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Opinions May 31, 2017

May 31, 2017

The following Indiana Court of Appeals opinion was posted after IL deadline Tuesday:
Johnathon T. Beach v. State of Indiana (mem. dec.)
69A05-1701-CR-214
Criminal. Affirms the Ripley Superior Court’s revocation of 450 days of Johnathon T. Beach’s suspended sentence following a probation revocation hearing. Finds the trial court did not abuse its discretion.

Wednesday opinions
Indiana Court of Appeals
Latorrea Denise Ware v. State of Indiana
20A03-1610-PC-2297
Post conviction. Affirms the denial of Latorrea Denise Ware’s petition for post-conviction relief. Finds Ware did not receive ineffective assistance of trial counsel because had her counsel moved to suppress evidence seized by officers who had entered her home with a valid warrant but without first clearly announcing their presence, the motion would not have been successful.

The Estate of Carrie Etta Mills-McGoffney v. Vigo County Prosecutor, Terry Modesitt, Vigo County Adult Protective Services, Jerry Hawk, Angela Hall, et al.
84A01-1608-MI-1810
Miscellaneous. Affirms the Vigo Superior Court’s denial of a motion to reinstate the estate of Carrie Etta Mills-McGoffney and Kelly McGoffney’s previously dismissed case against the Vigo County prosecutor, Vigo County Adult Protective Services and Margaret Ditteon, d/b/a Personal Resource Management. Finds McGoffney forfeited her right to appeal all issues beyond the trial court’s denial of her motion to reinstate original proposed complaint. Also finds the trial court acted within its discretion in denying McGoffney’s motion to reinstate original complaint.

Lucy Mundia v. Drendall Law Office, P.C.
71A05-1610-PL-2388
Civil plenary. Reverses the St. Joseph Circuit Court’s order granting summary judgment to Drendall Law Office on Lucy Mundia’s legal malpractice claim. Finds Drendall did not meet its initial burden of negating the elements of proximate cause and damages of Mundia’s legal malpractice claim. Remands for further proceedings.

$47,940.00 U.S. Currency and Dustin Sorhaindo v. State of Indiana and Indiana State Police
49A05-1608-MI-1814
Miscellaneous. Reverses the Marion Superior Court’s order granting transfer of $47,940 to the United States under Indiana Code 35-33-5-5(j). Finds the actions pending in Marion Superior Court, Criminal Division, Courtroom 6 and Courtroom 12 were substantially the same action, so Courtroom 12 erred by denying Dustin Sorhaindo’s motion to dismiss because Courtroom 6 retained exclusive jurisdiction over the original turnover action. Remands for the commencement of turnover proceedings.

James E. Manley v. Gregory F. Zoeller, et al.
33A05-1608-PL-1952
Civil plenary. Dismisses James Manley’s appeal of the Henry Circuit Court’s dismissal of his complaint against the Indiana Department of Correction and Liberty Behavioral Health Corporation. Finds the order Manley challenges is not a final judgment. Remands for further proceedings.

In the Matter of: La.H., Le.H., Lo.H., Ma.H., S.W., W.H., and Me.H. (Minor Children), Children in Need of Services and M.H. (Father) v. The Indiana Department of Child Services (mem. dec.)
90A02-1609-JC-2135
Juvenile CHINS. Affirms the juvenile court’s adjudication of M.H.’s seven children as children in need of services. Finds the juvenile court’s CHINS determination is not clearly erroneous.

The Catholic Diocese of Gary and St. Joseph Catholic School v. Douglas N. Crawley and Patricia Crawley (mem. dec.)
45D04-1610-PL-2342
Civil plenary. Reverses the denial of summary judgment to the Catholic Diocese of Gary on Douglas Crawley’s breach of contract, actual fraud and constructive fraud claims. Finds the diocese was entitled to summary judgment on those claims.

Clarence W. Seeley, Jr. v. State of Indiana (mem. dec.)
21A05-1607-PC-1548
Post conviction. Affirms the denial of Clarence Seeley Jr.’s petition for post-conviction relief. Finds the post-conviction court did not err when it concluded Seeley was not denied effective assistance of trial counsel. Also finds Seeley’s resentencing argument is not available as a freestanding claim of fundamental error on petition for post-conviction relief.

Timothy L. Doss v. Indiana Department of Child Services (mem. dec.)
87A04-1609-PL-2095
Civil plenary. Affirms the Warrick Superior Court’s order granting the Indiana Department of Child Services’ motion to dismiss Timothy L. Doss’ petition for judicial review and DCS’ motion to quash Doss’ subpoena duces tecum. Finds the Indiana Supreme Court has held a petitioner’s failure to timely file the agency record or an extension results in dismissal of a petitioner’s petition for judicial review. Also finds Doss has not shown the trial court erred in its ruling on the motion to quash.

Codi Butler v. State of Indiana (mem. dec.)
49A02-1610-CR-2415
Criminal. Affirms Codi Butler’s convictions for criminal confinement as a Level 3 felony and residential entry as a Level 6 felony. Finds there was sufficient evidence to support Butler’s convictions.

Chelsey Cody v. State of Indiana (mem. dec.)
49A05-1612-CR-2681
Criminal. Affirms Chelsey Cody’s conviction for Class A misdemeanor resisting law enforcement. Finds there was sufficient evidence from which the Marion Superior Court, as trier of fact, could have found Cody forcibly resisted law enforcement.

Martell J. Anderson v. State of Indiana (mem. dec.)
46A03-1701-CR-108
Criminal. Affirms Martell Anderson’s sentence to 50 years of incarceration for his conviction of Class A felony robbery. Finds Anderson has failed to establish the LaPorte Superior Court abused its discretion in sentencing him or that his 50-year sentence is inappropriate considering the nature of his offense and his character.

Anthony J. Rhea v. Marjorie Rhea (mem.dec.)
49A02-1611-DR-2572
Domestic relation. Affirms the property division in the dissolution of Anthony Rhea’s marriage to Marjorie Rhea. Finds the Marion Superior Court did not abuse its discretion by precluding valuation testimony concerning two of the marital real properties. Also finds the trial court’s order of property division is supported by the evidence and does not constitute an abuse of discretion.

Tony Hesiben v. State of Indiana (mem. dec.)
71A04-1609-CR-2222
Criminal. Affirms Tony Hesiben’s sentence for his conviction of robbery resulting in serious bodily injury as a Level 2 felony. Finds Hesiben has not sustained his burden of establishing his advisory sentence is inappropriate in light of the nature of the offense and his character.

Kenneth Frye v. State of Indiana (mem. dec.)
89A05-1701-PC-18
Post conviction. Affirms the denial of Kenneth Frye’s petition for post-conviction relief. Finds Frye did not receive ineffective assistance of trial counsel.

Earl Moody v. State of Indiana (mem. dec.)
49A05-1611-CR-2487
Criminal. Affirms Earl Moody’s conviction of possession of marijuana as a Level 6 felony. Finds the state presented sufficient evidence beyond a reasonable doubt Moody constructively possessed marijuana.

Donato Lorenzo-Diego v. State of Indiana (mem. dec.)
09A02-1612-CR-2830
Criminal. Affirms Donato Lorenzo-Diego’s 30-year advisory sentence imposed upon his guilty plea to child molesting as a Level 1 felony. Finds Lorenzo-Diego has waived the right to appeal his sentence.

Stephen Clayton Rainey v. State of Indiana (mem. dec.)
82A01-1612-CR-2857
Criminal. Affirms Stephen Clayton Rainey’s sentence to 10 years executed for possession of methamphetamine as a Level 4 felony. Finds the Vanderburgh Superior Court did not inappropriately sentence him.

Justin Scott Colvin v. State of Indiana (mem. dec.)
36A05-1701-CR-107
Criminal. Affirms the Jackson Circuit Court’s denial of Justin Scott Colvin’s request to withdraw his guilty plea to Level 2 felony robbery resulting in serious bodily injury and his admission he was a habitual offender. Finds Colvin has waived his argument on appeal because he did not submit a written and verified motion to withdraw his plea. Also finds waiver notwithstanding, Colvin failed to adequately support his motion.

Kwame Riddle v. State of Indiana (mem. dec.)
79A02-1611-CR-2730
Criminal. Affirms Kwame Riddle’s adjudication as a habitual offender and his sentence to an aggregate term of 18 years after he was convicted of dealing in a narcotic drug as a Level 4 and Level 5 felony and found to be a habitual offender. Finds the Tippecanoe Superior Court did not err when it instructed the jury on the habitual offender allegation. Also finds Riddle’s sentence is not inappropriate. Remands with instructions to the trial court to vacate Riddle’s convictions of dealing in cocaine as a Level 5 felony, possession of a narcotic drug as a Level 6 felony and possession of a narcotic drug as a Level 6 felony.

In re the Paternity of: T.D., A Minor Child: Sara K. Drake v. Charles C. DeLangis (mem. dec.)
10A01-1612-JP-2929
Juvenile paternity. Affirms the denial of S.D.’s motion to correct error. Finds the Clark Circuit Court did not abuse its discretion.

Tony Hesiben v. State of Indiana (mem. dec.)
71A05-1609-CR-2223
Criminal. Affirms Tony Hesiben’s sentence for escape as a Level 6 felony. Finds Hesiben has not sustained his burden of establishing his suspended sentence of one year is inappropriate in light of the nature of the offense and his character.

Christopher L. Richards v. State of Indiana (mem. dec.)
84A04-1611-CR-2660
Criminal. Affirms the Vigo Superior Court’s decision to revoke Christopher Richards’ probation and impose the remainder of his previously suspended sentence. Finds the trial court did not abuse its discretion by imposing the remainder of a previously suspended sentence to be served in prison instead of a less restrictive environment.

William Russell v. State of Indiana (mem. dec.)
69A01-1608-CR-1873
Criminal. Affirms William Russell’s convictions for Level 1 felony attempted murder and Class A misdemeanor carrying a handgun without a license and his sentence to an aggregate of 38 years executed. Finds the Ripley Circuit Court properly denied Russell’s motion for a mistrial. Also finds Russell’s sentence is not inappropriate.

Vanderburgh County, Indiana v. Mike Hertweck, on behalf of himself and all others of the Vanderburgh County Sheriff's Department similarly situated (mem. dec.)
74A04-1610-PL-2409
Civil plenary. Reverses the denial of Vanderburgh County’s motion for summary judgment. Finds the Spencer Circuit Court erred in denying the motion and the county is entitled to summary judgment as a matter of law on Mike Hertweck’s claim, on behalf of himself and all other Vanderburgh County Sheriff’s Department members similarly situated, alleging the county failed to provide overtime compensation. Remands with instructions to enter judgment in favor of the county.

In the Matter of the Termination of the Parent-Child Relationship of I.S. (Child) and M.B. (Mother) v. The Indiana Department of Child Services (mem. dec.)
79A05-1611-JT-2743
Juvenile termination of parental rights. Affirms the termination of M.B.’s parental rights to her daughter, I.S. Finds the evidence is sufficient to support the termination of M.B.’s rights.

Health Professionals, Ltd v. Michael Gayer, Sheriff, Pulaski County, Indiana (mem. dec.)
66A04-1612-CT-2752
Civil tort. Affirms the trial court’s finding in favor of the Pulaski County Jail. Finds no error with respect to the judgment in favor of the county. Also finds a question with respect to the Pulaski Circuit Court’s intended damages award. Remands for further proceedings.
 

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