Indiana Court Decisions - Dec. 21, 2015-Jan. 5, 2016

January 13, 2016

7th Circuit Court of Appeals

Dec. 21

Criminal – Resentencing

Frederick T. Garner v. United States of America

13-3506, 15-3661

A man who appealed the parts of his Section 2255 proceeding that were denied, as well as his new criminal judgment entered on rehearing, will be getting a new sentencing hearing, the 7th Circuit Court of Appeals determined.

Describing Frederick T. Garner’s case as an “unnecessary procedural snarl,” the 7th Circuit ordered a full resentencing on his convictions of federal gun and drug crimes. He was originally sentenced to 322 months in prison, but later sought relief under 28 U.S.C. Section 2255, asserting ineffective assistance of counsel and that his sentence was enhanced using a state conviction that was later vacated, violating his due process rights.

The district court granted his motion regarding the enhancement aspect and ordered resentencing. But, at resentencing, the parties believed they could not question the effectiveness of Garner’s counsel based on the district court’s ruling in the Section 2255 matter. After he was resentenced to 248 months, Garner appealed.

Chief Judge Diane Wood noted this case “went off the rails” when Garner thought he needed to appeal the adverse portion of the district court’s August 2013 opinion.

Garner did not win in part and lose in part in 2013 when the court ruled on his Section 2255 motion, Wood wrote. He won, period, she said.

“The only relief that he wanted was resentencing, and resentencing is what the district court promised. But because of the misunderstanding that arose after Garner tried to appeal from the district court’s comments indicating the court saw no merit in Garner’s ineffective-counsel argument, Garner did not receive the full resentencing to which he was entitled,” she continued.

“All that remains is to dispose of the two appeals before us: No. 13-3506, which complains about the district court’s rationale in the Section 2255 case, and No. 15-3661, which is an untimely appeal from resentencing.”

Because Garner prevailed in the Section 2255 proceeding, he is not allowed to appeal in that case. And although his appeal in the criminal case is untimely, the government agreed not to challenge it. The judges vacated the new criminal sentence and remanded for full resentencing, at which both sides will be free to present all their arguments.

Indiana Supreme Court

Dec. 22

Civil Plenary – Section 1983 Claim/Dismissal

Randy L. Thornton v. State of Indiana, Ind. Dept. of Corr., Marion Co., Indiana, City of Indianapolis, Matthew Pietrzak, Stephanie Buttz, Eric Lee, and Dianna Johnson


The Indiana Supreme Court decided 3-2 to reverse the dismissal of a man’s claims arising out of his incarceration for a probation violation that allegedly occurred after his term of probation had expired.

In a per curiam decision, Chief Justice Loretta Rush and Justices Steven David and Robert Rucker voted to grant transfer to Randy Thornton’s appeal. He argued to the Supreme Court that his claim against four probation officers under 42 U.S.C. Section 1983 was improperly dismissed.

The trial court granted the defendants’ motion to dismiss, arguing Thornton failed to state a claim upon which relief could be granted because his claim was barred by the statute of limitations. The Court of Appeals affirmed, but sua sponte determined that Thornton failed to state a claim against the defendants, even assuming his claims were timely filed.

“Among other things, Thornton’s complaint alleged the Defendants, Marion County probation officials, took actions which constituted ‘unconstitutional deprivations of liberty and violations of due process,’” the opinion states. “Thornton’s complaint stated a claim for relief under § 1983.”

In granting transfer and reversing, the justices expressed no opinion on the merits of Thornton’s claim. They summarily affirmed the COA decision in all other respects.

Justices Brent Dickson and Mark Massa dissented without opinion.

Indiana Court of Appeals

Dec. 21

Criminal – Restitution

John Paul Garcia v. State of Indiana


An Indiana Court of Appeals judge dissented from his colleagues in a case in which the majority reversed the court ordered $3,600 in restitution for a coin sale that turned out to be fraudulent. The dissenting judge also raised public policy concerns about requiring victims to appear at sentencing hearings.

John Paul Garcia pleaded guilty to Class C felony forgery after he was arrested for allegedly selling fake Morgan dollar coins to Paul Bowman. Bowman gave Garcia $3,600 for 180 coins, but found out shortly after the transaction from a coin seller that the coins were not authentic.

Garcia was sentenced to 66 months in prison and ordered to pay Bowman $3,600. Garcia objected to the restitution order and Bowman did not appear at the sentencing hearing. The only support for the restitution order came from the probable cause affidavit.

Judges Melissa May and Terry Crone reversed the restitution order, declining to accept the probable cause affidavit as a valid basis for upholding the order.

“The State offered no other proof of the amount of Bowman’s loss, Bowman was not present at the sentencing hearing, and no additional evidence or testimony concerning this estimate was presented,” May wrote for the majority. They remanded with instructions to conduct a new hearing at which both the state and Garcia may present additional evidence bearing on the restitution due to Bowman.

Judge Cale Bradford dissented on this issue because the amount of restitution was never disputed and it was reported in documents of sufficient reliability that were made part of the record.

“I am also concerned about the public policy of requiring the sorts of evidence Garcia seems to advocate, i.e., requiring the victim to appear at sentencing or file an affidavit of loss in potentially every restitution case would be an unacceptable burden on crime victims, many of whom have already taken the time and trouble to appear at a trial and/or participate in a police investigation. Depending on the circumstances, appearing at a sentencing hearing may also be very traumatic for the victim. This strikes me as unnecessary and unwarranted re-victimization,” Bradford wrote.

He also believed requiring this additional evidence would be an unacceptable burden on the state’s criminal justice system.

All three judges did uphold Garcia’s 66-month sentence.

Dec. 22

Civil Plenary – Attorney Fees

I.A.E., Inc. and William Lazarus v. Edward R. Hall and Gerald M. Bishop


The Indiana Court of Appeals had harsh words for the three lawyers involved in a protracted, unprofessional legal battle over attorney fees owed in a breach of contract lawsuit against Lake Station, Indiana.

“The cavalier indifference exhibited by the attorneys of record as to res judicata, the trial rules, and rules of appellate procedure is astounding, and the parties involved have no one but themselves to blame for the flood of litigation that swallowed all civility and legal professionalism,” Judge Patricia Riley wrote.

IAE Inc. retained Gerald Bishop on a contingency fee basis to sue Lake Station in 2000. After Lake Station was awarded summary judgment, IAE rejected Bishop’s new contingency fee contract and hired Edward Hall to represent its appeal. Hall and IAE entered into a contingency fee agreement under which Hall would receive for 33.33 percent of any recovery. Summary judgment was reversed on appeal, and a jury later awarded IAE nearly $1 million, although the parties later stipulated to reduce that amount to just under $800,000.

When IAE couldn’t reach a new agreement with Hall, it hired William Lazarus to represent the company in its appeal against Lake Station.

In the midst of this, Hall filed a complaint for declaratory judgment seeking to be paid by IAE. Judge Jeffrey Dywan held the 2003 agreement between Hall and IAE to be enforceable and the amount of fees due to Hall will be left to the determination of Judge Gerald Svetanoff, who was handling the underlying litigation. The amount of fees payable to Bishop, Hall or their effect on the fees due to Lazarus would be determined by Svetanoff.

That judge held Hall is entitled to 33.33 percent, which will not be reduced by the 10 percent fee out of IAE’s recovery which is owed to Lazarus. Bishop’s fee was not before the judge, so Bishop filed a separate action for attorney fees, which was heard by Judge Calvin Hawkins. Hawkins then awarded Hall nearly $450,000 in fees and expenses, Bishop nearly $28,000 in fees and expenses, and Lazarus $13,825 in attorney fees.

The attorneys and IAE appealed, and the COA reversed with respect to Hall and Lazarus’ attorney fees based on res judicata grounds since Svetanoff had already ruled on the matter. They affirmed the calculation of Bishop’s attorney fees pursuant to the guidelines in Galanis v. Lyons & Truitt, 715 N.E.2d 858 (Ind. 1999), as well as the trial court’s grant of expenses. The COA remanded for further proceedings.

“Although this appeal reflects a degree of bitterness among the parties and counsel, incoherent and illogical tirades of accusations are out of place before an appellate tribunal. At times, the appellate briefs even read like an incoherent stream of consciousness without any proper legal foundation,” Riley noted.

“Indignation – whether righteous or not – is no substitute for a well-reasoned argument. We remind counsel that ‘an advocate can present his cause, protect the record for subsequent review and preserve professional integrity by patient firmness no less effectively than by belligerence or theatrics,’” she continued. “Here, all parties presented us with briefs and arguments woefully unbefitting an appellate advocate; none should be awarded appellate attorney fees.”

Dec. 23

Civil Tort – Nuisance/Property Damage

Raymond Kerr v. City of South Bend


A man who sued South Bend claiming that noxious gas from city sewer lines had been forced into his home may proceed with part of his lawsuit against the city.

The Indiana Court of Appeals reversed in part a trial court order granting summary judgment in favor of the city on homeowner Raymond Kerr’s lawsuit that claimed nuisance, trespass, negligence and inverse condemnation resulting in injury to his person and his property. Kerr sued the city in 2012 after years of complaints about odors and fumes from a sewer line under his home that also conveyed waste from a New Energy Corp. ethanol-manufacturing plant. New Energy has since filed for bankruptcy protection.

“The trial court granted summary judgment in favor of the City, concluding that Kerr’s claims were time-barred and that he was owed no duty. Finding that the trial court erred as to this latter point, we nevertheless find that Kerr’s claims are barred by the statute of limitations insofar as they relate to injury to his health,” Judge John Baker wrote for the court. “We do find, however, that a portion of Kerr’s claims may proceed insofar as they relate to damage to his property. Accordingly, we affirm in part, reverse in part, and remand for further proceedings.”

Baker wrote the city owed a duty to Kerr to maintain its own sewer line, and whether it did so is not a question that can be disposed at the summary judgment phase.

But because Kerr acknowledged possible health problems associated with the odors as early as 2005, the lawsuit was filed more than seven years after he became aware of them, so those claims are time-barred.

“On remand, Kerr’s claim against the City may proceed insofar as it relates to damage to or loss of the use and enjoyment of his property beginning 180 days prior to the filing of his notice of tort claim,” Baker wrote.

Dec. 29

Post Conviction – Plea Agreement/Adequate Counsel

Derrell Woods v. State of Indiana


Two typewritten letters and handwritten notes between a now-deceased defense attorney and a former prosecutor have divided the Indiana Court of Appeals over whether a plea agreement had actually been negotiated.

Derrell Woods convinced the Court of Appeals majority that the prosecutor offered to reduce his offense in exchange for a guilty plea but his defense counsel did not tell him about it. Also, the panel found that if Woods had known about the offer, he would have accepted.

Woods, who was 15 at the time of the offense in 2003, is currently serving a 45-year aggregate sentence after being convicted of Class A felony robbery with serious bodily injury. He claimed the prosecutor had proposed dismissing the Class A felony robbery charge and a carjacking charge in exchange for his plea to Class B felony robbery, Class D felony auto theft and Class D felony possession of cocaine with sentencing left to the trial court’s discretion.

During the post-conviction relief hearing, Woods submitted two letters dated June 23, 2003, that outline the plea offer. One letter includes handwritten notes, some illegible by the defense attorney, Brent Zook, while the other letter is clean and signed by the prosecutor John Maciejczyk.

In rejecting Woods’ petition for relief, the lower court described the first letter as non-discernable hearsay. The Court of Appeals agreed with the analysis of the first letter but noted the second letter is clear and supports Woods’ assertion that Zook did not alert his client to the prosecutor’s offer.

Pointing to Lafler v. Cooper, 132 S. Ct. 1376 (2012), Judge Edward Najam wrote for the majority, “…here Woods’ testimony that Zook did not extend the plea offer to him, absent any evidence to the contrary, is sufficient to prove prejudice. Indeed, Woods’ testimony in support of the post-conviction petition correlates with both his initial confession to police and his theory at trial that he was guilty of Class B, not Class A, felony robbery.”

However, Judge Melissa May dissented, arguing Woods did not overcome the presumption that counsel provided adequate service. She disputed that the evidence shows Zook did not communicate the plea offer to Woods.

 “…[E]ven presuming there was a valid plea offer from Class B felony robbery, the only evidence that Zook did not communicate such offer to Woods came from the testimony of Woods himself,” May wrote. “The post-conviction court was not required to believe Woods’ testimony about that fact, even if his testimony was ‘undisputed.’”

The Court of Appeals reversed the denial of Woods’ amended petition for post-conviction relief and remanded with instructions to proceed as if Woods had just received the plea offer. If Woods accepts the offer but the trial court rejects it, then Woods should have a new trial.

Dec. 30

Criminal – Double Jeopardy

Charles S. Whitham v. State of Indiana


Although a man convicted in a brutal attack on his grandmother lost his arguments on appeal, the Indiana Court of Appeals sua sponte reversed five of his six convictions stemming from the attack for double jeopardy reasons.

On July 31, 2012, Charles Whitham attacked and nearly killed his grandmother, Velma Brown, in her bedroom by choking her to the point she passed out. He was charged with Class A felony attempted murder, Class B felony aggravated battery, Class B felony criminal confinement, two counts of Class C felony battery and one count of Class D felony strangulation.

At his trial, Brown testified as to two other attacks on her by Whitham previous to the instant offense. A state witness, an expert in clinical forensic medicine, testified that based on the photographs of Brown’s injuries, it appears that strangulation had occurred by an object, such as a cord. Also, the state was allowed to introduce evidence of a phone conversation Whitham had with his mother while incarcerated for the latest attack on his grandmother. In the conversation, he acknowledged telling his mother to tell Brown that he would move to Alabama if she didn’t cooperate with prosecutors, noting that she was the state’s “prime witness” and without her “they can’t do sh-t.”

Whitham appealed his convictions citing the testimony noted above as requiring reversal of his convictions and 36-year sentence.

The appellate court rejected his arguments on appeal, noting that in part, he was asking the court to reweigh the evidence, which it cannot do. The evidence of the prior attacks on Brown were allowed to show motive for the July 31 attack, Judge Edward Najam wrote. And the phone call with Whitham’s mother showed his consciousness of guilt, which made it relevant.

But, sua sponte, the judges reversed all of Whitham’s convictions except the attempted murder conviction because the remaining convictions are all factually lesser-included offenses of attempted murder. His sentence is not affected by the reversal. The judges remanded for the trial court to vacate the lesser-included offenses.

Civil Plenary – Open Door Law

Risha D. Warren v. Board of School Trustees of the Springs Valley Community School Corporation


The Indiana Court of Appeals reversed summary judgment in favor of a southern Indiana school board after finding its holding of a public meeting at 2:30 a.m. regarding the employment of a teacher violated the Open Door Law.

The Springs Valley Community School Corp. in Orange County posted notice of a 5 p.m. executive session followed by a 7 p.m. public meeting regarding the employment of second-grade teacher Risha Warren. The school superintendent recommended the school board fire Warren after she allegedly threatened to “kill” a student who performed poorly on a test. No one believed the threat was credible.

The public notice of the meeting also said the public hearing could start immediately following the executive session, or whichever came later – the 7 p.m. time or end of the executive session.

Warren, her attorney and a union representative attended the executive session and waited in a separate room during deliberations. At some point, the school board’s attorney came to the room where Warren was waiting, but no one ever notified Warren that the executive session ended and a public vote was held at approximately 2:30 a.m. The school board voted 4-0-3 to terminate her contract.

She sued, alleging violations of the Open Door Law, breach of contract and defamation. She claimed if she had been at the meeting she could have testified as to why two of those who voted to fire her should not have been allowed to vote.

The trial court granted summary judgment in favor of the school board on her claims.

“We conclude the public notice did not satisfy the Open Door Law’s notice requirement because the School Board convened the meeting at a time unreasonably departing from the time stated in the notice,” Judge Margret Robb wrote. “Indiana Code section 5-14-1.5-5(a) requires public notice of the ‘date, time, and place of any meetings,’ and ‘whichever comes later’ is not a concrete ‘time’ from the public’s perspective.”

Even though some members of the public did attend, holding a public meeting at 2:30 a.m. “is unreasonable and contrary to the purpose of the Open Door Law,” she continued.

The judges reversed summary judgment on the Open Door Law violation claim and remanded for further proceedings. They affirmed summary judgment for the school board on Warren’s defamation and breach of contract claims as well as the denial of her motion to compel, as the information she sought was not discoverable.

Dec. 31

Collision/Excluded Testimony

Carl Summerhill v. Craig Klauer


The Indiana Court of Appeals reversed a jury ruling in favor of a motorcyclist who collided with a moped driver trying to seek shelter before a rainstorm and ordered a new trial.

Carl Summerhill was riding his moped when he said he saw storm clouds and decided to turn left into a parking lot and take shelter. As he turned, his moped collided with Craig Klauer’s motorcycle, who was trying to pass Summerhill on the left. The impact caused Summerhill to end up on the ground, severely injuring his hip.

Summerhill sued Klauer in 2012, alleging that he had failed to maintain reasonable care and control in operating his motorcycle, he was following too closely and had driven at an unsafe speed. Summerhill’s accident reconstructionist was not allowed to testify after Klauer objected, but Klauer’s accident reconstructionist was allowed to testify. Klauer maintained Summerhill turned suddenly and had his right turn signal on. The jury returned a verdict in favor of Klauer.

The Court of Appeals reversed, finding the trial court erred in granting Klauer’s motion to exclude the testimony of Summerhill’s accident reconstructionist, Timothy Spencer.

“Contrary to Klauer’s assertion, Rule 702 does not dictate that an expert’s opinion must be excluded in any case where there is evidence in the record that tends to contradict that opinion. Opposing parties can be expected to present conflicting expert testimony when advocating their respective positions and Rule 702 contains no general even-handedness requirement. Accident reconstruction commonly relies on witness statements and Klauer was free to make the jury aware of this and probe the accuracy of Spencer’s conclusions insofar as they relied on those statements on cross-examination. Furthermore, all of the evidence Spencer relied on in reaching his conclusions was before the jury,” Judge John Baker wrote. “Simply put, Spencer was qualified to reconstruct the accident and give his opinion as to its cause, his opinion would have been helpful to the jury, and the exclusion of his testimony undoubtedly prejudiced Summerhill’s case.”

The Court of Appeals also decided that at the retrial, the court should reconsider whether to admit Summerhill’s evidence of 20-year-old past convictions of Klauer’s to show his character for truthfulness; and that the trial court erred in excluding testimony of a doctor who would have testified as to Summerhill’s likelihood of developing post-traumatic arthritis.

Indiana Tax Court

Dec. 31

Tax – Abatement/Ordinance

Wells County Assessor v. Alexin, LLC


The Indiana Board of Tax Review’s final determination that the city of Bluffton’s Common Council waived a company’s compliance with certain statutory requirements for its 2013 personal property tax abatement deduction is contrary to law, Indiana Tax Judge Martha Wentworth ruled.

Alexin LLC operates an aluminum production and manufacturing business in a part of Wells County designated as an economic revitalization area. The Common Council granted it a 10-year abatement of taxes on its personal property. But due to an administrative oversight, Alexin did not timely file any of its tax abatement forms for the 2013 tax year with the Wells County Assessor’s Office. The assessor disallowed the abatement deduction, which led to Alexin successfully requesting an ordinance from the Common Council to waive the late filing of the forms.

“Upon review of Resolution 2013-9, the Court finds (the ordinance) never refers to Alexin’s personal property tax return, but specifically waives only the untimeliness of Alexin’s Forms CF-1,” Wentworth wrote.

“The parties do not dispute that Alexin’s personal property tax return, its Forms CF-1, and its Form 103-ERA are separate and distinct documents. Furthermore, each document must be timely filed to obtain a personal property tax abatement deduction.

“While the Court is sympathetic to Alexin’s misfortune, the record evidence, the parties’ arguments, and the applicable rules of construction require the Court to find that the Council’s Resolution 2013-9 did not waive the non-compliance of Alexin’s personal property tax return. The Council’s Resolution waived only the non-compliance of Alexin’s Forms CF-1 and, therefore, the Indiana Board’s final determination is contrary to law on this basis,” Wentworth wrote in reversing the final determination.•


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