Indiana Court Decisions – Jan. 27-Feb. 9, 2022

7th Circuit Court of Appeals

Feb. 8

Civil Plenary-Social Security Disability/Rape

Erica A. Mandrell v. Kilolo Kijakazi, Acting Commission of Social Security

21-1121

The 7th Circuit Court of Appeals has overturned the denial of Social Security disability benefits for an honorably discharged female member of the U.S. Coast Guard who was raped by a fellow service member, finding the administrative law judge’s determination was not supported by the substantial evidence.

Erica Mandrell served in the U.S. Coast Guard from November 2005 to January 2009 and left with an honorable discharge. During her service, she was raped by a fellow service member and developed post-traumatic stress disorder.

Mandrell was diagnosed with PTSD along with anxiety and depressive disorders. In addition, she reported having difficulty leaving her house and becoming quite anxious in the presence of men or certain odors. Also, she slept with a gun on her nightstand and kept her door bolted.

Mandrell’s record of medications is lengthy, and she also self-medicated with alcohol and marijuana. Moreover, she reported she was still haunted by the face of the rapist. As she was testifying before an administrative law judge, she had to take a break and the proceedings were paused because she felt a panic attack coming on.

The ALJ found that while Mandrell had severe mental impairments, her condition did not support “broad, pervasive disabling” limitations on her ability to work. He accepted the vocational expert’s analysis that she could perform some jobs at a medium exertional level, including linen room attendant, hospital housekeeper and automobile detailer.

Thus, the ALJ denied her application for benefits, and the U.S. District Court for the Southern District of Indiana affirmed.

Before the 7th Circuit, Mandrell argued the ALJ overstepped his bounds by making medical judgments for which he was unqualified. The panel agreed, noting the ALJ inexplicably disregarded substantial portions of the medical testimony, and some of the explanations he did offer strayed beyond his expertise and into the “forbidden territory” of playing doctor.

Also, the 7th Circuit pointed to concerns about the ALJ’s reliance on the analysis of the jobs Mandrell could perform.

“The vocational expert provided testimony about the pool of jobs that would be available to a person with limitations specified in the ALJ’s hypotheticals, but the testimony was only as good as the hypotheticals — and they failed to capture the full picture,” Judge Diane Wood wrote in Erica A. Mandrell v. Kilolo Kijakazi, Acting Commission of Social Security, 21-1121. “None of the ALJ’s hypotheticals envisioned a workplace free of men, undoubtedly because it is quite unlikely that excluding men from a workplace is an option, given the employment discrimination laws. Nor did the hypotheticals grapple with some of the medical evidence that Mandrell put in the record and insists should have been considered.”

Looking further, the 7th Circuit found the administrative law judge failed to connect the residual functional capacity he found with the evidence in the record. The appellate panel was convinced the ALJ did not “adequately connect the dots” between the residual functional capacity he found and the deficits he also acknowledged.

“For example, we do not see how the ALJ’s RFC adequately captures what Mandrell could — and more to the point, could not — do in light of her severe PTSD and other psychological conditions. He did not explain how a person with her problems in concentration, persistence, and pace could perform at the level described in his RFC,” Wood wrote, noting the record shows she could not concentrate because of the paralyzing effect of the memory of the rape, including the panic attack during her testimony.

“The fact that she had some good days and some bad days, as we have noted in other cases, in no way undermines her showing of disability. On some days she encounters reminders of her trauma, and on other days she is more fortunate. The ALJ did not adequately reconcile this evidence with his ultimate conclusion.”

The case was remanded to the Social Security Administration for further proceedings.

Indiana Supreme Court

Feb. 1

Criminal-Drunken Driving/Resentencing

Carl Eugene McDonald v. State of Indiana

22S-CR-46

A Logansport man who was charged with drunken driving without a license with his three young grandchildren in his vehicle will be resentenced after the Indiana Supreme Court found “multiple irregularities” in his original sentencing.

Carl Eugene McDonald was charged with Level 6 felony operating a vehicle while intoxicated, endangering a person with a passenger less than 18 years old, three counts Level 6 felony neglect of a dependent and one count of Class C misdemeanor operating a vehicle without ever receiving a license. Additionally, the state alleged McDonald was a habitual vehicle substance offender.

McDonald pleaded guilty to all charges and the HVSO enhancement without a plea agreement.

At the sentencing hearings, the state, McDonald’s counsel and the Cass Superior Court agreed the HVSO enhancement was nonsuspendible. The court entered an order sentencing McDonald to two years on each of the felony convictions and 60 days on the misdemeanor conviction, with all sentences suspended and served concurrently to each other and consecutively to the HVSO sentence.

The trial court then sentenced McDonald to 4.5 years on the HVSO enhancement. However, the abstract of judgment differs from the sentencing order by imposing a two-year sentence for the misdemeanor conviction.

This past July, the Court of Appeals of Indiana dismissed McDonald’s double-jeopardy argument and declined to remand for resentencing.

In a Feb. 1 per curiam opinion, the state justices summarily affirmed the double jeopardy section of the COA opinion, agreeing that it is “well-established that a defendant who has pleaded guilty may not challenge the validity of his conviction on direct appeal,” citing Tumulty v. State, 666 N.E.2d 394, 395 (Ind. 1996).

The Supreme Court also affirmed the sentencing section of the opinion but disagreed with the COA’s conclusion that remand for a new sentence is unnecessary.

“The Court of Appeals concluded that the abstract of judgment is incorrect regarding the sentence imposed for operating without a license; the trial court incorrectly entered the HVSO enhancement as a separate, consecutive sentence rather than as an enhancement to a felony conviction, citing I.C. § 9-30-15-5.2(d); and the trial court did not understand the HVSO enhancement could be suspended, comparing Ind. Code § 9-30-15.5-2 with § 35-50-2-8(i),” the justices wrote.

“The Court of Appeals remanded to the trial court to issue a corrected abstract of judgment and to issue a new sentencing order specifying which felony conviction is enhanced by the HVSO finding,” the opinion continued. “But the Court of Appeals concluded that although the trial court did not understand the HVSO enhancement was suspendible, remand for a new sentencing is unnecessary because the Court of Appeals is ‘confident that the trial court would have imposed the same sentence had it realized that it could have suspended the HVSO enhancement.’”

But the justices wrote that they were “not so sure” the trial court would have imposed the same sentence. Thus, the high court remanded to the trial court for resentencing in Carl Eugene McDonald v. State of Indiana, 22S-CR-46.

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Feb. 3

Criminal-Pretrial Release/Bond Reduction

Sierra M. DeWees v. State of Indiana

21S-CR-410

Upholding the trial court’s refusal to reduce the bond or grant conditional release to a teenager connected to a home invasion, the Indiana Supreme Court has also chided the Court of Appeals of Indiana for reversing the trial court and issuing a ruling that required the teen to be released immediately.

As a teenager, Sierra DeWees drove three men to the home of 67-year-old Irving Mullins in Brazil, Indiana, on the belief that marijuana and cash were stashed at the residence. The break-in resulted in an exchange of gunfire, which injured one of the accomplices.

Police eventually located DeWees and the three men. She was charged with aiding, inducing or causing burglary with a deadly weapon, a Level 2 felony.

Using the Indiana Risk Assessment System’s Pretrial Assessment Tool, Clay County Court Services assessed DeWees for pretrial release and rated her at a moderate risk of rearrest and failure to appear at future court hearings.

The Clay Superior Court subsequently denied her motion to reduce her $50,000 bond. Acknowledging DeWees’ strong family ties and lack of criminal record, the trial court was swayed by the “extremely serious” nature of the crime and Mullins’ testimony that he lived in fear since the break-in.

However, the Court of Appeals of Indiana reversed in DeWees v. State, 163 N.E.3d 357, 366, 367 (Ind. Ct. App. 2021). The appellate panel ordered her to be released to pretrial electronic home detention with GPS monitoring.

The Indiana Supreme Court accepted the case and unanimously affirmed the trial court’s ruling, finding the state met its burden of showing DeWees posed a flight risk and a risk to Mullins’ personal safety.

Yet the justices were clear: Their ruling did not affect DeWees’ conditional release. Instead, if either party wanted to modify her release, then the trial court would have to conduct a hearing consistent with the Supreme Court’s opinion in this case.

The 17-page opinion closely examined bail reform efforts, specifically looking at Criminal Rule 26 and the Indiana General Assembly’s codification of that rule. In short, the Supreme Court concluded the statutory reforms enhance, rather than restrict, the trial court’s discretion when determining bail.

Indiana Code § 35-33-8-3.8 mandates that a trial court consider the results of the IRAS, but the statute does not compel that the defendant be released or require the trial court to use the IRAS assessment in setting bail, the Supreme Court noted. Indeed, the Legislature encouraged trial courts to incorporate other information that is relevant in the bail determination.

In Sierra M. DeWees v. State of Indiana, 21S-CR-410, the justices did not find any abuse of discretion.

The evidence showed the teen was involved in an armed home invasion and the victim continued to fear for his safety. The trial court did not rely on Mullins’ statement alone but also looked at the nature of the offense.

“If convicted, DeWees’ actions make her just as responsible for the offense as any of her accomplices,” Justice Christopher Goff wrote, citing I.C. 35-41-2-4. “… And even if she remained in the car while the crime took place, she knew that Mullins faced potential harm — if not death — when her accomplices exited the vehicle and entered the home armed with a shotgun.”

Also, the evidence supported the trial court’s position that DeWees posed a flight risk.

“In sum, the evidence, taken together, supports the trial court’s conclusion that DeWees posed a ‘substantial flight risk’ and a ‘danger to others,’ including Mullins,” Goff wrote. “What’s more, the trial court’s decision — factoring in the applicable statutory factors, setting forth its reasons in writing, and issued after a timely hearing at which DeWees, represented by counsel, testified on her own behalf — rested on appropriate procedural safeguards necessary to protect the rights of the accused.”

Finally, the Supreme Court admonished the Court of Appeals for issuing an opinion that required DeWees to be released immediately. Even while an individual’s liberty is at stake in a bail decision and deviating from Appellate Rule 65(E) may be justified, the justices urged “prudence and restraint” when deviating from the rule.

“… (W)e’ve recognized that a blind or mechanical application of the rules threatens to elevate these technicalities to ‘the position of being the ends instead of the means,’” Goff wrote, citing Am. States Ins. Co. v. State ex rel. Jennings, 258 Ind. 637, 640, 283 N.E.2d 529, 531 (1972). “But the opposite is likewise true, as frequent deviation from the rules presents the risk of ‘defeat[ing] justice.’

“This is especially true in developing areas of the law like we’re presented with today,” he concluded. “Issuing an opinion ‘effective immediately,’ and before the parties had the opportunity to seek rehearing, potentially deprived this Court of further briefing on the merits.”

Court of Appeals of Indiana

Jan. 28

Adoption-Parental Consent/Totality of Circumstances

D.G. v. D.H.

21A-AD-1179

The Court of Appeals of Indiana found the “totality of the circumstances” required the denial of a petition to adopt even though the father had not paid child support in 13 months and state statute allows for adoption without parental consent when child support has not been paid for one year.

D.G., the stepfather, petitioned for adoption, telling the court the consent of the father, D.H., was not needed because the biological dad had not paid child support for more than a year. The father admitted to not paying support for 13 months, but he told the court he had been struggling with unemployment, mental health issues and homelessness.

About a month after the stepfather filed the adoption petition, the father borrowed money from family and made two payments of $1,000 each toward his child support arrearage. The father also told the court he regularly exercised his parenting time and he would buy things for the child when they were together in addition to buying the youngster birthday and Christmas gifts.

The Vanderburgh Superior Court denied the stepfather’s petition, concluding, “It may well be in the Child’s best interest to have Stepfather adopt, but that is not the standard under Indiana law.”

On appeal the stepfather argued the trial court’s order was not supported by sufficient evidence.

In a Jan. 28 opinion, the Court of Appeals affirmed in D.G. v. D.H., 21A-AD-1179.

Indiana Code § 31-19-9-8(2)(B) allows for adoption when the child support is one year in arrears. However, citing Matter of Adoption of E.M.L., 103 N.E. 3d 1110, 1116 (Ind. Ct. App. 2018), the appellate panel reiterated, “A determination regarding the ability to pay requires a consideration of the totality of the circumstances and not simply proof of income standing alone.”

The Court of Appeals declined to consider the stepfather’s assertions that the father took advantage of the situation and refused to stay current with his child support obligations. Instead, the appellate court found the trial court’s decision was supported by the evidence in the record and was not clearly erroneous.

“Stepfather’s argument requires us to reweigh the evidence and judge Father’s credibility, which we cannot do,” Judge Robert Altice wrote for the court. “The trial court clearly found Father’s testimony regarding his mental health and financial struggles credible and determined, based on the totality of the circumstances, that Stepfather had failed to prove by clear and convincing evidence that Father had the ability to pay support but failed without justifiable cause to do so for more than a year.”

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Jan. 31

Civil Tort-Negligence/Immunity

Casey Hopkins and Terry Yarbrough, as Parents and Next Friends of DeShawn Yarbrough v. Indianapolis Public Schools d/b/a Ralph Waldo Emerson School 58

21A-CT-1709

Finding that Indianapolis Public Schools is not immune from liability under the Indiana Tort Claims Act, the Court of Appeals of Indiana has revived a lawsuit brought by the parents of a first grader who was prevented from boarding his school bus and was forced to walk home.

Casey Hopkins and Terry Yarbrough filed a negligence claim when their 7-year-old son was mistakenly told to walk home at the end of his second day in first grade at Ralph Waldo Emerson School 58.

The youngster had never walked home, according to court documents, and was unsure where to go. He walked more than a mile in the wrong direction, was approached by a homeless man, chased by dogs and crossed a major thoroughfare alone at rush hour. Eventually a stranger found him, called the school and the police then messaged his mother on Facebook.

In Marion Superior Court, Indianapolis Public Schools successfully argued for summary judgment. The school asserted as a governmental entity, it was immune from liability under the Indiana Tort Claims Act.

However, the Court of Appeals reversed in Casey Hopkins and Terry Yarbrough, as Parents and Next Friends of DeShawn Yarbrough v. Indianapolis Public Schools d/b/a Ralph Waldo Emerson School 58, 21A-CT-1709

On appeal, the parents argued the trial court erred in concluding their alleged loss arose from the school’s failure to enforce school policy. The school countered that its general dismissal procedures satisfy the meaning of a policy as contemplated by the Indiana Code § 34-13-3-3(8)(B), but the appellate panel disagreed, pointing to Moore v. Hamilton Southeastern School District, No. 1:11-CV-01548-SEB, 2013 WL 4607228 (S.D. Ind. Aug. 29, 2013).

“We think that the same reasoning applies here and that a school may not claim immunity when sued regarding its own compliance, or failure to comply, with laws and regulations or a school policy,” Judge Terry Crone wrote for the court. “Parents do not allege that the School harmed DeShawn by failing to compel his obedience to its dismissal procedures, but rather that the school itself failed to properly follow the procedures that were meant to provide for their son’s safety and well-being. The School’s attempt to recast the Parents’ negligence claim as one involving the enforcement of a school policy ‘as to how to facilitate student transportation upon dismissal’ is unpersuasive.”

The appellate court also found the school’s argument that it is entitled to immunity under I.C. 34-13-3-3(10) uncompelling. That provision of the ITCA grants immunity from an “act or omission of anyone other than the governmental entity or the governmental entity’s employee.”

Here, the school asserted the parents’ negligence claim is based on the acts of a teacher who mistakenly removed the boy for the bus and told him to walk home. But the Court of Appeals ruled the claim failed because there was conflicting evidence as to which person or persons were ultimately responsible for the misdirection.

The case was remanded for further proceedings.

Criminal-Vehicle Shooting/Criminal Recklessness

Lamar J. Wilson v. State of Indiana

21A-CR-1088

A LaPorte County man who fired a shotgun into a pickup truck then argued his action did not trigger precedent was unable to get the Court of Appeals of Indiana to narrow the scope of the previous ruling and overturn his felony conviction.

Lamar Wilson was charged with criminal recklessness for shooting into the side of Brian Hoops’ truck. Intervening in an argument between Hoops and his girlfriend, Wilson was demanding Hoops leave the property.

At one point, Wilson fired the shotgun into the air, and the next time into the bed of the truck, near the gas tank. The girlfriend and her daughter were showered with debris.

Wilson went to trial, charged with criminal recklessness as a Level 5 felony and pointing a loaded firearm as a Level 6 felony. After the presentation of evidence, he unsuccessfully moved for a directed verdict on the criminal recklessness charge.

The jury then found him guilty only of criminal recklessness, and he was sentenced to three years in a community corrections GPS program.

On appeal, Wilson argued against precedent set in Garcia v. State, 979 N.E.2d 156, 157 (Ind. Ct. App. 2012).

That case examined the criminal recklessness statute, Indiana Code § 35-42-2-2(b)(2)(A), which elevates the offense to a Level 5 felony if the firearm is shot in a “place where people are likely to gather.” Noting the statute does not define such places, the Garcia court concluded a vehicle is a place where people gather.

But Wilson asserted Garcia is limited only to incidents where the defendant shoots directly into the passenger compartment of a vehicle. The bed of the pickup truck is not covered by Garcia because passengers do not travel in that section of the vehicle, he argued.

However, the Court of Appeals was not convinced by Wilson’s argument, finding there is nothing in the criminal recklessness statute that suggests certain parts of the vehicle are covered by state law while other parts are not.

“We do not read Garcia so narrowly,” Judge Derek Molter wrote for the appellate panel in Lamar J. Wilson v. State of Indiana, 21A-CR-1088.

“For starters, it is difficult to imagine why the statute would distinguish between parts of a vehicle. Shooting into the bed of a truck hardly seems less dangerous or culpable than aiming the gun at a slightly higher trajectory so that the bullet passes through the rear or side window,” Molter wrote. “In this case in particular, Wilson shot near the gas tank, and potentially exploding the vehicle does not seem materially less dangerous than shooting into the passenger compartment. Even absent that risk, Wilson’s shot was so close to gathered bystanders that they were hit with debris.”

Civil Plenary-Local Government/Injunctive Relief

Robert J. Waller v. City of Madison

21A-PL-928

A Madison man who was removed from two community boards by the mayor after a heated exchange during a public meeting could still be reinstated after a split Court of Appeals of Indiana found multiple errors were made by the trial court in its legal reasoning for denying him injunctive relief.

Robert Waller was a member of several community boards and commissions in Madison, including the Plan Commission, the Board of Zoning Appeals and the Police Merit Commission, also known as the Police Merit Board.

In December 2020, the Board of Public Works conducted a public hearing during which it discussed the revision of the Madison Police Department’s standard operating procedures. The current mayor of Madison, Bob Courtney, sits on the board.

Waller appeared before the Board of Public Works, “apparently on behalf of the Police Merit Commission,” to “stop a vote” on revisions to the SOPs. A “lengthy and argumentative” exchange ensued between Waller and the mayor, in which they discussed the proper name for the Police Merit Commission and whether Waller had previous opportunities to comment on the revision of the SOPs.

About three weeks later, Waller received a letter from the mayor rescinding his appointments to the BZA and the Plan Commission. The letter listed six causes for Waller’s removal, including making false allegations against the mayor and chief of police, as well as demonstrating “combative conduct.”

Waller responded with a complaint alleging his removal was unlawful and moved for a preliminary injunction to reinstate him to both the Plan Commission and the BZA during the pendency of the lawsuit. Supporting his request for injunctive relief, he cited Indiana’s removal statutes as well as the free speech protections of the First Amendment and Article I, Section 9 of the Indiana Constitution.

After the Jefferson Circuit Court denied Waller’s request for an injunction, he appealed pursuant to Indiana Appellate Rule 14(A)(5).

In reversing in Waller’s favor, the majority judges found the removal statute did not affect the case, as “(n)either the Removal Statute nor Indiana Code §§ 36-7-4-218(f) and -906(f) claims to be the exclusive means for removal.”

However, the judges looked at the three tiers of removal for municipal appointees that aid in understanding “for cause” removals. They determined Waller’s removal was improper under State ex rel. Manning v. Mayne, 68 Ind. 285, 1879 WL 5667 (Ind. 1879).

“Using Manning as our guide, we conclude that an appointee removable ‘for cause’ may be removed only for acts or omissions that diminish the appointee’s ability or fitness to perform the duties of the appointment,” Judge Leanna Weissmann wrote for the majority. “Such cause must be sufficient under law and not merely any reason that the removing authority in the exercise of unlimited discretion may deem sufficient.”

The majority judges thus reversed and remanded for further proceedings to determine whether Waller’s conduct at the Board of Public Works meeting diminished his ability or fitness to perform his duties on the Plan Commission and the BZA.

The COA also found multiple legal errors by the trial court as it pertained to the First Amendment claims.

“First, the trial court initially found that ‘the City did not interfere’ with Waller’s First Amendment rights because he was ‘afforded generous time during which he freely expressed himself’ at the meeting of the Board of Public Works. But the City can violate First Amendment rights without interrupting speech,” Weissmann wrote. “For example, in First Amendment retaliation cases, the government has not interrupted speech, but punished it. See, e.g., Pickering v. Bd. of Educ., 391 U.S. 563, 574 (1968).

“… Second, Waller asked the court to apply the test from Pickering, which balances public employees’ First Amendment interests against the government’s interest as an employer in operational effectiveness and efficiency,” Weissmann continued. “The trial court refused to apply this test because Waller was an unpaid appointee rather than a public employee. It erred, however, when it failed to apply an alternative First Amendment analysis in Pickering’s place.”

Because the COA found the trial court erred in its constitutional analysis, it remanded for the lower court to apply the Pickering line of doctrine to determine whether Waller’s free speech claims meet the requirements for issuance of a preliminary injunction.

But Judge Elizabeth Tavitas dissented from the majority opinion in Robert J. Waller v. City of Madison, 21A-PL-928, writing that she would’ve affirmed the denial of a preliminary injunction.

“Although Indiana Trial Rule 52 provides that the trial court shall ‘make special findings of fact without request … in granting or refusing preliminary injunctions,’ the trial court did not address the applicability of the per se standard or the other elements,” Tavitas wrote. “The trial court addressed only the reasonable likelihood of success in its findings of fact and conclusions thereon.

“On appeal, although Waller briefly cites to the per se standard, he fails to explain how the per se injunction standard applies here, and I would find that he waived the issue,” she continued. “Without the per se exception, Waller was required to present evidence on all four elements, which he failed to do. Thus, I would find that the trial court did not abuse its discretion by denying Waller’s motion for a preliminary injunction.

“… Moreover, we must keep in mind that we are reviewing only the denial of the motion for preliminary injunction. We are not, at this time, tasked with addressing the merits of Waller’s petition for judicial review, despite Waller’s efforts to have us do just that.”•