Indiana Court Decisions

7th Circuit Court of Appeals

Sept. 18

Criminal – Drugs/Sentence

United States of America v. Andre Patterson


A Bloomington man convicted of a drug charge after his attempt to rob a purported drug stash house will be resentenced on that charge after the 7th Circuit Court of Appeals ruled the government didn’t prove the drug quantity it attributed to him.

Andre Patterson and Dennis English, who belonged to a “robbery crew” in Bloomington that targeted drug stash houses, met with a confidential information and undercover agent. Law enforcement attempted to stage a robbery of a nonexistent drug house in order to catch members of the robbery crew.

During that meeting, the agent implied that the house may have as many as 20 “bricks,” or kilograms, of cocaine in it. Patterson said during the meeting he didn’t care about the drugs, only about the money.

On the date of the robbery, police stopped the car Patterson was traveling in and found a loaded 9mm gun with his fingerprints on it. Patterson was indicted in January 2012, but the trial was pushed back multiple times due to motions filed by his codefendants and questions about Patterson’s competency. He initially was found incompetent, but later deemed able to stand trial in November 2014. During this time, Patterson filed motions to dismiss under the Sixth Amendment and Speedy Trial Act, but the trial court found no violations.

He was later convicted in September 2015 of conspiracy to possess with intent to distribute five kilograms or more of cocaine and being a felon in possession of a firearm. He received the sentencing guideline minimum of 168 months in prison.

The 7th Circuit affirmed that there was no violation of the Speedy Trial Act or the Sixth Amendment. The time spent waiting to evaluate Patterson and restore his competency are excluded under the 70-day window of the Speedy Trial Act. Patterson also agreed to a delay created by a motion by a codefendant, Northern District of Illinois Judge Sharon Coleman, sitting by designation, wrote.

The judge also noted that Patterson didn’t assert his right to a speedy trial until after his competency hearing, and after a majority of the delays that Patterson challenges had occurred. She pointed out that “although the pretrial delay in this case was lengthy, it was primarily caused by factors outside of the government’s control.”

The 7th Circuit did vacate his sentence on the drug conviction and order Patterson resentenced because the district court’s calculation of the drug quantity was flawed. It appears the quantity is based on the conversation among Patterson, English, the undercover agent and the confidential informant about how many bricks might be in the stash house. The sentencing court did not make an express finding of drug quantity or explain the reasoning behind the quantity at the sentencing hearing, Coleman wrote. The presentence investigation report also did not set forth a specific drug quantity attributable to Patterson.

Sept. 20

Criminal – Double Jeopardy

United States of America v. John D. Gries and James McCullars

15-2432 and -2447

A federal judge in Indianapolis must vacate two men’s convictions and sentences on charges of conspiracy to distribute child pornography and to sexually exploit a child after the 7th Circuit Court of Appeals determined those convictions should have been merged with a child-exploitation enterprise conviction.

John Gries and James McCullars participated for nearly a decade in an online chatroom where collections of child pornography were shared and participants discussed the exploitation of children. Using password-protected chatrooms, participants were able to facilitate the real-time exchange of massive libraries of child porn.

Gries, McCullars and 11 others were identified as chatroom participants, and most, including Gries, cooperated with investigators by giving them their child porn collections. Additionally, nine of the co-conspirators pleaded guilty to one count of engaging in a child exploitation enterprise, while Gries and McCullars, who did not plead, were indicted on three counts: conspiracy to distribute and receive child porn, conspiracy to sexually exploit a child, and engaging in a child-exploitation enterprise. Gries was also charged separately with five counts of receiving child porn.

After three of their co-conspirators agreed to testify for the government, a jury found Gries and McCullars guilty as charged, with Gries found to have committed 10 predicate offenses to prove the enterprise charge, and McCullars found to have committed 17 predicate crimes. The district court judge sentenced Gries to 20 years on the conspiracy to distribute counts, 30 years on the exploitation conspiracy count, 30 years on the enterprise count and 20 years for each conviction of receiving child porn, all to run concurrently. McCullars was sentenced to the same terms on the conspiracy counts and to life on the enterprise count, also running concurrently.

On appeal, Gries and McCullars argued their three separate sentences on the three counts of conviction violated double jeopardy because the conspiracies were predicates for — and thus, lesser-included offenses of — the enterprise charge. They also raised additional arguments, but because the 7th Circuit Court of Appeals found the other arguments to be meritless or not needing to be addressed, it reversed and remanded on the double jeopardy issue alone.

Judge Diane Sykes pointed to the case of Rutledge v. United States, 517 U.S. 292, 307 (1996), in which the U.S. Supreme Court held that concurrent sentences for convictions of conspiracy to distribute controlled substances and coterminous continuing criminal enterprise violated double jeopardy protections.

“The Rutledge rule is clear, long-standing, and directly applicable,” Sykes wrote of the instant case. “Because the conspiracies are lesser-included offenses of the enterprise crime, multiple sentences violate the Double Jeopardy Clause. The convictions on count one and two should have been merged with the enterprise conviction prior to the imposition of sentence.”

Thus, the 7th Circuit remanded with instructions to vacate the convictions and sentences on the lesser counts and to enter new judgments accordingly.

The appellate court also found the defendants did not overcome the presumption of reasonable sentences because the district court judge reasonably concluded their risk of recidivism was high and reasonably sentenced them to harsher terms than their co-conspirators.

Indiana Court of Appeals

Sept. 15

Criminal – Sentence Enhancement

Jacob O. Robinson v. State of Indiana


A man convicted of attempted residential entry will get a new sentence after the Indiana Court of Appeals determined the trial court erroneously imposed a habitual substance offender enhancement on a non-substance-related conviction.

Jacob Robinson was fleeing on foot from police when he approached a stranger’s home, beat on the door to try to get inside and broke the door knob. Robinson was subsequently charged with Class D felony attempted residential entry and various drug charges and was alleged to be a habitual offender and habitual substance offender under.

Robinson pleaded guilty to the Class D felony attempted residential entry and habitual substance offender charges pursuant to an open plea agreement. He also pleaded guilty to and was sentenced on a charge of Level 6 felony resisting law enforcement and being a habitual substance offender under a different cause under a separate plea agreement on the same day.

The Floyd Circuit Court instructed Robinson to report to the probation department for a presentence investigation report, be he failed to report on the scheduled date. Then, on the morning of his scheduled sentencing, Robinson texted his counsel and asked for a continuance of the hearing because he had a real estate closing “coming up in the next few days” and “wish(ed) to get his ducks in line.” The trial court denied that request, noting Robinson’s failure to meet with the probation department indicated he wasn’t taking the matter seriously.

During sentencing, the prosecutor noted an anomaly in the fact that Robinson had admitted to being a habitual substance offender when he had not pleaded guilty to a substance-related offense. The prosecutor indicated a habitual offender enhancement was more appropriate and said he was broaching the issue to prevent a future post-conviction relief motion.

The trial court, however, said it was “not inclined to at this point to reopen this matter” and imposed a three-year executed sentence for the attempted residential entry conviction. The court also withheld imposition of the habitual substance offender enhancement until Robinson appeared and issued a warrant for his arrest for failure to appear.

After Robinson was arrested, the trial court held a supplemental sentencing hearing at which both parties were represented by new counsel. The judge did not mention the concerns about the habitual substance offender enhancement and instead imposed a separate three-year sentence, with 1 ½ years executed and 1 ½ years suspended to probation, for the enhancement.

On appeal, Robinson argued the trial court abused its discretion by denying his motion to continue and that his sentence is inappropriate, but the Indiana Court of Appeals declined to address those issues in the opinion. Instead, Judge Rudolph Pyle wrote the court had concluded sua sponte that his sentence and plea agreement should be vacated because the habitual substance offender enhancement of a non-substance offense was illegal and contrary to the existing habitual substance offender statute in place at that time.

“We recognize that defendant ‘may not enter a plea agreement calling for an illegal sentence, benefit from that sentence, and then later complaint that it was an illegal sentence,’” Pyle wrote. “Here, however, Robinson plead guilty under an open plea agreement and did not agree to a specific sentence. Thus, the trial court was required to sentence Robinson in accordance with the prevailing law and statutes at that time.”

The case was remanded with instructions to enter a new plea agreement, or for further proceedings if no agreement is reached.

Sept. 20

Trust – Election/Will

In the Matter of the Revocable Trust Agreement created by the Settlor, Anil Kumar Sarkar; Dipa Sarkar v. Anuradha (“Mili”) Sarkar Naugle


A long-married Terre Haute woman who received just a small portion from her husband’s will when he died was wrongly denied her day in court, the Indiana Court of Appeals ruled.

Dipa Sarkar received about $50,000 when her husband of 56 years, Anil Kumar Sarkar, died in 2015. The money represented only about 2.5 percent of Anil’s assets of more than $2 million, most of which was deposited in a trust. The Sarkars both had been doctors who operated a private pathology practice in Terre Haute, and the record says Anil Sarkar claimed his wife had more assets than him.

After Anil died, Dipa Sarkar requested the trust to be docketed by the probate court and petitioned for an election to take against the will pursuant to I.C. 29-1-3-1. The statute generally entitles a surviving spouse to half of a testator’s estate.

But the trial court granted summary judgment in favor of Anil Sarkar’s daughter from a previous marriage, Mili Sarkar Naugle, who also had been appointed successor trustee of the trust. The COA partially reversed and remanded.

“The question of whether a testator has established a trust in contemplation of death and with the intent of defeating his surviving spouse’s statutory share is a fact-sensitive inquiry,” Judge Terry Crone wrote for the court. ‘This is a question that the trial court has not yet considered, and one that the parties have not had a full opportunity to explore. Contrary to Dipa’s arguments, she is not somehow automatically entitled to invade the Trust assets to satisfy her statutory election simply because we have found her election timely and permitted her proposed second amended petition. As noted by Mili, Dipa conceded in her motion to reconsider that at least some additional discovery would be necessary by both parties in the event she was permitted to amend her petition to docket the Trust.

“… In sum, we affirm partial summary judgment on the narrow issue determined by the trial court that the Trust is the proper beneficiary of the IRA. We conclude that Dipa made a timely election against the Will, and that the trial court abused its discretion in denying her motion to amend her petition to docket the Trust to bring all issues between the parties before the court. Because genuine issues of material fact remain regarding the impact of the timely statutory election on the Trust assets, we remand for further proceedings.”

Sept. 22

Civil Tort – Vicarious Liability

Jennifer Cox v. Evansville Police Department and The City of Evansville; Babi E. Beyer v. The City of Fort Wayne


Two women who were sexually assaulted in separate cases by on-duty police in Evansville and Fort Wayne prevailed on appeal in their civil lawsuits against the cities after trial courts had ruled in favor of the municipalities.

The suits were combined before the Indiana Court of Appeals because they shared a common issue of law — whether the “common carrier” liability exception applied to police departments and municipalities in these cases. The appellate panel ruled it did, finding for the officers’ victims.

In the first case, Jennifer Cox sued Evansville over her 2009 assault by then Officer Martin Montgomery. He had responded to a domestic disturbance call involving Cox, who he took back to her apartment, followed her inside, and coerced her into sex, according to the record. He later was convicted of criminal deviate conduct and sentenced to 12 years in prison.

Cox’s suit initially was filed in federal court but later refiled in state court. Last August, her motion for partial summary judgment was denied on the non-delegable duty exception to respondeat superior liability — also known as the common carrier exception, prompting this interlocutory appeal.

“Officer Montgomery retained responsibility for Cox’s safety throughout their interaction. As for Cox’s abilities to control her environment and protect herself from harm, we note, first, that she was intoxicated — she had been drinking throughout the night, her girlfriend gave her car keys to Officer Montgomery, and the officer found it necessary to drive her home. And while it is true that she was in her residence and technically able to attempt to fight against a sexual assault, it is also true that Officer Montgomery was in full uniform, which included his badge and gun. And throughout the night, their interaction involved Officer Montgomery’s exercise of his official duties as an officer of the law,” Judge John Baker wrote for the panel.

“Under these circumstances, we find as a matter of law that Cox surrendered her autonomy and control to Officer Montgomery when he first responded to her girlfriend’s home. She did not reclaim her autonomy and control by the simple act of walking through her front door when he followed right behind her,” as Evansville argued. “Therefore, Evansville and EPD owed a non-delegable duty of care to Cox and the trial court erred by granting summary judgment in their favor on this issue and by denying Cox’s partial summary judgment motion. We reverse with instructions to grant Cox’s motion with respect to the duty element of her claim and remand for further proceedings.”

Baker wrote that Babi Beyer’s suit against Fort Wayne was more easily decided in her favor. After she was arrested for sitting behind the wheel of a car parked on a road while intoxicated, she was taken to a hospital where a blood draw revealed an alcohol level more than three times the legal limit. She was discharged, however, to the custody of then Officer Mark Rogers, who took her to a grassy area and raped her on a bench while armed and in uniform. Rogers pleaded guilty to charges of rape, sexual misconduct and official misconduct.

“Under these circumstances, we have little difficulty concluding that, at the time of the sexual assault, Beyer had surrendered her control and autonomy to Officer Rogers. Consequently, as a matter of law, Fort Wayne owed a non-delegable duty of care to Beyer. The trial court erred by granting Fort Wayne’s motion for summary judgment in this regard and we reverse that portion of its order and remand for further proceedings,” Baker wrote.

The panel also rejected Fort Wayne’s cross-appeal challenging the trial court’s denial of its motion for summary judgment on Beyer’s respondeat superior claim.

“While the ultimate acts of (Rogers’) sexual assault may have been for his own personal gratification, the context in which they occurred was made possible by the authorized duties of his employment as a police officer. Under these circumstances, whether he was acting within the scope of his employment when he sexually assaulted Beyer is a question of fact for a jury. Therefore, the trial court properly denied Fort Wayne’s summary judgment motion on this issue.”•

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