Opinions Feb. 28, 2018

The following Indiana Supreme Court opinion was posted after IL deadline Tuesday:
In the Matter of Robert John Wray
02S00-1511-DI-648
Disciplinary. Suspends Robert John Wray from the practice of law in Indiana for at least nine months without automatic reinstatement. Finds Wray engaged in attorney misconduct arising from his solicitation of clients through a nonlawyer intermediary. Justice Christopher Goff, who was the hearing officer in this discipline case, did not participate.

Wednesday opinions
Jarod Thomas McMillan v. State of Indiana
45A04-1708-CR-1819
Criminal. Affirms Jarod McMillan’s convictions of eight counts of neglect of a dependent, including a Level 1 felony, and his sentence to 48½ years. Finds the record reflects the Lake Superior Court believed McMillan did not admit that he was subjectively aware of a high probability that his conduct would result in his son’s health or life being at risk or in danger, so the trial court did not abuse its discretion when it revoked acceptance of McMillan’s plea agreement.

Joshua Hopson v. State of Indiana
49A05-1709-CR-2100
Criminal. Affirms Joshua Hopson’s conviction of resisting law enforcement by flight causing injury. Finds the state proved Hopson proximately caused the injury to the police officer who chased him, and the injury was foreseeable.

Eric P. Wheeler v. State of Indiana
88A05-1703-CR-541
Criminal. Affirms Eric P. Wheeler’s convictions of Class A misdemeanor operating a motor vehicle with an alcohol concentration equivalent of 0.15, the determination that he was a habitual vehicular substance offender and his sentence to 5½ years executed and one year suspended to probation. Finds the Washington Circuit Court did not err in permitting the state to amend the information alleging Wheeler was a habitual vehicular substance offender or in admitting into evidence the results of the tests of belatedly tested vial of Wheeler’s bloods. Also finds Wheeler’s sentence is not inappropriate.
Christopher D. McCoy v. State of Indiana
10A05-1703-CR-681
http://www.in.gov/judiciary/opinions/pdf/02281801nv.pdf
Criminal. Reverses in part Christopher McCoy’s convictions of Level 1 and Level 4 felony child molesting. Finds the Clark Circuit Court partially abused its discretion in finding aggravating and mitigating factors. Also finds McCoy has not been convicted of an offense under subsection (a) of the child molesting statute, so Indiana Code section 35-31.5-2-72(l) cannot apply to him. Also finds the trial court erred by designating McCoy a credit-restricted felon. Remands with instructions.  

Khalil Jalon Payne v. State of Indiana
79A02-1707-CR-1606
Criminal. Affirms and reverses in part Khalil Jalon Payne’s conviction of Level 4 felony unlawful possession of a firearm by a serious violent felon and the Tippecanoe Circuit Court’s merger of his convictions of the Level 4 felony and Class A misdemeanor carrying a handgun without a license. Finds there was insufficient evidence to support Payne’s unlawful possession of a firearm by an SVF conviction. Also finds the merger of his two convictions does not violate double jeopardy protections. Remands with instructions to enter judgment of conviction of the carrying a handgun without a license conviction and for resentencing. Judge James Kirsch dissents with separate opinion.
 
Genia Wamsley v. Tree City Village, New Generation Management, Inc., and Matthew Joseph
16A01-1706-CT-1355
Civil tort. Reverses the order setting aside default judgment entered against Tree City Village and New Generation Management, Inc. Finds the Decatur Superior Court abused its discretion when it found Tree City and New Generation’s failure to respond to the lawsuit was the result of excusable neglect. Remands to the trial court to reinstate the default judgment.
 
EBF Partners, LLC v. Novabella, Inc. d/b/a and Frank Terranova
49A02-1705-CC-961
Civil collection. Reverses the dismissal with prejudice of EBF Partners, LLC’s petition to domesticate a foreign judgment from New York. Finds the Marion Superior Court was required to afford full faith and credit to the New York judgment.

Grange Mutual Casualty Co., Mark Madejek, and Alice Blaisdell v. Estate of Stephen P. Stetz, by Jeffrey and Dana Stetz, Personal Representatives
71A05-1708-CT-1720
Civil tort. Affirms the entry of summary judgment in favor of the Estate of Stephen P. Stetz and Jeffrey and Dana Stetz. Finds the St. Joseph Superior Court did not err in finding Stephen Stetz was a family member under the Grange Mutual Casualty Co. policy.

Charlynn G. Hulse v. Indiana State Fair Board
49A05-1611-PL-2654
Civil plenary. Affirms the grant of summary judgment in favor of the Indiana State Fair Board. Finds Charlynn Hulse does not have standing to raise her First Amendment claim and does not have a ripe overbreadth claim.

G.B. v. R.B. (mem. dec.)
12A02-1708-DR-1874
Domestic relation. Affirms in part the calculation of G.B.’s current arrearage on his child support obligations. Finds G.B. cannot establish he was harmed by the admission of an exhibit that provided a correct calculation of the amount he owes. Also finds R.B. is not limited to a final order in garnishment through proceedings supplemental. Remands with instructions to clarify R.B.’s collection remedies.

Marina Cartage, Inc., et al. v. Cintas Corporation (mem. dec.)
37A05-1709-PL-2146
Civil plenary. Affirms the denial of Harvey L. Windmon, Sr., MAT Leasing, Marina Cartage, Inc. and Marina Waste, Inc.’s motion to set aside the default judgment against them. Finds the Jasper Superior Court did not abuse its discretion.
 
Nansee J. Crawford v. State of Indiana (mem. dec.)
55A05-1708-CR-1880
Criminal. Affirms and reverses in part Nansee J. Crawford’s convictions of Level 6 felony strangulation and two counts of Level 6 felony intimidation. Finds there was sufficient evidence to support Crawford’s convictions. Also finds Crawford’s convictions for two counts of intimidation constitute impermissible double jeopardy. Remands with instructions for the Morgan Superior Court to vacate Crawford’s judgment and sentence on Count 3, Level 6 felony intimidation.

Matthew S. Simons v. State of Indiana (mem. dec.)
25A03-1708-CR-1841
Criminal. Affirms the denial of Matthew S. Simons’ motion to withdraw his guilty plea. Finds the hearing on Simons’ motion was not a critical stage of the proceedings to which the assistance of counsel guarantee applied and, regardless, Simons knowingly and intelligently waived his right to counsel at the hearing. Also finds the Fulton Circuit Court did not abuse its discretion in denying Simons’ motion to withdraw his guilty plea.

In Re: The Marriage of: Brent R. McIntosh v. Catherine B. McIntosh (mem. dec.)
41A04-1710-DR-2410
Domestic relation. Affirms the show cause order against Brent R. McIntosh. Finds the clause of the settlement agreement that required Brent McIntosh to pay Catherine McIntosh was a maintenance provision and was enforceable through contempt. Also finds the Johnson Superior Court did not abuse its discretion when it found Brent McIntosh in contempt.

Dustin Scott Anthony Devers v. State of Indiana (mem. dec.)
82A04-1708-CR-1749
Criminal. Affirms Dustin Devers’ conviction of Level 5 felony intimidation, his admission to being a habitual offender and his 10-year sentence. Finds the state did not commit prosecutorial misconduct rising to the level of fundamental error. Also finds Devers’ sentence is not inappropriate in light of the nature of the offense and his character.
 
Charles Anthony Winters v. State of Indiana (mem. dec.)
49A02-1708-CR-1842
Criminal. Affirms Charles Winters’ sentence to an aggregate of 365 days, all suspended, for his conviction of Class A misdemeanor possession of marijuana and Class C misdemeanor possession of paraphernalia. Finds Winters’ sentence is not inappropriate.

Jason Garmon v. State of Indiana (mem. dec.)
18A05-1707-CR-1742
Criminal. Affirms Jason Garmon’s conviction of three counts of robbery while armed with a deadly weapon, all as Level 3 felonies. Finds the Delaware Circuit Court did not abuse its discretion in the admission of evidence. Also finds any error in the admission of Garmon’s prior wrongs or acts would have been harmless.
 
Michael J. Gilliam II v. State of Indiana (mem. dec.)
84A01-1707-XP-1754
Expungement petition. Affirms the summary denial of Michael J. Gilliam II’s petition to expunge records related to his 2000 convictions for Class C felony operating a motor vehicle while intoxicated causing death and Class C felony driving while suspended resulting in death. Finds the Vigo Superior Court properly applied Indiana Code section 35-38-9-5 to Gilliam’s petition. Also finds the trial court was permitted to summarily deny the petition without a hearing. Finally, finds the trial court had no discretion to grant the petition without the written consent of the prosecuting attorney.

Ryan Recker v. City of Fort Wayne (mem. dec.)
93A02-1708-EX-1973
Agency. Affirms the denial of Ryan Recker’s application for worker’s compensation benefits. Finds substantial evidence and reasonable inferences support the Indiana Worker’s Compensation Board’s conclusion.

In the Matter of the Termination of the Parent-Child Relationship of G.M.: K.C. (Father) v. Indiana Department of Child Services (mem. dec.)
35A04-1709-JT-2088
Juvenile termination of parental rights. Affirms the termination of K.C.’s parent-child relationship with his son, G.M. Finds there was sufficient evidence to support the Huntington Circuit Court’s decision to terminate the parent-child relationship.
 
Joseph Angelo Biondi v. State of Indiana (mem. dec.)
59A04-1710-CR-2485
Criminal. Affirms Joseph Angelo Biondi’s sentence to two years of incarceration for his conviction of Level 6 felony voyeurism. Finds Biondi’s sentence is not inappropriate.
 
Dewayne Vernon Adamson v. State of Indiana (mem. dec.)
53A01-1608-PC-1912
Post-conviction. Affirms the denial of Dewayne Adamson’s petition for post-conviction relief. Finds the post-conviction court did not err.
 
Darah Mariah Kammerer v. State of Indiana (mem. dec.)
82A01-1708-CR-2015
Criminal. Affirms Darah Kammerer’s convictions of Level 2 felony dealing in methamphetamine, Level 6 felony possession of a controlled substance and Level 6 felony maintaining a common nuisance and her 20-year aggregate sentence. Finds the Vanderburgh Circuit Court did not err in admitting Kammerer’s statements to police into evidence. Also finds Kammerer’s sentence is not inappropriate. Finally, finds the sentencing order was unclear. Remands with instructions.

Dennis Ray Smith v. State of Indiana (mem. dec.)
82A05-1709-PC-2123
Post-conviction. Affirms the denial of Dennis Ray Smith’s petition for post-conviction relief. Finds the post-conviction court did not err when it concluded Smith was not denied effective assistance of trial counsel.
 
A.M. v. State of Indiana (mem. dec.)
20A03-1709-JV-2121
Juvenile. Affirms A.M.’s commitment to the custody of the Indiana Department of Correction following a violation of his probation. Finds the juvenile court did not abuse its discretion.

Julian D. Grady v. State of Indiana (mem. dec.)
02A03-1708-PC-1962
Post-conviction. Affirms the denial of Julian Grady’s petition for post-conviction relief. Finds the pot-conviction court did not err in determining Grady did not receive ineffective assistance of appellate counsel.

In the Matter of the Termination of the Parent-Child Relationship of LT., J.T., Ju.D., B.D., Ja.D., and A.D. (Minor Children), et al. v. Indiana Department of Child Services (mem. dec.)
71A03-1708-JT-1866
Juvenile termination of parental rights. Affirms the termination of M.F. and C.D.’s parental rights. Finds the St. Joseph Probate Court did not err.

Elizabeth Ann McQuinn v. Michael Todd McQuinn (mem. dec.)
29A05-1707-DR-1637
Domestic relation. Affirms the disposal of numerous motions filed by Elizabeth McQuinn and Michael Todd Quinn in their dissolution of marriage proceedings. Finds the Hamilton Superior Court did not abuse its discretion in modifying custody or in finding Elizabeth McQuinn in contempt. Also finds the trial court did not err in declining to impute income to Michael Quinn, or in awarding him the right to claim the tax exemptions for the parties’ children. Finally, finds the trial court did not abuse its discretion in restricting Elizabeth Quinn’s significant other from being present during parenting time exchanges and the children’s extracurricular activities, or in awarding attorney fees to Michael Quinn.  

H.D.P. v. State of Indiana (mem. dec.)
47A04-1710-JV-2351
Juvenile. Affirms the restitution order against H.D.P. Finds any error in the juvenile court’s order for H.D.P. to pay restitution was invited. Also finds H.D.P. was not denied effective assistance of counsel.

Floyd B. Sells v. State of Indiana (mem. dec.)
17A03-1708-CR-1980
Criminal. Affirms Floyd Sells’ convictions of rape and criminal deviate conduct as Class A felony and Class B felony child molesting. Finds the DeKalb Superior Court did not err in the admission of testimony.

Leroy Washington v. State of Indiana (mem. dec.)
49A05-1707-CR-1664
Criminal. Affirms Leroy Washington’s conviction of possession of marijuana as a Class B misdemeanor. Finds the state presented sufficient evidence to support Washington’s conviction.

In Re: The Marriage of: Charles A. Parsley v. Maureen F. Parsley (mem. dec.)
29A02-1710-DR-2432
Domestic relation. Affirms the Hamilton Superior Court’s decision not to impose Charles Parsley’s requested limits to E.P.’s post-secondary educational expenses. Reverses the trial court’s finding that Maureen Parsley had a prior-born child. Finds there is no evidence that Maureen Parsley had any children born prior to E.P. and L.P. Also finds the trial court did not err in declining to impose Charles Parsley’s post-secondary education limits. Remands with instructions for the trial court to eliminate the $50 deduction to Maureen Parsley’s weekly adjusted income and recalculate Charles Parsley’s child support accordingly.
 
John D. Smith v. Nicole L. Smith and State of Indiana (mem. dec.)
59A05-1704-DR-988
Domestic relation. Affirms the grant of John D. Smith’s motion to enforce the Orange Circuit Court’s previous order, the denial of his motion requesting a hearing to determine child support arrearages and to refund overpaid child support, and his motion requesting an order to remove him from the Federal Tax/Administrative Offset List. Finds the trial court did not err.

In re the Paternity of W.J.L., Minor Child; Helen Burns v. Landon Lemings (mem. dec.)
44A04-1709-JP-2142
Juvenile paternity. Reverses the grant of visitation with W.J.L. to the child’s grandparents. Finds the LaGrange Circuit Court had no authority to award the grandparents visitation. Remands for further proceedings.
 
Grant Elam v. State of Indiana (mem. dec.)
49A02-1708-CR-1952
Criminal. Affirms Grant Elam’s two convictions of invasion of privacy. Finds there was sufficient evidence to show Elam was properly served with a protective order and that he called or texted his mother, who had obtained the restraining order.

Dillon M. Goff v. State of Indiana (mem. dec.)
03A01-1710-CR-2311
Criminal. Affirms Dillon M. Goff’s aggregate four-year sentence. Finds the Bartholomew Circuit Court did not abuse its discretion in finding mitigating factors.

In re The Marriage of: Matthew Strack and Mary Strack (mem. dec.)
02A03-1708-DR-2025
Domestic relation. Reverses the division of Matthew and Mary Strack’s marital estate and the order for Matthew Strack to pay $650 per week in child support. Finds the Allen Circuit Court abused its discretion in assessing the amount of child support and in dividing the marital estate. Remands for further proceedings.

Frank D. Drake v. State of Indiana (mem. dec.)
02A05-1708-CR-1903
Criminal. Affirms Frank D. Drake’s sentence to an aggregate of 80 years for his convictions of burglary, rape and attempted rape, all as Level 1 felonies. Finds Drake has failed to establish his sentence is inappropriate.