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Opinions May 25, 2017

May 25, 2017

Indiana Court of Appeals
Caleb Sullivan v. State of Indiana
52A02-1610-CR-2499
Criminal. Affirms Caleb Sullivan’s convictions for Level 4 felony burglary, Level 6 felony conspiracy to commit dealing in a controlled substance and level 6 felony theft. Finds there is sufficient evidence to support Sullivan’s convictions for burglary and theft. Also finds no double jeopardy violation.

Town of Ellettsville, Indiana Plan Commission and Richland Convenience Store Partners, LLC. v. Joseph V. DeSpirito
53A01-1611-PL-2559
Civil plenary. Reverses the Monroe Circuit Court’s grant of Joseph V. DeSpirito’s motion for summary judgment and denial of all other motions. Finds the court’s conclusion the Town of Ellettsville Plan Commission erred in approving Richland Convenience Store Partners LLC’s petition because DeSpirito had not consented to relocation of an easement was erroneous. Remands with instructions to enter summary judgment for the plan commission and RCSP.

Dontez Demitri Bryant v. State of Indiana (mem. dec.)
82A01-1701-CR-41
Criminal. Affirms Dontez Braynt’s conviction of Level 1 felony attempted murder and his sentence to 35 years of incarceration. Finds Bryant has not established the state failed to produce sufficient evidence to sustain his conviction or that his 35-year sentence in inappropriate in light of the nature of his offense and his character.  

Karen Ellen Fielder v. Brandon Eric Fielder (mem.dec.)
49A02-1609-DR-2038
Domestic relation. Affirms the Marion Superior Court’s modification of Karen Fielder’s parenting time with her minor children. Finds the trial court did not abuse its discretion when it modified her parenting time.

Kayla M. Youngs v. State of Indiana (mem. dec.)
39A01-1701-CR-116
Criminal. Affirms Kayla M. Youngs’ sentence to an aggregate of three years in the Indiana Department of Correction with placement in the Madison Correctional Facility GRIP Therapeutic Community Program following her guilty plea to two counts of Level 5 felony dealing in a narcotic drug. Finds the Jefferson Circuit Court acted within its discretion in sentencing Youngs. Also finds Youngs’ sentence is not inappropriate in light of the nature of the offenses and her character.

Theodore Lincoln Jones v. State of Indiana (mem. dec.)
48A02-1612-CR-2814
Criminal. Affirms Theodore Jones’ sentence to an aggregate of 40 years after he pleaded guilty without a plea agreement to Level 1 felony child molesting and Level 5 felony child exploitation. Finds the Madison Circuit Court did not abuse its discretion in failing to consider Jones’ proposed mitigating circumstances. Also finds Jones’ sentence is not inappropriate.

Nathaniel Wilson v. State of Indiana (mem. dec.)
49A04-1609-CR-1984
Criminal. Affirms Nathaniel Wilson’s convictions of Level 1 felonies child molesting and attempted child molesting. Finds the Marion Superior Court did not deny Wilson the right to an impartial jury.

Billie K. Hoots v. State of Indiana (mem. dec.)
49A04-1611-CR-2539
Criminal. Affirms Billie K. Hoots’ conviction for public intoxication as a Class B misdemeanor. Finds there was sufficient evidence to sustain Hoots’ conviction.

Edwin Blinn Jr. v. Rachel Marie Fern (mem. dec.)
27A05-1701-SC-49
Small claims. Affirms the denial of Edward Blinn Jr.’s motion to continue a damages hearing. Finds the Grant Superior Court found that Blinn did not establish good cause, and nothing in the record warrants reversal of that decision.

Richard Barber v. State of Indiana (mem. dec.)
49A05-1608-CR-1847
Criminal. Affirms Richard Barber’s conviction of Class B misdemeanor possession of marijuana and leaves intact a jury verdict concerning operating a vehicle while intoxicated as a Class A misdemeanor. Vacates the OVWI felony elevation and the habitual offender adjudication. Finds the Marion Superior Court erred in conducting a bench trial on certain allegations without obtaining a valid jury trial waiver. Remands with instructions.

Harvey Stephens v. State of Indiana (mem. dec.)
45A04-1612-CR-2927
Criminal. Reverses Harvey Stephens’ six-year aggregate sentence following his guilty pleas to theft and attempted theft as Class D felonies. Finds Stephens’ sentence is of such dubious validity that it constitutes fundamental error. Remands for a new sentencing hearing predicated upon compliance with Indiana Code 35-38-1-8 and 35-38-1-12.

Barbara Jo Woolley v. State of Indiana (mem. dec.)
83A05-1612-CR-2765
Criminal. Affirms Barbara Jo Woolley’s sentence to an aggregate of 43 years’ imprisonment after she pleaded guilty to four counts of Level 3 felony neglect of a dependent. Finds the Vermillion Circuit Court did not err in ordering consecutive sentences or in its findings of aggravating factors.

Marrill Getche v. Barbara E. Kimbler (mem. dec.)
61A04-1611-PO-2713
Protective order. Reverses the Parke Circuit Court’s denial of a motion to correct error regarding the issuance of an order of protection against Marrill Getche and in favor of Barbara Kimbler. Finds there was insufficient evidence for the trial court issue the protective order.

Shaquille Washington v. State of Indiana (mem. dec.)
49A05-1610-CR-2400
Criminal. Affirms Shaquille Washington’s conviction for armed robbery as a Level 3 felony. Finds the Marion Superior Court properly admitted the evidence seized pursuant to a search incident to a valid arrest.

Florence Speichert v. Carl Speichert (mem. dec.)
45A05-1610-DR-2451
Domestic relation. Affirms the Lake Superior Court’s enforcement of Carl and Florence Speichert’s marital property agreement. Finds the evidence supports the trial court’s findings of fact and conclusion that the agreement constituted a reconciliation agreement supported by adequate consideration. Also finds the trial court did not err in admitting parol evidence.

Richard Kulbieda v. Sara Alford and Cory Day (mem. dec.)
75A05-1609-SC-2100
Small claims. Affirms the small claims court’s judgment in favor of Sara Alford and Cory Day. Finds the small claims court properly ordered Richard Kulbieda to pay Alford and Day the sum of their security deposit and attorney fees. Also finds Alford and Day are not entitled to an award of appellate attorney fees.

Trevor Nash Tice v. State of Indiana (mem. dec.)
15A05-1701-CR-171
Criminal. Affirms the Dearborn Circuit Court’s order for Trevor Tice to serve his entire previously suspended sentence of four years and 335 days in the Department of Correction, with credit for time served. Finds the trial court did not abuse its discretion.

Jacquez I. Lewis v. State of Indiana (mem. dec.)
79A04-1610-CR-2529
Criminal. Affirms Jacquez Lewis’ convictions of Level 5 felony dealing in a narcotic drug, Level 6 felony cocaine possession and Class A misdemeanor false informing. Finds Lewis is precluded from challenging the voluntariness of his guilty plea on direct appeal. Also finds the Tippecanoe Superior Court acted within its discretion in denying his request to withdraw his guilty plea.

Lynette (Pierce) Loud v. Yair Martinez-Ruiz (mem. dec.)
49A02-1611-DR-2683
Domestic relation. Affirms and reverses in part a magistrate judge’s dissolution order ending Lynette Pierce Loud’s and Yair Martinez-Ruiz’s marriage and denial of Loud’s request to relocate with her children to Texas. Finds Loud waived any challenge she might have had to the magistrate’s authority to issue the dissolution decree by failing to object on that ground in the Marion Superior Court. Also finds the trial court did not abuse its discretion in denying Loud’s request to relocate. Finally, finds the trial court’s order regarding child support was based, in part, on findings regarding child care costs that are not supported by evidence in the record. Remands for further proceedings.

James Whatley v. State of Indiana (mem. dec.)
49A02-1512-PC-2338
Post conviction. Affirms the denial of James Whatley’s petition for post-conviction relief. Finds Whatley has failed to establish deficient performance by trial or appellate counsel.

S.S. v. C.D. (mem. dec.)
75A03-1612-DR-2887
Domestic relation. Affirms an order granting the custody modification petition of C.D. as to two of his three children, M.D. and L.D., with S.S. Finds the evidentiary record discloses evidence of a change in one or more statutory circumstances that a trial court is to consider in a custody modification proceeding. Also finds there is evidence to support the Starke Circuit Court’s determination that a change of custody is in the best interests of the children.

In the Termination of the Parent-Child Relationship of: M.D., M.D., and M.E., (minor children); S.E. (mother) v. The Indiana Department of Child Services (mem. dec.)
79A04-1701-JT-109
Juvenile termination of parental rights. Affirms the termination of S.E.’s parental relationship with Mar.D., Mas.D, and Me.D. Finds there is sufficient evidence to support the termination.

Brittany Coley v. Dayspring Center (mem. dec.)
49A04-1608-CC-1780
Civil collection. Affirms the Marion Superior Court’s grant of summary judgment in favor of Dayspring Center on its breach of lease claim. Finds Brittany Coley’s affidavit designated in response to Dayspring’s motion for summary judgment was inadmissible. Also finds Dayspring presented prima facie evidence of a breach of lease in its summary judgment motion and, absent the evidence present in her affidavit, Coley did not establish the existence of a genuine issue of material fact.

Roy Buford v. State of Indiana (mem. dec.)
22A04-1610-CR-2377
Criminal. Affirms the Floyd Superior Court’s revocation of Roy Buford’s probation and the imposition of his previously suspended sentence. Finds the trial court did not abuse its discretion.

Genario Garcia v. State of Indiana (mem. dec.)
28A01-1604-CR-762
Criminal.  Affirms Genaro Garcio’s conviction of child molesting as a Level 1 felony and his 40-year sentence. Finds the trial court did not abuse its discretion in granting the state’s Rule 4(D) motion to continue the trial or in admitting evidence. Also finds E.T.’s competency was established when she demonstrated she understood the difference between telling a lie and telling the truth, knew she was under a compulsion to tell the truth and knew what a true statement actually was.  Finally, finds the state presented sufficient evidence to convict Garcia of Level 1 felony child molesting and his sentence is not inappropriate.

 

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