Indiana Court Decisions – June 18-30, 2020

7th CircuitCourt of Appeals

June 26

Civil Plenary — Immigration/Crime Victim Removal Order

Yeison Meza Morales v. William P. Barr

19-1999

An Indianapolis man who came to the United States as a child and subsequently qualified for a limited visa as a victim of crime who cooperated with law enforcement was wrongly ordered deported, the 7th Circuit Court of Appeals ruled. The decision also rejected caselaw that limited immigration judges’ ability to administratively close cases when warranted.

The unanimous panel reversed a removal order upheld by the Board of Immigration Appeals in Yeison Meza Morales v. William Barr, 19-1999.

Yeison Meza Morales has lived in the U.S. since arriving as a child in 2002. In October 2013, he was walking through an Indianapolis neighborhood when he encountered a group of men arguing. As he ran away, one of the men shot Meza Morales in the ankle. He recovered and cooperated with the police investigation, the 7th Circuit noted.

As such, Meza Morles qualified for a U Visa — an immigration category reserved for crime victims who assist police but that is limited to 10,000 nationwide per year. Because many more U Visas are applied for than are available, those not granted them are placed on a waiting list in chronological order.

Meza Morales applied for a U Visa in August 2017, but before his application could be acted upon, the Department of Homeland Security charged him “as removable under 8 U.S.C. § 1182(a)(6)(A)(i) as a noncitizen present in the United States without being admitted and under 8 U.S.C. § 1182(a)(2)(A)(i)(II) for a 2014 conviction for possession of marijuana,” Judge Amy Coney Barrett wrote for the panel.

“The immigration judge deemed him removable under both charges. Meza Morales, appearing pro se, admitted both charges but explained that he was a crime victim and had already applied for a U visa. … In his next appearance, Meza Morales asked the immigration judge either to continue the case further or to administratively close it — two procedural devices that allow an immigration judge to temporarily set aside a pending case. The immigration judge rejected both options and instead entered an order of removal.”

Meza Morales appealed, but the Board of Immigration Appeals affirmed the removal order, which the 7th Circuit stayed pending appeal. Meza Morales was subsequently deemed eligible for a U visa but placed on a waiting list due to the cap, and while that determination released him from detention, Meza Morales continued to petition for review because he still faced deportation proceedings. The judge ruled that he was bound by Matter of Castro-Tum, 27 I. & N. Dec. 271, 283 (Att’y Gen. 2018), to reject Meza Morales’ request for administrative closure, and the Board of Appeals affirmed.

“We disagree,” Barrett wrote, holding judges in immigration proceedings have broad authority to administratively close cases where “appropriate and necessary for disposition” of cases. “We therefore reject Castro-Tum and hold that immigration judges are not precluded from administratively closing cases when appropriate.”

Further, the panel pointed to recent holdings including those involving continuances in Matter of Mayen, 27 I. & N. Dec. 755 (B.I.A. 2020), and Guerra Rocha v. Barr, 951 F.3d 848, 853 (7th Cir. 2020), in which the 7th Circuit “emphasized that prima facie eligibility for a U visa was the most important factor to consider in deciding whether to grant a continuance.”

In granting Meza Morales’ petition for review and remanding to the Board of Immigration Appeals, the 7th Circuit concluded, “the Board should reconsider on remand whether a continuance was appropriate in light of new opinions in Matter of Mayen and Guerra Rocha v. Barr. It should also reconsider whether to administratively close the case.”

Indiana Supreme Court

June 23

Criminal — Drugs/Search of Vehicle in Warrant for Home Search

Brian E. Hardin v. State of Indiana

20S-CR-418

Indiana’s chief justice and its most senior justice dissented from a decision upholding the admission of evidence in a drug case collected from a vehicle that arrived at a Camby home at the same time police were inside the house executing a search warrant that was limited to the property. A justice who sided with the majority, however, said the split decision is evidence that key caselaw regarding law enforcement searches and seizures may need to be revisited.

The decision in Brian E. Hardin v. State of Indiana, 20S-CR-418 garnered three written opinions that highlighted the challenges law enforcement and courts face in determining whether a search violated a defendant’s rights under the Fourth Amendment of the United States Constitution or under Article 1, Section 11 of the Indiana Constitution.

Hardin was convicted of dealing in and possession of methamphetamine and sentenced in Morgan Circuit Court to an aggregate 22 years in prison. But he challenged the evidence of 108 grams of crystal meth that Indiana State Police troopers found in a black bag beneath the seat of his truck.

Authorities had been searching Hardin’s home pursuant to a warrant while it was unoccupied, and they found evidence of meth and alleged drug transaction ledgers, among other things, before first Hardin’s girlfriend and daughter arrived, and later Hardin arrived separately.

After he entered his house, troopers detained him and searched the truck, though the warrant they had didn’t expressly allow for the search of vehicles. In the closest of decisions, the majority of the Indiana Supreme Court panel affirmed the decision after an analysis of whether it comported with the three-part reasonableness test of Litchfield v. State, 824 N.E.2d 356, 361 (Ind. 2005). The test balances these factors: the degree of concern, suspicion, or knowledge that a violation has occurred; the degree of intrusion the method of the search or seizure imposes on the citizen’s ordinary activities, and; the extent of law enforcement needs.

“The search here did not violate the Fourth Amendment because the law-enforcement officers knew that Hardin owned and controlled the vehicle searched and objectively reasonable indicia showed the same, so the vehicle in this situation fell within the scope of the warrant for the home,” Justice Christopher Goff wrote for the majority, joined by Justice Mark Massa and in part by Justice Geoffrey Slaughter.

“The search did not violate Article 1, Section 11 because the high degree of law enforcement concern and moderate law-enforcement need outweighed the moderate intrusion caused by the search, so the search was constitutionally reasonable based on the totality of the circumstances. Thus, we affirm the trial court’s admission of the evidence obtained from the search of the vehicle.”

Chief Justice Loretta Rush and Justice Steven David dissented, however, and would have aligned with Judge Paul Mathias’ dissent when the denial of Hardin’s motion to suppress was affirmed by a majority of a Court of Appeals panel.

Under the circumstances, David wrote, law enforcement easily could have obtained a warrant for the vehicle, meeting the presumed heightened protections against auto search and seizures under Article 1, Section 11 of the Indiana Constitution. They therefore had a different interpretation of the Litchfield factors.

“Beginning from this proposition — that it is best practice for officers to obtain a warrant — and ending with the facts that Hardin was no longer a flight risk and the vehicle was not going anywhere, I would find that the extent of law enforcement needs in this situation was extremely low. Though combatting the use and sale of drugs in our communities is certainly of utmost importance, I cannot agree that, on these facts, this factor weighs at all in the State’s favor,” David wrote in the dissent joined by Rush.

“On balance, I believe the search was unreasonable under Article 1, Section 11 of the Indiana Constitution because, although the degree of concern or suspicion was relatively high, both the level of intrusion and needs of law enforcement weigh heavily against the State. I would suppress the evidence obtained from Hardin’s vehicle and remand this matter for a new trial.”

Slaughter, meanwhile, wrote in a concurring opinion that the decision in Hardin’s case may be an indictment of the Litchfield factors themselves. While he lent the decisive vote in Hardin’s case and said he agreed with its analysis, he noted “a recurring problem” with the jurisprudence.

“In the fifteen years since we decided Litchfield, our case reports have ballooned with examples of ongoing uncertainty among litigants and lower courts with how to apply its three factors for assessing whether challenged law-enforcement activity violates our constitution,” Slaughter wrote. “This longstanding uncertainty is evident here. Although the underlying facts are undisputed, respected jurists at all levels of our judiciary have arrived at different conclusions about what Litchfield means for Hardin. The nine judges who have reviewed his case have looked at the same facts and applied the same legal standard. Yet we have reached widely varying conclusions about the legal consequence of these uncontested facts. I cannot imagine a clearer sign of precedent in need of reconsideration.

“Under Litchfield, no one can predict how courts will decide a given case with a given set of facts. The resulting uncertainty is not good for law enforcement, which needs clear rules so it can conform its conduct to the law. It is not good for individuals, who need clear guidance on whether law enforcement has violated their rights. And it is not good for courts, which must vindicate these rights. In practice, Litchfield amounts to a legal Rorschach test—an ‘eye-of-the-beholder’ inquiry incompatible with the rule of law. The problem, I submit, lies not with the disputed constitutional provision but with the test we have devised for interpreting it. Like most totality-of-the-circumstances tests that balance multiple factors, Litchfield is not susceptible to a clear application that produces an obvious legal outcome.

“Going forward, I hope the opportunity arises to consider a bright-line rule as a successor test to Litchfield for interpreting Article 1, Section 11— one consistent with our framers’ constitution and with the text, history, and structure of this constitutional provision.”

__________

June 26

Criminal — Attempted Murder/Reversal, Self-Defense Jury Instruction

Anthony Gammons, Jr. v. State of Indiana

20S-CR-22

The Indiana Supreme Court has ordered a new trial for a man convicted of attempted murder and handgun charges, finding an erroneous jury instruction diluted the standard for claiming self-defense.

Justice Mark Massa authored the unanimous opinion in Anthony Gammons, Jr. v. State of Indiana, 20S-CR-22.

In that case, Anthony Gammons and his 10-year-old son encountered Derek Gilbert outside the home of Gammons’ cousin. Gilbert had been previously charged with murder, so Gammons “was put on edge” when Gilbert “immediately started accosting him.”

Gilbert eventually squared up to Gammons, began pulling at his waistband and asking Gammons if he was “casket ready.” In response, Gammons drew the handgun he was openly carrying and shot at Gilbert, who still did not relent. Gammons claimed he feared for his life and his son’s, but he stopped shooting when Gilbert finally retreated. During the altercation, Gammons said, Gilbert was repeatedly reaching in his pants “like he was grabbing for something.”

At his ensuing trial for attempted murder and carrying a handgun without a license, Gammons conceded he did not have a license for the gun but claimed he acted in self-defense. The jury, over Gammons’ objection, was instructed that “‘a person may not use force if,’ among other things, ‘he is committing a crime that is directly and immediately related to the confrontation,’” which would include carrying an unlicensed gun.

Gammons was convicted, and the carrying verdict was merged with attempted murder. The Indiana Court of Appeals upheld his conviction, holding, without deciding the question of error, that any error in the jury instruction was harmless.

But in reversing both lower courts, the Indiana Supreme Court pointed to its prior ruling in Mayes v. State, 744 N.E.3d 390 (Ind. 2001). There, the justices, interpreting Indiana Code § 35-41-3-2, held that “there must be an immediate causal connection between the crime and the confrontation” to preclude a self-defense claim.

“Gammons contends that the trial court erred by instructing that he could not assert self-defense if he was ‘committing a crime that [wa]s directly and immediately related to the confrontation.’ …,” Massa wrote. “We agree – the instruction … was an imprecise statement of law. By instructing that the crime and confrontation must be merely ‘directly and immediately related,’ the instruction weakened the causal connection required to preclude a claim of self-defense.

“… Justice (Theodore) Boehm’s concurrence in Mayes presaged this diminution of the standard, warning that the Court – by rephrasing that the ‘evidence must show that but for the defendant committing a crime, the confrontation resulting in injury to the victim would not have occurred’ – left open circumstances where a ‘defendant should be free to claim self-defense.’ …,” Massa continued. “We now concur with Justice Boehm: ‘this ‘but for’ test is too broad.’ … Since this ‘but for’ test can impede the defense in the same unjust and absurd ways as a literal reading of the statute, we reject that rephrasing and reiterate that self-defense is barred only when there is ‘an immediate causal connection between the crime and the confrontation.’”

Here, the instructional error could have been the basis of the jury’s guilty verdict against Gammons, the court continued. Thus, unlike the Court of Appeals, the Supreme Court determined the error was not harmless.

“We do not pass judgment today on whether Gammons acted in self-defense when he shot Gilbert,” Massa concluded. “That is a question for the jury, which may yet reject this justification. But we cannot categorically bar those jurors from considering the defense when a crime is merely ‘related to’ or connected to’ a confrontation — rather, as we held in Mayes, there must be an immediate causal connection between the two.

“Because we cannot conclusively determine that the verdict would have been the same absent this instructional error, we reverse and remand for a new trial.”

__________

June 29

Criminal — OWI/Suppression of Blood Draw, Warrant

State of Indiana v. Wesley Ryder

20S-CR-435

A former police trainee accused of causing a drunken-driving crash on Interstate 465 five summers ago will go back to court with more evidence against him. The Indiana Supreme Court ruled that results of a blood draw after he refused a breath test were wrongly suppressed in Marion Superior Court.

Wesley Ryder was charged in June 2015 with two Level 6 felony operating while intoxicated counts and two misdemeanors after he was behind the wheel in an early-morning, wrong-way crash that seriously injured other motorists. Authorities alleged Ryder was intoxicated as he drove the wrong way on the interstate, but the Marion Superior Court suppressed results of his blood draw.

After Ryder refused a breath test, he was taken to the Marion County Arrestee Processing Center. “Although a judge was usually on call overnight at the processing center, inexplicably none were available that morning,” Justice Mark Massa wrote.

“As time was of the essence, Trooper (Robert) Augst called Marion County Superior Court Judge Barbara Crawford, who agreed to meet him at a Speedway gas station along the freeway to consider his search warrant request. Before leaving the processing center, Trooper Augst worked with a prosecutor to prepare his probable cause affidavit and proposed warrant,” Massa wrote. “An employee of the Marion County Clerk’s office made an entry in the recording system creating a cause number around 7:15 a.m., and the cause number was included in the affidavit presented to Judge Crawford. The parties dispute whether Trooper Augst left a copy of the probable cause affidavit and warrant with the Clerk before heading out to meet Judge Crawford.

“After arriving at the gas station parking lot, Judge Crawford reviewed the affidavit and approved the search warrant at 7:44 a.m. … With a signed copy of the warrant in hand, Trooper Augst transported Ryder to Eskenazi Hospital where a blood draw was taken” at 8:12 a.m., according to the narrative laid out by the Indiana Supreme Court. Augst returned to the APC about three hours later and dropped off the warrant and probable cause affidavit in the court clerk’s drop box.

“Three years later, Ryder moved to suppress the blood sample, alleging that its collection violated his rights against unreasonable search and seizure under the Fourth Amendment and Article 1, Section 11 of the Indiana Constitution. Ryder also argued that suppression was appropriate as a violation of Indiana Code section 35-33-5-2, which explicitly bars issuing a search warrant until an affidavit is ‘filed with the judge.’ At the suppression hearing, Augst could not recall whether he had left a copy of the documents with Judge Crawford, and Judge Crawford was apparently never contacted about her recollection of events or to see if she had retained a copy of the affidavit,” Massa wrote.

The trial court granted Ryder’s motion to suppress, which was affirmed by a divided panel of the Indiana Court of Appeals in a memorandum decision.

But the Indiana Supreme Court unanimously reversed and remanded in State of Indiana v. Wesley Ryder, 20S-CR-435.

“First, we hold that the warrant-authorizing judge certified contemporaneously, and in writing, that the probable cause affidavit had been properly filed with her when the search warrant was issued. Second, we hold that even if the affidavit was filed a few hours after it was presented to the authorizing judge — as the trial court found — it was still valid under Indiana’s substantial compliance filing doctrine and suppression of evidence obtained from the search warrant is not justified,” the panel held.

The justices unanimously ruled that the filing requirement was actually met in Ryder’s case, and four of five justices agreed that the filing requirement was substantially met. Justice Geoffrey Slaughter concurred as to the first finding and in the judgment without writing separately.

“We hold that the blood-draw search warrant application satisfied the filing requirement under Indiana Code subsection 35-33-5-2(a) because the signing judge’s uncontroverted certification that an affidavit had been delivered to her at the time of the warrant’s authorization established that the filing requirement had been satisfied. Alternatively, even if the warrant application was ‘filed’ four hours late, the tardy submission still constitutes substantial compliance with the filing requirement,” the court concluded.

__________

June 30

Criminal — Voluntary Manslaughter/Sentence

Marcus Lee McCain v. State of Indiana

20S-CR-281

The Indiana Supreme Court has reinstated a 45-year sentence against a man convicted in a point-blank shooting in northern Indiana, overturning a Court of Appeals decision that had reduced the sentence.

Justice Mark Massa wrote the court’s unanimous opinion in Marcus Lee McCain v. State of Indiana, 20S-CR-281.

The case began at Philly Steaks and Fresh Lemonade in Gary, where Marcus Lee McCain encountered Marcel Harris. McCain testified that Harris was “mean-mugging” him, so McCain followed him outside.

The two men, who had never met, exchanged words outside before Harris returned to the restaurant. McCain followed with his cousin, and a fight ensued and was caught on a high-definition surveillance system.

McCain later recalled that Harris told a friend to “[s]hoot that s—,” so McCain grabbed a gun and placed it against Harris’ head. He fired at close range when Harris tried to swat the gun away, killing Harris instantly. McCain fled the scene but was eventually arrested in Wisconsin.

A jury later convicted McCain of voluntary manslaughter, and a judge convicted him of a firearm enhancement. “During the bench trial,” Massa wrote, “the judge made multiple comments indicating he believed the defendant should have been convicted of murder by the jury. He called it ‘the clearest case of … cold-blooded murder I’ve seen in high definition in 32 years” and remarked that ‘[t]he voluntary manslaughter verdict was a gift.’”

The judge, Samuel L. Cappas of Lake Superior Court, made similar comments at McCain’s sentencing, where the court found 10 aggravating factors, including that “the nature of the shooting was ‘particularly cold-blooded and callous despite the fact that [McCain] was convicted of Voluntary Manslaughter wherein heat of passion was found to be a mitigating circumstance.” The court also found four mitigators and sentenced McCain to 45 years in prison.

A split panel of the Indiana Court of Appeals reduced McCain’s sentence to 35 years, but Judge Elizabeth Tavitas dissented. She wrote separately that despite the judge’s comments, the sentencing decision was not tainted because “the trial court made it clear that it was following the law and basing the sentence upon [the listed] aggravators and mitigators.”

Similarly, though the trial judge’s comments were “very close to the line,” the state justices determined those comments were “insufficient to demonstrate that the judge abused his discretion when viewed in the context of the record as a whole.” The high court looked to Gambill v. State, 436 N.E.2d 301 (Ind. 1982), Hammons v. State, 493 N.E.2d 1250 (Ind. 1986), Hamman v. State, 504 N.E.2d 276 (Ind. 1987), and Wilson v. State, 458 N.E.2d 654 (Ind. 1984), when evaluating Cappas’ sentencing motivations.

“First, unlike in Gambill, Hammons, and Hamman, the judge’s initial sentencing decision included a careful, detailed discussion of ten aggravating factors and six potential mitigation factors (ultimately accepting only four), both at the hearing and in a detailed sentencing order,” Massa wrote.

Further, as in Wilson, McCain did not receive a maximum sentence, and his 45-year sentence is “substantially lower” than what it would have been for murder. Also as in Wilson, Cappas made statements “clarifying he would filter out his personal feelings.”

“Finally, we need not decide the validity of the disputed aggravator – citing the ‘cold-blooded and callous’ nature of the killing – because we find any error stemming from its inclusion was harmless,” the justice wrote. “The thrust of this disputed aggravator is captured, less controversially, in the precedent aggravating circumstance finding the heinous nature of the shooting to be significant.

“… When an improper aggravator is used, we remand for resentencing only ‘if we cannot say with confidence that the trial court would have imposed the same sentence if it considered the proper aggravating and mitigating circumstances,’” he continued, citing McCann v. State, 649 N.E.2d at 1121 (Ind. 2001). “Given the similarity between these two aggravators, remand is unnecessary.”

The high court also declined sentencing relief under Indiana Appellate Rule 7(B). The court pointed to “McCain’s extensive history of felony and misdemeanor convictions,” his Facebook post “showing a desire for violent conflict,” and his “point-blank shooting of a complete stranger in a crowded fast-food restaurant after getting into an argument because someone looked at him sideways …” as support for the trial court’s sentencing decision.

In a footnote, the justices summarily affirmed Part I of the COA’s holding, which held that the firearm enhancement was applicable to the voluntary manslaughter conviction.

IndianaCourt of Appeals

June 24

Criminal — Battery with a Deadly Weapon/Reversal

Armann Jamal Johnson v. State of Indiana

19A-CR-2849

A man’s confession to police was ruled insufficient without other evidence of a crime to support his conviction of battery with a deadly weapon, the Indiana Court of Appeals ruled, vacating a conviction in a domestic violence case.

The panel threw out the conviction of the LaPorte Superior Court in Armann Jamal Johnson v. State of Indiana, 19A-CR-2849. Johnson had been accused of multiple crimes after police in Michigan City investigated a possible arson and domestic violence reported by Johnson’s former girlfriend, M.W.

M.W. was out of state and did not testify at trial, but prosecutors introduced as evidence a security stick that secured a sliding glass door in M.W.’s apartment and photos of her bruises, along with Johnson’s out-of-court confession to police that it was “probably” possible that he struck M.W. with the security stick. He admitted to police he struck her with his fists.

Johnson was initially charged with six felony count counts: robbery, stalking, battery, strangulation, arson and intimidation. After the state dismissed the strangulation and intimidation charges, the jury found Johnson not guilty of all other charges except Level 5 felony battery with a deadly weapon. He was sentenced to three years in the Department of Correction, 587 days of which was to be suspended to probation.

The COA vacated that conviction. “We conclude, based on the record before us, there was insufficient evidence to support the inference that a crime had been committed with regard to the battery with a deadly weapon charge before Johnson’s out-of-court confession regarding the battery with a deadly weapon was admitted into evidence,” Judge Elizabeth Tavitas wrote for the panel.

“The photographs merely demonstrated that M.W. had bruises. The State presented no evidence establishing a connection between the security stick and the alleged crime. M.W.’s statement to Detective LaMotte that Johnson battered her was not admitted as substantive evidence and was subject to the trial court’s limiting instruction.

“Alone, this evidence is insufficient to support the inference that a crime was committed. Even assuming that the photographs, security stick, and M.W.’s statement to Detective LaMotte were properly admitted, the State presented no evidence that Johnson committed battery by means of a deadly weapon against M.W. Accordingly, the State presented insufficient evidence to support the requirement of the corpus delicti before admission of Johnson’s confession. The trial court abused its discretion in admitting Johnson’s confession regarding the battery with a deadly weapon.

“… Accordingly, there was insufficient evidence to convict Johnson of battery with a deadly weapon, and we reverse the conviction,” the panel concluded.

__________

June 26

Miscellaneous — Americans with Disabilities Act/Court Provision of Sign Language Interpreter

Marion County Circuit Court v. Dustin King

19A-MI-01536

A deaf man’s lawsuit that challenged the denial of a request for a sign language interpreter in a court-ordered family law modest means mediation was dismissed on appeal.

Dustin King’s lawsuit under the Americans with Disabilities Act was filed more than five years ago. King was ordered to mediation in a custody matter and qualified for the Marion County Modest Means Mediation Program. He asked for an American Sign Language interpreter, but his request was denied.

After King sued, the court lifted its requirement that King go through mediation, but King said he wanted to mediate, and he asserted that lifting the requirement was not a permissible accommodation. He ultimately did participate in mediation with the assistance of an interpreter who was a family member. Nevertheless, he argued the denial of a sign language interpreter at court-ordered mediation violated his rights under Title II of the ADA and Section 504 of the Rehabilitation Act.

After an initial win in federal court, the 7th Circuit Court of Appeals reversed the ruling and damages award of $10,380 in 2017. The U.S. Supreme Court declined King’s petition for writ of certiorari.

King then brought the instant case in state court, in which Marion Superior Judge James Osborn denied the Marion Circuit Court’s motion to dismiss King’s case. The Indiana Court of Appeals reversed and remanded for dismissal, finding the 7th Circuit ruling settled King’s federal claims, and further action in state court is barred.

“While we are sympathetic to King’s plight, we are procedurally unable to provide him relief in this matter,” Judge Melissa May wrote for the panel in Marion County Circuit Court v. Dustin King, 19A-MI-01536.

__________

June 30

Civil Plenary — Medicaid Benefits Denial/Reversal

Randy L. Hotmer v. Indiana Family and Social Services Administration

19A-PL-2694

An elderly man living in a nursing home was wrongly denied Medicaid benefits, the Indiana Court of Appeals ruled, reversing a decision from the Indiana Family and Social Services Administration.

Randy Hotmer, born in 1948, entered a nursing home in April 2017 and shortly thereafter purchased two eight-year annuities. Hotmer’s application specified that the monthly payments would be made to his wife, but he was named in the contract as the annuities’ owner.

Then in October 2017, Hotmer applied for Medicaid benefits through FSSA, which determined that the monthly annuity payments put his income above the eligibility limit. An administrative law judge disagreed, noting the annuity payments were made solely to Hotmer’s wife.

After a series of reviews, the case reached the Clark Circuit Court, which agreed with FSSA that the annuities disqualified Hotmer from Medicaid. In overturning that denial, the appellate court noted Hotmer’s annuity contracts – which included the application stipulation that his wife receive the payments – “are irrevocable.”

“Consequently, Hotmer could not change the payee and make the payments available to him without breaching the contracts,” Judge Terry Crone wrote. “We therefore conclude that FSSA’s denial of Hotmer’s application for Medicaid benefits was arbitrary and capricious, and we reverse and remand for further proceedings consistent with this decision.”

Judge Robert Altice concurred in result without a separate opinion. The case is Randy L. Hotmer v. Indiana Family and Social Services Administration, 19A-PL-2694.•