Indiana Court Decisions – Feb. 11-24, 2021

Indiana Supreme Court

Feb. 23

Civil Plenary — Zoning/Due Process, Constitutional Rights

City of Bloomington Board of Zoning Appeals v. UJ-Eighty Corp.


The Indiana Supreme Court reversed lower court decisions against the city of Bloomington, upholding zoning orders requiring residents to vacate a fraternity house that Indiana University no longer recognized. Justices noted the ruling may apply in college and university towns throughout the state.

A unanimous court ruled for Bloomington and, indirectly, IU, in finding the city had not misapplied its zoning and code-enforcement authority that worked in tandem with the university, allowing IU to define fraternities and sororities. “While this may have had a ‘collateral effect’ on land use, it was not a delegation. Thus, there were no constitutional violations,” Justice Mark Massa wrote for the court in City of Bloomington Board of Zoning Appeals v. UJ-Eighty Corp., 21S-PL-77.

UJ-Eighty owns property on Jordan Avenue in Bloomington that formerly was leased to an IU fraternity. After IU revoked the fraternity’s recognition, two of its members remained at the house, prompting Bloomington to cite UJ-Eighty for a zoning violation. The city Board of Zoning Appeals affirmed the citation, which led to this lawsuit.

Both the Monroe Circuit Court and a divided panel of the Indiana Court of Appeals found for UJ-Eighty. Those courts found the city had impermissibly delegated its statutory zoning authority to IU by permitting the university to define fraternities and sororities.

The state’s high court ruled otherwise, siding with the COA dissent of Judge L. Mark Bailey in finding no improper delegation of authority or constitutional violations.

Justices found Bloomington relied on IU to define fraternity and sorority houses, but it didn’t relinquish its enforcement powers. “The (Bloomington zoning) Ordinance did nothing more than define fraternities and sororities based on their relationship with IU. It was not a delegation of power; rather, it was a legislative decision on how to define a certain land use. And UJ-Eighty failed to establish how, outside the alleged delegation, it was denied due process. Thus, Bloomington did not violate the Fourteenth Amendment,” the court held.

“The impermissible delegation of power and denial of due process strike at the core of our state and federal constitutions,” Massa wrote. “Courts should guard against such significant constitutional violations. However, for there to be a violation, there must be some delegation or lack of due process. Here, there was none.”

In a footnote, the court indicated Bloomington modified its zoning code while the appeal was pending in a manner that “addressed UJ-Eighty’s concerns by removing any reference to IU’s sanction or recognition. However, the amendment was not retroactive, so while it provided prospective relief, it did not nullify UJ-Eighty’s violation. Absent judicial relief, the BZA’s decision stands, and Bloomington can fine or otherwise penalize UJ-Eighty. Because the controversy at issue has not been ended or settled, this case is not moot,” Massa wrote for the court.

Further, the court said, “Today’s holding also makes clear to zoning authorities in Indiana’s other college towns that they can rely on a local college or university’s judgment in defining Greek houses.”

Indiana Court of Appeals

Feb. 15

Civil Plenary — Civil Forfeiture/Partial Reversal, Right to Counsel

Terry L. Abbott v. State of Indiana


Summary judgment for the state has been overturned in an action seeking to forfeit nearly $9,000, with a majority of judges holding that owners of seized property can used seized cash to help fund their defense. A dissenting judge, however, thinks that ruling exceeds statutory limits.

In Terry L. Abbott v. State of Indiana, 19A-PL-1635, the state in June 2015 moved to forfeit four firearms and more than $9,000 in cash from Terry Abbott that was found during a search warrant. Abbott was suspected of dealing drugs in 2015, the state alleged, designating evidence that he had sold methamphetamine and other narcotics to undercover law enforcement during two controlled buys.

Police obtained a search warrant for Abbott’s residence, where they found the guns, various drugs and $9,184 in cash. About $6,760 was found in the pocket of Abbott’s pants, while another $2,000 was found in a safe, including $250 believed to be “drug buy” money. Also, $11 was found in a bag with pills in Abbott’s basement.

Abbott was arrested and eventually convicted of multiple offenses including two counts of dealing.

Abbott originally had a lawyer, but his counsel withdrew in November 2015 based on Abbott’s failure to pay legal fees. Then, when the state moved for summary judgment in July 2018, Abbott unsuccessfully requested the appointment of counsel at public expense.

During summary judgment proceedings, Abbott claimed the money found in his pocket was lawfully obtained and was set aside to purchase a motorcycle the same day he was arrested. The sale had been postponed, he said, and he simply had not taken the cash out of his pocket. Also, he said, he was employed leading up to his arrest, and his 2015 tax documents showed two sources of lawful wages collectively exceeding $20,000.

The Elkhart Superior Court entered summary judgment for the state, finding that the “overwhelming designated evidence” indicated the cash in his pocket was related to criminal conduct. Abbott then appealed and moved to obtain a transcript at public expense, but the trial court denied his request.

The Indiana Court of Appeals allowed Abbott to proceed without a transcript, then partially reversed Feb. 15.

Abbott only challenged the seizure of the $9,184 in cash, so the appellate panel affirmed summary judgment on the seizure of the firearms seized from his residence. And as to the cash, “Abbott disclaimed interest in the $11 found commingled with pills and he has not presented a cogent argument concerning the $250 of documented ‘drug buy’ money,” Judge L. Mark Bailey wrote. “Thus, we declined to reverse summary judgment as to $261 and hereafter regard the res as $8,923.”

“In seeking summary judgment, the State claimed entitlement to the res because the cash was connected to criminal drug-dealing activities,” Bailey wrote. “Assuming without deciding that the State met its initial burden, Abbott designated evidence that he lawfully obtained $6,760 of the res.

“By doing so, he created a genuine issue of material facts as to whether the res was ‘derived from,’ ‘realized through,’ or ‘used in the course of’ criminal conduct. … That leaves only whether the res was ‘intended for use in the course of’ criminal conduct.”

There are “conflicting inferences” regarding the use of the cash found in Abbott’s pocket, Bailey wrote. Abbott designated evidence that he intended to use the money for the lawful purpose of purchasing a motorcycle for personal transportation, while the state argued the motorcycle would have been used for drug dealing.

“Ultimately, Abbott’s affidavit created a genuine issue of material fact as to the State’s entitlement to the res,” Bailey wrote. “We therefore conclude that the trial court improperly granted summary judgment and we reverse and remand for further proceedings regarding the res.”

The COA opinion added that the panel was “concern(ed) that the trial court characterized the State’s designated evidence as ‘overwhelming.’” The panel reminded trial courts that forfeitures “are not favored” and that “‘weighing [evidence] – no matter how decisively the scales may seem to tip – [is] is a matter for trial, not summary judgment.’”

Abbott also brought an appellate challenge to the denial of his request for counsel. The COA held that he was not entitled to counsel at public expense, but because the money in the res is still his, he has the means to fund his own defense.

“We ultimately find no statute precluding a court from (1) considering the res when examining a person’s means or (2) allowing use of the res for the limited purpose of funding a defense to forfeiture,” Bailey wrote. “Not only do we discern no statutory impediment here, allowing use of the res harmonizes the pertinent statutes and is consistent with Indiana law.

“Indeed, it is especially notable that Indiana Code Section 34-24-2-4(c), which applies to this appeal, expressly provides that the res ‘is considered to be in the custody of [law enforcement], subject only to order of the court,’” Bailey continued. “Allowing use of the res is such an order of the court.

“… Ultimately, in light of the parties’ competing interests in the res and in view of Appellate Rule 66(C)(1), which permits us to grant ‘any … appropriate relief,’ we conclude that a defendant in a civil forfeiture proceeding is not excluded from using the res to retain counsel, purchase a transcript if needed, and pay for other reasonable expenses associated with preparing a defense. … Thus, on remand, we instruct the court to allow Abbott to use the res for these limited purposes.”

On remand, the trial court was instructed to “adopt reasonable procedures to supervise expenditures from the res.

Judge Leanna Weissmann fully concurred, but Judge Nancy Vaidik penned a partial dissent, writing that she would not allow Abbott to use the seized cash to pay for an attorney.

“Based on his criminal convictions and the evidence seized from his house, I do not believe the trial court erred in concluding Abbott is unlikely to prevail in his defense and denying him appointed counsel under the statute,” Vaidik wrote. “This is where the analysis should end — an affirmation of the trial court’s ruling on Section 34-10-1-2 and a reversal of the order granting summary judgment.

“… While I recognize there has been prosecutorial overreach in civil-forfeiture cases requiring our intervention, this is not one of those cases. And when there is abuse, the judiciary has appropriate remedies to address such issues — holding the State to its burden of proof, overturning statutes based on constitutional violations, and appointing an attorney under the civil-appointment statute,” Vaidik continued. “… We are not handcuffed as a judiciary. But we cannot substitute our will for the legislature and circumvent a detailed statutory scheme using equity to provide our desired relief.”


Feb. 22

Post Conviction — Murder/Ineffective Assistance, Remand for Resentencing

Andrew Conley v. State of Indiana


A man convicted as a teen of murdering his 10-year-old brother will get a new sentencing hearing after the Indiana Court of Appeals found his representation “wholly deficient” at his first sentencing hearing that led to his sentence to life without parole.

The case involves Andrew Conley, who at 17 killed his 10-year-old brother, Conner, in November 2009. Conley turned himself in, telling Rising Sun police that a wrestling match between brothers led to Conley strangling his brother. He told law enforcement that he was not angry and he loved his brother, “but he could not stop himself from strangling Conner.”

After putting the body in the trunk of his car and spending two hours at his girlfriend’s house, Conley disposed of his brother’s body in a wooded area. His parents, who worked overnight, were asleep the next morning, and Conley admitted that he stood over his father with a knife and considered killing him, though he couldn’t explain why he felt that way.

Conley also told police that he had made multiple suicide attempts, had previously had homicidal thoughts and had believed something was “wrong” with him for several years. The state eventually charged Conley with murder as an adult, and he was appointed counsel.

Conley pleaded guilty in September 2010 and proceeded to a five-day sentencing hearing two days later.

Both the state and the defense presented testimony from mental health experts, who diagnosed Conley with severe mental illness. Among those was defense witness Dr. Edward Connor, a clinical psychologist who said Conley was in a dissociative state during the murder. Also, Dr. George Parker, a neuropsychologist, testified for the defense that Conley suffered from “major depression with psychotic features,” including hearing voices, and that the teen was “under the influence of extreme mental or emotional disturbance at the time the murder was committed.”

Among the mitigators presented was Conley’s age, his lack of a juvenile criminal history and his mental health. The Ohio Circuit Court, however, did not give “significant” weight to his mental disturbance or defect, finding instead that the only aggravator – the fact that Conner was 10 – “far outweigh[ed]” the mitigators. Conley was then sentenced to life without parole.

The Indiana Supreme Court upheld Conley’s sentence, so he next filed a pro se petition for post-conviction relief in 2013. His petition was amended by counsel in 2018, raising claims of ineffective assistance of trial and appellate counsel, challenging his guilty plea and raising various constitutional arguments.

Conley’s trial lawyer testified at the PCR hearing that the five-day sentencing hearing was not what he and co-counsel had expected. The lawyer also recalled that an investigator had alerted the defense to physical and emotional abuse, but defense counsel did not request further investigation. Conley was represented at the trial court by Lawrenceburg attorneys Gary Sorge and John Watson.

Also at the PCR hearing, Parker, the neuropsychologist, testified that the U.S. Supreme Court’s decisions in Roper v. Simmons and Graham v. Florida, marked the first time the court “agreed that (neuroscience) was both clear and pertinent in a criminal setting … .” Also, Connor testified that he sent a rough draft of his report on Conley — which included a discussion of whether a child services investigation was warranted — to the defense, but never heard back.

The post-conviction court denied the petition in December 2019, then denied Conley’s motion to correct error, prompting the instant appeal in Andrew Conley v. State of Indiana, 19A-PC-3085.

The case attracted the attention of the Indiana Public Defender Council, which participated in the case as an amicus. The council argued that LWOP sentencing for juveniles should be abolished under the Indiana Constitution, adding that its argument should not be barred by res judicata and that the Court of Appeals should consider its arguments even though they were not raised in the post-conviction court. The COA, however, declined that request.

The court likewise rejected Conley’s argument that his counsel was deficient by not advising him to proceed to trial on a defense of guilty but mentally ill, focusing instead on his claims that his trial counsel did not fully investigate and present the substantial mitigating evidence available at the time of sentencing, and that his counsel failed to properly challenge the state’s expert witnesses and prepare the defense’s expert witnesses.

Looking first to the issue of mitigators, Judge Elizabeth Tavitas wrote for the unanimous appellate panel that defense counsel “fail(ed) to raise and advance the ongoing jurisprudential shift toward imposing constitutional limits on sentences assessed to juvenile offenders.”

“At the time of Conley’s sentencing, the United States Supreme Court had issued several opinions limiting sentences that could be imposed on juvenile offenders,” Tavitas wrote, referencing Roper and Graham, among others. “… Likewise Indiana has long recognized the doctrine that juveniles are to be treated differently than adults.

“… Despite this precedent, defense counsel inexcusably failed to mention Roper, Graham, or the juvenile brain science regarding the fundamental differences between juveniles and adults outlined in those opinions to the trial court during sentencing,” Tavitas continued.

Finding that omission “wholly deficient,” the COA also found that defense counsel “missed opportunities to zealously present evidence and challenge the State’s evidence regarding Conley’s mental health.” That included not utilizing an investigator to look into issues of abuse.

What’s more, Tavitas said, the sentencing hearing began just two days after Conley pleaded guilty, “and defense counsel seemed unprepared for the State’s extensive presentation and failed to grasp the importance of an LWOP sentencing hearing.” The defense also failed to properly challenge a pathologist’s testimony regarding sexual abuse against Conner, she wrote.

But most importantly, the panel held, “defense counsel failed to adequately challenge the State’s experts regarding Conley’s mental health.” There was evidence at the PCR hearing that the testimony from the state’s expert was improper and was not expressly cross-examined.

That deficient performance was prejudicial, Tavitas continued, finding that “(a) reasonable probability exists that, but for defense counsel’s errors, the proceedings at the trial level would have resulted in the imposition of less than the maximum LWOP sentence especially in light of the substantial mitigating factors: Conley’s age, the fact that Conley did not have a juvenile or criminal record, and Conley’s undisputed significant, severe mental health issues.”

“Accordingly,” Tavitas wrote. “we conclude that the PC Court clearly erred by rejected Conley’s ineffective assistant of trial counsel claim.”

However, the COA upheld the post-conviction court’s rejection of Conley’s challenges to his guilty plea, his appellate counsel — who was now-COA Judge Leanna Weissmann — and his claims that newly discovered evidence rendered his sentence improper. It also declined to revise his sentence under Indiana Appellate Rule 7(B).

But based on trial counsel’s ineffectiveness, Conley’s case was remanded for a new sentencing hearing.


Feb. 23

Expungement — Reversal of Denial

Jason Ball v. State of Indiana


A man who was denied a petition to expunge his criminal record had the pendulum swing in his favor after an appellate panel reversed to grant his expungement request.

The Indiana Court of Appeals in Jason Ball v. State of Indiana, 20A-XP-01521, determined that the Elkhart Superior Court abused its discretion in denying Jason Ball’s request to expunge a criminal record.

When Ball was just 16 in 1996, he and his brother broke into a retail sporting goods store while the store was closed and stole several guns worth more than $16,000. Ball’s brother also attempted to break into a bank’s ATM machine while the bank was closed.

Ball later pleaded guilty to one count of Class C felony burglary and one count of Class C felony attempted burglary, leaving him with consecutive sentences of eight years for the burglary count and eight years with five years suspended for the attempted burglary count.

After serving four years in the Department of Correction, Ball was convicted of four alcohol-related misdemeanor offenses in 2000. He sought to expunge all of his convictions, both criminal and misdemeanor, but the trial court only granted his request as to the alcohol-relate crimes. It denied his petition to expunge the felony crimes, finding that Ball had been convicted of four additional offenses after he had been released from the DOC and had failed to show the court that he had paid all fines, fees, and court costs or satisfied his restitution.

After being denied a subsequent petition for expungement in December 2019 without a hearing, Ball filed a motion to reconsider and the trial court held a hearing on the matter in March 2020. It again denied his petition, prompting an appeal.

“Ball argues that the trial court abused its discretion in denying his expungement petition. We agree,” Judge Rudolph Pyle III wrote for the unanimous appellate court.

“Our review of the record reveals that, in 2016, Ball tendered to the trial court a probation department letter, which stated that Ball had paid his probation fees and that restitution had been paid by the co-defendants. Nearly four years later, in his second petition seeking expungement of his felony convictions, Ball tendered to the trial court a certified letter from the county clerk stating that there was no restitution balance due in his case,” the panel wrote.

“We hold that where, as here, a co-defendant in the same case has compensated the victim, the statutory restitution obligation has been satisfied. As a result, Ball has proven by a preponderance of the evidence that the restitution in his case has been satisfied. Therefore, the trial court clearly erred in concluding that his convictions were ineligible for expungement.”

As to the trial court’s other reasons, the appellate court concluded that it was clear that Ball was seeking to expunge two convictions and that the price of the guns he stole were “simply not enough to support the denial of Ball’s expungement petition.”

Noting Ball has been a law-abiding citizen for the past 20 years, has a family and provided letters attesting to his good character and strong work ethic, the appellate court reversed and remanded with instructions for the trial court to grant Ball’s petition and to order his records to be expunged.


Feb. 24

Miscellaneous — Birth Certificate/Gender Change for Transgender Children

In the Matter of the Change of Gender Identification of A.B.; In the Matter of the Change of Gender Identification of O.S.; In the Matter of the Change of Name and Gender Identification of C.V. (f/k/a V.V.)


Two Indiana trial courts must reconsider parents’ requests to change their children’s birth certificate gender markers, a majority of the Indiana Court of Appeals ruled Feb. 24, finding parents have statutory authority to request the changes for their minor transgender children. A dissenting judge, however, opined that the decision was a judicial overreach into legislative powers.

The split decision in the consolidated appeal involves three children.

First is A.B., whose mother petitioned the Allen Circuit to change the gender marker on A.B.’s birth certificate from male to female. A.B. was 14 years old at the time, but had been presenting as female identity since she was 9 years old. Her birth certificate had previously been changed to include a name that reflected a female identity.

Likewise, O.S.’s mother asked the Allen Circuit Court to change the gender marker on her birth certificate from male to female. O.S. was 7 years old. The trial court in both cases denied the petitions without explanation, though the judge in A.B.’s case expressed concern about “changing something like this for a child who’s not of age of majority … .”

Finally, in the Decatur Circuit Court, 16-year-old C.V.’s father petitioned to change the name on his child’s birth certificate from V.V. to C.V. and to change C.V.’s gender marker from female to male. The trial court held an evidentiary hearing and granted the name change, but the gender marker change was denied. The judge found that while the petition was filed in good faith, “[p]arents may not consent to a gender change for their children.”

The majority of the Court of Appeals reversed all three denials in a consolidated opinion, In the Matter of the Change of Gender Identification of A.B.; In the Matter of the Change of Gender Identification of O.S.; In the Matter of the Change of Name and Gender Identification of C.V. (f/k/a V.V.), 20A-MI-1580.

Senior Judge Ezra Friedlander — joined by Judge Nancy Vaidik — held that “(t)he changing of a child’s gender marker is commensurate with … other life-changing alterations to a birth certificate,” such as a parent’s request to change a minor child’s name or a biological father’s request to add his name to a child’s birth certificate.”

“Considering the broad language of Indiana Code section 16-37-2-10(b), and the wide authority of parents to make decisions about their children’s lives, we conclude the trial court in C.V.’s case erred in stating C.V.’s father lacked the authority to request a change to the gender marker on C.V.’s birth certificate,” Friedlander wrote for the majority.

As for the appropriate standard of review for a gender marker change, Friedlander wrote that “when an adult requests that relief, ‘the ultimate focus should be on whether the petition is made in good faith and not for a fraudulent or unlawful purpose.’ … By contrast, when a parent petitions to change a child’s gender marker, similar to requesting a name change for a child, we conclude the appropriate standard is whether the change is in the child’s best interests.”

Here, the trial court in C.V.’s case did not reach the best interests issue, Friedlander wrote, “and we cannot determine whether the trial court in A.B.’s and O.S.’s cases applied the best interests standard.”

“Under these circumstances, the trial courts should be given an opportunity to reconsider the petitions using the correct standard of review,” the majority concluded. “For the reasons stated above, in all three trial court cases, we reverse the denial of the parents’ petitions and remand with instructions to address the petitions in accordance with the best interest standard.”

Judge Rudolph Pyle, however, dissented.

“My colleagues seek, based upon the holdings in In re the Petition for Change of Birth Certificate, 22 N.E.3d 707 (Ind. Ct. App. 2014), and Matter of R.E., 142 N.E.3d 1045 (Ind. Ct. App. 2020), to shoehorn a remedy for the petitions that does not yet exist,” Pyle wrote in a separate opinion. “However, the shoe does not fit. As a result, my colleagues have strayed into an area reserved for our General Assembly.”

Specifically, Pyle argued the Indiana Legislature “has not provided Indiana trial courts with any statutory authority to grant petitions to change a minor child’s gender to reflect their gender identity and presentation.”

He disagreed not only with the majority ruling but also with the rulings in In re Birth Certificate and Matter of R.E., which each dealt with Indiana Code § 16-37-2-10. That statute “has nothing to do with amending a birth certificate to reflect a parent’s desire to change a minor child’s gender to reflect their gender identity and presentation,” he wrote.

“Allowing for a change of a gender marker on a birth certificate may be a worthy policy objective. However, it is not an objective that should be achieved through the courts,” Pyle wrote. “… Our court should not rely upon a limited appellate record to bootstrap a statute in order to achieve a policy objective; instead, the legislature, which is in session, should be the cobbler of the mechanism to seek a gender marker change on a birth certificate.

“Respectfully, I believe that the decisions handed down in this case, In re Birth Certificate, 22 N.E.3d 707, and Matter of R.E., 142 N.E.3d 1045 improperly expanded judicial authority into an areas where none properly exists,” the dissent concluded. “As a result, I would affirm the judgments of the respective trial courts.”•

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