Indiana Court Decisions: Dec. 15-28, 2022

7th Circuit Court of Appeals

Dec. 21

International Association of Fire Fighters, Local 365, et al. v. City of East Chicago and Anthony Copeland

22-1708

7th Circuit orders East Chicago to restore firefighters’ schedule, but judge warns of infringement on democracy

In a dispute between the mayor of East Chicago and the local firefighters union that opposes him, the 7th Circuit Court of Appeals has ruled for the firefighters, agreeing with a lower court that the city violated the firefighters’ First Amendment rights when it changed their work schedules in retaliation for lobbying activity. But one appellate judge issued a strong warning against judges invading the province of elected officials.

The dispute between the city of East Chicago and the local firefighters union began in 2010, when Anthony Copeland was elected mayor. Copeland began implementing cost-saving measures, including freezing local firefighters’ salaries and benefits.

Thus, when Copeland ran for reelection in 2019, the International Association of Fire Fighters, Local 365, and its members endorsed Copeland’s mayoral opponent and other candidates for city positions who opposed Copeland’s policies. The result was a mixed bag, with Copeland winning reelection but six firefighter-endorsed candidates also taking office.

Later in 2019, union president David Mata and the East Chicago Common Council drafted an ordinance to restore some of the benefits that Copeland froze in 2010. The council ultimately passed the ordinance, but Copeland vetoed the ordinance and the council could not override the veto.

Sometime later, Copeland directed then-fire chief Anthony Serna to develop a new schedule for the firefighters. The fire department was on a 24/48 schedule at the time, meaning they were on duty for 24 hours, then off the next 48 hours. Serna suggested a switch to either an 8/24 or 12/36 schedule, and Copeland opted for the former.

According to the 7th Circuit, “No other fire department in the country has adopted the 8/24 schedule. Unlike the 24/48 schedule, where the firefighters are on-duty the same hours every day that they work, the 8/24 schedule assigns the firefighters to different shifts every day.”

“This rotating schedule wreaked havoc on the personal lives and wellbeing of the firefighters, making it difficult — if not impossible — for the firefighters to manager their children’s regular schedules and establish consistent sleep schedules,” Judge Amy St. Eve wrote. “As a result, the firefighters experienced weight gain, lack of sleep, irritability, and trouble concentrating.”

Serna and Mata met to discuss the schedule change, with Mata secretly wearing a wire. He recorded their conversation, during which Serna said “all those moves are a reaction to the original ordinance,” referring to the ordinance to unfreeze salaries and benefits. Serna also likened the situation to a card game and said, “You can call it retaliation.”

The union then rejected a memorandum that would end the proposed change to the 8/24 schedule in exchange for the union giving up its rights to lobby the council. The next day, Serna issued a memo implementing the 8/24 schedule, with Copeland posting on Facebook that the union had left city officials with “no choice.”

In a repeat of the salary dispute, the common council passed an ordinance reinstating the 24/48 schedule, but Copeland vetoed it. This time, however, the council was able to override the veto.

Copeland responded with a complaint in Lake Superior Court, which ultimately ruled that the ordinance violated the mayor’s executive power and, thus, struck down the ordinance, meaning the 8/24 schedule remained in place.

The firefighters then took the matter to federal court, arguing the implementation of the new schedule was retaliation for the exercise of their First Amendments rights. They moved for a preliminary injunction, which the Indiana Northern District Court granted, ordering the city to reinstate the 24/48 schedule.

In a Dec. 21 decision, the 7th Circuit affirmed that decision in full.

“The appellants challenge the court’s conclusion that the Fire Fighters’ speech was a motivating factor in the schedule change,” St. Eve wrote. “In doing so, they take issue with three of the district court’s factual findings: (1) its finding that Serna told Mata … that the 8/24 work schedule was implemented as retaliation for the Fire Fighters’ political activity; (2) its finding that Copeland implemented the 8/24 work schedule in response to the Fire Fighters’ refusal to sign the memorandum of understanding; and (3) its finding that there was no evidence of any cost-savings due to the implementation of the 8/24 schedule.

“We disagree on all fronts,” the judge continued. “… There is sufficient evidence in the record, from the parties’ filings and the two-day hearing, to support the district court’s findings.”

That evidence, St. Eve wrote, included Serna’s comments to Mata considered as a whole; the implementation of the 8/24 schedule one day after the union declined to give up its lobbying rights; and the defendants’ “inability” to produce evidence proving the cost-savings argument.

“Before moving to the appellants’ next argument, we pause to emphasize one thing: that is, what makes the Fire Fighters’ claim likely to succeed on the merits here is unrelated to the fact that the defendants rejected the Fire Fighters’ lobbying campaign,” the judge added. “An elected official who disagrees with a citizen or organization concerning the proper course of action is well within his rights to act against that citizen’s or organization’s wishes.

“Accordingly, if the defendants had adopted the 8/24 policy for cost-cutting reasons as they claim, such a decision would have been entirely proper,” she continued. “But the fact that the defendants could have adopted the 8/24 policy in some circumstance does not mean that they were permitted to do so in this circumstance.”

Turning next to the question of harm, the 7th Circuit agreed with the district court that the 8/24 schedule deterred at least “some” political activity and also created physical and psychological harm.

“On the other side of the scale is the speculative financial benefit of the 8/24 schedule and the undefined harm to the statutory authority of Copeland and Serna,” St. Eve concluded. “There is little, if any, persuasive evidence supporting these harms … .”

In a concurrence, Judge Frank Easterbrook addressed the case’s political undercurrent and its implications for democracy.

“Does political payback violate the Constitution? The firefighters union, which waged and lost a political battle, says that the answer is yes if defeat can be called retaliation for political speech,” Easterbrook wrote. “By that standard, many political decisions are unconstitutional, and the judiciary will decide which policies promote the public interest.

“The judge in this suit found that the Mayor’s decision made the public worse off, leading to an injunction restoring the former policy,” he continued. “It is hard to imagine a more direct impingement on democratic governance.”

The judge likened the situation in East Chicago to former President Donald Trump overturning his predecessor’s policies.

“Must a federal court determine, as a matter of fact (after receiving evidence), whether the political winner’s policies produce net public benefits, or were expected to do so? The canonical question is whether any rational basis can be imagined to support a policy, not whether the policy is beneficial in fact,” Easterbrook wrote.

But the city did not raise that argument in the instant case, Easterbrook wrote, so he concurred with the court’s resolution of the arguments that were actually presented.

“But no one should assume from this decision that we have authorized district judges to review other public policies to ascertain whether they do more good than harm — or whether the persons who adopted the policies expected them to have net benefits,” he concluded. “Those are political questions for political actors rather than for judges who never need to face the voters.”

Indiana Supreme Court

Dec. 16

In the Matter of the Civil Commitment of B.N. v. Health and Hospital Corporation d/b/a Sandra Eskenazi Mental Health Center

22S-MH-408

IN justices: Trial courts must show ‘good cause’ for remote hearings, but error in commitment case was harmless

If a party objects to holding a remote hearing, a trial court can’t deny the motion by simply citing COVID-19 without further elaboration.

The Indiana Supreme Court handed down that ruling in its first opinion regarding remote hearings since announcing in September that trial courts will continue to have latitude in choosing virtual or in-person settings in 2023.

In the case at hand — In the Matter of the Civil Commitment of B.N., 22S-MH-408 — justices found the Marion Superior Court abused its discretion in its reasoning for denying an in-person hearing. But because the individual at issue would’ve still been committed due to the facts of the case, the error was harmless.

B.N. has suffered from schizophrenia for many years, and in October 2021, medical professionals sought an emergency detention after “significant delusional thought processes” resulted in her causing a car accident. She was then admitted to the Eskenazi Mental Health Center for inpatient treatment.

After evaluating B.N., who was unable “to differentiate reality from her paranoid delusions,” her physician petitioned the court for a temporary or regular commitment.

B.N. was notified on Oct. 21, 2021, that her commitment hearing would be held in person four days later.

While the record does not reflect when or how B.N. was later notified that her hearing would instead be held remotely, her counsel filed a motion objecting to the virtual hearing. The motion indicated B.N.’s desire to have an in-person hearing and cited the Indiana Supreme Court’s emergency orders modifying Administrative Rule 14.

Later that same day, the trial court denied the motion.

At the beginning of the remote hearing, B.N.’s counsel renewed the objection, reiterating her desire to appear in person. The court again denied the request, stating, “We’re proceeding remotely due to the COVID-19 pandemic.”

At the conclusion of the hearing, the trial court ordered a regular commitment, finding B.N. was suffering from schizophrenia, gravely disabled, and in need of extended custody, care and treatment.

B.N. appealed, arguing the denial of her request for an in-person hearing violated Administrative Rule 14 as well as constitutional and statutory provisions.

In a memorandum decision, the Court of Appeals of Indiana affirmed, finding B.N.’s arguments were waived.

The high court granted transfer but denied B.N. relief.

Justices concluded the trial court abused its discretion by proceeding with the virtual hearing “without articulating any particular and specific facts supporting its decision” outside of referring to COVID-19.

But they also determined the error was harmless.

“Though this is our first opportunity to articulate what constitutes ‘findings of good cause’ for purposes of modified Rule 14, the good-cause metric is utilized to assess the propriety of a trial court’s determination in various contexts,” Chief Justice Loretta Rush wrote. “And, consistently, good cause requires a ‘particular and specific demonstration of fact.’”

Using the good cause standard, justices found the trial court should’ve given more reasoning for moving the case to a remote hearing.

“We emphasize that trial courts retain significant discretion to conduct remote proceedings over objection when there is good cause to do so,” Rush wrote. “But they must offer something more than a one-size-fits-all, boilerplate pronouncement; good cause requires something specific to the moment, the case, the court, the parties, the subject matter, or other relevant considerations.

“To be sure, remote proceedings are here to stay and may be more efficient in various circumstances,” the chief justice continued. “But in-person evidentiary hearings are vital in certain proceedings, such as involuntary civil commitment hearings, where a party’s liberty interests are at stake.”

On whether the error was harmless, justices found it was due to the facts of the case.

The court referenced two recent opinions — A.A. v. Eskenazi Health/Midtown CMHC, 97 N.E.3d 606 (Ind. 2018), and In re the Termination of the Parent-Child Relationship of I.L., O.L., V.N., and M.P.N. (Minor Children) and S.T. (Mother) v. Indiana Department of Child Services, 177 N.E.3d 864 (Ind. Ct. App. 2021) — in its reasoning.

“In sum, the probable impact of the court’s error — in light of B.N.’s active participation during the virtual hearing, the lack of technological issues which may have adversely impacted her, and counsel’s zealous advocacy — was sufficiently minor such that we conclude it did not affect B.N.’s substantial rights,” Rush wrote.

“At the same time, we recognize that an involuntary civil commitment represents ‘a significant deprivation of liberty,’” she continued. “And we also recognize that those facing civil commitment may be particularly sensitive to a virtual environment, where technological issues can arise that might acutely impact the individual.

“In-person commitment hearings should thus be the norm, not the exception,” she concluded. “So, while we can certainly envision a scenario in which a trial court’s decision to proceed remotely in a commitment hearing without making the requisite findings of good cause results in reversible error, it does not here.”

Court of Appeals of Indiana

Dec. 15

Jennifer R. Teising v. State of Indiana

22A-CR-548

Ex-trustee who worked remotely from camper during COVID wins reversal of 21 theft convictions

The former Wabash Township trustee who was convicted of 21 counts of felony theft after she bought a camper and worked remotely across the country has had her convictions overturned by the Court of Appeals of Indiana.

Judges on the unanimous COA panel concluded the evidence wasn’t enough to find that now-ex trustee Jennifer Teising intended to abandon her Wabash Township domicile and establish a new residence while she traversed multiple states during the COVID-19 pandemic.

The case of Jennifer R. Teising v. State of Indiana, 22A-CR-548, began in June 2020, when Teising sold her home and moved furniture and personal possessions into another home in Wabash Township.

Teising then purchased a camper and traveled while working remotely. She began camping in Florida at the end of October 2020, around which time questions surfaced regarding her residency.

In December of that year, Teising refused demands to resign as trustee due to the residency questions.

The Tippecanoe County prosecutor, with the help of Indiana State Police, began investigating the matter.

Teising was eventually indicted by a grand jury on 21 counts of Level 6 felony theft for taking her salary as trustee while not residing in the township.

Following a three-day bench trial, Teising was convicted of all 21 counts.

She was sentenced to an aggregate of 1,095 days, with 248 days executed, split between jail and community corrections, and the remaining 847 days suspended to unsupervised probation. She was also ordered to pay $28,000 in restitution.

The felony convictions forced Teising out of office, according to WTHR in Indianapolis.

Teising’s sentence was stayed pending appeal.

At the COA, judges grappled with whether her acts constituted as theft.

In convicting Teising, the trial court had pointed to evidence including her statements that she planned to resign and move to Florida, her acts of selling her house and buying a camper, her travel “nearly entirely outside of Wabash Township” for nine months, and the fact that she spent only 27 nights in her Wabash Township home during that time.

The appellate court, however, concluded the evidence didn’t support the convictions.

“While the trial court believed Teising’s move to Knox Drive (in Wabash Township) was a sham, the court made no finding that she had established residency elsewhere,” Judge Robert Altice wrote. “… (U)nder both the common law and statutes, Teising could not lose her residency in Wabash Township until she established a new residence elsewhere. This she did not do.

“…. (H)er lack of physical presence in Wabash Township during much of this period must be considered in context,” Altice continued. “There was an ongoing worldwide pandemic and she, like countless others, was working remotely.

“Instead of working in Wabash Township, Teising traveled in her camper to Anderson, where she interacted with close friends who were in her COVID-19 bubble,” he wrote. “She also traveled to Colorado, to other locations in Indiana, and ultimately to Florida for the winter months.

“There is no indication in the record that any of Teising’s travels during this time were intended to be permanent or to affect a change in residency,” the COA concluded, finding the trial court erred in convicting Teising.

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Dec. 19

A.C. v. State of Indiana

22A-PC-1215

Reversal: Human trafficking victim entitled to post-conviction relief

An Indiana woman who was convicted of a felony after becoming a victim of human trafficking as a minor has convinced the Court of Appeals of Indiana to reverse a denial for post-conviction relief.

At issue in A.C. v. State of Indiana, 22A-PC-1215, was whether the Vacatur Statute applied in A.C.’s case after she was denied relief by a post-conviction court.

When A.C. was 15 years old, while living in the foster care system, she met T.M. though social media and became the victim of sex trafficking.

At 17, after a sting operation on T.M., A.C. ran away from a group home and stayed with J.J., J.J.’s sister and the sister’s boyfriend in Indianapolis. There, A.C. again became a victim of sex trafficking.

During the months the minor lived with J.J., he arranged for A.C. to meet and complete sex acts with men at least five times per day, providing her with cocaine and alcohol prior to each sex act. He then kept the money.

One day in June 2017, after J.J. had stolen another man’s wallet, he gave A.C. a credit card to buy gas. The card was declined, and A.C. — who was under the influence of cocaine and alcohol — later learned the card belonged to the man who was robbed.

J.J. later had his two sisters beat up A.C., who then ran away and called Department of Child Services, which placed her in an adolescent treatment program for substance abuse.

The state then charged A.C. with Level 3 felony attempted armed robbery and Level 3 felony conspiracy to commit armed robbery. Although A.C. was a juvenile, she was arrested, charged as an adult and held in the Cass County Jail.

In March 2018, A.C., then 18, pleaded guilty to Level 6 felony assisting a criminal in exchange for dismissal of the pending Level 3 felony charges. She was sentenced to 460 days, with 458 days as time served, and one day of probation.

In June 2021, A.C. filed for post-conviction relief, seeking relief under the Vacatur Statute, Indiana Code § 35-38-10-2, and arguing that she was a minor who was under the influence of cocaine and alcohol when J.J. drove her to meet with and perform sex acts with another man, which led to the robbery.

But the post-conviction court denied the petition and the instant appeal ensued.

Under the Vacatur Statute, A.C. was required to prove that she was a trafficked person at the time she committed the offense, that the offense did not result in any bodily injury to another person, and that at the time she committed the offense, she was coerced or under the control of another person. During the post-conviction proceedings, the parties agreed that A.C. was a 17-year-old trafficked person at the time of the offense and that the offense did not result in bodily harm to another person.

Thus, looking at the evidence, the COA found A.C. “clearly met her burden of proof” and is entitled to relief via the statute.

“This evidence was unrefuted by the State at the post-conviction hearing, and on appeal, the State concedes that Petitioner presented evidence to support that she was coerced or under the control of another person when she committed the underlying offense, and that the post-conviction court’s denial of her petition should be reversed,” Judge Peter Foley wrote.

Further, the COA determined the post-conviction court erred in its statement that, even though it did not decide the case under the Vacatur Statute, “[i]f the [c]ourt were going to base a decision on this statute, the [c]ourt’s position would be that she has not met her burden as a matter of public policy, because characterizing these circumstances as ‘coercion’ or ‘control,’ would be an insult to victims of coercion and control.”

“The Vacatur Statute does not include a public policy exception,” Foley wrote. “As we have already stated, there is no discretion, and if a petitioner presents evidence by a preponderance of the evidence on the three prongs, the petitioner ‘is entitled’ to have the conviction vacated.

“Here, Petitioner presented undisputed evidence at the post-conviction hearing to satisfy the three prongs of the Vacatur Statute, and the post-conviction court erred when it denied her petition for post-conviction relief.”

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Dec. 20

In re the Guardianship of Clarence E. Weber (an Incapacitated Adult) Indiana Family and Social Services Administration v. Clarence E. Weber, Mary M. Weber

21A-GU-2680

COA finds ‘extraordinary circumstances’ in spousal support, Medicaid dispute between wife, FSSA

The Indiana Family and Social Services Administration has prevailed before the Court of Appeals of Indiana in a dispute with a woman whose spousal support order increased the amount of Medicaid funding her incapacitated husband received.

After a trial court granted Mary Weber guardianship over her husband, Clarence Weber, Mary moved for and received an order for spousal support. The order was then used to increase Mary’s allowance and offset Clarence’s income when he applied for Medicaid, which boosted the Medicaid funding he received.

Almost a year after the spousal support order was issued, FSSA moved to intervene and for relief from judgment, arguing the Morgan Superior Court’s spousal support order was contrary to law.

The trial court granted FSSA’s request to intervene but found it was not entitled to equitable relief.

Without reaching the merits of the order, the court determined FSSA was not entitled to equitable relief because Indiana Code § 12-15-2-25(d) instructed FSSA to adopt rules “setting forth the manner in which the office will determine the existence of exceptional circumstances resulting in significant financial duress,” and FSSA had yet to do so.

Therefore, the court concluded an equitable remedy “should not be available to the FSSA due to their own failure to fully comply with their statutory obligation(s), such that this dispute might have been originally avoided by having their guidance.”

On appeal, FSSA argued that the spousal support order was erroneous and that it was entitled to relief from judgment. Cross-appealing, Mary argued the court erred in granting FSSA’s request to intervene.

At the Court of Appeals, judges concluded the trial court did not err in allowing FSSA to intervene given its significant interest in the proceedings, agreed with FSSA that Indiana’s spousal-support statute does not permit an award of support in Mary’s case, and concluded that extraordinary circumstances warrant equitable relief.

“… (W)e emphasize that while post-judgment intervention is generally disfavored, extraordinary and unusual circumstances are present,” Judge Nancy Vaidik wrote. “First, the judgment entered here did not go through any sort of adversarial proceeding. … Second … the plain language of the spousal-support statute does not provide for an award of support in the Webers’ situation.

“Finally, FSSA cannot challenge the order through its own internal process by adjusting the amount of the community spouse monthly income allowance since it is required to honor court-ordered spousal awards,” Vaidik continued. “… In this uncommon and extraordinary situation — where FSSA would otherwise be bound to honor a spousal-support order for which there was no basis in law — FSSA has the right to intervene, even post-judgment, in order to protect its interests in the only way it can.”

Thus, judges opined it was erroneous for the trial court to grant Mary spousal support and reversed and remanded, finding FSSA entitled to equitable relief.

“As noted above, these are unique circumstances,” Vaidik wrote. “FSSA had no opportunity to challenge this order before it was made final — nor did any party challenge it in any way before it was made final — and it does not appear FSSA has an alternative means of doing so now.

“And this order has significant impact on FSSA, as it compels them to pay for amounts of Clarence’s care that it would not otherwise be obligated to provide,” she continued. “We believe FSSA has shown extraordinary circumstances warrant relief here.”

Despite the outcome of the appeal, the COA noted Mary still has a remedy available to her.

“… (C)larence was found eligible for Medicaid in November 2019, at which time both federal and state Medicaid law permit either Clarence or Mary to seek a Medicaid determination that Clarence is entitled to retain for Mary a community spouse income allowance higher than the minimum monthly needs allowance due to exceptional circumstances resulting in significant financial duress,” Vaidik wrote.

“… If they are dissatisfied with FSSA’s determination on that issue, they may appeal that determination through the administrative appeals process and/or the courts.”

The case is In re the Guardianship of Clarence E. Weber (an Incapacitated Adult) Indiana Family and Social Services Administration v. Clarence E. Weber, Mary M. Weber, 21A-GU-2680.

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Dec. 22

State of Indiana v. Elijah I. Parchman

21A-CR-447

Appellate court rejects Brady claim but rebukes state for not disclosing witness’s complete criminal history

While the Court of Appeals of Indiana agreed with the state that the withholding of evidence about a witness was “negligible, at best” in a trial that ended with a murder conviction, it admonished the prosecutors for failing to disclose, reminding them to present all the evidence and let the courts decide what is admissible.

The Vanderburgh Circuit Court granted Elijah Parchman’s motion to correct error requesting a new trial following his conviction for murder and attempted murder. Parchman maintained he acted in self-defense. But Ikeem Minor, who was shot by Parchman and whose brother, Bobby, was shot and killed by Parchman, said he and his brother had not been carrying guns and were not physically close to Parchman when the shots were fired.

Following the jury’s guilty verdict, the trial court did its own research and found that Minor had a 2008 juvenile delinquency adjudication for committing what would have been Class B felony burglary if committed by an adult. The disposition of that adjudication was taken more than 10 years before Minor testified at Parchman’s trial.

The trial court subsequently appointed Parchman a new attorney to investigate whether the state had prejudiced the outcome by withholding evidence of Minor’s 2008 juvenile delinquency adjudication.

After Parchman filed a motion asking for a new trial, the state responded by acknowledging it had inadvertently suppressed Minor’s juvenile record but argued Parchman had not be prejudiced. Parchman countered that the case boiled down to his credibility versus Minor’s, and the state’s failure to disclose Minor’s past denied him the opportunity to impeach Minor’s credibility.

Ultimately, the Vanderburgh Circuit Court granted a new trial, finding Parchman had been “denied a fair trial due to the State’s failure to provide impeachment evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963).”

The Court of Appeals reversed in State of Indiana v. Elijah I. Parchman, 21A-CR-447, finding the trial court abused its discretion in granting Parchman’s motion.

Determining the Parchman case turned on whether the nondisclosure was prejudicial to the defendant, the appellate panel looked to McKnight v. State, 1 N.E.3d 193 (Ind. Ct. App. 2013), and found, considering all the evidence presented at trial, that the omission of Minor’s 10-year-old juvenile delinquency adjudication was “negligible, at best.”

Namely, the Court of Appeals found Minor’s testimony was supported by testimony from the police that Parchman was standing more than 100 feet away from the victims when he began shooting and by evidence showing Minor and his brother were both shot in the back on their buttocks.

“Based on these specific particular facts, we conclude, as we did in McKnight, that Parchman has not demonstrated a reasonable probability that the outcome of this trial would have been different had trial counsel know about Minor’s juvenile delinquency adjudication and attempted to impeach him with questions about that remote adjudication,” Judge Rudolph Pyle wrote for the court. “Accordingly, Parchman’s Brady claim fails.”

However, the Court of Appeals admonished the state in a footnote about withholding Minor’s juvenile record. The appellate panel said the trial court was “rightfully displeased” and “we disapprove of the State’s failure to provide Parchman with Minor’s complete criminal history.” The appellate court pointed out criminal history information is “almost exclusively” within the state’s control to retrieve and the courts, not the state, determine “whether evidence is prejudicial or inadmissible.”

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Dec. 28

Reese Levi Keith v. State of Indiana

22A-CR-930

Appellate court rejects 2nd burglary sentence appeal after previously ordering resentencing

A man who previously convinced the Court of Appeals of Indiana to reduce his burglary conviction and sentence failed in his second sentencing appeal.

Following a bench trial in 2018, the Johnson Superior Court convicted Reese Levi Keith of multiple offenses, including Level 1 felony burglary, adjudicated him as a habitual offender and sentenced him to 62 years.

Keith’s convictions related to the 2017 robbery of 90-year-old Clayton Dixon and 88-year-old Ella Dixon, who lived in Franklin.

After the robbery, the elderly man’s Alzheimer’s worsened and he was put in an assisted living facility, which drained the couple’s savings and left his wife alone in the same house where the crimes occurred.

On Keith’s first appeal, the Court of Appeals in June 2019 reversed in his favor, finding the injury to Clayton’s mind did not qualify as a bodily injury.

Thus, the COA ordered the trial court to vacate the Level 1 felony burglary conviction and enter judgement of the burglary as a Level 3 felony.

Also on remand, the COA ordered the trial court to attach Keith’s habitual offender enhancement to one of his felony convictions.

At resentencing, Keith received a 42-year aggregate term with the habitual offender enhancement.

Keith appealed again, arguing his sentence was inappropriate.

This time around, however, the appellate court refused to provide relief.

In its ruling, the Court of Appeals pointed to the facts of the case and Keith’s “extensive criminal history,” which includes six felonies, five misdemeanors and seven probation violations.

“This senseless attack on an elderly couple is particularly disturbing,” COA Judge Rudolph Pyle wrote in a Dec. 28 opinion. “When these facts are placed in context with Keith’s criminal history, we find it necessary to remind appellants that our ‘appellate review and revise authority derived from Article 4 of the Indiana Constitution likewise includes the power to either reduce or increase a criminal sentence on appeal.’ McCullough v. State, 900 N.E.2d 745, 750 (Ind. 2009) (emphasis added).

“However, given our previous instructions on remand, we chose not to exercise the authority to increase Keith’s sentence,” Pyle continued in the unanimous opinion. “The trial court considered all of the evidence and imposed a sentence well within the statutory range.

“Based on the record before us,” the judge concluded, “Keith has failed to meet his burden to persuade this Court that his sentence is inappropriate.”

The case is Reese Levi Keith v. State of Indiana, 22A-CR-930.•