Indiana Court Decisions – Aug. 7 to 20, 2013

7th Circuit Court of Appeals

Aug. 12

Criminal – Plea Agreement/Fourth Amendment

Thomas H. Hurlow v. United States of America

12-1374

Despite a man’s plea agreement in which he waived his right to challenge his conviction under 28 U.S.C. 2255, the 7th Circuit Court of Appeals ruled he can seek to have his conviction overturned because the 2255 waiver does not bar his claim that his trial counsel was ineffective.

Thomas Hurlow was arrested on multiple drug and firearm charges after detectives with the Vigo County Drug Task Force searched his home. The defendant claimed he told his appointed trial counsel the circumstances surrounding the search that led to his arrest, arguing that his rights had been violated.

According to Hurlow, the attorney failed to listen and instead convinced him to plead guilty to avoid a sentence of 30 years to life. The plea contained a provision that Hurlow agree not to contest his conviction or sentence in a collateral attack under 28 U.S.C. 2255.

After the District Court accepted his plea and sentenced him to 248 months imprisonment, Hurlow filed a motion for post-conviction relief pursuant to 28 U.S.C. 2255, arguing, in part, that his plea agreement was involuntary because it resulted from the ineffective assistance of trial counsel.

The District Court denied his 2255 motion on the grounds that the waiver in the plea agreement barred Hurlow’s motion.

The 7th Circuit reversed the district court’s denial of Hurlow’s petition and remanded.

The 7th Circuit explained to overcome the wavier provision in his plea agreement Hurlow cannot just assert that his trial counsel was ineffective for failing to raise the constitutional claim. He must allege that he entered into the plea agreement based on the advice of counsel that fell below constitutional standards.

In view of this standard, the 7th Circuit concluded Hurlow’s allegations in his 2255 petition were sufficient to trump the waiver in his plea. He first argued that his trial counsel failed to recognize the search violated his Fourth Amendment rights. Then he claimed that had he known he could contest the unconstitutional and unreasonable search, he would not have entered to the plea agreement.

“It is not surprising that Hurlow said he was satisfied with counsel; when he told his counsel about the facts surrounding the search, his lawyer ignored him,” Judge Ilana Rovner wrote for the court. “Thus, his statement to the district court was made against the backdrop of his ignorance regarding the possibility of a successful motion to suppress.”

Indiana Supreme Court

Aug. 8

Civil Plenary – Medical Malpractice

Mary Alice Manley, and Gary Manley v. Ryan J. Sherer, M.D., and Sherer Family Medicine, P.C.

A medical malpractice suit arising from a debilitating head-on automobile crash should not have been disposed of through summary judgment in favor of the doctor, the Indiana Supreme Court ruled. Justices reversed the order and sent the case back to the trial court.

Mary Alice Manley was severely injured in a car crash in 2006 after which she overheard the driver of the other car, Kimberly Zehr, say she shouldn’t be driving because of her medical condition. Manley was hospitalized and suffered permanent, debilitating injuries. A personal-injury suit against Zehr settled for an undisclosed sum, according to the record.

In 2008, Manley filed a proposed medical malpractice claim with the Indiana Department of Insurance that asserted Dr. Ryan Sherer and Sherer Family Practice in Huntingburg were negligent for failing to warn Zehr not to drive while she was on medication.

The trial court granted the defense motion for summary judgment on its assertion that the malpractice claim wasn’t timely filed, and that the claim lacked an element of causation

The court reversed summary judgment granted by Special Judge Terrence Cody in Orange Circuit Court, as had a panel of the Indiana Court of Appeals.   

“Finding genuine issues of material fact (1) as to when the plaintiffs either, (a) knew of the alleged malpractice, or (b) learned of facts that, in the exercise of reasonable diligence, should lead to the discovery of the malpractice and resulting injury; and (2) as to the absence of the element of causation necessary to establish liability, we conclude that the defendants’ motion for summary judgment should have been denied,” Chief Justice Brent Dickson wrote for the unanimous court.

“The judgment of the trial court is therefore reversed and this cause remanded for further proceedings.”

__________

Aug. 16

Adoption – Reversal/Termination of Parental Rights

In Re the Matter of the Adoption of Minor Children; C.B.M. and C.R.M.: C.A.B. v. J.D.M. and K.L.M.

37S03-1303-AD-159

In reversing the adoption that could remove fraternal twins from the only family they have ever known, the Indiana Supreme Court noted the situation might have been avoided if more than “just the bare minimum” had been done.

The Supreme Court ordered the trial court to vacate the adoption decree and reset the adoption petition for a contested hearing as part of the high court’s ruling.

“There are no winners in some cases, and this is one of them,” Justice Loretta Rush wrote for the court. “Ruling in favor of the Adoptive Parents would violate the Natural Mother’s constitutional rights, while the opposite ruling would risk pulling the Twins away from the family they have lived with for most of their lives, and the only stable family they have ever known. But despite the Twins’ need for permanency, natural parents’ consent is a vital condition precedent to most adoptions – and we must take a narrow view of the exceptions to the principle, out of due regard for the limitations of judicial power into family life, even for very imperfect families.”

Two years after the twins, C.B.M. and C.R.M. were removed from their mother’s home in January 2006, the court granted a termination of parental rights petition. The mother appealed, but while the appeal was pending, the foster parents petitioned to adopt the twins.

During the adoption, the mother was given no notification of the proceedings because Indiana statute does not require the notice be sent to a parent whose rights have been terminated.

Two months after the adoption was finalized, the Indiana Court of Appeals reversed the termination judgment against the mother. It subsequently voided the adoption decree on the grounds that by consenting to the adoption and not giving the mother notice, the Indiana Department of Child Services acted “arbitrarily and capriciously” which deprived the mother of her due process right to meaningful appeal of the termination order.

The Supreme Court reached the same conclusion as the Court of Appeals but for a different reason. Here, the court found because the adoption was based solely on the termination judgment, the mother became entitled to having the adoption voided under Trial Rule 60(B)(7) when the TPR judgment was vacated.

“Since the only judicial determination that Natural Mother is unfit to retain her parental rights has been overturned on appeal, letting the adoption stand would be an overreach of State power into family integrity,” Rush wrote. “The adoption must be set aside.”

The Supreme Court then offered suggestions for avoiding a repeat of this situation.

In particular, the court said even though the foster parents were not obligated under Indiana law to notify the mother of the adoption, doing so voluntarily may well have prevented the adoption from being reversed. The mother would have at least been given the opportunity to appear in court and be heard. If she failed to appear, she then would have been properly defaulted.

Also, the Supreme Court chided the Indiana Department of Child Services for not keeping the underlying CHINS case open while the mother’s termination appeal was pending. Now, no means of support can be provided to the parties while the court reexamines the twins’ status.

“We strongly suggest that in the future, DCS’s best practice would be to leave underlying CHINS cases open until any related TPR appeal is complete,” Rush wrote.

Indiana Tax Court

Aug. 12

Tax Court – Sales and Use Tax

Miller Pipeline Corporation v. Indiana Dept. of State Revenue

49T10-1012-TA-64

An Indianapolis pipeline company must proceed to trial in its bid to earn a refund of sales and use taxes, Senior Judge Thomas Fisher ruled for Indiana Tax Court.

Fisher denied Miller Pipeline Corp.’s motion for partial summary judgment in its appeal of a Department of Revenue final determination denying a refund of gross retail sales and use tax paid from 2005 to 2007.

“The evidence Miller Pipeline submitted to support its Motion has not been properly designated and is inadmissible,” Fisher wrote. “The Court will, by separate order, schedule a case management conference with the parties to discuss pre-trial matters and scheduling.”

Fisher rapped Miller for “infirmities” such as failing to cite to specific parts of documents in evidence that are relevant to its arguments, failing to paginate exhibits and failing to swear to the exhibits. Lacking clear supporting evidence, Fisher wrote in a footnote, “the Court declines to ‘figure it out’ for itself.”

Indiana Court of Appeals

Aug. 7

Civil Tort – Wrongful Death/Invasion of Privacy

Westminster Presbyterian Church of Muncie, an Indiana Non-Profit Corporation v. Yonghong Cheng and Hongjun Niu, Husband and Wife, as parents of Matthew Cheng, deceased

18A02-1210-CT-791

A church that issued a press release and held a press conference following the sudden death of a baby boy was found to not have interfered with the parents’ reasonable expectation of solitude and seclusion.  

The Indiana Court of Appeals absolved Westminster Presbyterian Church of Muncie of all the claims brought by the Chengs after their infant son died while in the care of a babysitter recommended by the church’s associate pastor. The COA affirmed in part, reversed in part and remanded with instructions for the trial court to enter summary judgment in favor of Westminster on all counts.

A trial court partially granted Westminster’s motion for summary judgment on the Chengs’ suit for wrongful death, invasion of privacy, and intentional infliction of emotional distress. While the lower court granted the motion for the intentional infliction of emotional distress claim, it denied the motion for the wrongful death and invasion of privacy.

Westminster appealed on the grounds the trial court erred. The Court of Appeals agreed.

In its reversal of the wrongful-death claim, the COA used the factors set forth in Webb v. Jarvis, 575 N.E. 2d 992 (Ind. 1991) and concluded the church did not owe a duty to the Chengs as a matter of law.

Also, in reversing the invasion-of-privacy claims, the appeals court found Westminster did not receive any commercial value by using the Chengs’ name in a press release.

“Under a Webb v. Jarvis analysis, we find that there was no duty of care as a matter of law in this case, when a pastor recommended a babysitter to a parishioner and the child died while in the babysitter’s care,” Judge Nancy Vaidik wrote for the court. “We also find that when the church issued a press release about the death that included the family and child’s names, there was no invasion of privacy because the church did not intrude upon the family’s physical seclusion or profit off of the family’s name, and no intentional infliction of emotional distress because the conduct did not rise to the level of outrageous.”

__________

Aug. 9

Criminal – Sentence/Double Jeopardy

Thomas W. Oster, II v. State of Indiana

84A05-1208-CR-437

A man ordered to serve 18 years in prison will be resentenced after the Indiana Court of Appeals ruled that convictions of Class C felony burglary and Class A misdemeanor criminal mischief constituted double jeopardy.

The majority ordered the mischief conviction and sentence vacated, but the ruling will not reduce the time Oster serves. He was sentenced to seven years on the burglary conviction and one year for the mischief charge served concurrently. A habitual offender adjudication enhanced the sentence 11 years.

Oster was arrested when he was found with fresh abrasions and cuts, and he was carrying a pouch with screwdrivers and a pair of pliers shortly after police responded to the sound of shattering glass and a break-in at the Large Ink printing and sign shop in Terre Haute. A man who rented studio space there and was inside at the time called 911 when he heard the disturbance, and a cellphone left near the scene of the burglary contained photos of Oster.

The state conceded the double-jeopardy violation, but Oster failed to persuade the marjority on his other arguments: that the state failed to present evidence to sustain the burglary conviction; that it failed to support the habitual offender finding; and that the jury was erroneously instructed.  

“Common sense dictates that when one breaks into a retail business after-hours, it is more likely done with the intent to commit theft than, say, if one breaks into an empty warehouse,” Judge Cale Bradford wrote in the majority opinion joined by Judge Elaine Brown. Bradford wrote that because Oster lived in a nearby mission, he had no need to seek alternate shelter on the January 2012 evening when the break-in occurred.

“Oster’s possession of burglary tools, the nature of the structure into which he broke, and the absence of any indication that he broke into Large Ink for a reason other than theft are independent evidentiary facts sufficient to sustain his burglary conviction.”

Judge Patricia Riley didn’t see it that way, though, and found the state failed to prove the intent to commit a felony element of a burglary charge, citing Freshwater v. State, 853 N.E.2d 941, 942 (Ind. 15 2006) and Justice v. State, 530 N.E.2d 295, 297 (Ind. 1988).

“Here, as in Freshwater and Justice, the State has failed to prove a specific fact that provides a solid basis to support a reasonable inference that Oster had the specific intent to commit a felony. The method by which Oster entered the building suggests nothing more than that he broke in,” Riley wrote. “… Except for the broken window, nothing in the business was disturbed. The fact that Oster was apprehended with two screwdrivers and a pair of pliers does not change this result.

“Where the State cannot establish intent to commit a particular underlying felony, criminal trespass is the appropriate charge. I would therefore reverse Oster’s burglary conviction.”

__________

Aug. 13

Domestic Relation – Child Support/Statutory Change

Richard Littke v. Laurie Littke

64A03-1211-DR-509

A trial court will have to reconsider its ruling in a child support dispute in light of a state law that was changed while an appeal of the case was pending.

Richard Littke had filed a petition to obligate his ex-wife, Laurie Littke, to help cover their daughter’s college expenses in 2012. The trial court granted Laurie Littke’s motion to dismiss because the couple had already agreed their daughter was emancipated pursuant to Indiana Code 31-16-6-6 effective July 1, 2012.

While the father’s appeal was pending before the Indiana Court of Appeals, however, the Legislature enacted an amendment that made his petition timely.

During the 2012 and 2013 sessions, the Indiana General Assembly amended I.C. 31-16-6-6 which governs the termination of child support and emancipation of a child. In 2012, the Legislature changed the presumptive age for termination of child support from 21 to 19. The next year, it added subjections addressing the filing of a petition for education needs.

Consequently, the Court of Appeals found under the applicable version of I.C. 31-16-6-6 the father’s petition was not untimely. The COA reversed the order dismissing the father’s petition for postsecondary educational expenses as untimely and remanded to the trial court to make a determination on the merits of the father’s petition

__________

Aug. 14

Criminal – OWI/Dismissal Error

Richard Dillon v. State of Indiana

27A05-1210-CR-542

The state’s errant dismissal of a misdemeanor drunken-driving charge in 2009 may not be corrected in order to enhance to a felony a defendant’s second such charge within five years, a divided panel of the Indiana Court of Appeals ruled.

The majority reversed a ruling by Grant Superior Judge Warren Haas in which he denied a motion to dismiss a Class D felony charge of operating while intoxicated because the state had filed a nunc pro tunc entry reinstating the 2009 conviction.

Richard Dillon pleaded guilty to misdemeanor operating while intoxicated and marijuana possession charges in 2009. The state later moved to dismiss “Count 1,” mistakenly referring to the drunken-driving charge, when it meant to dismiss the marijuana charge.

Judges Nancy Vaidik and Ezra Friedlander ruled on interlocutory appeal that the state could not correct the mistake by filing the motion correcting its error after Dillon had been arrested a second time on a drunken-driving charge.

“This means that when Dillon allegedly committed the OWI in this case, he did not have a prior conviction within five years because the nunc pro tunc entry had not yet been made,” Vaidik wrote in reversing the trial court. “Had the State moved to reinstate Dillon’s inadvertently dismissed OWI … before he allegedly committed the OWI in this case, then the OWI in this case would be subject to the Class D felony enhancement pursuant to Indiana Code section 9-30-5-3. But that is not what happened.”

Judge John Baker dissented, writing that the trial court could not have dismissed “Count 1,” because it was the charge upon which a judgment of conviction already had been entered. “Moreover, even assuming the trial court’s order dismissing Count 1 was not void, we cannot permit criminal defendants to reap the benefits of simple scriveners’ errors,” Baker wrote.

__________

Aug. 15

Criminal – Public Intoxication/Evidence

Danny Stephens v. State of Indiana

49A04-1301-CR-18

Although the evidence showed the man was intoxicated in public, the Indiana Court of Appeals overturned his conviction because he was not a threat to public safety.

 The Court of Appeals pointed to Indiana Code 7.1-5-1-3(a) which was amended to define the elements of a Class B misdemeanor public intoxication. Namely, the drunken individual must be either endangering his or her own life or the life of another person; or breaching or about to breach the peace; or harassing, annoying or alarming another person.

The COA reversed the trial court, finding the evidence was insufficient to support Stephens’ conviction for public intoxication since he was not posing a danger, nor was he being loud or harassing others.  

 “Notably, the General Assembly added these elements to the public intoxication statute in 2012, making it no longer a crime simply to be intoxicated in public,” Judge Terry Crone wrote. “The addition of these elements promotes public policy encouraging inebriated persons to avoid creating dangerous situations by walking, catching a cab, or riding home with a designated driver rather than driving while intoxicated. Because the amendment became effective July 2012, we have little precedent concerning the new language.”

Stephens was arrested for public intoxication after he called Indianapolis Metropolitan Police and asked them to take him to jail. He did not want to return to his home for fear his niece’s boyfriend would harm him.

The Court of Appeals found that Stephens was asking for help when he walked to a public place, called police and told them he was drunk. While he was drunk in a public parking lot, he did not violate the statute by breaching the peace.

Civil Tort – Filing Fee/Timely File

Natasha F. Hortenberry v. Thomas Palmer

10A04-1301-CT-17

A filing fee that was $2 less than required for a negligence claim in Clark County but was corrected and paid in full after the statute of limitations ran out may not proceed, the Indiana Court of Appeals held.

A clerk noticed that when Thomas Palmer filed a negligence action against Natasha F. Hortenberry in 2010 related to an auto accident, a check for $137 accompanied the complaint, but the fee should have been $139. The court clerk notified Palmer of the mistake, and he mailed a check for $2 the next day, and the court granted his motion that the complaint be treated as timely filed.

That same day, an attorney appeared for Hortenberry and asked the court to set aside the order treating the suit as timely, but the court denied the motion.

“Because Indiana Trial Rule 3 and Indiana Supreme Court precedent clearly indicate that paying the filing fee is required for the commencement of an action, we conclude that the trial court erred by denying Hortenberry’s motion. Therefore, we reverse and remand,” Judge Terry Crone wrote for the panel.

The trial court relied on Trial Rule 1 language to find “an inadvertent clerical error (a $2.00 shortfall of the fee that was only recently increased) should not deprive Plaintiff of a right to litigate his claim in court.”

The appeals panel said the court should have instead looked to the “bright line rule” it believes was set by the Supreme Court. “We conclude that the trial court erred by relying on Trial Rule 1 to allow the case to proceed rather than applying the clear language of Trial Rule 3, and we reverse the ruling of the trial court and remand for further proceedings consistent with this opinion,” Crone wrote.

Criminal – Illegal Police Stop/Evidence

State of Indiana v. Robert Owens

49A02-1210-CR-817

An Indianapolis man who faced multiple charges when he fled from and battled with police after a stop the state concedes was illegal still may be prosecuted on evidence gained after he fled, two of three COA judges ruled.

Judges Clay Bradford and Elaine Brown reversed the trial court’s suppression of that evidence, but affirmed evidence of marijuana and cocaine possession that preceeded the suspect’s flight.

Owens was charged after he was arrested late at night emerging from behind a Westside Indianapolis school building. Passing Indianapolis Metropolitan Police Department officers stopped him, one admitted “on a hunch,” and Owens admitted swallowing a “blunt.” Police pressed Owens to a dmit to drug possession, at which time he fled, later fought with police and was stunned twice with a Taser.

He was charged with Class A felony dealing in cocaine, Class A felony cocaine possession, two counts of Class D felony battery on a law enforcement officer, two counts of Class D felony resisting law enforcement and Class D felony obstruction of justice.

“Evidence related to Owens’s flight from and battery of officers … should not have been suppressed. To the extent that the trial court’s order suppressed this evidence, we reverse it,” Bradford wrote for the majority. “We conclude, however, that any and all evidence related to the ‘blunt’ that Owens allegedly attempted to ingest and the alleged cocaine found on his person should be suppressed, and affirm that portion of the trial court’s order.”

Judge Patricia Riley in dissent wrote that the trial court was in the better position to judge which evidence arising from the illegal stop should be thrown out.

“By suppressing this evidence, the trial court apparently believed that Owens’s actions resulted from the officers’ exploitation of the illegal stop,” Riley wrote. “I would uphold its suppression of evidence relating to Owens’s flight from and battery of” the officers.  

__________

Aug. 20

Criminal – Child Support/Failure to Pay

Carl J. Brandenburg v. State of Indiana

40A04-1301-CR-23

A trial court properly revoked probation of a man sentenced for non-support of a dependent child, but the Indiana Court of Appeals ordered the lower court to revise the arrearage.

Carl Brandenburg was sentenced to time served plus 52 months on probation after he pleaded guilty to the Class C felony in August 2011. Just shy of a year later, after he failed to make the court-ordered $78 weekly child support payment, a warrant was issued and he was arrested. Jennings Circuit Judge Jon Webster subsequently revoked his probation and ordered him to serve the 52 months.

The appeals panel found no abuse of discretion regarding the revocation of probation, but did find that the amount Brandenburg owed in back support had been overstated. He acknowledged owing an amount of at least $10,000, but not the $17,795 the state claimed.

“In short, the amount of the arrearage was approximately $10,000 in August 2011, and Brandenburg’s daughter had turned twenty-one in August 2009,” Judge Edward Najam wrote for the court.

“Therefore, he contends, the arrearage could not have increased to $17,795.05, as found by the trial court, after the date of his sentencing in 2011. We remand to the trial court for a hearing to recalculate the amount of Brandenburg’s child support arrearage.”

Criminal – Traffic Stop/Evidence

Gregory Johnson v. State of Indiana

49A02-1301-CR-28

Indianapolis Metropolitan Police Department officer Keith Minch is on a roll in the appellate courts.

Earlier this year, the Indiana Supreme Court ruled that drug evidence resulting from Minch’s stop of a vehicle with legally tinted windows was admissible in Erving Sanders v. State of Indiana, 49S-02-1304-CR-242.

The Indiana Court of Appeals affirmed a trial court conviction of misdemeanor marijuana possession charges stemming from another tinted-window stop by Minch in Gregory Johnson v. State of Indiana,  49A02-1301-CR-28. In both cases, Minch testified that he stopped the vehicles because he believed that they might have violated the Indiana Window Tint Statute, I.C. 9-19-19-4, and that he couldn’t see through the windows clearly enough to identify the occupants.

In Johnson’s case, he was found to be driving with a suspended license, and the subsequent pat-down search turned up marijuana. Johnson testified that the tinted windows on his Dodge Caravan were factory-installed and that he shouldn’t have been stopped, but the trial court refused to suppress the evidence.

“We are precluded from accepting Johnson’s invitation to consider photographic evidence presented during trial that he argues shows the tinting on his rear window was not excessive and, in fact, was no darker than other similar Dodge Caravans. To do so at the expense of Officer Minch’s testimony of what he observed at the time of the traffic stop would constitute reweighing the evidence, which we cannot do,” Judge Michael Barnes wrote for the court.

“Even if Officer Minch was mistaken about whether the rear window of the minivan violated the Window Tint Statute, his testimony establishes that it was a good faith mistake and that there was reasonable suspicion to make the stop.”

However, the opinion was less than an endorsement of pulling over vehicles with dark windows.

“We will admit that the degree of concern, suspicion or knowledge that Johnson was committing a traffic violation was not overwhelming,” Barnes wrote. “Unlike running a red light or turning without signaling or speeding as measured by a radar gun, there is much subjectivity that goes into deciding whether a window of a moving car is too dark under the Window Tint Statute.

“Still, the degree of suspicion was not non-existent. We also will acknowledge that the State’s interest in enforcing the Window Tint Statute is not an overwhelmingly pressing public safety concern. … Nonetheless, there are legitimate law enforcement and safety interests in prohibiting the operation of vehicles with excessive window tinting, and police officers are entitled to enforce the statute.”

The panel also rejected Johnson’s argument that lawmakers would not have passed a statute under which drivers with factory-installed window tinting would be subject to a traffic stop on that basis alone.

“If the General Assembly believes it would be wise to re-write the Window Tint Statute in such a way as to limit police officer authority to pull over vehicles for suspected violations of that law, it could do so,” Barnes wrote. “Additionally, the primary check upon potential abuse of the Window Tint Statute as a pretext to conduct traffic stops must lie with trial courts, which are in a position to judge the credibility of police officer testimony regarding the ability to see through a particular vehicle’s window tinting.”•