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Justices to hear estate dispute, probation revocation case

November 19, 2018

The justices of the Indiana Supreme Court will hear two oral arguments Tuesday, starting with a case involving the appointment of a special administrator to an unsupervised Marion County estate.

After Orlando Lewis, Jr. and his wife were killed in an auto accident in July 2017, his father, Orlando Lewis, Sr., was appointed as the administrator of the deceased’s estate to pursue wrongful death claims on behalf of Lewis Jr.’s minor children. 

Extended family members intervened, including the guardians of both of Lewis Jr.’s dependent children, arguing that because they were the children’s legal or court-appointed guardians, they should be co-special administrators.

Lewis Sr. appealed and argued that the trial court abused its discretion by reconsidering its appointment order instead of applying the statutory criteria for removal of a special administrator. The Court of Appeals affirmed the trial court’s ruling was merely a reconsideration, not a removal subject to the Removal Statute, ultimately concluding it was not an abuse of discretion.

On petition to transfer, Lewis Sr. poses the question of whether the appellate court’s decision conflicts with prior Court of Appeals and Supreme Court authority that shows the appointment was not in fieri, and thus not subject to reconsideration, and prior authority stating that where the original appointment of a special administrator was valid that subsequent removal must follow the provisions of the removal statute.

The petition also asks if the appellate court correctly applied precedent and whether that precedent should be reviewed to determine if it is erroneous or in need of clarification or modification.

Justices will consider hear arguments at 9 a.m. Tuesday. The case is In the Matter of the Unsupervised Estate of Orlando C. Lewis, Jr., Orlando Lewis, Sr. v. Shana Toliver and Kathy Calloway, 18S-EU-00507.

Then, Justices will hear argument in Nathaniel Bennett v. State of Indiana, 18S-CR-538, a case in which the appellate court affirmed the revocation of Nathaniel Bennett’s placement in community corrections when it found a cellphone in his possession contained “obscene matter,” that he was prohibited from having.

Specifically, after Bennett pleaded guilty to sexual misconduct with a minor and was sentenced to seven years – with four years served in community corrections followed by three years on probation – police found explicit photographs and videos on a cell phone in Bennett’s possession.

As a result, Bennett’s placement in community corrections was revoked and he was ordered to serve four years in the Indiana Department of Correction. Bennett appealed, arguing the judge’s statements during the sentencing hearing indicate the court found the phone did not contain “obscene” matter as defined by Indiana statute, but the COA disagreed in an August memorandum decision.

Now Bennett appeals, arguing that his community corrections placement was revoked based on possession of obscene matter, “despite the trial court’s factual finding that the photos in question did not meet the statutory definition of obscene matter.”

Justices will hear Bennett at 9:45 a.m.

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