Indiana Court Decisions – June 21-July 4, 2017

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7th Circuit Court of Appeals

June 27

Civil – Due Process

John Simpson v. Brown County, et al.


A Brown County man whose license to service and install septic systems was revoked without notice or a hearing may proceed with his federal lawsuit against the county.

The 7th Circuit Court of Appeals reversed dismissal of John Simpson’s complaint, holding that the pleadings plausibly allege that he was denied a due-process hearing, and that the county has not shown there is an adequate remedy in state law for his deprivation.

Simpson was removed from a list of county-approved septic installers in October 2013, after county officials sent him a vague notice of a problem on his mother’s property. “The County had a septic ordinance that plainly described the process for the placement of septic installers on a register and (not so plainly) described the process for their removal,” Judge David Hamilton wrote for the panel.

The ordinance gave county health officials discretion to remove any person who demonstrated “inability or unwillingness” to comply with the ordinance. Hamilton wrote that when the county health officer revoked Simpson’s license without notice or a hearing, he “was not acting unpredictably or breaking the rules: he did exactly what the ordinance told him to do. The possibility of license revocation without due process was not unforeseeable. It was authorized in the ordinance itself.”

“We see no reason to believe that the cost of basic procedures (e.g., meaningful notice and an informal hearing) would be unduly burdensome in comparison with the protections those additional procedures would provide,” the court held.

“… (N)othing on the face of Simson’s complaint indicates that the County had a sufficiently urgent interest to justify summary revocation of his license. But even if the County could prove that it had such an interest … it has not shown that any existing state remedy could have made Simpson whole in the event that he ultimately proved the license revocation was wrongful,” Hamilton wrote.

“Taking Simpson’s allegations as true, he has stated a claim for a violation of procedural due process. His septic license was revoked pursuant to a broad delegation that gave county officers the power to act without affording Simpson notice and an opportunity to be heard before the revocation. Moreover, the County has identified no state law remedy (and we are aware of none) that could vindicate Simpson’s rights. While discovery may cast new light on the situation, Simpson is entitled to proceed with his §1983 claim for deprivation of property without due process of law,” the court concluded.

Indiana Supreme Court

June 29

Criminal – Reasonable Suspicion

Jordan Jacobs v. State of Indiana


Finding police did not have reasonable suspicion to stop an 18-year-old male who was in a high-crime area where a shooting had occurred days earlier by a group of youths, the Indiana Supreme Court reversed his conviction of misdemeanor possession of a handgun without a license.

Jordan Jacobs, then 18, was in an Indianapolis park with a red T-shirt over his shoulder and hanging out with a few other people. Days earlier, there were reports of shots fired by teens wearing red clothing, a known gang color, in the same area. Officer Terry Smith sat in an unmarked car and watched the group, seeing Jacobs and another person leave the area when a park ranger came by on patrol. The two later returned. Smith believed Jacobs could be truant.

Smith called for backup and when police arrived, Jacobs again quickly walked away. He was ordered to stop and eventually complied. When handcuffed, police saw the outline of a handgun in his pants.

He was convicted of Class A misdemeanor possession of a handgun without a license. He had objected to the testimony of the officers and admission of the handgun on the grounds the officer did not have reasonable suspicion to stop him under the state or federal constitutions. Jacobs was sentenced to one year probation.

The Indiana Court of Appeals affirmed in a divided decision, but the justices reversed. Justice Mark Massa wrote police lacked reasonable suspicion to stop the teen under both the Fourth Amendment and Article 1, Section 11 of the Indiana Constitution.

He pointed out Smith believed Jacobs could be truant, but did not stop him until hours later when school would have been out. Massa also wrote that Jacobs’ act of leaving the park when the patrol car came by, then returning, is not enough to establish reasonable suspicion of criminal activity.

And even though he had a red T-shirt draped on his shoulder, which could give rise that he was involved with a gang given the number of other people wearing red in the park at the same time, police had no reasonable suspicion that Jacobs specifically was involved in any way with the earlier shooting. Mere suspected affiliation with the suspected gang is not enough to justify a Terry stop on its own, Massa wrote.Justice Steven David concurred in result.

Indiana Court of Appeals

June 21

Criminal – Pro Se/New Trial

James A. Hart v. State of Indiana


A southern Indiana man will receive a new trial for his invasion of privacy charges after the Indiana Court of Appeals ruled the trial court failed to advise him of the dangers of proceeding pro se.

After James Hart was charged with misdemeanor invasion of privacy for violating a protective order prohibiting him from visiting his wife’s place of employment, Hart appeared at an initial hearing in the Orange Superior Court and executed a “Waiver of Appearance and Written Report of Initial Hearing.” The waiver notified Hart of his right to retain or be assigned counsel, but the court did not ask him whether he intended to hire an attorney or was indigent.

During a subsequent pretrial conference, the trial court judge asked Hart if he was going to waive his right to counsel or ask for an attorney to be appointed, and Hart told the court “I don’t need your monkeys.” Trial was set for June 8, 2016, but one week before trial, Hart moved for a continuance for more time to obtain counsel, among other reasons.

The trial court denied the motion and Hart proceeded to trial pro se. The trial court never questioned his lack of representation. Hart was found guilty as charged.

On appeal, Hart argued he did not voluntarily, knowingly and intelligently waive his right to counsel, so the trial court violated that right by proceeding to trial before he hired an attorney. The state, however, argued that even if Hart did not verbally waive his right to counsel, he did so implicitly by failing to obtain counsel in the six months between notice of his charges and the trial date.

The Indiana Court of Appeals reversed Hart’s convictions, with Judge Rudolph Pyle writing for the unanimous panel that “making a defendant aware of his constitutional right to counsel is insufficient.”

“The complicating factor here is that Hart never asserted his right to self-representation, which would have raised the question of whether he intended to waive his right to counsel,” Pyle wrote. “He denied the trial court’s offer of court-appointed counsel when he said ‘I don’t need your monkeys,’ but he never stated that he intended to represent himself instead.”

Since the decision in Poynter v. State, 749 N.E.2d 1122, 1125-26 (Ind. 2001), Pyle said Indiana courts have “held that in order for a defendant to knowingly and intelligently waive his right to counsel through his conduct, the trial court must warn the defendant of the dangers and disadvantages of self-representation.” Here, Hart did not receive such an advisement, so he could not have knowingly and intelligently waived his right to counsel, the judge wrote.

Criminal – Resisting Law Enforcement

Brian L. Paquette v. State of Indiana


An Indiana trial court should not have entered convictions against a man on three counts of resisting law enforcement stemming from a single incident, the Indiana Court of Appeals ruled in an opinion instructing the trial court to change the man’s convictions and resentence him accordingly.

In February 2016, Brian Paquette, who was high on methamphetamine at the time, drove northbound in the southbound lanes of I-69 near Petersburg, crossed the median when police officers tried to stop him, and collided with two vehicles holding a total of four passengers. Three of the passengers died, while the fourth was seriously injured.

Paquette was charged with three crimes relating to each of his three victims who died: Level 3 felony resisting law enforcement by fleeing in a vehicle causing death, Level 4 felony operating a vehicle with meth in his blood causing death and Level 5 felony reckless homicide. Additionally, he was charged with Level 6 felony operating a vehicle with meth in his blood causing serious bodily injury and Level 6 felony possession of meth.

Paquette agreed to plead guilty as charged, but reserved the right to ask the court to enter only one conviction and sentence on the charge of resisting law enforcement because he engaged in only one act of resisting. The court ultimately entered convictions on all three counts of resisting law enforcement, as well as his Level 6 felony conviction of operating a vehicle with meth in his blood causing serious bodily injury. The remaining counts were merged into those four counts, and Paquette was sentenced to an aggregate of 50 ½ years.

Paquette appealed, arguing Indiana Code 35-44.1-3-1 allows only one conviction of resisting law enforcement under the facts of his case. The Indiana Court of Appeals agreed, with Chief Judge Nancy Vaidik writing that in the case of Armstead v. State, 549 N.E.2d 400 (Ind. Ct. App. 1990), the appellate court held “unless more than one incident occurs, there may be only one charge” of resisting law enforcement.

The court has reached the same conclusion in numerous cases since Armstead, Vaidik said. Though the Legislature has amended the state’s operating-while-intoxicated and arson statutes to allow for multiple convictions where the defendant caused multiple death or injuries, the General Assembly “has thus far decided not to add such a provision to the resisting statute.”

Paquette acknowledged that two of the three convictions and sentences for resisting can be replaced by two convictions and sentences for operating a vehicle with meth in his blood causing death as a Level 4 felony as to two the victims, and that is what the appellate court ordered the trial court to enter on remand. The COA also ordered Paquette to be sentenced accordingly.

Judge L. Mark Bailey concurred in result without a separate opinion.

June 22

Civil Plenary – Attorney Fees

The Care Group Heart Hospital v. Roderick J. Sawyer, M.D.


A cardiologist who was denied his request for attorney fees totaling $450,000 will get a second chance to make his argument after the Indiana Court of Appeals found the trial court abused its discretion in awarding nearly $423,000 less.

Dr. Roderick Sawyer was a member of The Care Group Heart Hospital and became an employee of St. Vincent Medical Group in 2010 when St Vincent Health purchased the assets of TCG. In 2011, SVMG terminated Sawyer’s employment, citing failure to comply with policies and unprofessional behavior.

As per his employment contract, the hospital redeemed Sawyer’s interest in the practice with a check totaling $196,787. Sawyer responded by filing an amended complaint for damages and demand for jury trial against SVMG and TCG, alleging breach of contract, breach of duty of good faith and fair dealing, and tortious interference with business relationships against SVMG and a claim of breach of contract against TCG.

In January 2016, the jury entered a verdict for Sawyer and against SVMG with damages totaling $1.11 million. The jury also found against TCG and awarded damages in the amount of $470,000.

The Court of Appeals affirmed the Marion Superior Court’s denial of TCG’s motion to dismiss Sawyer’s complaint and the court’s final judgment against the hospital. Also, the appellate panel upheld the trial court’s grant of partial summary judgment in favor of the hospital.

However, the Court of Appeals reversed the award of attorney fees and remanded the matter to the trial court.

Sawyer had filed a Verified Petition for Damages and claimed he had “incurred hundreds of thousands of dollars of legal fees and expenses” because of the defendants’ discovery misconduct. He asserted the hospital had “engaged in systematic and pervasive contempt of court through its discovery misconduct, doing as little as possible, as late as possible.”

In response to Sawyer’s petition, the defendants grouped the costs the cardiologist submitted into 22 different categories and agreed to certain fees, totaling $27,233.19. The trial court issued a one-page order granting Sawyer’s petition but for the amount the defendants proposed.

Before the Court of Appeals, the hospital argued Sawyer was asking the judges to reweigh a complex discovery dispute.

Writing for the court, Judge Elaine Brown noted the “record makes clear that counsel for the Hospital engaged in dilatory tactics during discovery that the trial court determined could only be rectified by the imposition of sanctions.”

The Court of Appeals found the trial court abused its discretion by awarding attorney fees based exclusively on the hospital’s calculation. It remanded for further proceedings.

June 23

Criminal – Probation Fees

Jose Arcia De La Cruz v. State of Indiana


The Marion County probation department must reimburse an offender’s probation fees after the Indiana Court of Appeals held the trial court erred by allowing the probation department, and not the court, to impose such fees.

Jose De La Cruz was charged with Class A misdemeanors operating a vehicle while intoxicated endangering a person and operating a vehicle with an ACE of 0.15 or more. De La Cruz was found guilty of only the lesser-included offense of Class C felony operating a vehicle while intoxicated and was sentence to 60 days in jail, with 56 days suspended, and an additional 180 days on non-reporting probation.

During sentencing, the Marion Superior Court found De La Cruz to be indigent and, thus, chose not to impose court costs, fees or fines. Additionally, the court ordered a sliding scale for probation fees, but did not impose any.

However, an entry on the last page of the chronological case summary in De La Cruz’s case shows probation and administrative user fees totaling $220 and that he had paid that amount. De La Cruz appealed, arguing the trial court abused its discretion by allowing the probation department to assess those fees.

The state, however, argued the appeal was moot because he has already paid his probation fees and completed probation. But the Indiana Court of Appeals disagreed, with Judge Edward Najam writing there is a remedy available to De La Cruz – reimbursement of the fees – which makes the appeal not moot.

The appellate panel imposed that remedy, reversing the imposition of the fees and ordering full reimbursement to De La Cruz. Specifically, Najam referenced Indiana Code 35-38-2-1(b), which holds that for persons convicted of a misdemeanor, “the court may order the person to pay the user’s fee… .”

In the recent case of Burnett v. State, 49A04-1610-CR-2402, –N.E.3d –, 2017 WL 1399845 at 4 (Ind. Ct. App. April 19, 2017), the appellate court held that statute, and other similar statutes, “give ‘the trial court, not the probation department, … the discretion to impose probation fees.’”

“Although De La Cruz’s sentencing and probation orders referred to a ‘sliding scale for probation fees’ and the trial court ‘order(ed) probation, if there are any fees associated with non-report, to assess (De La Cruz’s) ability to pay,’ the trial court did not impose probation fees,” Najam wrote. “Rather, as in Burnett…, the probation order included a ‘monetary obligations’ section with an ‘ordered amount’ column in which all the rows for specific fees were either blacked out or blank. Such a probation order, along with the absence of a clear statement imposing probation fees, shows the trial court’s intent not to impose such fees.”

“The trial court did not order probation fees, and it abused its discretion when it authorized the probation department to do so,” Najam wrote.

June 27

Mental Health – Temporary Commitment

In the Matter of the Civil Commitment of: M.L. v. Eskenazi Health/Midtown Mental Health CMHC


A divided Indiana Court of Appeals struck a special condition that a man who had been subject to a mental health order of commitment not use alcohol or drugs. The court also criticized the hospital for seeking legal fees in the case from the Marion County Public Defender Agency.

The majority of the COA panel found that there was insufficient evidence to support the special condition placed on M.L., because the doctor treating him said there was no indication that he used alcohol or drugs not prescribed by a doctor.

Dr. Aimee Patel treated M.L., 30, who she said exhibited clear bipolar mania in November 2016. He was admitted to the inpatient psychiatric unit on an emergency detention. M.L. had been treated at the hospital previously, and he returned demanding a list of chemicals he had been exposed to. Patel said M.L. was paranoid, delusional, pressured, and threatened himself and staff after he was placed in restraints.

The trial court commitment order included the mandate that upon attaining outpatient status, M.L. not use drugs or alcohol other than those prescribed by a doctor.

Because the order of commitment expired in March, Eskenazi Health argued the case was moot, and that M.L. had waived the argument that the special condition was inappropriate by failing to object previously. Eskenazi argued that the case was frivolous and therefore it was entitled to appellate attorney fees.

“Eskenazi’s appellate brief is entirely devoted to devising legal avenues so as not to address the merits of M.L.’s appeal,” Judge Patricia Riley wrote for the majority joined by Judge Edward Najam. “However, all of these contentions fail due to an apparent misunderstanding of the legal mechanics of objection and waiver.”

Riley wrote this was the rare case where potential mootness is trumped. “Because this is an issue of great public importance that is likely to recur and for which Indiana case law is practically undeveloped, we will address it here.

“… During Dr. Patel’s testimony, it was incumbent upon Eskenazi to elicit sufficient evidence with respect to the particularities of its request and its reason to impose the challenged special condition. There was nothing for M.L. to object to, and M.L. was not under a burden to present evidence as to the special condition’s necessity. Silence was indeed M.L.’s best strategy here,” Riley wrote.

As there was insufficient evidence to support the special condition — Patel testified M.L. didn’t use drugs or alcohol — the COA instructed the trial court to remove the special condition from the order of commitment.

The majority took Eskenazi to task for asking for appellate attorney fees for an appeal the hospital deemed frivolous or in bad faith.

“Rather than being permeated with meritlessness or bad faith, M.L.’s appeal is an entirely proper exercise of his constitutional rights to due process and appellate review, based on established precedent of this court,” the majority held, citing similar rulings in Golub v. Giles, 814 N.E.2d 1034 (Ind. Ct. App. 2004), trans. denied, and M.M. v. Clarian Health Partners, 826 N.E.2d 90 (Ind. Ct. App. 2005), trans. denied.

“Moreover, we are taken aback with Eskenazi’s request for appellate attorney’s fees to be assessed against another arm of the same Marion County government. The Marion County Public Defender and Eskenazi serve a similar clientele — the most indigent and vulnerable in our community — and both are a vital part of that same public safety net for Marion County. To seek a financial retribution from the Public Defender Agency for protecting involuntarily committed individuals’ constitutional rights based on Eskenazi’s own misunderstanding of the legal mechanics of objection and waiver is remarkable. We deny Eskenazi’s request,” the majority wrote.

Judge Cale Bradford dissented and would affirm the trial court, finding M.L. waived any challenge by failing to object earlier. “M.L. had ample opportunity to object to the imposition of the special condition but did not do so at the trial court level,” Bradford wrote. “If M.L. had objected, I believe it is near certain that Eskenazi would have simply asked Dr. Patel if drugs or alcohol could interfere with M.L.’s prescribed medications, and she would have answered in the affirmative.”

June 29

Juvenile – CHINS

In the Matter of: K.S. (Minor Child) Child in Need of Services; J.J. (Mother) v. The Indiana Department of Child Services


The Indiana Department of Child Services failed to present any evidence that a newborn’s mother did not have stable housing or that her actions seriously endangered her child, the Indiana Court of Appeals ruled in reversing a child in need of services adjudication.

DCS was notified that mother J.J. had tested positive for marijuana after giving birth to K.S. A caseworker went to the hospital to speak with J.J., but she was uncooperative. A few days later, the caseworker returned to the hospital and J.J. signed DCS paperwork. J.J. told the caseworker she’d be living with her cousin upon discharge, and there were no signs that K.S. tested positive for marijuana or had any issues.

DCS then filed a petition alleging the newborn was a CHINS, citing mother’s admission to using marijuana while pregnant, that she failed to provide K.S., with a safe and proper living environment free from drugs, and that she was homeless and lacked a plan for stable housing.

K.S. went into a foster home and J.J. had a few supervised visits with him. At the CHINS hearing, the court adjudicated him to be a CHINS, saying K.S.’s physical or mental condition is seriously impaired or endangered as a result of J.J.’s inability, refusal or neglect to provide him with life’s necessities. The court also said J.J. uses marijuana and does not have stable housing.

J.J. appealed, arguing DCS didn’t have sufficient evidence to support the adjudication. The COA reversed, with Judge Rudolph Pyle writing that there is no evidence showing how mother’s admitted use of marijuana two months prior to giving birth to K.S. seriously impaired or endangered K.S. All testimony at the hearing said K.S. was doing fine and mother was engaged and loving at their supervised visits.

Mother had moved in with her cousin and her statement to the caseworker that she felt she “wasn’t really wanted” at her cousin’s house does not support the court’s finding that J.J. did not have stable housing, the appellate panel found.

“Although the trial court may have been concerned that at some point, Mother and K.S. would be asked to move out of Mother’s cousin’s house, at the time of the fact-finding hearing, this had not happened,” Pyle wrote.•

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