of interest involving the mother’s legal counsel.

L.N., biological mother of a 5-year-old girl who is autistic and non-verbal, sought termination of the parental rights of biological father M.C. She used Heartland Adoption Agency to file the petition, and Heartland is owned by mother’s attorneys.

The record indicates M.C. had not regularly paid child support and had minimal contact with the child. He appeared in court and agreed to the termination of his parental rights. But the court denied the termination petition, observing there was a serious risk the lawyers’ duty to their client may conflict with their financial interest in the adoption agency. The court also ruled Heartland acted outside its authority in filing the petition.

Mother chose to forgo sporadic child support from M.C. to facilitate and ensure her daughter’s SSI disability payment, according to the record. As the child’s sole caregiver, she said the occasional support payment created burdensome paperwork to file to offset SSI benefits.

“(W)e conclude that Heartland Adoption Agency’s petition to terminate M.C.’s parental rights to M.N. at Mother’s request met the statutory requirements of Indiana Code section 31-35-1-4, and the trial court erred when it concluded that Heartland Adoption Agency acted outside the scope of its statutory authorization as a licensed child placing agency when it filed the petition to terminate M.C.’s parental rights,” Judge Paul Mathias wrote for the panel.

The appeals court noted reasonable conflict-of-interest concerns, but found them insufficient to affirm the trial court’s denial.

“The trial court’s generalized concern that a conflict of interest could arise between Mother and Heartland Adoption Agency is well-taken, and perhaps the better course for Mother would have been to proceed through another licensed agency, rather than one owned by her attorneys,” Mathias wrote.

“However, Mother’s resources are clearly limited, and under the specific facts of this case, all involved parties are pursuing the same goal. Heartland Adoption Agency’s petition to terminate M.C.’s parental rights is the simplest and most expedient approach,” the panel held in reversing denial of the termination petition.

March 11

Criminal – Competency of Counsel

Matthew Marcus, II v. State of Indiana


The Indiana Court of Appeals reiterated for at least the fourth time in seven years to a public defender that he cannot use the “manifestly unreasonable” argument to challenge a client’s voluntary manslaughter sentence.

P. Jeffrey Schlesinger is an appellate public defender appointed to represent Matthew Marcus II in his appeal of a 35-year sentence following his guilty plea to Class A felony voluntary manslaughter. That is the maximum sentence possible under the terms of his plea agreement.

“At the outset, we observe that there are gross deficiencies in Marcus’s appellate brief,” Judge L. Mark Bailey wrote.

Schlesinger argued that a “manifestly unreasonable” sentence was imposed upon Marcus and sought a remand for the imposition of a 25-year sentence. Schlesinger raised this same argument while representing three others on appeal in 2008, 2014 and this year. Each time, the appeals court reiterated that the Indiana Supreme Court replaced that standard more than a decade ago, and Indiana Appellate Rule 7(B) is applicable.

“Apparently oblivious to the direction of this Court and a decade of legal progression, Counsel yet again advocates for a review of his client’s sentence under the manifestly unreasonable standard. He wholly fails to present a cogent argument with citation to relevant authority,” Bailey wrote. “It is within our authority to strike the brief, order the return of attorney’s fees, order Counsel to show cause why he should not be held in contempt of court, or refer the matter to the Supreme Court Disciplinary Commission. We strike the brief and remand the matter to the trial court for appointment of competent counsel.”

Juvenile – Adjudication as Delinquent/Unlawful Search

D.Y. v. State of Indiana


An Indianapolis teenager suspected in two burglaries was subject to an unlawful pat down and search by an officer, the Indiana Court of Appeals ruled. As such, the gun found on him should not have been admissible at his delinquency hearing.

Police went to the home of Brian Smith after learning that D.Y., who was suspected of breaking into the Smiths’ home while they were on vacation and at least one other burglary, was on his way to the Smiths’ house. Smith believed D.Y. may have broken into his home because he knew the couple would be on vacation.

Indianapolis Metropolitan Police Department officer Sydney McDaniel arrived at the home and explained to 16-year-old D.Y. that he was transporting him to the IMPD’s district roll call for a burglary investigation and that he was a possible suspect. McDaniel then searched D.Y. and found an unloaded gun on him. D.Y. was later adjudicated as a delinquent child for committing what would be Class A misdemeanors dangerous possession of a firearm and carrying a handgun without a license.

D.Y. had objected to the admission of the gun, but the juvenile court denied his motion to suppress.

The appeals court determined McDaniel’s actions amounted to a seizure of D.Y. He did not ask D.Y. if he would accompany him to the station, and he did not give the teen the option to meet him at the police station independently. Instead, a reasonable person could have concluded that the officer’s transport of D.Y. to the district roll call was mandatory rather than option. In addition, it doesn’t appear the officer ever contacted D.Y.’s parents.

“As the State admits that Officer McDaniel did not have probable cause or a warrant to arrest D.Y., his seizure of D.Y. violated the Fourth Amendment, and his subsequent pat down was unlawful. Officer McDaniel therefore discovered the firearm pursuant to an unlawful search, and it was inadmissible at D.Y.’s hearing,” Judge Rudolph Pyle III wrote.

“Because the firearm was an essential element of D.Y.’s charges, we reverse and remand with instructions for the juvenile court to vacate its true findings and D.Y.’s adjudication as a delinquent child.”

Estate – Guns/Household Goods

In re the Supervised Estate of Gary Roberts, Deceased; Martha Blevins, Appellant and In re the Supervised Estate of Elizabeth A. Roberts, Deceased; Martha Blevins, Appellant


The determination as to whether guns or a gun collection are “household goods” should be made on a case-by-case basis, the Indiana Court of Appeals ruled. The judges held that the large collection owned by a couple who are since deceased was incorrectly classified as “household goods.”

Gary and Elizabeth Roberts amassed a gun collection of more than 330 weapons, most of which were kept in the basement.  On Sept. 27, 2013, Elizabeth Roberts shot and killed her husband. She later shot herself and died Nov. 2, 2013. She was sole heir to Gary Roberts’ estate. After her death, her personal representative, Eric Allen – who was the same personal representative of Gary Roberts’ estate – sold the gun collection for a profit of more than $500,000.

Before Elizabeth Roberts died, Martha Blevins filed a claim against Gary Roberts’ estate seeking damages for personal injuries she claimed to have sustained as a result of a car accident caused by his negligence. At issue is whether the gun collection is considered a household good. The trial court ruled it was, so therefore Elizabeth Roberts had a right of survivorship and its entire value was allocated to her estate. Blevins believed it should be classified as personal property owned as tenants in common, which means the value of the collection would be divided equally among the estates.

Relying on a case from 1917, the judges held the trial court erred in concluding the gun collection was a household good. The sheer size of the collection, the location where most were stored, and the varied items in the collection led the judges to determine that it should not be considered household goods. A gun or set of guns kept for personal protection are likely to be classified as household goods, but in this case, the vast majority of the collection was not owned for personal protection, Judge Margret Robb wrote.

Determining whether an item or group of items qualifies as a household good should be made on a case-by-case basis, Robb emphasized. The judges reversed and remanded for further proceedings.

In a footnote, she wrote, “… we take a moment to address an aspect of this case that has been allowed to pass uncontested by the parties and the trial court: both estates had the same personal representative throughout the entire proceedings and thus the same attorney. We are troubled by this dual appointment. It is possible that the estates had different interests –in large part because Gary was shot and killed by Elizabeth. Allen was appointed personal representative of Gary’s estate at Elizabeth’s request and then of her estate by testamentary designation. It is noteworthy that separate or competing arguments were never made on behalf of the two estates, including competing arguments on whether the gun collection was in fact household goods, and all actions taken by Allen favored Elizabeth’s estate. Additionally, as a result of this representation, some possibly applicable statutes and legal doctrines may have been forgone.”

Criminal – Battery on Officer/Reasonable Force

David Cupello v. State of Indiana


The Indiana Court of Appeals in a case of first impression reversed a man’s conviction of battery on a law enforcement officer after finding he exercised reasonable force under I.C. 35-41-3-2(i)(2), the statute revised in response to a 2011 Supreme Court holding that the Castle Doctrine is not a defense to battery or another violent act on a police officer. But one judge asked the Legislature to take another look at the statute for public policy reasons.

David Cupello challenged his Class A misdemeanor battery on a law enforcement officer conviction, which was based on him slamming his apartment front door on the foot of an off-duty constable, Robert Webb, who was employed by the apartment complex as a part-time courtesy officer. The complex told Webb that Cupello had been verbally intimidating to apartment staff, so Webb went to his apartment to investigate “reports of intimidation.” He stuck his foot just inside Cupello’s apartment once he opened the door to prevent him from slamming the door closed.

When Cupello became upset, he tried closing the door several times, striking Webb’s foot. This caused Webb to call for backup and arrest Cupello for battery.

The judges found that the state did prove that Webb was engaged in the performance of his official duties to support Cupello’s conviction, even though during that incident, Webb was not in uniform nor did he identify himself as a constable to Cupello. But the two had encountered each other on a prior occasion. When Webb went to the apartment, Cupello told him he wanted to press charges against an apartment complex employee for harassment, which could lead one to infer Cupello knew Webb as both a law enforcement officer and acting in his official capacity, Judge Edward Najam wrote.

But based on the revised statute, Cupello had a statutory right to exclude Webb from his home and used reasonable force to do so, the judge held. The placement of Webb’s foot inside the threshold of the apartment door was unlawful entry by a public servant. Cupello used reasonable force by closing his door, so the facts do not support his conviction, they held.

Judge Paul Mathias wrote separately to encourage the General Assembly to clarify what easily visible and audible indicia are required to place citizens on notice that he or she is dealing with an off-duty law enforcement officer who is acting in his official capacity. He also believes legislators need to more clearly define what powers private security personnel have.

“Without such careful consideration and differentiation by the General Assembly, Hoosiers have a right to wonder precisely who has been invested with the public authority to regulate civil society, and to resent the instances where government has apparently delegated public authority to private security for purely private purposes and gains,” he wrote.

March 12

Criminal – Rescinded Plea Agreement

Bryan P. Stone v. State of Indiana


The Indiana Court of Appeals ordered a Howard Superior judge to sentence a man to the terms of the plea agreement that he had entered into on drug charges before the judge revoked the agreement and ordered him to continue to trial.

Bryan Stone was charged with four counts of Class A felony dealing in cocaine and alleged to be a habitual offender. He entered into a plea agreement with the state, which the trial court accepted, in which Stone would plead guilty to four counts of Class B felony dealing in cocaine and the habitual substance offender enhancement would be discharged. He would be sentenced to 20 years, 15 of that executed and five years suspended to probation.

But after Stone failed to appear for a presentencing investigation, Judge William Menges sua sponte stated that he rejected the plea agreement. Menges set the matter for trial over Stone’s objections. Stone was convicted as charged and sentenced to 45 years.

The state argued that even though Stone did not violate any of the express terms of his agreement or claim actual innocence, thus justifying the judge’s decision to vacate the plea, the court could still vacate the plea agreement. It alleged that Stone’s participation in the plea agreement was a “sham” and he did not intend to honor it since he did not attend the initial presentencing investigation. That indicates that he would freely violate probation and commit new criminal offense, the state claimed.

“While the trial court may have rejected a plea had Stone engaged in misconduct prior to his guilty plea hearing, the fact remains that Stone’s purported misconduct occurred after he had admitted to four criminal offenses in open court. What the trial court may have done with other knowledge is not relevant here, as Indiana courts have held since (Reffet v. State, 571 N.E.2d 1227, 1229-30 (Ind. 1991)). Further, the terms of the plea agreement here did not require Stone to satisfy all the terms of his probation, or seem likely to do so, lest the plea agreement be rescinded and the State take him to a jury trial. The terms of the plea agreement make no provision for this, and accepting the State’s rationale on this point would risk rendering thousands of plea agreements void, even years later, as a result of probation violations,” Judge L. Mark Bailey wrote.

The COA ordered the lower court to enter judgments of conviction pursuant to the plea agreement and to sentence Stone within the discretion afforded to it by the plea agreement.

Civil Collection – Collections Contracts/Commissions

The County of Lake, Ind.; Board of Commissioners of the County of Lake (Ind.), in their official capacities; and the Lake County Treasurer, in his official capacity v. U.S. Research Consultants, Inc.,


The Indiana Court of Appeals reversed a $1.4 million judgment in favor of a company hired by Lake County to collect delinquent real property taxes, finding the lower court improperly interpreted the collections contracts as a matter of law.

Lake County hired U.S. Research Consultants Inc. through a series of contracts to collect those delinquent taxes on behalf of the county in exchange for a commission. Key to the dispute between the parties is that the contracts said that the consultants would be assigned 100 percent of the real property tax collection cases by the Lake County treasurer. The consultants were to collect the back taxes at the direction of the treasurer, who ordered the consultants to only pursue taxes that were at least two years behind.

When the agreement between the county and consultants ended, the consultants sued, alleging breach of contract and seeking owed commissions. The trial court granted partial summary judgment in favor of the consultants on the definition of delinquent, and later final judgment in favor of the consultants in more than $1 million commissions owed and nearly $400,000 in prejudgment interest.

The consultants took the position that the company was to collect all delinquent taxes and was entitled to commissions on the total amount, whereas the county took the position that the consultants were only to collect the past year delinquent taxes as directed by the treasurer and were only entitled to commissions on that amount even if additional delinquent taxes were paid.

When the contract is read as a whole, all the clauses in it are construed to mean that the consultants are to collect “the delinquent monies” associated with the real property tax collection cases assigned to it at the treasurer’s instruction and that the company earns commission on those amounts, Judge Margret Robb wrote. That the contracts require the company be assigned 100 percent of the cases means only that no tax collection cases will be assigned to any other entity for collection, not that the business will be assigned all delinquent tax accounts, she continued.

The judges reversed partial summary judgment and remanded with instructions to enter partial summary judgment in favor of the county on the issue of the interpretation of the contracts. The lower court also must conduct further proceedings on the company’s complaint regarding whether it is owed any unpaid commission on prior year taxes collected, and if so, the amount of those unpaid commissions.

Domestic Relation – Surviving Spouse Benefit

Ronald Fritts v. Linda Fritts


A man challenging the proposed value of his pension’s surviving spouse benefit in a dissolution proceeding had to file his own Ind. Trial Rule 60(B) motion and not rely on the same motion filed by his ex-wife, the Indiana Court of Appeals held.

Both Ronald Fritts and his ex-wife, Linda Christopher, challenged the division of property and other issues in their 2014 post-dissolution order. Fritts thought the trial court should have credited Christopher with his proposed value of his pension’s surviving spouse benefit, because it will create a windfall for his ex-wife. Fritts tried to remove his surviving spouse benefit after the dissolution proceedings began, but the pension holder refused to remove it. This benefit reduced the amount of money Fritts will receive monthly by more than $1,000.

Christopher believed the trial court’s calculation of her child support arrearage did not take into account a set-off already included in the 2010 dissolution order, that the court miscalculated how much she owed in medical expenses, the trial court did not properly find her ex-husband had paid her attorney fees, and that it should have credited her for money removed from joint accounts.

The COA affirmed on the argument raised by Fritts, finding that he should have filed a motion to correct error shortly after the 2010 dissolution order was handed down or pursued relief under Trial Rule 60 (B). But he cannot rely on the T.R. 60(B) motion filed by Christopher in order to raise his claim.

The judges agreed with Christopher that the trial court erroneously included $2,310 in her child support arrearage as that was already credited to Fritts in the 2010 dissolution order and that Fritts’ exhibit pertaining to the medical bills appears to contain duplicate bills and includes services provided to him, not their daughter. The judges remanded for the court to recalculate her unpaid medical expenses.

The trial court affirmed in all other respects, including that Christopher was not entitled to a credit for an alleged decrease in value of a checking account awarded to her and that Fritts did pay $4,000 in her attorney fees. The judges declined to award Christopher appellate attorney fees.

March 16

Juvenile – Termination of Parental Rights

In the Matter of the Termination of the Parent-Child Relationship of: D.P. and D.P.E. and J.P. (Mother) v. Ind. Dept. of Child Services


In finding both constitutional and statutory guarantees were transgressed, the Indiana Court of Appeals reversed the decision by a lower court to convert an omnibus hearing on a termination of parental rights matter into a final hearing while mother was not present, which led to the termination of her parental rights.

Mother J.P. has a learning disability and was unable to care for her two children, born in 2010 and 2011. The Department of Child Services removed the children from her care in 2012 and they were adjudicated as children in need of services. The children were placed in foster care, where they thrived, and mother did not complete the services necessary for reunification.

DCS then sought termination of her parental rights, and an omnibus hearing was scheduled on the matter for September 2014. DCS called and told her it was important for her to be there, but she did not show and mother was not represented by counsel. It appears she did not have an attorney appointed to represent her.

At the hearing, the trial court converted it to a final evidentiary hearing, heard evidence in support of terminating mother’s parental rights, and then terminated those rights the same day.

The Indiana Court of Appeals agreed with mother that she was deprived of due process because the notice concerning the September hearing was inadequate and because of the in absentia hearing. Mother was never given notice that the omnibus hearing intended to serve as an evidentiary hearing on DCS’ petition, Judge L. Mark Bailey wrote. In addition, she lacked representation at the hearing, and it appears that she had little opportunity to seek counsel.

Mother was denied a meaningful opportunity for cross-examination, presentation evidence and representation of counsel, which the COA found particularly worrisome given DCS’ knowledge of her significant learning and cognitive problems. The case is remanded for further proceedings.

Miscellaneous – Expungement

Johnnie M. Trout Jr. v. State of Indiana


Facts from an incident that do not result in a felony conviction cannot be taken into consideration by a judge when determining a person is disqualified from filing for mandatory expungement of a different felony conviction resulting from the same incident, the Indiana Court of Appeals held.

Johnnie M. Trout Jr. filed a petition in January 2014 for mandatory expungement of Class D felony convictions criminal recklessness with a deadly weapon and pointing a firearm. Those convictions were handed down in 1998. At that time, Trout was charged but not convicted of two other counts, including attempted murder.

The law in effect at the time Trout filed his petition mandates granting an expungement unless a person is convicted of a felony that resulted in bodily injury to another person. The judge, when considering the petition, took into account the attempted murder charge that Trout was not convicted of, in which a victim was accidently shot and injured while reaching for Trout’s gun. The judge did not believe it was appropriate to turn a “blind eye” to the facts of the entire case.

But the statute is clear that the petition for expungement should be denied if Trout had a felony conviction that resulted in a bodily injury to another person. The two charges he was convicted of did not involve bodily injury, Chief Judge Nancy Vaidik wrote.

Therefore, these two Class D felony convictions do not disqualify him from mandatory expungement. And because this is the only basis upon which the state challenged Trout’s petition, the trial court erred in denying the petition. The matter is remanded for further proceedings.•


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