7th Circuit Court of Appeals
Civil – Employment/MDL Litigation
Carlene M. Craig, et al. v. FedEx Ground Package System, Inc.
Kansas FedEx truck drivers are company employees and not independent contractors, the 7th Circuit Court of Appeals ruled, reversing a key ruling in continuing multi-district litigation.
The case is one of about 70 class-action lawsuits FedEx drivers filed over the last decade challenging their classification as contractors. The consolidated MDL cases are being heard by Judge Robert Miller in the U.S. District Court for the Northern District of Indiana, South Bend.
Miller ruled in favor of FedEx, but the 7th Circuit posed certified questions to the Kansas Supreme Court, which answered that drivers were company employees under the Kansas Wage Payment Act.
In a six-page per curiam opinion, a panel including Judges Frank Easterbrook, Richard Posner and John Tinder reversed summary judgment for FedEx and ordered judgment in favor of the drivers.
“FedEx’s understanding of the Kansas Supreme Court’s decision strays from reality,” the court wrote. Judges rejected the company’s claim that Kansas justices restated a 20-factor test for determining employment status under the state’s wage act.
“Not surprisingly, FedEx argues that we should not follow the Kansas Supreme Court’s answers to the certified questions,” the 7th Circuit panel wrote, noting such answers are binding statements of law. “FedEx simply disagrees with the Kansas Supreme Court’s legal conclusions.”
The 7th Circuit remanded for entry of judgment for the drivers and for proceedings, which may require remand to a Kansas District Court for a determination of damages.
In a separate case, FedEx last month agreed to a $227 million settlement with its drivers in California.
Criminal –Continuity Slip/Rule Violation
United States of America v. Joshua R. Mackin
A Fort Wayne man’s argument that his defense strategy was upended when the government waited until mid-trial to produce a complete chain of custody document convinced the 7th Circuit Court of Appeals to overturn his conviction.
Joshua Mackin was charged with being a felon in possession of a firearm after Fort Wayne police found a loaded silver handgun in his pants pocket while arresting him for an outstanding warrant. One of the arresting officers secured the firearm in the evidence locker and filled out a continuity slip, which tracks the movement of a piece of evidence.
Prior to trial, the government gave a copy of the continuity slip, which was incomplete, to Mackin. It was missing signatures of the officers who had been in possession of the gun and it had the wrong serial number for the firearm.
At trial, the defense argued the half-done continuity slip showed the government would not establish the gun’s chain of custody. The government countered by producing a complete continuity slip and conceded it had not given the form to Mackin’s counsel.
Moving for a mistrial, the defense argued the government violated Federal Rule of Criminal Procedure 16 by failing to disclose the correct continuity slip. Mackin’s team said the issue of chain of custody was the primary trial strategy and if the correct slip had been provided, Mackin may have pled.
The U.S. District Court for the Northern District of Indiana, Fort Wayne Division, denied the motion and Mackin was found guilty.
On appeal, Mackin contended that he would have known his chain-of-custody defense strategy was implausible had the government disclosed the correct continuity form. But because the prosecution’s own error raised the potential for that defense, he was deprived of the opportunity to prepare a plausible defense.
The government asserted it did not violate Rule 16 because it had no reason to suspect that Mackin would contest the gun’s chain of custody or that the continuity slip would be material to his defense.
A unanimous 7th Circuit panel disagreed with the government and ordered Mackin’s conviction be vacated.
“Mackin does not argue that he had an absolute right to disclosure of the continuity slip, or that continuity slips are mandatory discovery material in the mine-run of cases,” Judge Michael Kanne wrote for the court. “Instead, he argues that in this particular case, once the government chose to disclose the incomplete continuity slip, he was entitled to the complete and correct one. We agree, and we hold as much today.”
Criminal – Murder Sentence/Mitigating Factors
United States of America v. Keon Thomas and Styles Taylor
13-2814 and 13-3469
Two men sentenced to life in prison for the 2000 murder of a 73-year-old, nearly deaf Hammond gun store owner must be resentenced, the 7th Circuit Court of Appeals ruled.
Keon Thomas and Styles Taylor were convicted of robbery and murder and ordered to spend the rest of their lives in prison after they robbed the Firearms Unlimited Gun Shop, killing owner Frank Freund.
Both defendants’ sentencing guidelines scores were at the maximum, but Circuit Judge Richard Posner wrote for the panel that the federal District Court neglected to address arguments that the defendants’ upbringings were so awful that they might have mitigated their scores.
“When substantial grounds for mitigation are presented, the sentencing judge must explain his reasons for rejecting them … and this the judge failed to do,” Posner wrote, sending the case back to Judge James T. Moody in the U.S. District Court for the Northern District of Indiana, Hammond Division. “The government agrees that Taylor’s sentence must therefore be vacated and the case remanded for sentencing.”
The 7th Circuit rejected the defendants’ other claims on appeal. The panel cited United States v. Morris, 775 F.3d 882, 886-88 (7th Cir. 2015) for the proposition that sentencing judges have a duty to rule on the merits of arguments for mitigation when substantial grounds are presented.
“Taylor had been born in 1980 to an unmarried woman who did not want to have a child. While pregnant with him she indulged in heavy drinking and consumption of marijuana and cocaine, and drank rum with quinine capsules in order to kill the fetus,” Posner wrote. He noted Taylor was beaten gratuitously as a child by his mother and aunt, and he was surrounded by prostitution, drug abuse and crime in his youth. By age 4, he was helping adults commit burglaries, and committed progressively more serious crimes before the gun store murder.
“The facts regarding Taylor’s personal history, if true (they have not yet been submitted to full evidentiary procedure), are possible grounds for mitigation – for reducing his sentence from life to a term of years. For they suggest external forces beyond his ability to control created cognitive and psychological impairments that greatly diminished his ability to resist engaging in serious criminal activity,” Posner wrote.
“Although Thomas’s upbringing was not as awful as Taylor’s, it was similar enough to persuade the government that he too is entitled to be resentenced,” the panel concluded, affirming the District Court in all other respects.
Indiana Supreme Court
Attorney Discipline – Suspension/Drugs
In the Matter of: Tenneil E. Selner
A South Bend attorney who pleaded guilty to federal charges that she supplied a key ingredient to members of a meth ring has been suspended from the practice of law for three years.
The Indiana Supreme Court suspended Tenneil E. Selner for three years without automatic reinstatement. Justices settled 4-1 on the discipline, but Justice Brent Dickson dissented and would have rejected a conditional agreement between Selner and the Disciplinary Commission. Dickson said he believed Selner “demonstrated unfitness to reasonably represent, advise and serve future clients.”
Selner, 35, pleaded guilty in October 2013 to a single federal count of distribution of pseudoephedrine, having been ordered into federal detention two months earlier. She faced three counts in a federal grand jury indictment filed in 2012.
In exchange for Selner’s plea, the government dropped charges that she conspired to manufacture meth and that she manufactured a substance that contained meth. She was sentenced to 21 months in federal prison, and according to the Federal Bureau of Prisons, Selner was released to probation in November 2014.
Selner “admitted purchasing pseudoephedrine four times at different drug stores and then providing the pseudoephedrine to two other individuals, allowing those individuals to evade the identification statutes governing the purchase of pseudoephedrine,” according to the court opinion.
One of those people, Jason Buzzard of Plymouth, was sentenced to eight years in federal prison on charges of conspiracy to manufacture meth, according to federal court records.
Justices wrote Selner “actively engaged herself in the introduction of a controlled substance into a marketplace occupied by current and future victims of a devastating addiction. It should go without saying that such misconduct warrants severe discipline.”
The federal government recommended a sentence on the lower range of guidelines incorporating treatment, followed by supervised release. A sentencing memorandum noted Selner had a prior criminal record with three misdemeanor convictions, six other contacts with the legal system and “a severe history of substance abuse.”
Selner was admitted to practice in 2006 and had no prior disciplinary history, according to the Indiana Roll of Attorneys.
Attorney Discipline – Disbarment
In the Matter of: Steven J. Ouellette
A Fort Wayne lawyer’s latest disciplinary matter resulted in his disbarment for taking $8,725 from clients he represented in a bankruptcy case.
Steven J. Ouellette represented clients who filed Chapter 13 bankruptcy in 2005. “In December 2010, the bankruptcy trustee issued a refund check for $8,725.35, payable to clients. For almost two and one-half years, (Ouellette) did not disclose the existence of this check to Clients,” the Indiana Supreme Court wrote in a per curiam opinion.
Ouellette instead fraudulently endorsed the check and deposited it in an account other than his attorney trust account and used the proceeds for his own purposes. When his clients received a final report from the trustee and learned of the refund check, they confronted Ouellette, who promised to repay them.
Ouellette “later issued a check in the amount of $8,725.35, drawn on an account other than his attorney trust account, but Clients were unable to negotiate the check due to insufficient funds,” according to the order. “When Clients later retained successor counsel, (Ouellette) refused to return Clients’ file.”
The unnamed clients filed a disciplinary grievance in October 2013.
Ouellette, who currently was suspended indefinitely in a separate disciplinary matter, violated Rules of Professional Conduct 1.15(a), 8.1(b), 8.4(b) and 8.4(c). Respectively, those rules violations are for failing to hold client property in trust; failing to respond to disciplinary authorities; committing a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness; and conduct involving dishonesty, fraud, deceit or misrepresentation.
The court noted Ouellette failed to timely answer commission filings, proving a belated answer at the commission’s hearing on its application for judgment on the complaint. The commission declined to accept that late filing, and the court in a footnote said, “We likewise decline to give (Ouellette’s) belatedly-tendered answer any effect.”
Last year, Ouellette was suspended for failing to cooperate with the commission’s investigation of a grievance. In May, that suspension was made indefinite. Ouellette also was suspended for 90 days with automatic reinstatement in 2007, and in 1994, the Supreme Court suspended him for two months for making false statements to a tribunal and engaging in dishonesty, deceit and misrepresentation for his failure to disclose a party’s financial interest in the financial restructuring of a wholesale beer distributor he represented in bankruptcy court.
Indiana Tax Court
Tax – Budget Cuts
Indianapolis Public Transportation Corporation v. Department of Local Government Finance
IndyGo received the green light to proceed with a Tax Court appeal of about $800,000 in budget cuts the state ordered for the public transportation service in 2012.
Indiana Tax Court Judge Martha Blood Wentworth in an order denied the Department of Local Government Finance’s motion for judgment on the pleadings. Wentworth rejected DLGF’s arguments that IndyGo lacked standing to appeal its order in court.
Wentworth ruled that IndyGo had objected formally to the budget cuts when it filed a 1782 Notice with the department contesting the department’s final decision that had been incorporated into Marion County’s budget order for the year.
“When IndyGo responded to the DLGF’s 1782 Notice, it initiated an appeal that conferred standing for it to seek judicial review of the 2012 Marion County Budget Order under Indiana Code § 6-1.1-17-16(g)(1),” Wentworth wrote in denying DLGF’s motion for judgment on the pleadings. “The Court will schedule a case management conference under separate cover.”
Indiana Court of Appeals
Adoption – Genetic Testing
In re the Matter of: I.J., Child, T.M. v. L.D. and J.D.
A child born to a married couple who placed the newborn for adoption may have had a different father, and a trial court erred in denying his requests for genetic testing that could have given him standing to contest the adoption, the Court of Appeals ruled.
L.D. and J.D. filed a petition to adopt I.J. three days after she was born to mother Ka.J. and her husband, Ke.J. I.J. was given to L.D. and J.D. at birth on March 21, 2014, and the adoptive parents have raised and cared for her since. Their adoption petition was granted last December.
On April 3, 2014, T.M. told the court he believed he was the child’s biological father, and he signed up with the putative father registry on April 15, 2014. He later sought genetic testing to prove his paternity, which Noble Circuit Judge G. David Laur denied multiple times.
Appellate Judge Melissa May wrote for the panel that the trial court erred in its reading of I.C. 31-19-5-2(a). “As T.M. registered before I.J. was thirty days old, his registration was timely. T.M. therefore was entitled to notice of the adoption and should have been permitted to contest it.
“We are mindful of the fact that I.J. has been in the care, custody and control of Adoptive Parents since birth and our reversal may create instability in her young life. But we cannot ignore the constitutional dimension of the parental right that arose with T.M.’s timely registration with the putative father registry. Accordingly, we reverse and remand,” May wrote.
Judge Margret Robb concurred but wrote separately to stress why the court erred in refusing T.M.’s request for genetic testing. She noted the adoption consent statute grants a third party who claims to be the biological parent the right to seek genetic testing to rebut a husband’s presumption of paternity.
“As we have determined herein that T.M. timely registered with the putative father registry, and with the clarification that T.M. has the right to seek genetic paternity testing irrespective of Ke.J.’s presumed paternity, I concur,” Robb wrote.
Mortgage Foreclosure – Property Tax Refunds
2513-2515 South Holt Road Holdings, LLC v. Holt Road, LLC, Res Holt Road, LLC, MSP Holt Road, LLC, K3D Holt Road, LLC, and Roll & Hold Warehousing & Distribution Corp.
A $307,193 property tax refund received by owners of industrial property in Marion County was wrongly awarded to borrowers who had defaulted on a mortgage on the property, the Indiana Court of Appeals ruled.
The appeals panel reversed a Marion Superior Court’s final judgment regarding tax refunds to borrowers Holt Road LLC, Res Holt Road LLC, MSP Holt Road LLC, K3D Holt Road LLC and Roll & Hold Warehousing & Distribution Corp.
Lender 2513-2515 South Hold Road Holdings LLC was owed principal, interest and fees of more than $5.7 million after defendants stopped making mortgage payments in April 2013. During the foreclosure proceedings, the lender became aware of the property tax refunds that were issued after a successful property tax appeal.
Judge Elaine Brown wrote for the appellate panel that the refund meets the definition of funds within the security interest provided by a section of the contract.
“(W)e reverse the trial court’s judgment awarding receipt of the Tax Refunds to Borrowers and remand with instructions to enter judgment awarding receipt of the Tax Refunds to Lender,” Brown wrote.
Civil Tort – Medical Malpractice
Virginia Tramill, Miah Gant, Marquel Cheaney and Jeremiah Tramill, the Mother and Children of Sara Tramill, Deceased v. Anonymous Healthcare Provider
A trial court wrongly denied a plaintiff’s motion for a declaratory judgment arising from an inability to select a panelist to review a malpractice dispute on behalf of a woman who died after a stroke. The woman died while in the care of an unidentified medical facility.
The Indiana Court of Appeals noted the lengthy and contentious nature of litigation.
“To say that the parties have filed repetitive motions regarding the selection of the third panelist is an understatement,” Judge Michael Barnes wrote for the appeals court. “Notwithstanding these motions, composition of the medical review panel remains unresolved more than four years after the filing of the proposed complaint.
Medical review panels consist of three doctors who determine whether practitioners in a proposed malpractice case acted within appropriate standards of care before suits may proceed to trial. The panels are chaired by a non-voting attorney member, who in this case appointed a third member when the two doctors on the panel did not agree on a third after an original panelist could no longer serve.
“Accordingly, because declaratory relief is appropriate, if not necessary, to resolve the parties’ dispute regarding the selection of the third panelist … the trial court should have granted the Appellants’ motion,” Barnes wrote.
The facility challenged multiple trial court rulings, but Barnes wrote that the panel lacked jurisdiction to consider those matters because they were not final judgments from the trial court.
Small Claim – Default Judgment
Tom Graziani v. D&R Construction
A homeowner who arrived at the courthouse nine minutes after a judgment was entered against him will still get to have his day in court.
Tom Graziani was sued after he refused to pay his contractor an additional $4,708 for work that had been estimated at $1,014. Graziani paid the estimated bill prior to the completion of the work. His attorney withdrew from the case, but did send Graziani a letter stating the trial was scheduled for Dec. 8, 2014, at 3:30 p.m. in Hamilton Superior Court 5.
Choosing to represent himself, Graziani arrived at the courthouse at 3:15 p.m. However, the trial had been scheduled for 3 p.m. and a default judgment was entered in favor of the contractor.
Graziani immediately filed a motion to set aside the default judgment. The trial court denied it, pointing out Graziani did not confirm the time with the court and instead relied on a letter not issued by the court.
The Indiana Court of Appeals reversed the judgment and remanded for further proceedings. In addition to confirming Graziani’s attorney had given him the wrong time, the panel noted he arrived early for what he thought was the hearing time and he filed a motion against the default judgment the same day.
Criminal – Search and Seizure
State of Indiana v. Braeden Terrell
A one-month-old decision by the Indiana Supreme Court upended a probationer’s argument that the search of his nightstand was unconstitutional.
Braeden Terrell was arrested after probation officers found he had alcohol, illegal drugs and a firearm when they searched his Martinsville residence. He was subsequently charged with marijuana possession, a Class B misdemeanor, and paraphernalia possession, a Class A misdemeanor.
At trial, the Morgan Circuit Court did not allow the marijuana and paraphernalia that officers seized from the nightstand to be admitted as evidence. The court agreed with Terrell that the search violated the Fourth Amendment of the U.S. Constitution and Article 1, Section 11 of the Indiana Constitution because it was made without any suspicion and was simply investigatory.
On appeal, the Indiana Court of Appeals reversed and remanded.
The appellate court cited the recent decision from the state Supreme Court in Vanderkolk v. State, No. 79S04-1411-CR-718, 2015 WL 3608834 (Ind. June 9, 2015). There, the five justices ruled that probationers “unambiguously authorize warrantless and suspicionless searches…”
Based on the June ruling, the Court of Appeals held Terrell’s argument was no longer a valid objection to the search.
“…unless and until our supreme court limits Vanderkolk or further defines its parameters, we must conclude that where, as here, a probationer has waived any and all of his search and seizure rights and agreed to submit to searches of his property and residence at any time by a probation officer, a nondestructive daytime search of the probationer’s nightstand for firearms is not unreasonable under the Fourth Amendment,” Judge Terry Crone wrote for the court.
Juvenile – Child Support
In re the Paternity of M.R.A. and L.R.C.: M.A. v. B.C.
A Hendricks County trial court erred by disregarding a mother and father’s agreed paternity order, the Indiana Court of Appeals ruled, sending the matter back to the trial court. The court affirmed a judgment against father to pay mother’s attorney fees.
“Concluding the trial court did not abuse its discretion in its determination regarding attorney’s fees, we affirm that part of the trial court’s order. However, concluding the trial court applied an incorrect legal standard to the determination of child support and that its judgment regarding child care expenses is unsupported by the evidence, we reverse and remand in part,” Judge Margret Robb wrote.
Under the parents’ agreement, father and mother shared parenting time and neither was to pay child support. Mother provided child care at times while father worked. She lived with her parents, working about four hours a week.
“The issue of child support had been initially determined by the 2013 Order, and any change thereafter needed to be considered under the modification standard. The trial court therefore committed an error of law in ... its August 2014 order by applying the initial determination standard and ordering Father to pay child support dating back to the physical separation of the parties,” Robb wrote. “The trial court should have applied the modification standard to the issue of child support and could relate such modification back only to the date Mother filed her petition to modify.”
The panel also found evidence did not support a finding that child care expenses mother incurred were reasonable or work-related.
The case is remanded to the trial court for proceedings.
Civil Tort – Local Government/Immunity
City of Beech Grove v. Cathy J. Beloat
The Indiana Court of Appeals split over the extent of governmental immunity after a woman who broke her leg crossing the street sued the city of Beech Grove for negligence.
Cathy Beloat suffered two broken bones in her lower leg when she stepped into a pothole while crossing Main Street in Beech Grove. The city filed a motion for summary judgment, arguing it was entitled discretionary immunity under Indiana Code 34-13-3-3(7).
Marion Superior court denied the motion and the city filed an interlocutory appeal.
Before the Court of Appeals, Beech Grove presented evidence indicating that rather than making “piecemeal repairs,” it was in the process of planning to totally reconstruct a portion of Main Street that included the intersection where Beloat fell. Consequently, the city contended, its decision not to improve the defects on Main Street prior to Beloat’s accident is covered by discretionary function immunity.
The Court of Appeals found the city’s planning decision was subject to immunity as established in Peavler v. Board of Commissioners of Monroe County, 528 N.E.2d 40, 46 (Ind. 1998). In that ruling, the Indiana Supreme Court held government decisions, which involve the assessment of competing priorities and weighing of budgetary considerations are planning activities and therefore are immune from liability.
Finding Beech Grove’s actions fit that criteria, the Court of Appeals reversed the denial of summary judgment in City of Beech Grove v. Cathy J. Beloat, 49A02-1409-CT-605.
“Here, the decision not to make piecemeal repairs to Main Street and instead reconstruct the street is the very sort of policy-oriented decision which we are unwilling to second guess,” Paul Mathias wrote for the majority. “The fact that Beloat frames her claim as simple negligence does not alter the fact that her claim ultimately calls into question the decision of the City to reconstruct the street instead of make smaller repairs.
However, in her dissent, Judge Margret Robb asserted the majority’s view of “discretionary function” immunity was too broad.
She held the evidence did not support the proposition that the city either made a conscious policy decision to forego repairs or engaged in an assessment and established a policy regarding repairs that might need to be made pending the start of the reconstruction project.
“In short, simply filling a pothole does not strike me as the kind of ‘piecemeal repair’ that was set aside in favor of the overall improvement project, assuming that the City in fact made the policy decision to eschew repairs of any kind,” Robb wrote. “It is not a matter of repaving several feet of a lane of traffic or realigning an intersection, for example.”
Estate – Order to Post Bond
Charles R. Ferguson v. The Estate of Lera V. Ferguson
A trial court wrongly ordered an heir to an estate to post a bond of more than $1.1 million for a claim he submitted as he sought to block the sale of the family farm.
The Indiana Court of Appeals reversed the bond order and remanded with instructions to order Charles R. Ferguson to post a bond of $60,000 – administrative costs to date – to stay the sale of the farm and for further proceedings.
Ferguson is one of two heirs to the estate of Lera v. Ferguson, who died intestate. His sister, Nancy Mosson, is the other heir and the estate’s personal representative. She disallowed Ferguson’s claim of more than $1 million for services he says he provided over Lera Ferguson’s lifetime, according to the record.
Charles Ferguson objected to the sale of the family farm, and Howard Circuit Court Special Judge David Grund ordered Ferguson to post a bond of $1,133,833.71, which represented the amount of his claim plus some administrative costs within 30 days to stay the sale of the farm.
Judge Cale Bradford wrote for the panel that Ferguson had a right to seek this interlocutory appeal under Appellate Rule 14(A), because the order required a payment of money.
“It strikes us as somewhat unjust that Charles should, in effect, be forced to post a bond to protect himself if he, understandably, does not wish to,” Bradford wrote. “… Ordering Charles to post a bond to cover his own claim does not protect him; if anything, it harms him by denying him the use of his money. We do not believe that this is what the General Assembly had in mind when drafting Indiana Code section 29-1-15-4. We conclude that the trial court abused its discretion in setting Charles’s bond.”
Mental Health – Civil Commitment
In the Matter of the Civil Commitment of T.D. v. Eskenazi Health Midtown Community Mental Health Center
An Indianapolis woman was improperly ordered committed for mental illness, but there was insufficient evidence she was gravely disabled, a panel of the Indiana Court of Appeals ruled. The decision further emphasizes the need for clear and convincing evidence of grave disability to support a commitment.
“The only evidence in the record supporting (T.D.’s) commitment was one isolated incident of unusual behavior, the fact that T.D. lived in a hotel, her psychiatrist’s recommendation and her refusal to seek treatment,” Judge Rudolph R. Pyle III wrote for the panel. “Because this did not constitute clear and convincing evidence to support her involuntary commitment, we reverse the trial court’s decision and remand to the trial court to vacate the commitment.”
According to the record, T.D., 51, had a history of treatment for bipolar disorder and previously had been committed. After she was released from care, the record says, she was preparing a presentation for a large event when she “flooded her hotel room with water and steam, intending to set off the fire alarms so that the fire department would come to the hotel and help her prepare for the event.”
This led to the hospital seeking emergency detention, which was granted due to the hotel incident and a doctor’s testimony regarding T.D.’s need for treatment. But the panel found this insufficient to prove grave disability as required under I.C. § 12-7-2-96. The ruling also cited the U.S. Supreme Court case Addington v. Texas, 441 U.S. 418 (1979).
“Our Indiana Supreme Court recently echoed the Addington Court’s caution against unnecessary commitments in Civil Commitment of T.K.,” Pyle wrote. “There, our supreme court disapproved of multiple Court of Appeals decisions affirming commitments and emphasized that there must be a higher standard of clear and convincing evidence to support a regular commitment.”
“The hotel incident was one isolated incident, and while T.D.’s actions at the hotel were unusual, she did not harm herself or anyone else. Because the only evidence the Hospital presented at trial did not constitute clear and convincing evidence to support T.D.’s commitment, we reverse the trial court’s decision and remand for the trial court to vacate the regular commitment,” the panel concluded.•