Opinions Feb. 23, 2021

Indiana Court of Appeals
Andrew Conley v. State of Indiana
Post conviction. Affirms and reverses in part Andrew Conley’s amended petition for post-conviction relief. Finds Conley’s trial counsel failed to adequately present mitigating evidence, missed opportunities to present expert testimony on scientific evidence regarding the juvenile brain, and missed opportunities to zealously present evidence and challenge the state’s evidence regarding Conley’s mental health. Also finds Conley has shown that his trial counsel’s performance fell well short of prevailing profession norms, and his trial counsel’s deficient performance prejudiced his defense to the extent there is a probability sufficient to undermine confidence in the outcome. Finally, finds the post-conviction court’s denial of Conley’s ineffective assistance of trial counsel claim is clearly erroneous, but the court’s denial of the remainder of Conley’s claims is not clearly erroneous. Remands to the Ohio Circuit Court for a new sentencing hearing.

Edward Gaeta v. Huntington National Bank
Mortgage foreclosure. Affirms the Tippecanoe Superior Court’s order setting aside a foreclosure judgment against Edward Gaeta and retaining a money judgment against him. Finds Gaeta’s claim that the trial court abused its discretion by failing to remove attorney fees and expenses that had been included in the original money judgment is barred by the law of the case doctrine.

Jennifer Lynn Harris v. State of Indiana
Criminal. Affirms Jennifer Lynn Harris’ 40-year sentence and conviction of Level 1 felony neglect of a dependent resulting in death. Finds the sentence handed down in Madison Circuit Court is not inappropriate and the trial court did not abuse its discretion in sentencing, nor did the trial court abuse its discretion in admitting evidence. Finds the evidence is sufficient to support the conviction.

Jason Ball v. State of Indiana
Expungement petition. Reverses the denial of Jason Ball’s petition seeking the expungement of his criminal convictions. Finds the Elkhart Superior Court abused its discretion. Remands with instructions for the trial court to grant Ball’s expungement petition.

Willie Witherspoon, Jr. v. State of Indiana (mem. dec.)
Criminal. Affirms Willie Witherspoon Jr.’s convictions of Level 1 felony and Level 4 felony counts of child molesting, and his sentence of 48 years, with 36 years executed in the Department of Correction. Finds the Allen Superior Court did not abuse its discretion by admitting J.C.’s forensic interview into evidence under Evidence Rule 803(5). Also finds Witherspoon has not shown that his sentence is inappropriate.

In the Matter of J.S.1, J.S.2, and B.M. (Minor Children) and J.S. (Father) v. The Indiana Department of Child Services (mem. dec.)
Juvenile miscellaneous. Dismisses father J.S.’s appeal of the Hendricks Superior Court’s grant of motions to compel filed by the Hendricks County Department of Child Services. Finds J.S.’s appeal is moot because the forensic interviews of the children have been complete and because DCS found the allegations to be unsubstantiated.

Damon J. Lewis, Jr. v. State of Indiana (mem. dec.)
Criminal. Affirms Damon J. Lewis Jr.’s convictions of murder and attempted murder and his sentence to an aggregate 60 years. Finds the state presented evidence of a probative nature in Marion Superior Court from which a reasonable trier of fact could have determined beyond a reasonable doubt that Lewis did not validly act in self-defense and that he was guilty of murder and attempted murder. Also finds Lewis has not sustained his burden of establishing that his concurrent sentences are inappropriate in light of the nature of the offenses and his character.

Marcus Dawayne McNeil v. State of Indiana (mem. dec.)
Criminal. Affirms Marcus Dawayne McNeil’s aggregate 14-year sentence for his convictions in Tippecanoe Superior Court of two counts of Level 3 felony dealing in cocaine. Finds McNeil’s sentence is not inappropriate in light of the nature of his offenses or his character.

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