Indiana Court Decisions – Feb. 6-19, 2013

7th Circuit Court of Appeals

Feb. 7

Civil – Prisoner Rights

Jurijus Kadamovas v. Michael Stevens, et al.

12-2669

The 7th Circuit Court of Appeals ordered U.S. Judge William T. Lawrence to take another look at a federal prisoner’s Bivens lawsuit against prison staff and other unnamed defendants, finding that the lawsuit is actually written clearly and not as long as the judge believed when dismissing it.

Lawrence dismissed the complaint before an answer or other responsive pleading was filed, saying the 99-page complaint is unintelligible and defies understanding. He gave prisoner Jurijus Kadamovas the opportunity to file an amended complaint, but he did not do so, leading to the dismissal of the suit with prejudice.

The suit, which claims the defendants used excessive force to feed him in retaliation for hunger strikes, among other claims, is actually only 28 pages long, Judge Richard Posner pointed out. The last 71 pages are an appendix that could be stricken.

The appellate court also found the suit is written clearly. Kadamovas, who is Lithuanian and says he is illiterate in English, had assistance from another prisoner in writing it.

“In short the complaint does not violate any principle of federal pleading. The judgment dismissing it for ‘unintelligibility’ must be reversed. But we deny as premature the plaintiff’s further claims that he should have the assistance of counsel in this litigation and that the case should be reassigned to another district judge on the ground that Judge Lawrence is prejudiced against the plaintiff. There has been no showing of prejudice. And until the defendants respond to the complaint, the plaintiff’s need for assistance of counsel (a need asserted for the first time in this appeal) cannot be gauged,” Posner wrote.

The 7th Circuit remanded for further consideration.

Criminal – Sentencing Guidelines/Drugs

United States of America v. Adolfo Wren and Anthony Moton

12-1565, 12-1580

The 7th Circuit Court of Appeals concluded two judges in the Northern District of Indiana should take another look at two defendants’ requests to have their sentences for crack cocaine offenses reduced based on revised sentencing guidelines.

Adolfo Wren and Anthony Moton asked the District Court to cut their sentences under 18 U.S.C. Section 3582(c)(2), but the judges declined. Both men are serving sentences below that normal statutory floor because they provided valuable assistance to prosecutors. Each received 100 months in prison, lower than the 121-151 months of the original sentencing range. The new range is 100-125 months for Wren and 84-105 months for Moton.

The District judges concluded that U.S.S.G. Section 5G1.1 prevents the men from receiving lower sentences because that section provides that when all or part of a guideline range lies below a statutory minimum sentence, the statutory minimum becomes the lower bound of the range, giving Moton an amended range of 120 and Wren a range of 120-125 months. The prosecutor argued that only defendants who are beneficiaries of a lower range can receive lower sentences.

“Only one decision we have found deals with the situation in which Wren and Moton found themselves — an original Guideline range above the statutory floor, a sentence below that floor because of substantial assistance to the prosecutor, and a retroactive change to the Guidelines that (apart from §5G1.1) permits a reduction in the sentence. United States v. Liberse, 688 F.3d 1198 (11th Cir. 2012), holds that in these circumstances the district court may grant a motion under §3582(c)(2) without resetting the Guideline range at the statutory minimum,” Chief Judge Frank Easterbrook wrote.

“The Sentencing Commission may want to take a close look at the way §1B1.10(b)(1) works when the original sentencing range is at a presumptive statutory minimum. It is difficult to see why prisoners in that situation who received a substantial-assistance or safety-valve sentence should be excluded from a retroactive Guideline reduction, while prisoners whose original ranges were just slightly above the statutory floor are eligible for the benefit of the retroactive change.”

The two defendants can seek relief under Section 3582(c)(2) as the guidelines stand, the judges held, and the 7th Circuit sent the cases back to the lower court so the District judges may exercise the discretion they possess in the cases.

Criminal – Fair Sentencing Act/Drugs

United States of America v. Ronald Love

11-2547

The 7th Circuit Court of Appeals upheld a northern Indiana man’s convictions of distributing crack cocaine and conspiracy to distribute the drug, but found that he is entitled to resentencing under the Fair Sentencing Act of 2010.

Landen Cowart, a former convict working as a confidential informant with the government, arranged to buy cocaine from Ronald Love, aka “Black.” On Sept. 9, 2009, he exchanged $550 in cash with Shelby Deloney, who asked Cowart if he was “with Black.” Ronald Love was in the car that Deloney arrived at the scene in.

Love suspected Cowart was behind the robbery of one of his crack houses, so at another arranged drug buy on Sept. 14, 2009, Love, Deloney and Robert Acklin began beating Cowart. Police heard the commotion over Cowart’s hidden wire and entered the house where the deal went down. Love was indicted in October but sentenced after August 2010.

Love argued that the evidence didn’t support his conspiracy conviction, the trial court improperly declined to give a “buyer-seller” jury instruction, the statement “with Black” was improperly admitted, and his sentence was improperly calculated.

The 7th Circuit found the government’s evidence was detailed enough to show there was an agreement for Love to distribute crack and that he was not entitled to the “buyer-seller” instruction because it contradicts his defense that he wasn’t involved in the Sept. 9 drug sale and that the Sept. 14 beating had nothing to do with drugs.

The judges upheld the admittance of Cowart’s testimony that Deloney asked if he was “with Black.”

But Love is entitled to resentencing because he did not benefit from the Fair Sentencing Act of 2010, which applies to people who committed crimes before Aug. 3, 2010, and were sentenced after that date. The District Court also incorrectly calculated the guidelines sentence for his drug conviction, but properly imposed a two-level sentencing enhancement for being an organizer, leader, manager or supervisor of the conspiracy.

The case goes back to the District Court for further proceedings.

Civil – Sentencing/Career Offender

Bernard Hawkins v. United States of America

11-1245

A judge on the 7th Circuit Court of Appeals believed a defendant was entitled to resentencing because the District judge could only view him through “career-offender tinted glasses” even though the career offender distinction did not ultimately apply to him.

Bernard Hawkins appealed the denial of his motion under 28 U.S.C. Section 2255 to set aside his sentence because there’s a question of whether an error in calculating the applicable guideline sentencing range can be corrected in a post-conviction proceeding since the guidelines are advisory rather than mandatory. In 2003, he assaulted two U.S. Marshals trying to arrest him for failure to attend a court hearing while on supervised release.

At the time of his sentencing, he was considered a career offender because he had two “walkaway” escape convictions. He was sentenced to 151 months by Judge James Moody, the bottom of the guideline range. If he wasn’t considered a career offender, the guideline range for the assault would have been anywhere from 15 to 30 months.

The 7th Circuit ordered Hawkins resentenced after United States v. Booker, 543 U.S. 220 (2005), which declared the guidelines as advisory instead of mandatory. Moody gave him the same 151-month sentence. Three years later, the U.S. Supreme Court held in United States v. Chambers, 555 U.S. 122, 127-30 (2009), that a “walkaway” escape conviction isn’t a violent felony under the Armed Career Criminal Act. That ruling led to this appeal.

The majority found this case distinguishable from Navarez v. United States, 674 F.3d 621, (7th Cir. 2011) a very similar case in with Navarez was entitled to sentence relief on his post-conviction motion, because Navarez had been sentenced when the guidelines were mandatory and Hawkins was resentenced under the advisory guidelines.

“If we ordered resentencing, the judge could reimpose the identical sentence. The defendant’s criminal record would justify the judge’s doing that,” Judge Richard Posner wrote for the majority in Bernard Hawkins v. United States of America, 11-1245.

Judge Ilana Diamond Rovner dissented, finding the court’s rationale for reaching the opposite conclusion in this case as compared to Navarez as “illusory.” Like Navarez, Hawkins was seen as a career offender before Moody on resentencing, even if the law didn’t impose that label on him anymore.

“… I would reverse … and remand to the District Court to allow Mr. Hawkins to stand before it without the errantly imposed black mark of a career offender,” she wrote.
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Feb. 12

Civil – Lessee/Landowner

Lock Realty Corp. IX v. U.S. Health LP, et al.

11-3477, 11-3570 and 12-1334

More than a decade’s worth of litigation was tied up in a 21-page opinion from the 7th Circuit Court of Appeals, which affirmed decisions in favor of a landowner against the owners of a nursing home lessee.

The panel ruled that the District Court for the Northern District of Indiana in South Bend had ruled correctly in matters that both parties raised in three appeals. “We are presented with a potpourri of issues covering everything from the propriety of a partial summary judgment in Lock’s favor to the district court’s attorneys’ fee decision,” Judge Diane Wood wrote for the unanimous panel. “On the merits, we find no reversible error in the various rulings … and so we affirm.”

In sum, Lock Realty Corp. was awarded $1,359,345 in damages and $818,267 in costs. Lock prevailed on claims that U.S. Health assigned the lease to Americare Living Centers III LLC without its knowledge; that U.S. Health had violated a provision of the lease to fund a replacement reserve; and that U.S. Health had breached its lease contract for nonpayment of rent.

While the 7th Circuit upheld the District Court rulings in the multiple appeals, it did so with disfavor of rulings that sometimes took a year or more.

“It is unfortunate that this litigation spun so far out of control,” Wood wrote. “The long delays that punctuated the course of proceedings, even if motivated by hopes of reaching settlement or at least an agreed way to move forward, in the end helped no one. As we said at the outset, the issues before us now represent the end of the line. The district court did not abuse its discretion in the rulings brought before us for review. We therefore affirm the judgments of the district court in all three appeals. Costs are to be taxed against U.S. Health and Americare.”
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Feb. 13

Criminal – Traffic Stop/First Impression

United States of America v. Jesus Uribe

11-3590

In a matter of first impression in the 7th Circuit Court of Appeals and federal courts, the judges were asked to consider whether a discrepancy between the observed color of a car and the color listed on its registration alone gives rise to reasonable suspicion of criminal activity.

Putnam County Sheriff’s Deputy Dwight Simmons stopped Jesus Uribe’s blue Nissan on I-70 around 2 a.m. solely because when running a check on Uribe’s Utah license plate, the registration indicated that it belonged to a white Nissan. Simmons believed the car may be stolen. When Simmons approached Uribe’s car, he noticed Uribe was nervous. Uribe gave permission to search the car, which turned up heroin.

Uribe wanted the drug suppressed, arguing the deputy had no reasonable suspicion to stop the car based on color alone. Indiana and Utah law don’t require a driver to amend his registration if he changes the color of his car. The government argued Simmons’ experience taught him that stolen cars are often repainted but did not provide testimony from Simmons or numbers to back up the argument.

The District Court granted Uribe’s motion, which the 7th Circuit affirmed.

Judge Ann Claire Williams pointed out that this issue is novel for the court. Other Circuit courts have considered a car’s color, but in conjunction with several other factors in establishing reasonable suspicion. In this case, the government didn’t provide any evidence to tip the scales from a “mere hunch to something even approaching reasonable and articulable suspicion,” she wrote.

“Our review of the totality of the circumstances here leads us to conclude that no reasonable suspicion of vehicle theft attaches to a completely lawful color discrepancy in the absence of any evidence suggesting otherwise,” she continued.

The judges also rejected the government’s argument that Simmons could have believed that Uribe was in violation of an Indiana vehicle registration requirement, I.C. 9-18-2-27(a), which says a car required to be registered under this chapter may not be used on the highway if the vehicle displays a registration number belonging to another vehicle. The government hasn’t shown that the statute applies in this situation, and the provision doesn’t apply to the Utah-registered vehicle Uribe was driving, the court held.
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Feb. 14

Bankruptcy – Competition/Value

In the matter of: Castleton Plaza LP; Appeal of: El-SNPR Notes Holdings LLC

12-2639

See story on page 1.

Indiana Supreme Court
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Feb. 12

Domestic Relation – Mediation/Confidentiality

Dennis Jack Horner v. Marcia (Horner) Carter

34S02-1210-DR-582

A husband will not be able to offer as evidence comments made during a mediated settlement conference with his ex-wife, the Indiana Supreme Court has affirmed.

The Indiana Supreme Court rebuked the Indiana Court of Appeals conclusion that the confidentiality of mediation can be broken.

Dennis Horner had wanted to provide testimony of what he said at the mediation as extrinsic evidence that a mistake had been made in the final settlement agreement. The trial court excluded the discussions. While the Indiana Court of Appeals affirmed the denial of relief, it ruled the trial court’s exclusion of the husband’s testimony was in error.

The COA’s findings surprised attorneys and mediators who noted caselaw supports the practice that everything said in mediation is confidential.

The Supreme Court affirmed the judgment of the trial court.

In a footnote, the Supreme Court noted the COA based its decision on a different approach presented in the Uniform Mediation Act drafted by the National Conference of Commissioners on Uniform State Laws. UMA would permit disclosure and discovery of conduct and statements made during mediation in certain circumstances.

However, the Supreme Court pointed out Indiana has not adopted the UMA rules. Instead, Indiana adheres to the Alternative Dispute Resolution Rule 2.11 which holds that evidence of conduct or statements made in compromise negotiations or mediation is not admissible except when offered for a purpose other than to prove liability for or invalidity of the claim or its amount.

“The Court of Appeals concluded that the husband’s statements during the mediation could be admitted as extrinsic evidence to aid in the construction of an ambiguous agreement,” Chief Justice Brent Dickson wrote for the court. “Indiana judicial policy strongly urges the amicable resolution of disputes and thus embraces a robust policy of confidentiality of conduct and statements made during negotiation and mediation. The benefits of compromise settlement agreements outweigh the risks that such policy may on occasion impede access to otherwise admissible evidence on an issue.”
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Feb. 19

Domestic Relation – Trial in Absentia

Ronald B. Hawkins v. State of Indiana

20S03-1208-DR-499

A North Carolina man who was convicted of two counts of Class C felony neglect of a dependent by an Elkhart Superior Court while he was on a bus on the way to court will get a new trial, the Indiana Supreme Court concluded.

Ronald Hawkins appealed his two convictions, arguing his trial in absentia denied him due process of the law. The Indiana justices focused on one of Hawkins’ claims: that the record doesn’t reflect a knowing, voluntary or intelligent waiver of his right to an attorney.

Hawkins’ public defender in the case sought to withdraw before his Nov. 7, 2011, trial date. The trial court told Hawkins of his attorney’s request, that there would be a hearing Oct. 19 and his failure to appear will result in his arrest and withdrawal of the public defender. Hawkins appeared by telephone. That hearing was rescheduled after technical difficulties, and the court didn’t tell him that the motion to withdraw would be granted if he didn’t appear at the new hearing.

Hawkins didn’t appear at the Oct. 26 hearing, his attorney was allowed to withdraw, and he was not in court for his Nov. 7 trial. A deputy prosecutor was alerted that Hawkins was on his way but his bus from North Carolina wasn’t due in until the afternoon. The trial court proceeded with the trial, where Hawkins was convicted. He later explained to the court from jail that he couldn’t afford transportation for both the Oct. 26 hearing and his trial, so he chose to attend the trial. He didn’t think he would arrive after the trial started in the morning.

The justices referenced Jackson v. State, 868 N.E.2d 494 (Ind. 2012), which upheld the decision to try a man in absentia, and found Hawkins’ behavior didn’t rise to the “egregious misbehavior” from Jackson.

“In no way, shape, or form, should our opinion today be taken as approval for Hawkins’s actions as a defendant facing criminal charges. Nor should it be taken as an invitation for defendants to ‘game the system.’ It is well known that trial courts face tremendous challenges in terms of case loads and staffing limitations, and every delay (intentional or not) necessarily has a carry-over effect to every other person’s access to the courtroom – and by extension, their access to justice,” Justice Steven David wrote.

“We therefore reiterate the theme of Jackson: that such willful, knowing, and voluntary misconduct aimed at manipulating the court system for one’s own benefit will not be looked upon with anything resembling favor.”

The justices ordered a new trial for Hawkins and pointed out based on its recent decision in Sanjari v. State, 961 N.E.2d 1005 (Ind. 2012), if he’s convicted of the two counts of Class D felony nonsupport, only one can be enhanced to a Class C felony. They also reminded the court and the state that “personally present” and “present in person,” as used in Indiana Code 35-38-1-4(a) and Indiana Administrative Rule 14(A)(2)(c), respectively, refer to the defendant’s actual physical presence. A trial court may conduct a sentencing hearing at which the defendant appears by video, but only after obtaining a written waiver of his right to be present and the consent of the prosecution.

Indiana Court of Appeals

Feb. 6

Civil Tort – Insurance/Arbitration Provision

Pekin Insurance Company v. Jose and Carol Hanquier and Joseph Hall

55A04-1208-CT-401

The Indiana Court of Appeals found a trial court erred when it failed to enforce an arbitration provision of an insurance policy issued by Pekin Insurance Co. and ordered a couple’s lawsuit against their insurer stayed until arbitration is complete.

Carol and Jose Hanquiers sued Joseph Hall and Pekin Insurance Co. seeking damages from Hall stemming from an auto collision that injured Carol Hanquiers severely. The Hanquiers also sought underinsured motorist benefits from Pekin.

Pekin sought to arbitrate the dispute for underinsured motorist benefits based on a provision of the policy that says, “either party may make a written demand for arbitration” if the insurer and the insured don’t agree whether the insured can recover those damages. Pekin requested a stay pending arbitration.

The trial court denied Pekin’s requests, leading to this appeal.

Pekin argued that the policy provides arbitration is mandatory when requested by either party; the Hanquiers took the position that the word “may” makes arbitration permissive and not mandatory.

“Under the policy, either Pekin or the insured ‘may’ make a demand for arbitration, but neither is required to make such a written demand. However, once either party makes a written demand for arbitration, arbitration becomes mandatory,” Judge James Kirsch wrote. He pointed to the use of “will” later in the section regarding arbitrator selection and coverage of costs.

The trial court should have enforced the arbitration provision as required by Indiana Code 34-57-2-3(a), the judges held, as well as granted the stay pending arbitration. The case is remanded for further proceedings.
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 Feb. 7

Criminal – Incompetency/Statutory Commitment

State of Indiana v. William Coats

49A02-1206-CR-526

Although the majority on the Indiana Court of Appeals acknowledged it would have been better for the trial court to follow the statutory commitment procedures instead of outright denying the state’s motion to commit, it affirmed the trial court’s conclusion.

William Coats was charged with Class D felony sexual battery against his granddaughter. He has Alzheimer’s disease and a competency investigation led to two doctors diagnosing him with dementia and finding he will never be restored to competency. The state wanted Coats committed to the Division of Mental Health and Addiction, but the trial court denied it.

The state argues that based on Indiana Code 35-36-3-1, the trial court is required to have Coats committed once an incompetency finding is made.

On interlocutory appeal, Judges Michael Barnes and John Baker affirmed, citing Curtis v. State, 948 N.E.2d 1143 (Ind. 2011), and State v. J.S., 937 N.E.2d 831 (Ind. Ct. App. 2010).

“Although the better practice in most cases is to follow the statutory commitment procedures, given Coats’s progressive dementia and the trial court’s finding that he will not be restored to competency, the purposes of the competency restoration process cannot be met by following those procedures here. It is clear that Coats’s dementia will progress, and there simply is no hope nor medical reason to believe that competency will be restored,” Barnes wrote.

In her dissent, Judge Patricia Riley wrote that the statutory scheme does not allow the trial court discretion over the statutory commitment procedures.

“The trial court determines whether the defendant is incompetent in the first instance, but the statutory scheme entrusts the ultimate determination on competency to the superintendent, who has not only the skills to make such observations but also the time within which to do so,” she wrote.

Criminal – Sentence/Worst Offenders

Christina M. Kovats v. State of Indiana

15A01-1205-CR-224

A home health care nurse whose flight from police while high on drugs and with her 89-year-old patient in the car had her sentence reduced because the Court of Appeals concluded she is not among the “worst offenders.” The high-speed chase led to a crash and the death of the patient from injuries she sustained.

Christina Kovats raised double jeopardy concerns regarding her convictions of Class D felony operating a vehicle while intoxicated and Class D felony criminal recklessness. She claimed the trial court shouldn’t have considered that N.C. died shortly after being injured in the wreck as an aggravating factor in sentencing.

Kovats stopped for gas while N.C. was in the car with her, but she left without paying. Police pursued her at high speeds, leading Kovats to crash the vehicle. N.C. suffered very severe injuries and died six weeks later. Kovats tested positive for having a high concentration of oxymorphone in her system after the accident.

The trial court merged the OWI and criminal recklessness convictions into the Class B felony neglect conviction but did not vacate those two judgments. Kovats was sentenced to 20 years in prison.

The two Class D felonies were elevated based on the same serious bodily injury caused to N.C., so those convictions need to be vacated, the appellate judges concluded. The OWI conviction should be entered as the lesser-included offense of a Class A misdemeanor because that does not require proof of serious bodily injury.

The COA didn’t address Kovats’ claim that the trial court shouldn’t have considered N.C.’s death as an aggravating factor in sentencing because the judges decided the trial court should revise her sentence from 20 years to 15. Even though her crime was wholly unnecessary and senseless and fits within the classification of the worse offense, her character doesn’t lend to her being classified as a “worst offender” to justify the maximum sentence, the COA held.

She does have a criminal past, mostly tied to her drug addiction, and she has sought treatment for her addiction in jail. She also has four children, one of whom suffers from cystic fibrosis.

The case is remanded with instructions.
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Feb. 8

Criminal – Theft

Hiawathia Hunt v. State of Indiana

49A04-1207-CR-371

An Indianapolis man who said he stole a video monitoring system and car wash tickets to teach the victim a lesson about leaving valuables in an unlocked car lost his appeal.

Hiawathia Hunt was sentenced to 545 days in prison, with approximately half of that as time executed, after he was convicted of theft for stealing the items from the owner of a spa and salon where Hunt leased space and worked. Hunt later returned the surveillance system, but not the car wash tickets for which the spa owner paid more than $400 to sell as a fundraiser for her son’s Little League team.

“According to Hunt, he saw that the door was open on (the victim’s) parked car and took the items in order to teach (her) a ‘lesson,’” Judge Paul Mathias wrote in the unanimous seven-page Court of Appeals decision.

The court ruled that a judge’s offer to trim time off Hunt’s sentence in exchange for restitution did not constitute a conditional sentence deemed impermissible in Saddler v. State, 953 N.E.2d 1220 (Ind. Ct. App. 2011).

After a bench trial in Marion Superior Court, Judge Reuben Hill chastised Hunt and disregarded his apology and expression of remorse to the victim. Hill said Hunt had acted with malice because he had not returned the tickets or paid for them.

At sentencing, Hill told Hunt that the victim “needs her $400 back. You pay that $400 and I will reconsider how much time you have to serve in prison.”

“In the present case, Hunt claims that his sentence was also conditional. We disagree and find the present case distinguishable from Saddler,” Mathias wrote. “In that case, the trial court gave the defendant repeated opportunities to pay restitution and explicitly stated that if she did not pay restitution, then she was going to serve time in jail.

“The trial court simply explained to Hunt that modification of his sentence was possible if he paid restitution to the victim; it did not make Hunt’s sentence conditional on the payment of restitution. Because Hunt’s sentence was not conditional, and because Hunt alleges no further error in his sentence, we affirm.”
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Feb. 11

Criminal – Testimony/Police Deposition

Michael Gray v. State of Indiana

49A02-1205-CR-352

A Marion Superior Court should have allowed a defendant to play parts of a police officer’s deposition for impeachment purposes, but the Indiana Court of Appeals ruled that failing to admit his inconsistent statement was harmless error.

A jury convicted Michael Gray of Class D felony possession of cocaine, and he was sentenced to four years in prison by Master Commissioner Shatrese M. Flowers. His sentence was enhanced by a habitual substance abuse offender plea.

Gray’s appeal centers on the testimony of an Indianapolis Metropolitan Police Department officer regarding a traffic stop. Gray was a passenger in a car stopped for speeding, after which police determined the driver’s license was suspended, and a search of the vehicle revealed crack cocaine.

At trial, IMPD officer Christopher Morgan testified that Gray at first said he didn’t know what was going on but later said “no (the cocaine) is not hers.” Gray’s defense disputed the testimony and wanted to play an excerpt from a deposition at which Morgan said Gray had stated instead that he did not want to blame the driver.

The state objected when Gray’s defense began to play the tape, and Flowers declined to admit evidence from the taped deposition.

“Because there was an inconsistency in the officer’s testimony, Gray contends that he should have been allowed to impeach Officer Morgan with his deposition testimony. We agree,” Judge Nancy Vaidik wrote for the panel. “Gray should have been permitted to play the specific portion of the tape that contained the inconsistent deposition testimony and give the officer an opportunity to explain the inconsistency.”

“We find the error harmless, however. Officer Morgan ultimately admitted that his testimony may have been inconsistent, making Gray’s impeachment attempt complete –though jurors likely found this admission less persuasive than an audio recording of the officer’s inconsistent statement,” Vaidik wrote. “And the evidence adduced at trial strongly points to Gray’s guilt: when police officers stopped the car Gray was riding in, Gray made furtive movements and appeared nervous. Gray was sitting in the passenger seat, and the cocaine was found in the passenger doorframe. Accordingly, we find no reversible error here.”

Criminal – Drunk Driving/Testimony

Edwin Jones v. State of Indiana

49A02-1204-CR-292

An argument made on appeal in a drunken-driving case that the person who certified the operating condition of a breath-test machine should have been required to testify was rejected by the Indiana Court of Appeals, which also warned in a footnote that such a ruling could cost criminal defendants.

The 31-page opinion affirmed Edwin Jones’ Class A misdemeanor conviction on a charge of operating a vehicle while intoxicated. Jones had a blood-alcohol level of 0.18 percent when he was arrested. He argued that because a state trooper testified about the certification of a breath tester rather than the person who signed the certification, he was deprived of his Sixth Amendment rights under the Confrontation Clause.

“We observe that, as a policy matter, were we to agree with Jones and find that certificates of inspection such as the Certification at issue here were testimonial evidence and require that the person who inspected the breath test equipment testify at every OWI trial before breath test results may be admitted, the legislature could respond by removing the statutory requirements currently in place which ensure the accuracy of such equipment, judging it as an undue burden on law enforcement,” Judge Elaine Brown wrote in an opinion joined by judges Mark Bailey and Nancy Vaidik, who concurred in a separate opinion.

The court also found no error in Jones’ sentencing or in the court overruling defense objections to questions of the trooper it considered leading because it concerned facts not in dispute and because “the state presented a multitude of other evidence that he operated a vehicle while intoxicated.”

In her concurring opinion, Vaidik wrote that the 2012 U.S. Supreme Court decision in Williams v. Illinois, 132 S. Ct. 2221, required her to disagree with the majority’s finding as it relates to an earlier Court of Appeals opinion that Vaidik wrote in Ramirez v. State, 928 N.E.2d 214 (Ind. Ct. App. 2010).

“Instead of finding that the certificates of inspection are ‘prepared for purposes of criminal litigation, . . . [but] are not prepared in anticipation of litigation in any particular case or with respect to implicating any specific defendant,’ … the majority would find that the ‘primary purpose [of the certificates of inspection] is to ensure that certain breath test equipment is in good operating condition in compliance with Ind. Code § 9-30-6-5,’” Vaidik wrote.

“I respectfully disagree with this. I still believe that these certificates of inspection are generally ‘prepared for purposes of criminal litigation.’ Therefore, in light of the Supreme Court’s decision in Williams, I would simply eliminate the third rationale articulated in Ramirez.”
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Feb. 13

Estate, Unsupervised – Estate Claim/Timely Notice

In the Matter of the Estate of Samuel L. Tolley, Deceased; First Merchants Bank, N.A. v. Duane Earl Tolley, and Betty June Tolley

52A02-1208-EU-671

Finding that a bank did not receive proper notice in order to file a claim against an estate, the Indiana Court of Appeals reversed summary judgment in favor of the estate of Samuel Tolley on the bank’s two claims.

Attorney James Berkshire notified by phone First Merchants Bank on Dec. 17, 2010, that Samuel Tolley died Nov. 17, that he was the attorney for the personal representatives of Tolley’s estate and had filed pleadings and other documents to open administration of the estate, and that proceedings were filed in Miami Superior Court II. First Merchants faxed to Berkshire a document that detailed Tolley’s customer information with a note that he had died in November.

Notice of administration was published Dec. 31, 2010, and Jan. 7, 2011, in the Peru Tribune, but First Merchants never received written notice from the estate. The bank filed two claims against the estate on July 26, 2011. Both parties filed for summary judgment. The estate argued the bank’s claims were untimely as a matter of law; the bank argued they were timely.

In granting summary judgment for the estate, the trial judge noted that First Merchants had actual knowledge of Tolley’s death and there’s no reason for the estate to serve the bank with actual written notice. The court found the bank’s claims untimely.

On appeal, the bank argued that Indiana Code 29-1-7-7(d) requires actual receipt of the notice, like by mail, and that the statute strongly implies the notice must be given in writing. Actual written notice is the bare minimum Due Process requires. The appellate judges agreed.

“Even though First Merchants had actual notice of the decedent’s death, the phone call from the attorney for the personal representatives did not meet the requirement of informing First Merchants of the time period for filing a claim.” Judge Elaine Brown wrote. “Based upon the designated evidence, we cannot say that First Merchants received proper notice. Accordingly, First Merchants’ claims filed on July 26, 2011 which occurred within nine months of Samuel’s death were timely filed.”

The case is remanded for further proceedings.
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Feb. 14

Post Conviction – Ineffective Counsel/Jury Instructions

James Roberson v. State of Indiana

18A02-1204-PC-306

The Indiana Court of Appeals reversed the denial of a Delaware County man’s post-conviction relief petition finding his trial attorney was ineffective in not ensuring the jury was properly instructed on the elements of murder, voluntary manslaughter and the state’s burden of proof regarding sudden heat.

James Roberson and Antron Young were at a Muncie nightclub in 2006 when Young exchanged angry words with Roberson and bumped and pushed him. The two had to be separated outside from fighting after the club closed at 3 a.m. When they both ended up at the same convenience store later that morning, Young punched Robinson in the face, leading Roberson to pull a gun and shoot at Young. Two bullets initially struck him and after he fell to the ground, Roberson fired more shots, telling him to “die.” Young died from the wounds.

Roberson was charged with murder, but claimed self defense. The trial court also gave instructions on voluntary manslaughter as a lesser included offense of murder, but not at the request of Roberson’s attorney. His attorney didn’t object to any of the instructions and Roberson was convicted as charged. His conviction was upheld on direct appeal, leading Roberson to file this petition for post-conviction relief.

Roberson claimed he received ineffective assistance of trial and appellate counsel with respect to not objecting to the content of the trial court’s instructions regarding voluntary manslaughter and not challenging them on direct appeal as fundamentally erroneous. His PCR petition was denied.

The appellate judges reversed, finding Roberson’s trial attorney was ineffective.

“The jury here was not properly instructed. In addition to the legally erroneous language of instruction 13, instruction 4, defining the elements of murder, makes no mention of the State’s burden to disprove the existence of sudden heat,” Judge Michael Barnes wrote.

“It was a clearly incorrect statement of the law to inform the jury that it could only consider convicting Roberson of voluntary manslaughter instead of murder if it first found him not guilty of murder, given that the jury instruction for murder did not inform the jury that the State had to disprove the existence of sudden heat.”

The case is remanded for further proceedings consistent with the opinion.

Criminal – Burglary/Register as Sex Offender

Daquan Whitener v. State of Indiana

20A04-1205-CR-254

A defendant who was convicted of robbery and rape, but whose rape conviction was vacated on double jeopardy concerns, can still be required to register as a sex offender as a condition of his probation, the Indiana Court of Appeals affirmed.

Daquan Whitener went to K.A.’s house in the summer 2009 at the request of K.A.’s friend Raquel Pizana to return a CD which belonged to her. Whitener, who was 17 at the time, arrived with two teenaged cousins. K.A. and her friends were drinking alcohol and hanging out, and eventually Whitener and his cousins left. K.A. and Whitener didn’t speak while he was around her, but he knew she was very intoxicated and that she didn’t own a phone.

Later that night, the three boys returned to K.A.’s home. Whitener told his cousins that K.A. told him to break in through a window because she wanted to have sex with him. She was very drunk and tried to push Whitener off during the act. The three boys left and she sought medical help the next day.

Whitener was charged with Class A felony robbery and Class B felony rape and was convicted by a jury. The trial court vacated the rape conviction because of double jeopardy concerns. Whitener was also ordered to register as a sex offender as a condition of his probation.

The Court of Appeals concluded that the state presented evidence of a probative nature from which a reasonable trier of fact could find beyond a reasonable doubt that Whitener’s entry of K.A.’s home was unauthorized, so he was guilty of burglary. It also upheld the fact that he must register as a sex offender. “Although Whitener was convicted and sentenced on a count of burglary as a class A felony, which is not an enumerated offense under Ind. Code § 11-8-8-4.5(a) (Supp. 2007), the underlying felony he intended to commit when committing the burglary was rape, which is an enumerated offense,” Judge Elaine Brown wrote. “Moreover, we note that Whitener was found guilty of committing rape as a class B felony by the jury, and the court vacated his conviction based upon double jeopardy principles. On cross-appeal, the state challenged whether the trial court properly declined to enter a judgment of conviction for rape based on double jeopardy principles. The state’s motion to correct was denied in May 2010 and the state did not appeal. It was only two years later when Whitener pursued a direct appeal pursuant to Ind. Post-Conviction Rule 2(1) that the state elected to raise this issue. Under these circumstances, the cross-appeal issue is untimely,” Brown wrote in dismissing the appeal.
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Feb. 15

Criminal – Indigent Person/Community Service

Amanda Vaughn v. State of Indiana

49A02-1207-CR-544

Two judges on the Indiana Court of Appeals decided that a trial judge didn’t have statutory authority to order an indigent woman to perform community service instead of paying fines and costs of her case, and ordered the court to address the issue of imposing fees and costs.

Amanda Vaughn agreed to plead guilty to Class A misdemeanor criminal trespass, and her plea gave Marion Superior Judge Kimberly Brown discretion as to fines and costs. The court found Vaughn to be indigent and ordered community service in lieu of fines and costs. She later sought the fine instead, which the judge imposed as $165 in costs and $10 in fines. But after Vaughn filed a motion to reconsider, the trial court vacated the order Vaughn pay and again ordered 40 hours of community service, but she would not be jailed for failing to perform the service.

Vaughn argued that the trial court didn’t have the authority under the plea agreement to impose community service. The Court of Appeals decided it had to determine whether ordering community service in lieu of fines and costs is statutorily authorized.

Judges Michael Barnes and Patricia Riley found there to be a lack of statutory authority, ruling the statutes the state cited in support of the judge to be irrelevant in this case. In remanding the case, they reminded the trial court that the Indiana Supreme Court has held “when fines or costs are imposed upon an indigent defendant, such a person may not be imprisoned for failure to pay the fines or costs.”

Judge John Baker disagreed, believing the trial court may exercise its discretion by suspending fines and costs and that ordering Vaughn to perform community services instead was reasonable. He also disagreed with his colleagues that the statutes cited by the state don’t support the ability to impose community service instead of fines and costs.

Civil Tort – Liability for Injuries/Baseball Venue

South Shore Baseball, LLC d/b/a Gary South Shore Railcats, and Northwest Sports Venture, LLC v. Juanita DeJesus

45A03-1205-CT-222

A baseball organization in Lake County is not liable for the injuries a fan suffered when she was hit in the face by a foul ball during a game, the Indiana Court of Appeals ruled.

Juanita DeJesus suffered fractured bones in her face and blindness in her left eye after being hit by a pop-up foul ball during the opening day Gary South Shore Railcats baseball game. She was a fan of the Railcats and had attended numerous games before she was injured in May 2009. She also admitted she had read signs and the back of her ticket warning her of the risk of balls leaving the playing field and entering the stands.

She sued the baseball team and Northwest Sports Venture LLC, which is the former name of South Shore Baseball LLC, alleging they were liable for her injuries under a theory of premises liability and for negligently failing to place protective screening continuously from first to third base.

The trial court denied the defendants’ request for summary judgment. On interlocutory appeal, the Court of Appeals reversed.

“… we conclude that, as a matter of law, Appellants cannot be held liable to DeJesus under a theory of premises liability because the risk of getting hit by a foul ball at a baseball game does not amount to an unreasonable risk of harm. Again, it is common knowledge that foul balls may leave the field of play and enter the stands and ‘one who attends a baseball game as a spectator can properly be charged with anticipating as inherent to baseball the risk of being struck by a foul ball while sitting in the stands during the course of a game,’” Judge Cale Bradford wrote, citing Pakett v. The Phillies, L.P., 871 A.2d 304, 308 (Pa. Commw. Ct. 2005), and other cases dealing with this issue.

The judges also adopted the limited duty rule that other jurisdictions have set forth, which provides as a matter of law, an operator of a baseball stadium who provides screening behind home place sufficient to meet ordinary demand for protected seating has fulfilled its duty with respect to screening and cannot be subjected to liability for injuries resulting to a spectator by an object leaving the playing field.

Bradford noted that the Lake County baseball stadium had protective screening in front of the seats behind home plate, and DeJesus didn’t designate evidence that there weren’t enough seats behind the screening or that she was unable to buy seats behind that screen if she had chosen to do so the day she was injured.
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Feb. 18

Criminal – Restitution/Drug Investigation

Jim A. Edsall v. State of Indiana

57A03-1205-CR-240

A defendant ordered to repay more than $19,000 that a drug task force spent to investigate his methamphetamine manufacturing will not have to make restitution because the state isn’t a victim under the restitution statute, the Indiana Court of Appeals ruled.

Jim Edsall appealed the imposition of six 30-year concurrent sentences of imprisonment in the Department of Correction following his guilty plea to five counts of Class A felony delivery of meth and one count of Class A felony conspiracy to manufacture meth and a restitution order. The charges stemmed from an undercover drug operation that infiltrated Edsall’s manufacturing operation.

Edsall’s guilty plea did not make any reference to restitution, nor was there any reference of it at the guilty plea hearing. At a later sentencing hearing, the state sought $19,581.40 to recover costs of the investigation. Edsall’s counsel didn’t expressly object to the restitution being sought at any point. The trial court imposed the restitution order and the concurrent 30 year-sentences.

The Court of Appeals rejected Edsall’s arguments that the trial court abused its discretion by considering improper aggravating circumstances and failing to consider mitigating ones, and that his sentence was inappropriate based on his character and the nature of the offense and should be revised to 15 years.

But the judges agreed with Edsall that the trial court erred in ordering him to pay restitution. Citing Green v. State, 811 N.E.2d 874, 877 (Ind. Ct. App. 2004), they held that the state is not a victim as contemplated by the restitution statute, Ind. Code 35-50-5-3, so the restitution order wasn’t proper.

Post Conviction – Immigration/Ineffective Assistance of Counsel

Alex Carrillo v. State of Indiana

49A05-1108-PC-437

Alex Carrillo v. State of Indiana

49A02-1112-PC-1209

A citizen of Ecuador who has lived in the U.S. since he was one year old was unable to convince the Indiana Court of Appeals in separate cases that his counsel’s failure to inform him of the possible deportation consequences of pleading guilty to a crime should result in post-conviction relief.

In 1997, Alex Carrillo pleaded guilty to Class D felony possession of cocaine pursuant to a plea agreement for a lesser sentence that resulted in the judge entering a conviction of Class A misdemeanor possession. In 2006, Carrillo pleaded guilty to Class D felony resisting law enforcement and Class A misdemeanor operating a vehicle while intoxicated, and the felony was entered as a Class A misdemeanor by the judge.

In April 2011, Carrillo was detained by federal immigration authorities and now faces deportation proceedings based upon his resisting law enforcement and possession of cocaine convictions.

In his two appeals before the COA, he claimed that his guilty plea counsel failed to provide effective assistance of counsel by not telling him that pleading guilty could result in deportation. In the case stemming from his 1997 conviction, the post-conviction court found Carrillo failed to establish prejudice from his counsel’s failure to advise. In the second case, based on the 2006 conviction, the post-conviction court found Carrillo established prejudice but failed to establish that his counsel’s failure to advise constituted ineffective assistance because his attorney didn’t know that Carrillo wasn’t a U.S. citizen.

In his appeal from the 1997 case, Carrillo argued that he lived in the United States for 30 years at the time of his guilty plea and that he has a wife, five children and other relatives that live in this country. But he did not bring up this information in his 1997 hearing. The judges also found that the state had a very strong case against Carrillo for drug possession and he benefited from pleading guilty. Therefore, he failed to show there is a reasonable probability but for his counsel’s failure to advise that he wouldn’t have pleaded guilty, Judge Terry Crone wrote.

In the 2006 case, the judges focused on whether Carrillo’s attorney’s performance was deficient because he didn’t inform his client that the guilty plea could have adverse immigration consequences. Carrillo argued that he wasn’t required to show that his attorney knew he wasn’t a citizen or establish that the norm at the time of his hearing was for the attorney to make such an inquiry.

Relying on Segura v. State, 749 N.E.2d 496, 500 (Ind. 2001), the judges pointed out that Carrillo’s attorney did not know that he was not a citizen and that the professional norms at the time he pleaded guilty in 2006 did not include requiring attorneys to ask every client whether he or she is a U.S. citizen, Crone wrote. Beginning with the 2009 edition of the Indiana Criminal Benchbook, trial judges are now to inquire as to whether a defendant is a U.S. citizen and ask whether the possibility of deportation has been discussed with counsel.

The judges found Carrillo’s attorney did not provide deficient performance because he had no reason to suspect Carrillo wasn’t born in the U.S.•