Indiana Court Decisions – Nov. 4-16, 2021

7th Circuit Court of Appeals

Nov. 5

Criminal-Compassionate Release/COVID-19 Vaccine

United States of America v. Timothy Kurzynowski


The 7th Circuit Court of Appeals has upheld the denial of relief to a man convicted of child pornography crimes, finding that because he is vaccinated against COVID-19, he is ineligible for relief on remand for extraordinary and compelling reasons.

In the case of United States of America v. Timothy Kurzynowski, 20-3491, Timothy Kurzynowski pleaded guilty to distributing child pornography.

In 2015, he was sentenced to eight years in prison. He subsequently moved for compassionate release pursuant to § 603 of the First Step Act of 2018, 18 U.S.C. § 3582(c)(1)(A)(i), alleging after the denial of his request that the U.S. District Court for the Southern District of Indiana improperly thought the Sentencing Commission’s criteria in U.S.S.G. § 1B1.13 constrained its discretion.

The 7th Circuit Court of Appeals affirmed in a Nov. 5 decision, first concluding that the Indiana Southern District Court properly exercised its discretion in denying Kurzynowski’s motion.

It also found that under United States v. Broadfield, 5 F.4th 801 (7th Cir. 2021), the fact that Kurzynowski is vaccinated precludes a finding that the COVID-19 pandemic presents extraordinary and compelling reasons for his release.

Thus, the 7th Circuit concluded that the district court did not err when it considered § 1B1.13 or the § 3553(a) factors.

“Second, even if the district court had erred, it would be harmless. We are bound to follow United States v. Broadfield, 5 F.4th 801 (7th Cir. 2021). In Broadfield, we explained that the mass rollout of effective vaccines drastically improved the pandemic conditions in prisons,” it wrote. “Vaccinated prisoners in 2021 do not face the same risks of serious illness as they did in 2020. Unless a prisoner can show they are ‘unable to receive or benefit from a vaccine … the availability of a vaccine makes it impossible to conclude that the risk of COVID-19 is an ‘extraordinary and compelling’ reason for immediate release.’”

Court of Appeals of Indiana

Nov. 4

Criminal-Murder Sentence/Juvenile Case

Alphonso L. James, III v. State of Indiana


A nearly maximum adult sentence for a 13-year-old’s murder conviction was an outlier needing leavening, the Court of Appeals of Indiana ruled in a Nov. 4 reversal.

A unanimous panel of appellate judges partially reversed in Alphonso L. James, III v. State of Indiana, 21A-CR-148, concluding Alphonso James III’s 63-year sentence for fatally shooting an 18-year-old acquaintance “that matches the harshest sentences imposed on hardened adult offenders” was too severe.

James was 13 when he killed Jaren Minies during an Xbox, money and firearm trade in September 2018. While inside a vehicle during the exchange, James reached for Minies’ gun while also drawing his own weapon and shot Minies nine times.

James, who fled to New York, was adjudicated in 2019 as a delinquent for additional crimes and committed to a juvenile detention center for 18 months before being returned to Indiana to face delinquency proceedings in Minies’ murder.

The Indiana juvenile court waived jurisdiction and James was ultimately charged and prosecuted for murder as an adult.

Rather than placing James in a juvenile facility per his request, the Elkhart Circuit Court found him guilty and sentenced the minor to 63 years in prison — two years shy of the max for adult murderers.

The COA concluded that treating James the same as an adult offender for sentencing purposes “not only is illogical” but also “contravenes the basic notion in our law ‘that juveniles are different from adults when it comes to sentencing and are generally less deserving of the harshest punishments.’”

“We conclude that Alphonso’s sentence was inappropriate in light of the nature of the offense and the character of the offender,” Judge Leanna Weissmann wrote.

The Court of Appeals cited Legg v. State, 22 N.E.3d 763, 767 (Ind. App. 2014), trans. denied, as instructive in determining a proper sentence for James. It ultimately remanded to the trial court for entry of a 55-year sentence.

The COA, however, found no abuse of discretion in the trial court’s denial of James’ request for alternative juvenile sentencing or in its consideration of unadjudicated or unadmitted allegations of juvenile offenses as aggravating circumstances.

It noted the trial court concluded James did not qualify for alternative sentencing, his offense was “heinous and aggravated” and the “most serious of [his] pattern of delinquent acts,” and that he was beyond rehabilitation under the juvenile justice system. It further noted that the community’s safety and welfare were served by sentencing James as an adult.

Finally, as to the aggravating circumstances, the appellate court disagreed with James’ contention that the trial court blurred the line between adjudicated and unadjudicated juvenile allegations.


Nov. 8

Post-Conviction-Retrial/Ineffective Assistance

James Lewis Washington v. State of Indiana


An appellate panel has reversed and remanded for a new trial for a Clark County man convicted of murder following a fatal drug exchange after finding he received ineffective assistance of counsel.

James Washington was convicted of murder and robbery following a drug deal that turned deadly when he fatally stabbed customer Robert Eader over an argument about unmet payments.

The Clark Circuit Court sentenced Washington to 65 years due to his criminal history and the nature of the crime, but Washington argued on direct appeal that there was insufficient evidence to support his murder conviction.

He claimed self-defense against Eader, citing the man’s status as a military veteran, but the appellate court noted that once Washington pulled a knife during the fistfight, he was “no longer using reasonable force.”

Washington later filed an unsuccessful petition for post-conviction relief, alleging he was denied the effective assistance of trial counsel when his counsel did not object to one of the trial court’s jury instructions and when his counsel tendered an erroneous instruction, both of which the trial court provided to the jury.

In rejecting Washington’s ineffective assistance claim, the trial court adopted, nearly verbatim, the Court of Appeals of Indiana’s reasoning in Washington v. State, No. 10A05-1312-CR-626, 2014 WL 3511705, at *1–2 (Ind. Ct. App. July 15, 2014), trans. denied, that the state had presented sufficient evidence to negate Washington’s claim of self-defense. Based on that same reasoning, it concluded that “there could not have been sufficiently appreciable evidence of sudden heat” and, therefore, Washington “was not entitled to an instruction on voluntary manslaughter.”

“Though we do not defer to the court’s legal conclusions, we review its factual findings for clear error — that which leaves us with a definite and firm conviction that a mistake has been made,” Judge Paul Mathias wrote for the Court of Appeals.

It concluded that Washington’s trial counsel rendered constitutionally deficient assistance when he failed to object to an erroneous jury instruction that stated the jury could disregard mitigating evidence of sudden heat if it found Washington guilty of murder.

The COA noted that the trial court instructed the jury that, if it found that the state proved the offense of murder, “then you need not consider the included offense of voluntary manslaughter.”

“Thus, contrary to instruction 24, the jury’s job at Washington’s trial was not complete once it found that the State had proved the elements of murder,” Mathias wrote. “Had Washington’s trial counsel objected to instruction 24’s erroneous language, the trial court would have been obliged to sustain the objection.”

It further held that Washington’s counsel was constitutionally ineffective when he tendered an instruction, accepted by the trial court, that erroneously stated that the state had the burden of proving the existence of sudden heat beyond a reasonable doubt as an element of voluntary manslaughter.

Finally, it concluded that Washington’s counsel’s deficient performance prejudiced him because a properly instructed jury could have found Washington guilty of voluntary manslaughter instead of murder.

“Therefore, the post-conviction court erred when it concluded that Washington was not prejudiced by his trial counsel’s deficient performance. We reverse the post-conviction court’s judgment, vacate Washington’s convictions, and remand for a new trial on the State’s charges,” it concluded in James Lewis Washington v. State of Indiana, 21A-PC-385.


Nov. 9

Estate, Supervised-Paternity/Estate Heirship

Izetta Dawn Davis-Roper v. The Estate of Glenward August Schroeder, Deceased


The Court of Appeals of Indiana on Nov. 9 reversed a decision finding that a woman is not an heir to her grandfather’s estate and should not inherit from him because she failed to provide sufficient evidence to prove her paternity.

Izetta Dawn Davis-Roper, who was born out of wedlock in Indiana, lived with her parents and paternal grandfather for three years before relocating with her mother to Alabama as a toddler. Despite the distance, she stayed in regular contact with her father and his family and visited them each year.

More than a decade later, Davis-Roper’s mother filed and was granted in Alabama a reciprocal child support action. An order was subsequently issued determining Davis-Roper’s father owed her a duty of support, and the matter was referred for enforcement in Indiana.

Davis-Roper’s father and grandfather both died without wills, and Davis-Roper served as the personal representative for the unsupervised administration of her father’s estate.

She was also listed in the petition of her grandfather’s known heirs but was later questioned by paternal family members as to the legitimacy of her paternity.

Relative Michael Schroeder filed a petition to determine Davis-Roper’s heirship, claiming Davis-Roper had previously been incorrectly identified as one of her grandfather’s heirs.

Schroeder and others argued Roper’s paternity had not been established through any procedure recognized in Indiana Code § 29-1-2-7, the statute dealing with inheritance for a child born out of wedlock.

The Perry Circuit Court, after initially admitting Davis-Roper’s exhibit of the Alabama duty of support order, excluded it after concluding she was not an heir in her grandfather’s estate.

The court also found she should not inherit from him because she had failed to provide sufficient evidence to prove her paternity through the statutory elements set forth in the Indiana code.

But the Court of Appeals rejected that decision, finding the trial court should have admitted the exhibit into evidence pursuant to the full faith and credit clause of the United States Constitution.

“Full faith and credit means that judgment of a state court should have the same validity and effect in every state of the United States as it had in the state where it was made,” Judge Rudolph Pyle wrote for the COA. “… The trial court abused its discretion in excluding Exhibit H.”

It also found that had the trial court admitted Exhibit H, it would have had before it evidence that Davis-Roper had established her paternity in a cause of action that was filed during her father’s lifetime.

“Davis-Roper would therefore have been treated as if Father had been married to Mother at the time of her birth and would have been allowed to take by representation Father’s share of Grandfather’s Estate,” the appellate court concluded. “The trial court’s error is therefore inconsistent with substantial justice.”

The case of Izetta Dawn Davis-Roper v. The Estate of Glenward August Schroeder, Deceased, 21A-ES-556, was therefore remanded to the trial court for proceedings consistent with the appellate court’s opinion.

In a footnote, the COA said it need not address Davis-Roper’s arguments related to issue preclusion and the constitutionality of I.C. 29-1-2-7 due to the reversal.


Nov. 10

Criminal-Murder/Attempted Murder

Winston E. Corbett v. State of Indiana


An Indiana man convicted of murdering a Goshen College professor and who also attempted to murder the teacher’s wife should remain behind bars for life, the Court of Appeals of Indiana ruled Nov. 10.

The COA affirmed the Elkhart Circuit Court’s 115-year sentencing of Winston E. Corbett, as well as his convictions of murder and attempted murder.

In October 2011, Jim and Linda Miller were brutally attacked in their home in Goshen just after midnight while waiting for their children to return home from a band competition.

When police arrived, Jim was found dead in the driveway, having been stabbed at least 50 times. Linda survived with serious injuries.

DNA evidence was collected from the home, but no suspect was identified at the time. Also at the time, there was evidence suggesting attempted entry into other neighboring homes.

In 2018, a detective with the Goshen Police Department sent the DNA evidence to a genealogy company for testing and received Corbett’s name as a possible lead. Corbett, who was 16 at the time of the attack, was living with his mother less than a mile away from the Millers after being discharged from the U.S. Navy.

Further investigation led to law enforcement conducting a “knock and talk” followed by a trash search of Corbett’s home. After more testing, it was determined the DNA from the crime scene matched Corbett’s.

Corbett was later charged with and convicted of the murder of Jim and the attempted murder of Linda and sentenced to 115 years in prison.

On appeal, Corbett raised several challenges to his convictions and sentence. To begin, he argued the knock and talk was an unconstitutional search, as was the police’s trash pull, so the remaining evidence in the affidavit was therefore uncorroborated hearsay.

On the knock and talk issue, the COA found the detective did not violate Corbett’s rights under the Fourth Amendment, as the officer intended to speak to the occupants and determine who lived at the home, which is authorized in Florida v. Jardines, 569 U.S. 1 (2013).

Officers also did not violate Article 1, Section 11 of the Indiana Constitution, as the actions were not unreasonable under the totality of the circumstances, the COA opined.

The COA again denied the argument of a violation of Article 1, Section 11 rights as it pertained to the trash pull, pointing to Rotz v. State, 894 N.E.2d 989, 993 (Ind. Ct. App. 2008).

Corbett also contended the search warrant was invalid because the affidavit was based “on hearsay from an anonymous source,” but the COA disagreed.

“His argument fails from the onset, since, as we explained above, neither the knock and talk nor the trash pull was unconstitutional,” COA Judge Nancy Vaidik wrote for the court.

“… Therefore, the affidavit here contained not only the hearsay evidence naming Corbett as an ‘investigative lead,’ but also other evidence that corroborated the hearsay and provided sufficient probable cause.”

Next, on bad acts evidence claims, Corbett contended the Elkhart Circuit Court abused its discretion in admitting evidence, under Indiana Evidence Rule 404(b)(2), as it pertained to the other homes that were broken into.

The COA found the trial court did abuse its discretion, pointing to Camm v. State, 908 N.E.2d 215, 224 (Ind. 2009), reh’g denied.

Corbett also argued — and the state conceded — the trial court erred in admitting evidence of the Article 15 nonjudicial punishment he received while in the Navy under Indiana Evidence Rule 609(a)(2).

Specifically, Corbett argued the nonjudicial punishment did not constitute a criminal conviction with which he could be impeached.

While the COA found the trial court erred in admitting the evidence, it opined there was still substantial evidence of guilt.

On his sentencing, which was the maximum on both the murder and attempted murder charges, Corbett emphasized his lack of criminal history, his five-year service in the U.S. Navy and his classification as low-risk to reoffend under the Indiana Risk Assessment System.

The COA wasn’t convinced, finding “the brutal nature of the crimes supports his sentence.”

“It is true we often decrease sentences for juvenile offenders, noting their immaturity and the rehabilitative nature of our judicial system,” Vaidik wrote. “However, that is not the case for all crimes committed by juveniles, as shown in Conley v. State, 972 N.E.2d 864 (Ind. 2012), reh’g denied. In Conley, our Supreme Court upheld the trial court’s sentence of life imprisonment without the possibility of parole for a juvenile who murdered his ten-year-old brother. In doing so, the Court noted the ‘brutality’ of the offense … .

“… The same can be said here. Corbett attacked the Millers in their own home with apparently no motive. He stabbed them both repeatedly, and the crime was drawn out — as evidenced by the number of wounds on the victims alone.”

The case is Winston E. Corbett v. State of Indiana, 21A-CR-118.

Civil Tort-Eminent Domain/Notice

624 Broadway, LLC v. Gary Housing Authority


The Gary Housing Authority, which tried to exercise eminent domain and take a property with an appraised value of $325,000 for $75,000, will have to cancel the demolition crew after the Court of Appeals of Indiana found the agency failed to give at least 30 days’ notice of its plans.

The Gary Housing Authority initiated eminent domain proceedings against 624 Broadway LLC to acquire a property as an administrative taking under Indiana Code §§ 32-24-2-1 to -17, known as “Chapter 2.” A public hearing date on the resolution allowing the housing authority to exercise eminent domain was set for Sept. 19, 2019, but the housing authority did not publish notice until Aug. 21 and 28. Also, the housing authority did not mail a notice of the resolution to 624 Broadway’s registered agent, John Allen.

At the Sept. 19 hearing, the housing authority confirmed the resolution, then adopted a second resolution that listed 624 Broadway as the only affected property owner and established a damage award of $75,000 for the taking of the land. Another hearing was scheduled for Oct. 17, but notice was not published until Sept. 21 and 28 and Oct. 5.

Although he again had not received written notice, Allen learned of the Oct. 17 hearing and, at the proceeding, asked the housing authority to wait until 624 Broadway’s appraiser had completed the valuation. But the housing authority confirmed the Sept. 19 resolution and issued a check to 624 Broadway for $75,000. Less than two weeks later, the appraiser determined the property had a fair market value of $325,000.

Seeking injunctive relief, 624 Broadway filed a complaint alleging a violation of its constitutional and statutory procedural rights along with a request for damages. The housing authority filed a motion for summary judgment, which Lake Superior Judge Stephen Scheele granted.

On appeal, the Court of Appeals agreed with 624 Broadway that the way the housing authority used eminent domain violated the property owner’s state statutory rights to notice and an opportunity to be heard.

The unanimous panel found the housing authority violated I.C. 32-24-2-6(b) by failing to notify Allen of the resolution and by not giving the public at least 30 days’ advance notice of the meeting. Also, the court noted the housing authority ran afoul of I.C. 32-24-2-8(b) by not serving Allen notice of the Oct. 17 hearing and did not comply with I.C. 32-24-2-8(d) when it did not provide at least 30 days’ notice of that hearing.

Finding the housing authority did not follow the procedural notice requirements of Chapter 2, the appellate court reversed the grant of summary judgment.

“The Gary Housing Authority’s failure to properly serve 624 Broadway and its failure to hold its damages hearing no fewer than thirty days after the date of last publication contributed to 624 Broadway’s inability to obtain its own appraisal of the property prior to the October 17 hearing and to 624 Broadway’s inability to present competing evidence of its damages at that hearing,” Judge Paul Mathias wrote for the court. “We cannot say with confidence that, had the Gary Housing Authority complied with Chapter 2, as it was required to do, it would have assessed the same damage award for the property to 624 Broadway.”

The case is 624 Broadway, LLC v. Gary Housing Authority, 21A-CT-653.


Nov. 15

Civil Tort-Damages/Slip-and-Fall

Aberdeen Apartments II LLC v. Jessica Miller


A Mooresville apartment complex could not convince the Court of Appeals of Indiana that it was not responsible for the injuries caused to a visitor during an icy slip-and-fall accident on its property.

Jessica Miller was injured after she slipped and fell on ice while leaving her boyfriend’s Mooresville apartment complex in January 2018. As a result of the fall, Miller sustained a non-displaced fracture of her dominant arm, making her unable to work for several weeks and forcing her to rely on others for assistance with daily activities.

Miller subsequently sued the apartment complex, Aberdeen Apartments II, alleging it was negligent and caused her injuries. The Hendricks Superior Court later denied Aberdeen’s motion for summary judgement, as well as a motion for a mistrial due to alleged misconduct by Miller’s counsel.

A jury ultimately found for Miller, awarding her $80,000 upon finding Aberdeen to be 80% at fault for her injuries and Miller 20% at fault. Aberdeen’s motion for relief from judgment was also denied, prompting its appeal in Aberdeen Apartments II LLC v. Jessica Miller, 21A-CT-1263.

As to Aberdeen’s argument that it was unaware of the late-night forecast that warned of “patchy freezing drizzle” and “slick roads” overnight, the COA found no evidence that Aberdeen’s employees were asleep when the 11:11 p.m. updated forecast was issued or when the ice began to form. It noted the circumstances were not such that the weather changed suddenly and without warning.

“And, notably, in January 2018, there were phone applications and other means of getting alerts twenty-four hours a day regarding dangerous weather conditions. We cannot say, as a matter of law, that a landlord of a multi-unit complex has exercised reasonable care for the safety of its tenants and guests if it has not utilized that technology during the winter months,” Judge Edward Najam wrote.

Concluding that Aberdeen did not negate the breach element of Miller’s negligence claim and that the trial court did not err when it denied Aberdeen’s summary judgment motion, the COA turned to its motion for relief from judgement.

On that issue, the appellate court found Aberdeen failed to show that the trial court abused its discretion when it held that Miller’s counsel had not committed misconduct. Nor did it show that the alleged misconduct prevented Aberdeen from fully and fairly presenting its case at trial.

Lastly, the COA found no abuse of discretion in the denial of Aberdeen’s motion to correct error alleging the jury’s damages award was excessive.

“She experienced such pain during her physical therapy sessions that she cried. She missed several weeks of work and had to use her sick leave, and she missed out on overtime pay,” Najam wrote. “During her recovery, Miller had to use up her savings to pay her bills, and when her savings ran out, she used credit cards and ‘racked up a lot of debt.’ In light of the evidence, and given the jury’s broad discretion, we cannot say that the damages award of $80,000 is ‘so outrageous that it impresses us at first blush with its enormity.’”


Nov. 16

Estate, Supervised-Rehearing/Wills

Ashley Victoriano, individually and as Administrator of the Estate of Patrick Barnes v. Estate of Barbara J. Smith


Despite a portion of a deceased couple’s will being omitted from a Court of Appeals of Indiana opinion, the appellate court’s original decision does not need to be reversed, the COA held in an opinion on rehearing.

In September, the appellate court issued an unpublished opinion in the case of Ashley Victoriano, individually and as Administrator of the Estate of Patrick Barnes v. Estate of Barbara J. Smith, 21A-ES-407. The court’s original ruling upheld the Scott Superior Court’s distribution of the estate of Bobbi and Cecil Smith.

In its September decision, the COA “mistakenly omitted” a portion of the Smiths’ will. Italicized, the omitted portion reads: “We direct that after payment of all our just debts, our property be bequeathed in the manner following: In the event that we pass on at the same time we request that our property be divided as follows: Cecil’s half to be divided between Toby A. and Shannon Smith … .” The will further provided that Bobbi’s half would be divided between Toby Smith, Shannon Smith, Patrick Barnes and Tammy Montana.

“Barnes’s estate argues that, because we misquoted the will, we failed to understand the will’s terms and properly follow the rules of construction in determining Bobbi’s intent, and therefore we should reverse and remand with orders to award each of Bobbi’s children a 1/4 share. This omission does not alter our analysis,” Chief Judge Cale Bradford wrote.

“If anything, the omitted language underscores that, regardless of whether Bobbi and Cecil died at the same time or one predeceased the other, they wanted their estate distributed among the children unequally so that Bobbi and Cecil’s children received 3/8 shares while Bobbi’s children from a previous marriage only received 1/8 shares,” Bradford wrote in the Nov. 16 opinion on rehearing.

The panel therefore granted rehearing for the limited purpose of correcting the omission but reaffirmed its original disposition in all other respects.•

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