Indiana Court Decisions – Feb. 17 to March 1, 2016

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7th Circuit Court of Appeals

Feb. 23

Civil – Social Security Disability Benefits

Kathy Ann Stark v. Carolyn W. Colvin


The United States 7th Circuit Court of Appeals remanded a case to the Social Security Administration after finding the administrative law judge’s credibility analysis was flawed.

Kathy Stark had applied for disability benefits due to her degenerative disc disease in 2009, but was denied. The ALJ said she should be able to work six hours of an eight-hour day and still perform her duties, despite what she said was debilitating back pain. Stark appealed to the appeals court saying the ALJ misconstrued her testimony about her pain, used boilerplate language to justify it, and disregarded her work history.

Circuit Court Judge Daniel A. Manion wrote all three points of Stark’s arguments were valid. He said the ALJ failed to consider objective evidence that supported Stark’s claims of disabling pain, including diagnoses of radiculopathy and degenerative disc disorder, as well as strong pain medication and multiple surgeries.

Also, testimony of severe pain cannot be disregarded just because it is not supported by objective medical evidence.

The ALJ also used boilerplate language which, while not an automatic remand, meant that the ALJ was basing Stark’s credibility finding on her ability to work. The ALJ first considered what Stark could do before what she couldn’t do.

Finally, Manion said the ALJ disregarded Stark’s work history. A claimant with good work record is entitled to substantial credibility when claiming inability to work because of a disability, and Stark had that. She had several operations to try to continue to work, and experienced significant pain while trying to work.

Feb. 24

Criminal – Sentencing Enhancements

United States of America v. Christopher Seals


The 7th Circuit Court of Appeals upheld a man’s convictions for armed bank robbery, brandishing a firearm during a crime of violence and possession of a firearm after a felony conviction but vacated his sentence due to the District Court’s erroneous application of two different sentencing enhancements.

Christopher Seals was one of three men to rob a bank in Fort Wayne on Feb. 14, 2013. He was a later arrested after he voluntarily met with police in May.

Seals appealed the convictions and 272-month sentence, arguing the District Court introduced improper propensity evidence. Northern District of Illinois Judge Rebecca Pallmeyer, sitting by designation, wrote the decision in the case. She said there was more than enough evidence to convict Seals even without the testimony from a Fort Wayne officer, which Seals said was improper evidence. Seals had admitted to loading the gun at the robbery, and his DNA was discovered on the ammunition.

Also, Seals was identified as one of the robbers by a man the three who robbed the bank met later, and DNA was found on a ski mask just like the ones the robbers used.

However, Pallmeyer said the court should not have applied the sentencing enhancements it did in the case. She said the District Court made no findings that the offenses of conviction which all stemmed from the robbery were connected to the applied enhancements. The District Court made no factual findings regarding a car chase that happened on March 20, for which one of the enhancements was applied. She said there was no proof Seals was in or aided the chase.

Feb. 29

Civil – Frivolous Lawsuit/Sanctions

Christopher Paul White and Reffco II LLP v. George Keely, Joyce Morris, Tricia Rake, Terry Scott and Michael Maurer


The 7th Circuit Court of Appeals ruled a man’s claim that the National Bank of Indianapolis covered up unauthorized transfers is frivolous and said the bank can pursue sanctions against the man because of it.

NBI filed a lawsuit in state court against Christopher Paul White for check deception, check fraud, criminal mischief and defrauding a financial institution, winning that case in summary judgment. In June 2008, the state filed criminal action against White, and a jury convicted him on three counts, one of check fraud, one of fraud on a financial institution and one of theft. The Indiana Court of Appeals upheld his conviction.

White was the founder of the bankrupt development firm Premier Properties USA Inc. Reffco II L.P. was a holding company.

Shortly after entry of the state court civil judgment against White in 2008, he filed for bankruptcy protection. NBI initiated an adversary proceeding, which was granted, saying the charges White had racked up against the institution, which amounted to more than $382,000 in returned check fees, were a nondischargeable obligation.

In March of 2014, White filed a civil complaint against NBI saying the bank committed unauthorized transfers to his accounts to avoid them from overdrafting, which caused others to overdraft and caused him to incur fees. White said the bank omitted information in its reports about the timing of the deposits and withdrawals, which caused him to overdraw, and then gave its reports to the state prosecutor, which charged him with his crimes. NBI moved to dismiss, saying White detrimentally relied on the allegedly false reports, or that the allegedly false reports caused White’s damages.

District Court Judge Rebecca Pallmeyer, sitting by designation from the Northern District of Illinois, wrote the decision in the case and said there was no way White’s charges can be from NBI’s alleged actions. The allegedly false reports were not created until after the money transfers White is challenging took place.

Also, White wrote a $500,000 check from an account he knew had insufficient funds, so any statement that he had relied on false reports is not right. White also brought up on appeal that the bank’s allegedly false reports prevented him from being able to continue his business as a real estate developer, but new arguments brought up for the first time on appeal cannot be ruled on.

Pallmeyer found that White’s appeal is frivolous and sanctionable because White utterly failed to allege NBI employees’ violation caused him any harm. She said White made an improper collateral attack on his criminal conviction, passing the blame on innocent parties.

Indiana Supreme Court

Feb. 26

Criminal – Sex Offender Registration/Ex Post Facto

Sidney Lamour Tyson v. State of Indiana


State of Indiana v. Scott Zerbe


The Indiana Supreme Court affirmed two men had to register as sex offenders after moving from other states, saying the requirement did not violate the Indiana Constitution’s prohibition against ex post facto laws.

Sidney Lamour Tyson moved to Indiana in 2009, and in 2014 he was pulled over for driving with an expired license plate. The officer found Tyson had been adjudicated a delinquent at 13 for aggravated sexual assault and indecency with a child. Tyson had registered as a sex offender in Texas, but not Indiana. Tyson was charged with the Class D felony failure to register as a sex offender.

At trial, Tyson filed a motion to dismiss the charge. Before 2006, he would not have had to register as a sex offender in Indiana, but in 2006, Indiana law changed. Tyson said because his offense occurred before 2006, he did not have to register as a sex offender in Indiana, an ex post facto violation. The court denied his claim.

The Indiana Court of Appeals upheld the trial court, saying the ex post facto clause was to give fair warning of what conduct will result in criminal procedures, and Tyson had sufficient warning. The COA also said because he was required to register in Texas until 2014, he remained a sex offender upon relocation. Tyson sought a transfer to the Indiana Supreme Court, saying the relevant date for ex post facto analysis is the commission of the offense, not relocation. The Supreme Court granted his transfer.

Scott Zerbe was convicted of criminal sexual conduct with a minor in 1992, before Indiana or Michigan had sex offender registry laws. Zerbe moved to Indiana in 2012, and petitioned the trial court to take him off the sex offender registry in Indiana. He said because he committed his crime before 2006, he should not have to register. The trial court granted his request.

The COA overturned the ruling in a split decision, and Zerbe asked for transfer to Indiana Supreme Court, which was granted. The Supreme Court reversed the trial court, finding no ex post facto violation because Zerbe was under an obligation to report and the Indiana statute did not impose any additional punishment.

Supreme Court Justice Mark Massa wrote the decisions in both cases and applied the ruling in Tyson to the Zerbe appeal. He wrote the state posed no ex post facto violation as applied to Tyson. Massa said Tyson was required to register in Texas years before Indiana’s statutory definition was amended to include him, and it was not an undue burden on him to register in Indiana like he did in Texas. He merely maintained his offender status across state lines.

Zerbe’s case was slightly different than Tyson’s, Massa said, because there was no sex offender registration law in Michigan when Zerbe committed his offense, but Massa said that did not make a difference. Massa said it’s not Zerbe’s crime that compels him to register, but the Michigan registry requirement. Michigan courts have determined its act can apply retroactively to offenders, and Indiana is in no place to dispute that.

Because Zerbe was required to register as a sex offender for 25 years, he will be registered in Indiana until 2017.

Also in the Tyson case, Tyson said he did not fit the definition of a sex offender under Indiana Code 11-8-8-5. He argued the statute meant a sex offender must be a person who is required to register as a sex or violent offender in any jurisdiction and should be a child who has committed a delinquent act. The court disagreed, saying the code meant a person who is required to register as a sex or violent offender, including a child who has committed a delinquent act. Massa said Tyson’s reading of the statute is far too narrow. “Reading subsections together as one list of requirements would lead to an absurd result,” Massa wrote.

Indiana Court of Appeals

Feb. 18

Criminal – Drugs/Motion to Suppress

David W. Gerth v. State of Indiana


The Indiana Court of Appeals reversed a man’s convictions after finding the probable cause affidavit did not contain enough information to support issuing a search warrant.

An officer received information from a confidential informant that David Gerth was selling marijuana at his house, but that CI was “deactivated” because he had not completed all of the obligations required of him before his case was adjudicated. A month later, the officer received another anonymous tip through an email that Gerth was dealing marijuana and obtained a search warrant.

The officer found marijuana on the premises in baggies and jars, as well as marijuana growing equipment, and arrested Gerth.

Gerth filed a motion to suppress all the evidence found in his residence, saying the initial warrant issued was not supported by probable cause. After the trial court found him guilty of dealing in marijuana, a Class C felony, and maintaining a common nuisance, a Class D felony, he appealed.

The Court of Appeals court said the probable cause affidavit in the case did not contain enough information to support issuance of the search warrant for the property. It did not include the fact that the CI was deactivated, and did not establish the credibility of the two confidential informants.

Indiana law holds that two informants who corroborate each other’s’ stories can be taken as credible, but only if one of them has established credibility. Neither one of them did.

Therefore, the appeals court concluded the trial court erred in introducing evidence recovered from Gerth’s residence into evidence, and reversed Gerth’s convictions.

Feb. 24

Civil Plenary – Contract/Public Bidding

Graphic Packaging Int’l Inc; Rock–Tenn Converting Co. and Cathy Weinmann v. City of Indianapolis and the City of Indianapolis Public Works


The Indiana Court of Appeals has reversed summary judgment in favor of the city of Indianapolis and the Board of Public Works regarding a controversial contract with Covanta to create a trash and recycling center.

The appeals court remanded the case to Marion Superior Court, instructing the court to grant summary judgment in favor of the plaintiffs, Graphic Packaging International, Rock-Tenn Converting Co. and Cathy Weinmann.

The plaintiffs filed a complaint against the city for not engaging in a public bidding process when changes were made in 2014 to the agreement between Covanta and then Mayor Greg Ballard’s administration regarding waste disposal. The amendment to the original contract allowed Covanta to create and operate an advanced materials recovery center to sort recyclables from city trash.

Indianapolis Mayor Joe Hogsett announced the same day the Court of Appeals heard arguments in the case that the contract was temporarily suspended.

In granting summary judgment for the city, the trial court said the plaintiffs did not have standing to sue and if they did, the Waste Disposal Statute governing the transaction did not require public bidding. Also, the contract did not exceed 40 years in contravention of the Waste Disposal Statute.

The Court of Appeals said the plaintiffs did have right to action and standing under the public standing doctrine.

The city argued that persons invoking public standing must have more than a generalized interest, but the court disagreed, citing an Indiana Supreme Court case, State ex rel. Cittadine v. Ind. Dept. of Transportation, 790 N.E2d 978, 980 (Ind. 2003).

The Court of Appeals also said the city violated Indiana Code 36-9-31-4 when it did not enter into public bidding, request for proposals and public notice/comment/hearing provisions. The city claimed its changes to the agreement with Covanta were governed under I.C. 36-9-31-3, which has much more general language and does not require a public bidding process.

Section 3 is for waste disposal contracts, but not design, construction and operation of a facility, which is included under section 4. The COA said section 4 is more applicable because the changes required Covanta to build a new facility. Also, the court said section 4’s more specific language takes precedence over section 3’s general language. Finally, the city said the changes to the agreement were covered under section 3 because the city was merely granting Covanta permission as a landlord to build its own facility, but the appeals court said that didn’t matter, because any type of building at all is covered under section 4.

Also, the appeals court found the contract violates I.C. 36-9-31-3(5), which provides that contracts or agreements relating to the collection, disposal or recovery of byproducts from waste may not exceed 40 years. The city’s waste disposal agreement with Covanta and its predecessor was for a total period of 43 years.

Criminal – Credit Time

Michael B. Purdue v. State of Indiana


The Indiana Court of Appeals reversed and remanded a man’s sentence for theft and resisting law enforcement after ruling he should have been granted credit time.

Michael Purdue was arrested for Level 6 felony theft and Class A misdemeanor resisting law enforcement Jan 29, 2015, and released two days later without being charged. On Feb. 22, he was arrested again and released after being charged with three new counts of theft. On March 10, he was arrested a third time and charged with Level 6 felony possession of narcotic drug, Class A misdemeanor trespass and Class A misdemeanor possession of paraphernalia. He was held in the Bartholomew County Jail for 128 days.

On June 8, Purdue entered a plea agreement, pleading guilty to one theft charge and a possession charge, but the possession charge was changed to resisting law enforcement just before the agreement was signed.

In sentencing, the state claimed he was not eligible for the 128 days he spent in jail waiting for his plea agreement because he was not in jail for the charges he pleaded to, but the charges that were dropped, the possession charge among them.

However, the Court of Appeals said Purdue should have been eligible for the 128 days credit. It said that Purdue was not only in jail awaiting trial and sentencing on the possession and other charges that were dropped, but on the resisting law enforcement charge as well. An additional warrant for the resisting charge was never issued, but it didn’t need to be because Purdue was already in jail.

The COA said Purdue was arrested for the resisting law enforcement charge before he was arrested for the charges that were eventually dropped, so all three causes were pending during his confinement. That also means that all three causes were not wholly unrelated. If they had been, Purdue would not have been eligible for his credit.

The court ruled Purdue should be granted credit for is 128 days already served, plus any other credit time due, reversed the sentencing order and remanded the case to Bartholomew Circuit Court.

Criminal – Stalking/Double Jeopardy

Billy Luke v. State of Indiana


The Indiana Court of Appeals reversed and remanded a man’s conviction of stalking as a Class C felony to Dearborn Superior Court because of double jeopardy violations. The court did uphold invasion of privacy charges and the revocation of his probation.

Billy Luke had a long history of public indecency, stalking and invasion of privacy charges over two years. He exposed himself to four girls who worked at the pharmacy across the street and violated a no-contact order by standing in his driveway and intimidating them. He was convicted in separate trials of three counts of Class D felony invasion of privacy; of one count of stalking as a Class C felony, and five counts of criminal mischief as Class A misdemeanors. He was sentenced altogether to 10 years in the Department of Correction, as many of those sentences were to be served concurrently.

Luke contended that his convictions for invasion of privacy and stalking violated double jeopardy principles, and the COA agreed. It said there is reasonable probability the jury in one case used the same facts to reach its convictions as were used to convict Luke of the charges in the other case, and that constituted double jeopardy. Because the invasion of privacy charge was tried first, the stalking conviction was reversed.

The COA found the court did not abuse its discretion in admitting evidence of other bad acts at the trial. The evidence was not prejudicial.

The COA also determined there was sufficient evidence that Luke committed the invasion of privacy charges as Class D felonies. He stood outside and clearly stared at the women as they entered the pharmacy and refused to come inside when told he needed to stop.

The trial court also did not abuse its discretion in instructing the jury on the definition of harassment because Luke’s no-contact order specifically precluded harassment. In order for the jury to come to the decision, they needed the definition of harassment.

Finally, the COA affirmed the revocation of Luke’s probation, finding that the evidence showed that he did violate his probation through the acts he committed.

Feb. 29

Civil Tort – Defamation/Summary Judgment

Town of West Terre Haute v. Jody Roach


The Indiana Court of Appeals reversed a decision denying a town summary judgment after a former employee claimed defamatory damages when the town fired her after completing an audit.

The COA remanded the case to the trial court, ordering it to grant summary judgment in favor of West Terre Haute.

Judy Roach was an employee of the town of West Terre Haute when during an audit, the State Board of Accounts found around $360,000 was missing. After an investigation by the SBOA, the clerk-treasurer and deputy clerk-treasurer were found liable in 2011 for the missing cash. The audit also found Roach had cashed personal checks from money paid by customers on more than one occasion. Roach’s personal assets were later unfrozen, the garnishment of her assets was dissolved and criminal charges were not filed against her after the investigation was completed. She was terminated in August 2011.

However, almost two years later, Roach filed a complaint against the state of Indiana, the SBOA and the town alleging defamation, negligence, malicious prosecution of a civil action and wrongful discharge and damage to reputation, seeking damages.

All defendants moved for summary judgment, and it was granted for everyone but the town. The town moved to certify the trial court’s order for interlocutory appeal; the court granted the motion and the COA accepted jurisdiction.

Roach alleged that the town’s failure to hold a pre-termination or name clearing hearing supported her claim for money damages. Her argument was based on Article 1, Section 12 of the Indiana Constitution, which says among other things “justice shall be administered freely, and without purchase; completely, and without denial; speedily, and without delay.” Roach said that didn’t happen, but the COA said the state constitution does not provide a specific remedy for violations of state constitutional rights. It found the trial court erred by denying the town summary judgment on that point.

Also, the COA said the trial court erred by saying there is material fact precluding summary judgment. Roach claimed defamation, but the COA said there were no grounds for it. Roach needed to include specific examples of defamatory statements in her suit, and did not. The statements she included were not defamatory, therefore there was no case and summary judgment should have been granted to the town.

Post Conviction – Public Defender

William Cox v. State of Indiana


The Indiana Court of Appeals reversed the grant of the state’s motion for summary denial of man’s request for post-conviction relief because his case was not forwarded to the State Public Defender’s Office.

William Cox was convicted of being a habitual traffic violator on Feb. 6, 1987, with his license to be suspended for 10 years. On April 23, 1999, Cox was convicted of operating a vehicle as a habitual traffic violator, sentenced to 2 ½ years and had his driving privileges suspended.

On Feb. 24, 2015, Cox filed a pro se handwritten petition for PCR, saying he should not have been charged with operating a vehicle as a habitual traffic violator because his license was no longer suspended as it was more than 10 years since his first conviction. He later filed a formal PCR petition stating he wanted a state public defender to represent him. The court did not order a copy of his petition sent to the office.

The state filed a motion for summary denial, saying Cox did not have a claim for which relief could be granted, because in 1993, Cox was convicted of operating a vehicle after being adjudged a habitual traffic offender, and his driving privileges were suspended for life. The trial court granted the state’s motion.

Cox appealed, saying the court did not send his application for represented to the public defender’s office. The COA said failure of a post-conviction court to refer a petition to the State Public Defender’s office with proper proof of indigence, as Cox’s had, is automatic grounds for reversal and remand, and did so.

The COA told the post-conviction court to forward Cox’s petition to the state public defender.•

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