Opinions March 17, 2021

The following opinions were posted after IL deadline Tuesday:
7th Circuit Court of Appeals
United States of America v. Korrtel Filzen
20-1071
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. Judge Richard L. Young.
Criminal. Affirms the $1,100 special assessment imposed on Korrtel Filzen for his convictions of 11 felony offenses related to an armed robbery spree. Finds the district court could not have lawfully imposed the $900 special assessment considered in Filzen’s plea agreement, and the lawful sentence that it did impose did not seriously affect the fairness, integrity or public reputation of judicial proceedings. Also finds that the court’s Federal Rule of Criminal Procedure 11 violation was not reversible error.

Indiana Supreme Court
Danny Lee Williams v. State of Indiana
21S-CR-113
Criminal. Affirms Danny Lee Williams’ six-year executed sentence for Level 3 felony dealing in methamphetamine and Level 4 felony dealing in a narcotic drug, imposed in Clark Circuit Court pursuant to a plea agreement that allows Williams to seek a sentence modification upon his successful completion of a substance abuse treatment program and is not one of the outliers Appellate Rule 7(B) is intended to leaven. Grants transfer for the sole purpose of reminding trial judges that the plea agreement, guilty plea and sentencing hearing colloquy, and sentencing order, must be clear and consistent as to whether a defendant waives only the right to appeal the conviction or the right to appeal the conviction and sentence. Finds it is not apparent from the plea agreement or the colloquy at the sentencing hearing that Williams knowingly and voluntarily waived the right to appeal his sentence.

Wednesday opinions
Indiana Court of Appeals
Indiana University, by and through its Board of Trustees v. Jaden Thomas, et al., individuals, each on behalf of himself and all others similarly situated
20A-PL-361
Civil plenary. Reverses the denial of Indiana University Bloomington’s motion for partial summary judgment on tort claims brought by students residing in freshman dormitories who filed a class-action complaint seeking relief related to mold growth in the dorms, and the certification of three litigation classes. Finds the Monroe Circuit Court abused its discretion in certifying the moldy dorms and noise polluted dorms classes. Also finds the trial court erred in denying the university’s motion for partial summary judgment on the plaintiffs’ tort claims. Finally, finds the plaintiffs’ claims for money had and received and unjust enrichment are tort claims governed by the Indiana Tort Claims Act and therefore subject to summary judgment. Remands for further proceedings.

Thomas Wininger v. Carrie Lentz (mem. dec.)
20A-DC-305
Domestic relations with children. Affirms the grant of primary physical custody of Thomas Wininger and Carrie Lentz’s child to Lentz. Finds the Monroe Circuit Court’s order on remand is “wholly inadequate” but is not clearly erroneous.

In the Matter of: E.V. (Minor Child) and B.V. (Mother) v. Indiana Department of Child Services, et al. (mem. dec.)
20A-JC-867
Juvenile CHINS. Affirms the adjudication of mother B.V.’s minor child, E.V., as a child in need of services. Finds the Indiana Department of Child Services presented sufficient evidence in Rush Circuit Court to support the adjudication and the court entered sufficient findings.

Corbin Beamer v. Tara Beamer (mem. dec.)
20A-DC-1206
Domestic relations with children. Affirms the order dividing husband Corbin Beamer and wife Tara Beamer’s marital estate. Finds the Carroll Circuit Court did not err in making Corbin responsible for one of Tara’s student loans or in dividing their retirement accounts and his pension.

Douglas Brough v. Virginia Brough (mem. dec.)
20A-DN-1376
Domestic relations, no children. Affirms the property division of the marital estate of Douglas and Virginia Brough. Finds Douglas has waived any claim that the Morgan Circuit Court erred when it did not include a 75% survivor benefit in its calculations when distributing the marital estate. Also finds Douglas has failed to show that the trial court’s decision to deviate from the presumptive equal division and award Virginia 70% of the pension that accrued during the period of marriage was an abuse of discretion.

Brandon Key Brown v. State of Indiana (mem. dec.)
20A-CR-1546
Criminal. Affirms Brandon Brown’s 65-year sentence for his conviction of felony murder and his admission he is a habitual offender. Finds the Vanderburgh Superior Court’s misstatement to Brown concerning a right to appeal his sentence had no effect on Brown’s prior waiver of that right in his written plea agreement, so he has waived his appropriateness challenge to his sentence.

Brian Foxworthy v. 3 Crown Capital, LLC, et al. (mem. dec.)
20A-PL-1572
Civil plenary. Affirms the denial of Brian Foxworthy’s motion for summary judgment in his action against 3 Crown Capital LLC but denies his request for appellate attorney fees. Finds a genuine issue of material fact remains as to the amount Foxworthy agreed to be paid, so the Floyd Superior Court properly denied the motion for summary judgment. Also finds that because the denial of Foxworthy’s motion for summary judgment was affirmed, he is not entitled to attorney fees at the trial court level or at the appellate level at this stage of the proceedings. Remands for further proceedings.

Holly M. (Albertson) Hancock v. Aaron D. Albertson (mem. dec.)
20A-DR-1595
Domestic relations. Affirms the order regarding the custody and support of child G.A. Finds Hancock agreed to pay the full cost of the custody evaluation, so she cannot now assert error in the order that she pay. Also finds the Bartholomew Superior Court did not abuse its discretion when it ordered Hancock and Albertson to have joint physical and joint legal custody of G.A., or when it denied Hancock’s request to find Albertson in contempt. Finally, finds the trial court did not memorialize in its order that Albertson reimburse Hancock for medical expenses that preceded the entry of the new court order. Remands for a hearing to determine the amount owed by Albertson and directs the trial court to enter an order requiring Albertson to pay Hancock accordingly.

Nicholas Monroe v. State of Indiana (mem. dec.)
20A-CR-1690
Criminal. Affirms the award of 64 days’ credit time to Nicholas Monroe after his community corrections placement was revoked and he was ordered to serve the remainder of his sentence in the Indiana Department of Correction. Finds Monroe has not met his burden of establishing that the Jefferson Circuit Court erred in awarding credit time.

In the Termination of the Parent-Child Relationship of M.H. III & E.H. (Minor Children) and M.H. (Father) v. The Indiana Department of Child Services (mem. dec.
20A-JT-1796
Juvenile termination of parental rights. Affirms the St. Joseph Probate Court’s termination of father M.H.’s parental right to his children, M.H. III and E.H. Finds the Indiana Department of Child Services did not deprive M.H. of due process.

Quintin Delany Jackson v. State of Indiana (mem. dec.)
20A-CR-1832
Criminal. Affirms the revocation of Quintin Delany Jackson’s participation a community corrections program and revocation of 916 days of work release to be served in the Indiana Department of Correction. Finds the evidence supported the Madison Circuit Court’s decision to revoke Jackson’s participation in the Continuum of Sanctions program. Also finds the trial court did not abuse its discretion by revoking Jackson’s 916 days of community corrections to the DOC.

In the Matter of the Involuntary Termination of the Parent-Child Relationship of O.H. (Minor Child) and R.F. (Mother) v. Indiana Department of Child Services (mem. dec.)
20A-JT-1847
Juvenile termination of parental rights. Affirms the involuntary termination of mother R.F.’s parental rights to her minor child, O.H. Finds there is sufficient evidence to support the Elkhart Circuit Court’s termination of R.F.’s parental rights. Also finds R.F. did not receive ineffective assistance of counsel during the termination proceedings.

Gregory L. Ernstberger, as Trustee of the Ernstberger Planning Trust Dated February 27, 2016; Mary Ruth Ernstberger; Paul A. Harrett, Jr.; and Stevie Joe Lewis v. Floyd County Board of Zoning Appeals; The Margaret Phan-Rogers Revocable Living Trust of July 19, 2005; Full Circle Automation, LLC; and Jeffrey Kiper (mem. dec.)
20A-PL-2014
Civil plenary. Affirms the Floyd County Board of Zoning Appeals’ grant of Full Circle Automation LLC’s application for a variance relating to the zoning classification of a piece of property located in Floyd County. Finds the Floyd Circuit Court did not err in finding that sufficient evidence supported the BZA’s decision to grant the requested variance.

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