7th Circuit Court of Appeals
Civil Plenary — Immigration/Administrative Closure
Hector Zelaya Diaz v. Jeffrey A. Rosen
The 7th Circuit Court of Appeals has ruled for a man fighting his deportation in a case concerning immigration judges’ power to close a removal or deportation case administratively while a noncitizen pursues other relief.
Hector Manuel Zelaya Diaz entered the United States illegally for the first time in 1995 and was subsequently placed in deportation proceedings with an order to show cause. Zelaya, who never received notice that he was scheduled to appear, failed to show and a final order of deportation was entered in his absence.
Zelaya later left the country but re-entered sometime before the end of 1998. Sixteen years later, U.S. Immigration and Customs Enforcement learned of Zelaya’s presence in the country following a traffic-related arrest in Indiana. Zelaya then filed a motion to reopen his old deportation case and an immigration judge granted the motion because the record showed that the initial Order to Show Cause in 1995 had never reached him.
In 2018, Zelaya moved for administrative closure of his deportation proceeding to allow for repapering, by which a deportation proceeding that began under pre-1996 law can be converted into a cancellation-of-removal proceeding under 1996 legislation codified in 8 U.S.C. § 1229b(b). The move would enable him to seek cancellation of removal, but the immigration judge denied his request for administrative closure.
He appealed to the Board of Immigration Appeals, which also dismissed Zelaya’s appeal and ordered voluntary deportation. It concluded that administrative closure was not warranted, citing Attorney General William Barr’s opinion in Matter of Castro-Tum, 27 I&N Dec. 271 (A.G. 2018), which sharply restricted the ability of immigration judges and the board to close cases administratively.
But the 7th Circuit Court of Appeals granted Zelaya’s petition for review of the board’s decision, agreeing with his second argument for reversing the denial of administrative closure.
After rejecting his argument that a grant of administrative closure is mandatory under the (United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 268 (1954)) doctrine of administrative law, the 7th Circuit agreed that the board abused its discretion by making an error of law in his case by following the Attorney General’s directive in Castro-Tum and failing to apply the (Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012)) and (Matter of W-Y-U, 27 I&N Dec. 17 (BIA 2017)) factors.
“Our decision in (Meza Morales v. Barr, 973 F.3d 656, 667 (7th Cir. 2020)) effectively reinstated the prior Board precedent on the Avetisyan and W-Y-U factors, and neither the immigration judge nor the Board considered those factors here. It is not clear from the Board’s brief opinion how much it relied upon the directive of Castro-Tum and how much it relied upon the Department of Homeland Security’s opposition to closure and stated intention not to repaper. We need not answer that question to decide this petition,” Circuit Judge David F. Hamilton wrote for the 7th Circuit.
“To the extent the Board relied on Castro-Tum, it acted contrary to law, at least in this circuit. To the extent the Department’s position was decisive, it is not the Department’s opposition but its basis that is important. That basis also remains only one of several Avetisyan and W-Y-U factors that should be considered in deciding whether to grant administrative closure.
“How to weigh all of those factors in a particular case is a job for the immigration judge and the Board, not for this court or the Department of Homeland Security. Zelaya is entitled to have his request for administrative closure considered as a proper exercise of discretion under law, including Board precedents and the factors set forth in Avetisyan and W-Y-U. That has not happened yet in Zelaya’s case,” it concluded.
The case is Hector Zelaya Diaz v. Jeffrey A. Rosen, 20-1304.
Civil Tort — Employment/Age Discrimination
Anne Marnocha v. St. Vincent Hospital and Health Care Center, Inc. and St. Vincent Carmel Hospital, Inc.
A veteran neonatal doctor who claimed she was discriminated against when she was terminated from her longtime position did not prove that she was unlawfully terminated and passed over for a new position based on her age, the 7th Circuit Court of Appeals held, upholding summary judgment for St. Vincent Hospital.
Dr. Anne Marnocha began working at St. Vincent Hospital on 86th Street in Indianapolis in 1987, joining the hospital to develop its neonatal intensive care unit into a Level III facility that could treat critically ill babies and provide assisted ventilation. During her time at St. Vincent’s, the unit advanced to a Level 4 facility, which could treat babies “in need of the highest level of care.”
In April 2003, Marnocha transferred to the St. Vincent campus in Carmel to run its new perinatal service program, which was intended to become a Level 3 facility. She stayed at the Carmel facility until 2018, when she was terminated.
Prior to Marnocha’s termination, Dr. Hossain Marandi became executive director of the pediatric service line for St. Vincent in Indiana. Marandi determined in June 2017 that there were too many neonatologists on staff and ultimately decided to terminate the Carmel neonatologists. His decision was based partly on the belief that the 86th Street facility could cover Carmel’s NICU, but the Carmel facility could not provide the Level 4 NICU care available on 86th Street.
Thus, 62-year-old Marnocha was terminated on Jan. 5, 2018. However, there was one opening for a neonatologist at the 86th Street facility, and the terminated employees were eligible to apply for the opening.
Marnocha did apply, as did three of the other four neonatologists who were terminated, including Dr. Melissa Landis. Ultimately, the interview panel unanimously agreed that the 35-year-old Landis was the best candidate for the job based on her recent research into Level 4 facility protocols, her positive attitude and her aptitude for patient interaction.
“In stark contrast, the interviewers’ consensus on Marnocha was lukewarm, at best,” Judge Joel Flaum wrote for the unanimous 7th Circuit panel. “… Of particular concern to the interview panel, Marnocha said she did not think much had changed in the fifteen years since she had worked in a Level IV NICU. Furthermore, while crediting Marnocha’s technical competence, panelists raised concerns about her on-the-job interpersonal skills and approach to patient care.”
Also, in his personal notes, Dr. Jeffrey Rothenberg — a panel member and chief medical officer of the 86th Street campus — wrote that Marnocha was “at end of career.” Rothenberg later testified that he “want[ed] to build for 20, 30 years in the future … ,” though he did not recall sharing that view with other panel members.
Landis was ultimately selected for the position at 86th Street, and Marnocha sued the hospital, raising termination and failure to hire claims under the Age Discrimination in Employment Act. The Indiana Southern District Court granted summary judgment to St. Vincent on those claims, and the 7th Circuit affirmed.
As to her termination claim, Marnocha argued on appeal that the district court erred in finding that she failed to satisfy the “similarly situated” prong of her prima facie case, and in rejecting evidence that the reasons for her termination were pretextual. Flaum noted that the proper comparators here were the neonatologists employed at the Carmel facility, not those employed at 86th Street.
“Even accepting Marnocha’s claims that St. Vincent contemplated transferring Landis to 86th Street as true, there is no ambiguity in the events that transpired: Similarly situated employees under the age of forty were not treated more favorably,” Flaum wrote. “Marandi fired all five Carmel neonatologists and gave all five the identical opportunity to apply for the opening on 86th Street. There is no genuine dispute of fact that the comparators here were treated identically, so summary judgment was proper.”
The 7th Circuit panel likewise rejected Marnocha’s argument that the district court “erred in its application of the similarly situated standard for Reduction in Force … cases outlined in Collier v. Budd Co., 66 F.3d 886 (7th Cir. 1995) … .”
Her failure to hire claim also was defeated on appeal, with the panel rejecting her pretextual age discrimination argument.
“Based on the record, Landis outshone Marnocha in her interview, positioning herself as the better candidate for the 86th Street opening,” Flaum wrote. “… Marnocha has not shown that these legitimate, non-age-related reasons for hiring Landis are pretextual.”
Further, as to Rothenberg’s personal note that Marnocha was “at end of career,” the panel concluded, “Nothing in the record evidences that he steered the interview committee away from Marnocha … .”
Finally, in a footnote, the panel rejected Marnocha’s argument that because the district court mistakenly stated that Rothenberg was not on the interview panel, reversal was warranted. “Typographical errors do not mandate reversal when it is apparent that the district court properly understood the facts and considered the arguments,” Flaum wrote.
The case is Anne Marnocha v. St. Vincent Hospital and Health Care Center, Inc. and St. Vincent Carmel Hospital, Inc., 20-1374.
Indiana Supreme Court
Civil Tort — Negligence/Compelled Arbitration
Jane Doe I, as Legal Guardian of the Person and Estate of Jane Doe II, an Incapacitated Adult v. Carmel Operator, LLC d/b/a Carmel Senior Living, et al.
Indiana Supreme Court justices reversed a determination that a guardian was required to arbitrate claims against a screening company arising from an employee’s sexual assault on a resident of a Carmel assisted living facility.
The state’s highest court considered arguments last September in the case of Jane Doe I, as Legal Guardian of the Person and Estate of Jane Doe II, an Incapacitated Adult v. Carmel Operator, LLC d/b/a Carmel Senior Living, et al., 21S-CT-15.
An elderly woman, referred to in the case as Jane Doe, moved into the Carmel Senior Living private assisted living facility in June 2018 and alleged that two months after moving in, employee Michael Sullivan raped her. She and her guardian subsequently sued Sullivan, CSL and parent company Spectrum Retirement Communities LLC.
Doe later amended her complaint to include a claim against Certiphi Screening Inc., the independent contractor hired to run a background check on Sullivan. The screening failed to reveal that Sullivan was previously convicted for the rape and murder of a 6-year-old girl.
The defendants served Doe with a demand for arbitration, citing a provision in the residential agreement requiring arbitration in “(a)ny and all claims or controversies involving the Community … .” The Hamilton Superior Court and the Indiana Court of Appeals upheld the arbitration requirement — including as to Certiphi, a nonparty to the agreement.
But a unanimous Supreme Court partially reversed, concluding that Certiphi is not an “agent,” one of the third-party beneficiaries provided for in the arbitration clause, and found no evidence of an agency relationship between Certiphi and CSL.
In particular, it noted that the three requirements for an agency relationship to exist — a manifestation of the principal’s consent, the agent’s acceptance of authority, and control exerted by the principal over the agent – were not satisfied.
“Even if we assume that CSL consented to Certiphi running background checks on CSL’s employees and that Certiphi accepted this authority, we cannot assume CSL exerted any control over the process by which Certiphi conducted Sullivan’s background check. To the contrary, we have no evidence suggesting Certiphi’s relationship to CSL was other than that of an independent contractor hired to screen CSL’s potential employees. Thus, Certiphi was not covered by the arbitration agreement as an ‘agent,’” Chief Justice Loretta Rush wrote for the high court.
Justices further concluded that Certiphi cannot meet the requirements of equitable estoppel, including lack of knowledge, reliance, and prejudicial effect. The high court found no evidence that Certiphi relied on the arbitration agreement and nothing to show that Certiphi experienced any sort of detriment because of reliance.
The Supreme Court declined to endorse any alternative equitable estoppel theories, rejecting Certiphi’s argument that arbitration is required because the alternative theories of equitable estoppel adopted in German American Financial Advisors & Trust Co. v. Reed, 969 N.E.2d 621 (Ind. Ct. App. 2012) apply to its dispute with Jane Doe.
By adhering to “the doctrine’s traditional, well-established principles,” the high court found three reasons for concern with the Indiana Court of Appeals’ application of the federal common law in Reed.
First, had they considered the traditional elements, one of the most important requirements for equitable relief would have been ignored — reliance upon the conduct of the party to be estopped. Next, because the federal common-law theories don’t require reliance, they likewise require no relationship between the parties. Lastly, the court found the alternative theories inconsistent with other aspects of its common law, specifically the guiding principle that the intent of the parties to an agreement should govern.
“We reverse the trial court’s determination that Certiphi can compel Guardian to arbitrate her claims against it — nothing in the record shows that Certiphi is an agent of CSL or that the traditional elements of equitable estoppel are satisfied. As to CSL, Spectrum, and Sullivan, however, we affirm the trial court’s order compelling Guardian to arbitrate,” the panel concluded.
Indiana Court of Appeals
Criminal — Murder, Conspiracy/Double Jeopardy
Daveon L. Hendricks v. State of Indiana
Despite there being sufficient evidence to support a man’s conspiracy and murder convictions, the conspiracy conviction must be vacated on double jeopardy grounds, the Indiana Court of Appeals has ruled.
In Daveon L. Hendricks v. State of Indiana, 20A-CR-690, C.O. and S.J. shared a house in Muncie during the summer of 2015. Daveon Hendricks, William Balfour, Darius Covington and Artie Thomas knew S.J. from school, and Balfour and Hendricks were cousins.
C.O. and S.J. sold marijuana out of their house, and Hendricks purchased some from C.O. in June 2015. Later that month, Balfour went to the house with a group that sold a rifle to C.O. Balfour later expressed displeasure with the amount he had received for the rifle.
Then on July 2, Thomas, Covington and Jamel Barnes were playing basketball in Muncie when Hendricks and Balfour arrived. Hendricks is about 6 feet tall and had styled his hair in dreadlocks. The group of five left the basketball game in Barnes’ car and headed to C.O. and S.J.’s house to buy marijuana, but the conversation turned to robbing C.O.
Later that night, two armed men wearing hooded jackets entered S.J. and C.O.’s house. One of the men was about 6 feet tall and had dreadlocks, and S.J. and Thomas later identified Hendricks as one of the intruders, with Balfour as his companion.
S.J., Thomas and Covington all heard a gunshot, and Hendricks and Balfour left in Barnes’ car. S.J. had gone into hiding, and when he emerged, he found C.O. nonresponsive and bleeding from a gunshot wound. C.O. was later pronounced dead from a gunshot wound to the back.
It wasn’t until two years later that Hendricks was charged with C.O.’s murder, as well as a charge of conspiracy to commit robbery resulting in serious bodily injury. Then in 2019, Hendricks had three recorded calls with Balfour, speaking about other people in code, discussing how to keep people “on the team” and discussing an unidentified task that “ain’t got to be explained.”
During trial, the state presented testimony from Brionna Covington, a cousin to Darius Covington, who said Balfour had told her he was involved in the shooting. Hendricks was eventually found guilty as charged in 2019 and was sentenced to an aggregate 55 years.
Brionna’s statement was admitted over Hendricks’ objection, but the Court of Appeals upheld its admission. Although the statement violated Indiana Evidence Rule 804(b)(3), Senior Judge John Sharpnack wrote that the erroneous admission did not violate Hendricks’ substantial rights.
“Balfour’s statement to Brionna incriminated Hendricks only by implication, not directly,” Sharpnack wrote. “Further, at trial Barnes described other statements by Balfour that put him (and by implication, Hendricks) in an incriminating light … . Finally, other witnesses identified Hendricks as one of the armed intruders who entered the house. The admission of Brionna’s statement was harmless error that does not require reversal.”
Hendricks also challenged the admission of his recorded jail calls with Balfour where they discussed getting people “on the team,” saying the calls were irrelevant, unfairly prejudicial and hearsay, and that they violated his right to confront witnesses. The COA, however, disagreed.
“Hendricks and Balfour’s discussions are relevant because, during trial, the State confronted several witnesses who had given statements to the police but later presented a different version of events,” Sharpnack wrote. “… The recordings of the video calls are relevant to prove Hendricks’ guilt because they establish he and Balfour were attempting to conceal their crimes.”
As to Hendricks’ constitutional argument, Sharpnack wrote that “the trial court instructed the jury that Balfour’s statements in the recordings were not to be considered for the truth of the matter asserted. As a result, the statements were not hearsay, and admission of the recordings did not violate the Confrontation Clause.”
The COA panel also rejected Hendricks’ sufficiency-of-the-evidence argument, finding “ample evidence that Hendricks, as a principal or an accomplice, knowingly or intentionally attempted to rob C.O. and S.J., and C.O. was fatally shot during the commission of the armed robbery.” However, the conspiracy conviction was vacated on double jeopardy grounds.
“To be sure, with respect to the charge of conspiracy to commit robbery resulting in serious bodily injury, the State had identified several overt acts that could have occurred well in advance of Hendricks’ arrival at C.O. and S.J.’s house … ,” Sharpnack wrote. “But at trial, the State did not present any evidence demonstrating when Hendricks obtained his firearm or if Hendricks or any of his companions contacted C.O. or S.J. prior to the group’s arrival at the house at 10:30 p.m. Further, the evidence presented at trial indicated that the group in Barnes’ car did not decide to rob C.O. until they were already en route to the house.
“Instead, the facts as presented at trial focused on Hendricks and his companions’ acts upon arriving at the house, and a key element of the conspiracy offense — serious bodily injury to C.O. — occurred at the same time as the murder in the felony murder charge,” the senior judge continued. “Under these facts, we conclude that Hendricks’ criminal acts were a single transaction not subject to multiple punishments.”
On remand, the Delaware Circuit Court was ordered to vacate Hendricks’ conspiracy conviction, though that action will not alter his aggregate sentence because his sentences were imposed concurrently.
Civil Plenary — I-69 Land Appropriation/Easement Interest
Herbert C. Haggard and Alice M. Haggard v. State of Indiana and Jerry L. Hillenburg and Morgan County, Indiana
A Morgan County couple lost their challenge of a court order appropriating land in which they had an easement interest for the construction of the new final leg of Interstate 69.
The order in Herbert C. Haggard and Alice M. Haggard v. State of Indiana and Jerry L. Hillenburg and Morgan County, Indiana, 20A-PL-1502, lets stand a court order appropriating land owned by Jerry Hillenburg that the state needed as right-of-way for the new section of I-69 that will eventually connect Indianapolis with southwestern Indiana. The property includes a billboard leased by Hillenburg, and the court-ordered appraisal totaled $334,000.
Herbert and Alice Haggard had an easement interest in the property that was recorded by deed, but the trial court found that they did not have to be given notice of the state’s offer to purchase the property because they didn’t meet the definition of owners. The COA panel agreed.
“The State was not required to provide a pre-complaint offer to the Haggards because they do not have title to the real estate the State is seeking to condemn,” Judge James Kirsch wrote. “As holders to an easement interest in the property, the Haggards are appropriate defendants to the State’s condemnation suit for determination of any just compensation they are due for their interest in the easement. Ind. Code § 32- 24-1-4. However, an interest in property alone is not ownership of the real estate entitled to an offer as a condition precedent to the State’s condemnation suit. See Ind. Code § 34-24-1-2; Ind. Code § 34-24-1-3 (requiring the condemnor to make a good faith effort to purchase the property from the owner of the property).
“The owner of the property that the State seeks to condemn, who was entitled to an offer to purchase as a precondition to the filing of a complaint, was Hillenburg because he holds title to the property at issue, is listed on the tax assessment rolls as being responsible for the payment of real estate taxes imposed on the property, and is the person in whose name title to real estate is shown in the records of the recorder of the county in which the real estate is located,” the panel found.
And while the Haggards objected based on claims that the court ruled in spite of deadline tolling orders issued by the Indiana Supreme Court due to COVID-19, the appellate panel found no grounds for such arguments.
“Although the Haggards allege that the trial court overruled their objections and motion to vacate the appropriation at least partly due to untimeliness, the trial court’s order does not reflect that, and as we have determined above, their objections had no merit,” Kirsch wrote. “Further, the Haggards have not shown how they were prejudiced because they were allowed to file their objections on July 6, 2020, to which the State filed a motion to overrule and the Haggards filed a response to, and the trial court, thereafter, reviewed such objections and denied them in the order from which the Haggards now appeal. We do not find that the trial court erred in overruling the Haggards’ objections and motion to vacate the order of appropriation.”
Post Conviction — Child Molesting/Ineffective Assistance of Counsel
James C. Absher v. State of Indiana
A father convicted of three felony counts of molesting his daughter has successfully secured post-conviction relief from two of those counts. A Class A felony conviction, however, will stand. The ruling will cut the southern Indiana man’s 100-year sentence in half.
The case of James C. Absher v. State of Indiana, 20A-PC-1227, began in May 2004, when James Absher was spending the night at the home of his ex, Laura Rawlings, and their daughter, J.L. The next morning he offered to check on the children upstairs while Rawlings was downstairs, but when Rawlings went upstairs she found J.L. lying on her back on the floor with her underwear pulled down and her legs spread apart. Absher was straddling the child on his knees, with his jeans and underwear pulled down. Absher was holding his penis with one hand while he touched J.L.’s “vagina area” with the other.
Absher fled when Rawlings called police, but J.L. told law enforcement that Absher had put his penis in her vagina and it “felt bad.” A sexual assault examination on the girl revealed two abrasions in her genital area.
Absher was eventually located and claimed he unintentionally touched J.L. with his hand. When confronted with her claim that he touched her with his penis, he said he did not remember that occurring but assumed she was telling the truth.
On May 28, 2004, Asher was charged oin Floyd Circuit Court with one count of Class A felony child molesting. After multiple continuances his trial was set for June 12, 2006, and on June 9 the state moved to amend the charging information to add a second count of Class A felony child molesting as well as a charge of Class C felony child molesting.
Absher did not object to the motion to amend, the trial proceeded and he was found guilty as charged, receiving an aggregate sentence of 100 years. His direct appeal in 2007 failed, with the COA finding then that although the trial court erred by granting the motion to amend, Absher had not preserved the error for appellate review and had failed to prove fundamental error.
Absher’s subsequent petition for post-conviction relief was denied in June 2020, but the Indiana Court of Appeals partially reversed. He raised claims of ineffective assistance of both trial and appellate counsel.
On the issue of trial counsel performance, Absher first argued that his trial counsel was ineffective for failing to object to the state’s motion to amend the charging information. The appellate panel agreed, looking to Indiana Code § 35-34-1-5(b) and Haak v. State, 695 N.E.2d 944 (Ind. 1998).
“We conclude that based on the clear language of Section 35-34-1-5 and our supreme court’s decision in Haak, Absher’s trial counsel had a firm basis to object to the prosecutor’s amendment to add two new counts and that he performed deficiently by failing to object to the amendment as one of substance that was untimely pursuant to Section 35-34-1-5,” Judge Terry Crone wrote. “We further conclude that there is a reasonable probability that, but for trial counsel’s deficient performance, the result of the proceeding would be have been different.
“… Specifically, but for Asher’s trial counsel’s failure to object, the Absher I (appellate) court would have vacated the convictions for the counts added by the amendment just as our supreme court did in Fajardo,” Crone continued, referencing Fajardo v. State, 859 N.E.2d 1201 (Ind. 2007). “Accordingly, we find both deficient performance and prejudice.”
The court’s decision will “likely be an outlier,” Crone wrote, noting that I.C. 35-34-1-5 was amended shortly after Fajardo was handed down “such that amendments of substance are permitted any time before trial so long as the defendant’s substantial rights are not prejudiced.” Though “a number of panels” found the amendment to be constitutionally retroactive, Crone said Absher’s case was distinguishable because the COA on direct appeal determined on the merits that the amendment was prohibited by the statute.
Thus, the denial of post-conviction relief on the grounds of ineffective assistance of trial counsel was reversed and the case was remanded to vacate Absher’s convictions and sentences for one count of Class A felony child molesting and the Class C felony count.
Absher also claimed his appellate counsel was ineffective for failing to argue insufficient evidence. The Court of Appeals again agreed, finding that claim “provides a significant independent basis for vacating the conviction and sentence for Count 2 … .”
Count 2 alleged Class A felony child molesting against Absher for placing his mouth on J.L.’s sex organ. The state’s forensic expert, Dr. Michael Spence, testified that amylase, an enzyme found in saliva, was found in J.L.’s underwear, which the state argued was sufficient evidence.
But “(a)ccording to Dr. Spence, one cannot make the leap to conclude that the amylase came from Absher’s saliva,” Crone wrote. Appellate counsel was deficient in failing to raise the sufficiency issue, he said, and the deficiency was prejudicial.
“Given the paucity of probative evidence,” the judge wrote, “it is clearly more likely that the court on direct appeal would have concluded that the evidence was insufficient to support Count 2 and would have reversed Absher’s conviction on that count.”
But the Court of Appeals upheld the denial of post-conviction relief as to the other Class A felony charge, rejecting Absher’s argument that his trial counsel was ineffective for failing to object to comments the prosecutor made on rebuttal during closing arguments.
“Absher maintains that an objection would have been sustained on grounds that the remarks were calculated to inflame the passions of the jury, improperly expressed the prosecutor’s personal beliefs about Absher’s guilt, and vouched for J.L.’s credibility, and that the objectionable remarks prejudiced him because they caused the jury to focus on improper emotional considerations rather than evidence,” Crone wrote. “The State contends that trial counsel reasonably and strategically chose not to object to the remarks and therefore did not provide ineffective assistance. We agree.”
Criminal — Sentence, Human Trafficking Victim Mitigator
Harmony Spring Clara Scott v. State of Indiana
Despite the trial court’s erroneous failure to consider a woman’s history as a victim of human trafficking, her 14-year sentence on felony charges is not inappropriate, the Indiana Court of Appeals has ruled.
In Harmony Spring Clara Scott v. State of Indiana, 20A-CR-1131, Harmony Scott and her sister impersonated law enforcement to convince Tracy Lindsey to open her door. When Lindsey opened the door, she was attacked with the butt of a pistol and a pair of scissors and was robbed.
Thus, Scott was charged with three felonies including burglary, robbery and battery, though her trial in 2016 resulted in a hung jury. At the time of the attack on Lindsey, Scott was already on probation in Texas for cocaine possession.
Then in 2018, Scott illicitly withdrew thousands of dollars from a bank account belonging to her grandfather, resulting in charges on nine counts of Level 5 felony fraud on a financial institution. The following year, she was charged with domestic battery.
Meanwhile, Scott became a cooperating victim witness in a federal human trafficking prosecution in the Eastern District of Wisconsin. She reported that she had been in a relationship with her trafficker, who is the father of her child, from 2011 to 2018. She said she had been forced into prostitution, and another witness indicated Scott was being trafficked at the time of her attack on Lindsey.
In December 2019, Scott pleaded guilty to Level 3 felony robbery related to the attack on Lindsey and to three counts of Level 5 felony fraud for stealing from her grandfather. The LaPorte Circuit Court imposed a 14-year sentence — the maximum under her plea agreement — without considering her history as a victim of trafficking as a mitigator.
The Indiana Court of Appeals rejected Scott’s argument on appeal that the trial court abused its discretion by failing to consider her remorse and history of drug abuse as mitigating factors. However, the appellate court agreed with her argument that the trial court erred in refusing to include her victimization as a mitigator.
“Perhaps the trial court disbelieved Scott’s report of her own mental condition — an assessment we would not second-guess,” Judge Leanna Weissmann wrote. “… However, in refusing to consider trafficking a mitigating circumstance, the court effectively found that Scott experienced no trauma whatsoever.
“To support such a finding, the trial court would have to conclude either that Scott was never trafficked at all and had hoodwinked the IPATH advocates and federal prosecutors in Wisconsin or that her victimization had no traumatic effect,” Weissmann continued, referencing the victim advocacy program known as Indiana Protection for Abused and Trafficked Humans. “Both conclusions are clearly against the logic and effect of the facts before the court.”
That error, however, was not enough to convince the Court of Appeals to remand for resentencing.
“Scott’s history as a human trafficking victim is significant but must be considered in the context of the many uncontested aggravating circumstances, including her extensive criminal history, the age of her fraud victim, and her record of lying to the court, service providers, and the Department of Corrections (sic),” Weissmann wrote. “Additionally, the trial court contemplated rejecting the plea agreement because of the sentencing cap, as its ‘findings would indicate a sentence at least three years longer.’ In light of these factors, the trial court likely would have reached the same fourteen-year sentence even after duly considering Scott’s history of being trafficked.”
Finally, the COA rejected Scott’s argument that her sentence was inappropriate in light of the nature of the offenses and her character.
Child in Need of Services — Reversal/Clear Error
CHINS: E.P. v. Indiana Department of Child Services
An out-of-state father whose children were placed in foster care after one of them was injured during a domestic dispute between their mother and her boyfriend was wrongly denied an opportunity to parent his children, the Indiana Court of Appeals ruled.
E.P. is the father of now 15-year-old J.P. and 10-year-old M.P., but after their mother moved the children from his home state of Georgia to Indiana around 2009, she ceased communicating with him. E.P. reinitiated contact with his children in 2019, including sending $400 a month in child support, and he spoke regularly with them by phone.
But after the domestic dispute that put J.P. in the hospital in September 2019 after she “was inadvertently struck on the wrist with a baseball bat, … (the Indiana Department of Child Services) received a report of neglect after Mother left the Children at home alone and attempted to stab her now ex-boyfriend. That same day, DCS removed the Children from Mother’s home,” Judge Elizabeth Tavitas wrote. “The following day, DCS filed a CHINS petition alleging, among other things, that Father ‘ha[s] not demonstrated an ability and willingness to appropriately parent the children, and/or they are unable to ensure the children’s safety and well being [sic] while in the custody and care of [Mother].’”
The children were deemed in need of services and placed in foster care, where they remained despite E.P.’s stated desire to care for them. The Indiana Court of Appeals reversed and remanded to Marion Superior Court in CHINS: E.P. v. Indiana Department of Child Services, 20A-JC-1268.
“We understand the need to initially place the Children in foster care, until Father could be notified of the events requiring removal of the Children from Mother’s home. Nevertheless, juvenile courts must be careful not to simply export circumstances warranting emergency removal into considerations about whether ongoing coercive intervention of the State is truly necessary,” Tavitas wrote.
In this case, the court noted, a DCS assessment worker testified that “DCS considered the most significant barrier to placement with Father to be the fact that Father lived in Georgia.” Father was gainfully employed and could provide for the children, according to the evidence.
“The record reveals that Father maintained a positive relationship with the Children from the moment he re-obtained contact with them and that they spoke on the phone regularly, often daily. J.P. was adamant that she wanted to be placed with Father. Father voluntarily provided four hundred dollars a month in child support to Mother and had already taken steps to secure a larger residence by the date of the fact-finding hearing. Every worker or therapist that had contact with Father agreed that he has been compliant and willing to do whatever is required in order to take care of the Children,” Tavitas wrote.
“DCS’s reservations were based on little more than speculation and its own failure to properly investigate. A CHINS proceeding, however, is no place for conjecture,” she continued.
“… DCS failed to prove that court intervention was necessary. Because we conclude that DCS failed to prove that the Children are CHINS by a preponderance of evidence, we reverse the juvenile court’s CHINS determination, and, accordingly, we need not reach Father’s challenge to the Children’s placement in foster care via DCS.”•