Indiana Court Decisions – July 19-Aug. 1, 2017

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7th Circuit Court of Appeals

July 19

Rehearing/Habeas Petition

Dentrell Brown v. Richard Brown


A man convicted as a teenager in a 2008 Elkhart murder will still be given a federal evidentiary hearing on his claim of ineffective assistance of post-conviction counsel after a majority of 7th Circuit Court of Appeals judges denied the state’s petition for a panel or en banc rehearing.

The case began in June 2008, when 13-year-old Dentrell Brown was charged in the murder of Gerald Wenger. The state’s key evidence came from the testimony of Mario Morris, who told the court that while he was incarcerated in the Elkhart County Jail, both Brown and his co-defendant, Joshua Love, confessed separately to the murder.

Brown was convicted under the theory of accomplice liability and was sentenced to 60 years. After his direct appeal and petition for post-conviction relief failed in state courts, Brown filed a federal habeas petition in the U.S. District Court for the Southern District of Indiana, arguing “his trial lawyer was ineffective for failing to request an instruction limiting the use of Love’s statement, offered through Morris, to Love.”

Though he did not raise that claim in state court, Brown argued he should be allowed to bring it before the federal judge under Martinez v. Ryan, 132 S. Ct. 1309 (2012) and Trevino v. Thaler, 133 S. Ct. 1911 (2013). A divided panel of the 7th Circuit Court of Appeals agreed, finding that because Indiana’s procedural system “as a matter of its structure, design, and operation” does not offer a meaningful opportunity to present a claim of ineffective assistance of trial counsel on appeal, the Martinez-Trevino form of cause to excuse procedural default is available to Indiana residents who seek federal habeas relief.

Specifically, Judge David Hamilton wrote that because Brown’s post-conviction counsel could have raised an ineffective assistance of trial counsel claim, yet chose not to, Brown is entitled to an evidentiary hearing. Thus, the majority remanded the case to the district court for an evidentiary hearing on the issue of ineffective post-conviction counsel. If the claim is found to be substantial, then the case will proceed to an evidentiary hearing on the merits.

But Judge Diane Sykes dissented, voting to grant rehearing, writing separately that Martinez-Trevino does not apply in Indiana because the state instead employs a procedure known as Davis/Hatton, which “allows a defendant to suspend the direct appeal to pursue an immediate petition for post-conviction relief” in order to develop a factual record to support an ineffective assistance of counsel claim on direct appeal.

Sykes raised a similar argument in her dissent to denial of the state’s petition for rehearing. Further, Sykes pointed to the recent decision in Davila v. Davis, 137 S. Ct. 2058 (2017), in which the U.S. Supreme Court declined to expand the Martinez-Trevino exception to defaulted claims of ineffective assistance of appellate counsel.

“Expanding Martinez-Trevino, the Court said, ‘would unduly aggravate the “special costs on our federal system” that federal habeas review already imposes,’” Sykes wrote in a dissent joined by Judges Frank Easterbrook and Joel Flaum. “The same principles are implicated here. The panel’s expansion of Martinez-Trevino cannot be justified under the terms of those decisions and is hard to reconcile with the Court’s reasoning in Davila.”

All other judges voted to deny an en banc rehearing.

Indiana Supreme Court

July 21

Civil Plenary Liquor Wholesaling Permit

Indiana Alcohol and Tobacco Commission v. Spirited Sales, LLC


The Indiana Supreme Court has reversed a trial court’s order directing the Indiana Alcohol and Tobacco Commission to grant a liquor wholesaling license to an affiliate of a major Indiana beer and wine wholesaler, finding statutory language prohibits companies with overlapping ownership to hold interest in both liquor and beer wholesaler permits.

The decision comes after Spirited Sales LLC, an affiliate of Monarch Beverage, has been arguing for years that it should be allowed to hold a liquor wholesaling permit, despite its relationship to Monarch, which holds a beer and wine wholesaling permit. Spirited is owned by E.F. Transit Inc., which shares its five shareholders with Monarch.

Because of the overlapping ownership between the various companies, the commission denied Spirited Sales’ liquor wholesaling license in an attempt to avoid giving Monarch a monopoly over Indiana’s alcoholic beverage industry. But the Marion Superior Court reversed that decision and ordered the commission to issue the permit. Special Judge Heather Welch found the commission had cited to the doctrine of corporate separateness in previous cases in support of granting a permit to businesses whose owners held prohibited interests. Thus, the denial of Spirited Sales’ application was arbitrary and capricious, Welch ruled last August.

But in the 3-0 opinion written by Justice Steve David, the justices concluded the language of Title 7.1 in Indiana Code is clear, and the commission’s decision to deny the permit followed the unambiguous language. Justice Mark Massa did not participate in the decision.

“Here, ties between EFT and Monarch were so extensive that EFT could reasonably be deemed to hold an interest in a beer wholesaler’s permit – an interest prohibited by a combined reading of sections 7.1-5-9-6 and 7.1-1-2-5,” David wrote. “… Likewise, Monarch and Spirited’s overlapping ownership also bars Spirited from obtaining the sought-after permit.”

The trial court further found that Monarch was a “disfavored” wholesaler and the governor’s office interfered with permit applications it associated with Monarch. But the high court also rejected that argument, writing “the trial court’s factual findings fail to demonstrate that the Commission’s decision was made on political grounds of any kind.”

“(W)e have not measured any public policy considerations or assessed the efficacy of prohibited interest laws on the goals outlined by the statute — doing so would be inappropriate,” David wrote. “We recognize the businesses have long lobbied this very contentious point before our General Assembly, and will likely continue to do so, but deciding whether the regulatory scheme in place is still relevant or still necessary or in need of overhaul are matters to be resolved through the political process, which we trust would take into account the policy arguments made by opposing sides on this issue.”

Criminal – Resentencing

Rodney J. McGuire v. State of Indiana


A man who pleaded guilty to molesting his girlfriend’s son and was sentenced to 40 years in prison will return to court for resentencing. The Indiana Supreme Court determined that the trial court considered an incorrect statutory sentencing range.

After Rodney McGuire’s relationship with his long-term girlfriend ended, the girlfriend’s son, B.P., reported that McGuire had repeatedly molested him, beginning when he was 8 or 9 years old. McGuire agreed to plead guilty to one count of Class A felony child molesting, and all parties agreed the statutory sentencing range for the crime was 30 to 50 years.

The Cass Circuit Court sentenced McGuire to 40 years in the Department of Correction, but McGuire appealed, arguing his sentence was based on a mistaken understanding of the minimum sentence. In a per curiam opinion, the justices wrote the parties now agree the statutory sentencing range was 20 to 50 years, with an advisory sentence of 30 years.

The Indiana Court of Appeals affirmed McGuire’s 40-year sentence in a February memorandum decision, operating on the presumption that the parties relied on Indiana Code 35-50-2-2(i). That statute allowed the trial court to suspend only the portion of McGuire’s sentence exceeding 30 years because he was over the age of 21 and B.P. was younger than 12 at the time of the crime. Because the trial court chose to impose an enhanced sentence, the appellate court determined it could “‘say with confidence that the trial court would have imposed the same sentence’ had it properly considered the facts and law applicable to the case.”

McGuire then sought transfer, which the high court granted July 21 when it remanded his case for resentencing. In the opinion, a majority of the justices wrote that while I.C. 35-50-2-2(i) allowed the suspension of McGuire’s sentence in excess of 30 years, it did not change the minimum sentence from 20 to 30 years.

Justice Mark Massa, however, dissented, writing in a separate opinion that he concurs completely with the Court of Appeals’ assessment that the trial court would have imposed the same sentence had it properly considered the facts and law. Because he agreed with that assessment, Massa said he could not join in “ordering an unnecessary remand.”

Indiana Court of Appeals

July 19

Criminal – Contempt of Court

Brandon Mockbee v. State of Indiana


A man originally sentenced to one year in prison for disrupting court proceedings will instead serve only six months after the Indiana Court of Appeals found his contempt citation stemmed from a single incident.

Brandon Mockbee was charged with two counts of Level 5 felony burglary and one count of Level 5 felony conspiracy to commit burglary and was also alleged to be a habitual offender. Mockbee, who chose to proceed pro se with two standby attorneys, filed numerous “frivolous and repetitive” motions, causing the Dearborn Circuit Court to hold nearly 40 hours of hearings on the motions.

During those hearings, Mockbee was ordered to be removed for “disruptive and threatening behavior,” leading the judge to find he had forfeited his right to self-representation. Mockbee’s disruptive behavior continued after his standby counsel took over, and during a direct confrontation with the judge, which got him six months for being in contempt, Mockbee continued to taunt the court, and was again found in contempt and sentenced to an additional six months.

At a later hearing a week later, the trial court imposed the two separate six-month sentences “based upon defendant’s failure to cease his disruptive behavior after the imposition of the first contempt sentence.” The Indiana Court of Appeals agreed that Mockbee “repeatedly interrupted the proceedings, made inappropriate outbursts, and directed profanity toward the trial court.”

But drawing on the decision in State v. North, 978 A.2d 435, 436 (Vt. 2009), Judge Rudolph Pyle wrote that because Mockbee’s disruptive behavior occurred “within a single proceeding, lasted a relatively short period of time, was not interrupted by another proceeding, and flowed from a single criminal intent — to disrespect and disrupt the administration of justice,” he could only be found in direct contempt for one instance.

“(A) litigant whose outburst receives a contempt citation might be properly cited again after a period of calm behavior within the same proceeding,” Pyle wrote. “However, where, as here, multiple acts of contempt form a single contemptuous episode, we hold that a single punishment of not more than six months may be imposed, without a jury trial.”

Thus, the appellate panel vacated Mockbee’s second contempt citation and its corresponding six-month sentence and remanded the case with instructions to enter a sentencing order for criminal contempt and a six-month sentence to be served consecutively to his sentence for the criminal convictions under the same cause.

July 21

Miscellaneous – Anti-SLAPP Statute

Paul Gresk, Trustee for the Bankruptcy Estate of Derek VanWinkle and Stacey VanWinkle on behalf of M.V. and A.V., their minor children, v. Cortney Demetris, M.D., Stephen W. Robertson, Commissioner of the Indiana Department of Revenue


A doctor who reported medical child abuse to the Department of Child Services was not protected by the state’s anti-SLAPP statute, the Indiana Court of Appeals ruled in a case of first impression.

After a lifetime of gastrointestinal and other issues, A.V. was admitted to Peyton Manning Children’s Hospital for observation. Dr. Susan Maisel, who believed A.V.’s mother, Stacey VanWinkle, a neonatal intensive care unit nurse, was exaggerating A.V.’s symptoms, told her colleague Dr. Cortney Demetris she believed A.V. was a victim of medical child abuse, previously called Munchausen Syndrome by proxy.

The results of a GI procedure at the hospital came back normal, but based on her review of covert video surveillance set up in A.V.’s hospital room, Demetris wrote in A.V.’s chart that she and her sibling, M.V., were likely victims of medical child abuse, with VanWinkle as the perpetrator. A hospital social worker then called the Department of Child Services, and the children were removed from their parents’ home.

A.V. was re-admitted to the hospital, and DCS filed a petition alleging both children were children in need of services. However, after A.V. was weaned off of several medications, the children were returned to their parents and the CHINS petition was voluntarily dismissed.

DCS then conducted a child care worker assessment review into VanWinkle and substantiated the allegations she neglected M.V. and A.V. An administrative law judge also substantiated the allegations as they related to A.V., but the Marion Superior Court reversed the finding of neglect as to A.V in December 2014.

The following June, VanWinkle and her husband filed a proposed complaint for medical malpractice against Demetris, alleging the diagnoses of medical child abuse, with VanWinkle as the perpetrator, fell below the reasonable standard of care. The petition also alleged the family had suffered emotional distress as a result of Demetris’ findings and that VanWinkle had lost her job, which was the family’s sole source of income.

Before the complaint went to a medical review panel, Demetris filed a motion to dismiss, arguing that her report to DCS was protected by Indiana’s anti-SLAPP statute and the immunity provision in Indiana’s child-abuse reporting statute. She also argued there was no physician-patient relationship with M.V.

The trial court, ruling only on the Anti-SLAPP claim at the parties’ request, granted Demetris’ motion to dismiss, finding she had spoken on a matter of public concern when she reported the medical child abuse diagnosis. Thus, the court found her speech was protected by the anti-SLAPP statute.

Specifically, Indiana Code 34-7-7-1 provides that an act or omission “in furtherance of” the person’s constitutional rights in connection with a public issue is protected. On appeal, the VanWinkles argued Demetris framed their medical malpractice claim as one against which she could defend herself with the statute, though the complaint does not expressly mention the report to DCS.

But in the opinion, Indiana Court of Appeals Chief Judge Nancy Vaidik wrote the characterization of the complaint did not matter because Demetris’ report is not protected by the anti-SLAPP law. Specifically, Vaidik — drawing on the cases of Kadambi v. Express Scripts, Inc., 86 F. Supp. 900, 907 (N.D. Ind. 2015) and Brandom v. Coupled Prods., LLC, 975 N.E.2d 382, 386 (Ind. Ct. App. 2012) — wrote that “public interest in the more narrow issues addressed by Dr. Demetris’s report to DCS … is not significant. This is because this was a private matter.”

Further, Demetris’ report was not made “in furtherance of” any free speech or petitioning right, Vaidik said. Thus, she was not entitled to anti-SLAPP protection, so the appellate panel reversed the trial court’s order and remanded the case for consideration of the issues that were stayed: whether Demetris had immunity and whether there was a physician-patient relationship between her and M.V.

July 26

Juvenile – Paternity

In Re the Paternity of: G.G.B.W, a Minor Child


An Indiana trial court abused its discretion in denying a father’s petitions to modify custody of his child and to hold the child’s mother in contempt of a paternity decree, the Indiana Court of Appeals ruled, finding the mother intentionally circumvented the terms of the decree that required her to vaccinate their child once the girl went to school.

Daughter G.G.B.W. was born in 2007 to J.B., the father, and S.W., the mother. The parents entered into a Decree of Paternity in 2011 giving both parents joint legal custody of the child and requiring S.W. to seek J.B.’s input prior to making any major medical, religious or educational decisions for the child. Further, the decree specifically ordered that the child be given all vaccinations required for her enrollment in school.

G.G.B.W. was not vaccinated following her birth, and at the time of the decree, she attended a Montessori school that did not require vaccinations. The parents then chose to enroll their daughter in a public school that required vaccinations, yet would waive that requirement if a parent executed a form claiming a religious objection.

Although J.B. refused to consent to S.W. signing such a form, S.W. signed it and G.G.B.W. began attending school without the required vaccinations. S.W. continued to submit the form without J.B.’s consent in the subsequent years.

Then in 2015, J.B. expressed concern to S.W. about the child traveling on a European cruise without vaccinations and subsequently chose to petition for modification of legal custody as to his daughter’s medical decisions. He then filed a contempt petition alleging S.W. had violated the decree by failing to vaccinate G.G.B.W. and for falsely advising the school of a religious affiliation.

While those motions were pending, J.B.’s wife gave birth to twins, one of which could not be vaccinated due to a serious heart condition. On the advice of a doctor who urged J.B. not to let the unvaccinated twin be around other unvaccinated people, he stopped exercising overnight parenting time with G.G.B.W. and would not permit her to physically meet the infants.

J.B. then filed a show cause motion, but the Marion Circuit Court denied that motion, as well as the contempt motion and petition to modify custody. The trial court claimed S.W. had complied with the decree by claiming a religious objection to the vaccinations and ordered J.B. to pay $10,000 toward her attorney fees.

On appeal, J.B. first argued the trial court had misinterpreted the decree when it failed to hold S.W. in contempt. The Indiana Court of Appeals agreed, with Judge Mark Bailey writing that the religious exemption to vaccination was in effect in 2005 — before the parties entered into the decree — so they are presumed to have been aware of it when they signed the 2011 agreement. But because the religious exemption exception is not included in the decree, S.W. was required to vaccinate the child, Bailey wrote.

Similarly, based on S.W.’s actions in contempt of the decree, “there is a substantial change in (her) ability to communicate and cooperate with (J.B.) in advancing Child’s welfare,” Bailey said. Thus, modification of legal custody as J.B. requested is in the child’s best interests, the court ruled.

Finally, the appellate panel found the trial court abused its discretion in imposing $10,000 in attorney fees on J.B. in light of S.W.’s misconduct, which caused the instant proceedings that she could not defend against. Thus, the Court of Appeals found the trial court abused its discretion in denying J.B.’s motions and petitions and remanded the case for further proceedings.

July 31

Criminal – Drugs/Tip

Brandon McGrath v. State of Indiana


Despite a search pursuant to warrants that led to the discovery of more than 60 pounds of marijuana in a man’s Indianapolis home, the man’s drug convictions will be overturned after a divided panel of the Indiana Court of Appeals determined there was a lack of probable cause to support the issuance of the warrants.

In April 2014, an anonymous CrimeStoppers tip alerted the Indianapolis Metropolitan Police Department to the presence of a possible active marijuana grow operation. IMPD Detective Sergeant Kerry Buckner performed surveillance on the house and noted that in addition to a central air conditioning system, the upstairs windows also had AC units and dark coverings, signs consistent with an indoor marijuana operation.

Additionally, Buckner observed a high-intensity glow of a light and determined, based on his prior training, that it came from the type of light used for indoor grows. Buckner then applied for a search warrant — based on his previous training, surveillance, and the tip — to use a thermal imaging detection system to detect the presence of heat consistent with an active indoor marijuana grow.

The Marion Superior Court granted the search warrant, and Detective Michael Condon and Sergeant Edwin Andersen observed a heat signature that was recognized as being consistent with an indoor marijuana grow operation. Based on that information, Buckner applied for a second warrant for the residence and property.

That warrant was also granted, and the subsequent search revealed “an elaborate, active, marijuana grow operation of 67.5 pounds of marijuana plants (180 individual plants) and over five pounds of marijuana leaves.” Brandon McGrath, who lived in the home, told officers he was unemployed, which is why he worked inside the house.

After he was charged with one count of dealing in marijuana and one count of possession of marijuana, both as Class D felonies, McGrath moved to suppress, challenging both search warrants under the federal and state constitutions for lack of probable cause. The trial court denied McGrath’s motion to suppress and admitted the evidence over his objection.

McGrath was then found guilty as charged, prompting his appeal. A majority of the Indiana Court of Appeals reversed those convictions Monday, though Judge James Kirsch noted the officers took “extreme care…to adhere to proper procedures in conducting this investigation.”

However, there was insufficient evidence to corroborate the anonymous tip about ongoing criminal activity in McGrath’s home and to support the issuance of a search warrant, Kirsch wrote. Specifically, McGrath presented evidence that it was not uncommon for homes in his neighborhood to have both central and independent AC units or to have coverings over their windows.

“What was lacking was corroboration of the distinctive smell of marijuana emanating from the house, which would have provided corroboration of the tip that criminal activity likely was occurring at that location,” Kirsch wrote. “In short, a detective’s determination that there is a probability that evidence of criminal activity will be found at a particular place based upon his or her training and experience without evidence that corroborates a tip…does not establish probable cause for the issuance of a search warrant.”

But in a separate dissenting opinion, Judge Cale Bradford wrote he believed the good-faith exception would apply in this case to render the evidence collected from McGrath’s home admissible. Specifically, there was no evidence that any information in Buckner’s affidavit is false or in reckless disregard for the truth, Bradford said, nor did McGrath establish that any omission of information was material.

Additionally, Bradford rejected the notion that Buckner’s application for the second warrant was lacking in indicia of probable cause. Thus, Bradford would have affirmed the trial court.

Indiana Tax Court

July 31

Tax – Exemption

William R. Larsen v. Indiana Department of State Revenue


A Fort Wayne man who claimed a religious objection to obtaining Social Security numbers for his dependent children was entitled to claim those children as dependents on his state tax return after the Indiana Tax Court determined the man provided the necessary documentation to prove the children are his dependents.

William Larsen never sought Social Security numbers for his three dependent children due to a religious objection. Additionally, none of the dependent children have an Internal Revenue Service-issued individual taxpayer identification number.

Larsen claimed federal dependency exemptions for each child on his 2013 federal income tax return, yet could not provide Social Security numbers or TINs. As a result, the IRS sent Larsen a letter requesting documentation to verify the children were his dependents. Larsen provided the requested information, and the IRS granted the federal dependency exemptions.

Larsen claimed similar deductions on his 2013 Indiana adjusted gross income tax return, provided each child’s name and explained his religious objections to obtaining Social Security numbers for them. However, the Indiana Department of State Revenue disallowed the deductions and assessed additional adjusted gross income tax.

After the department denied his protest, Larsen filed the instant appeal with the Indiana Tax Court, and the department subsequently moved for summary judgment. Specifically, the revenue department claimed it has authority to require Social Security numbers pursuant to Indiana Code 4-1-8-1 for purposes of internal verification and fraud prevention.

However, in the opinion, Indiana Tax Court Judge Martha Blood Wentworth ruled I.C. 4-1-8-1 allows the department to merely request Social Security numbers for taxpayers, as it did in Larsen’s case. But under I.C. 6-3-1-3.5(a)(5)(A) — which says the Indiana dependency deduction is available for each federal dependency exemption “allowed” under Internal Revenue code — there is no requirement that a dependent’s Social Security number be provided, she wrote.

“Indeed, the only statutory eligibility requirement for an Indiana dependency deduction under Indiana Code section 6-3-1-3.5(a)(5)(A) is receipt of a federal dependency exemption,” the judge wrote.

Because Larsen provided documentation to verify the eligibility of his children for the federal dependency exemptions, he was also entitled to state dependency deductions, Wentworth held. The department’s motion for summary judgment was denied, and the judge granted summary judgment to Larsen.•

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