Indiana Court Decisions – Jan. 1-14, 2020

7th Circuit Court of Appeals

Jan. 7

Criminal – Drug Trafficking/Sentence Appeal

United States of America v. Alex Guerrero

19-1676

An ex-Chicago cop serving time for drug convictions linked to his connection with the Latin Kings street gang will have an opportunity to have his request for a reduced sentence considered, the 7th Circuit Court of Appeals ruled.

Former Chicago police officer Alex Guerrero, who participated in drug trafficking alongside the Latin Kings gang in Chicago and northwest Indiana, was sentenced to 19 years after he pleaded guilty in August 2013. But after Amendment 782 to the United States Sentencing Guidelines – which reduced by two levels the offense levels for most drug trafficking crimes and was retroactive – went into effect in November 2014, Guerrero sought to benefit from the amendment.

In 2015, he sent a letter requesting to be appointed counsel to file a motion for resentencing under the amendment, but the Northern District Court of Indiana denied relief. The late Judge Rudy Lozano found that although Guerrero was eligible for a two-level reduction under Amendment 782, the reduction would make no difference to his ultimate prison sentence.

Guerrero made a second attempt in 2018, adding reliance on the Supreme Court’s decision in Hughes v. United States, 138 S. Ct. 1765 (2018). His request was again denied, with the district court finding that Hughes had no bearing on Guerrero because his plea had been subject to Federal Rule of Criminal Procedure 11(c)(1)(B), and that Guerrero’s motion was barred as an impermissible successive motion under 18 U.S.C. § 3582(c)(2).

But upon consideration of Guerrero’s appeal, the 7th Circuit Court vacated the district court’s decision in United States of America v. Alex Guerrero, 19-1676. The appellate panel agreed with the district court that Hughes does not apply to Guerrero’s case, but ultimately concluded that as a matter of law, the 2015 proceedings should not be counted against Guerrero “as his one chance to seek relief under Amendment 782.”

“We therefore hold that the denial of Guerrero’s counseled motion in 2018 was an error,” Circuit Judge David Hamilton wrote for the panel.

First, the appellate panel found the district court improperly characterized Guerrero’s request for legal counsel as a motion for resentencing under § 3582(c)(2), and that the district court had miscalculated how Amendment 782 would apply to Guerrero’s guideline range.

“Under (USSG) § 1B1.10(b)(2)(B), the district court may use Amendment 782 to impose a new sentence that is ‘comparably’ below the guideline range as amended by Amendment 782. In other words, nothing in § 3582(c)(2), Amendment 782, or § 1B1.10 prohibited the district court from resentencing Guerrero to a term on his non-firearm counts that would be roughly two offense levels below his original sentence,” the 7th Circuit wrote.

Additionally, it disagreed with the government’s argument that it was too late for Guerrero to win relief from the district court’s error in handling his 2015 letter. The 7th Circuit concluded Guerrero’s plea deal was a nonbinding agreement under Rule 11(c)(1)(B) and, for purposes of § 3582(c)(2), was based on the guidelines from the start.

“He has always been legally eligible for relief under § 3582(c)(2) for any retroactive amendments that would affect his original guideline calculation,” the 7th Circuit wrote.

“… Guerrero has not yet had the one bite at the Amendment 782 apple to which he is entitled under § 3582(c)(2). Now, with the assistance of counsel, he should be able to marshal his best arguments so that the district court can benefit from full presentation of the issues,” the court concluded.

The denial of Guerrero’s 2018 motion under § 3582(c)(2) was thus vacated and remanded. The federal appeals court noted it would “express no view on whether he should receive such a reduction,” leaving the matter up to the district court’s discretion on remand.

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Jan. 10

Civil Tort – Excessive Force/Handcuffing

Shanika Day, et al. v. Franklin Wooten, et al.

19-1930

Despite multiple 7th Circuit decisions finding police at fault for injuring individuals by excessive handcuffing, a panel from the Chicago court has granted qualified immunity to two Indianapolis police officers in the death of a teenager because none of the previous cases specifically give arrestees the right to not be handcuffed after complaining about difficulty breathing.

Terrell Day, 18, was arrested in September 2015 after he allegedly shoplifted a watch from Burlington Coat Factory at Washington Square Mall. Confronted by security, Day returned the watch but then fled across the parking lot, eventually collapsing on a grassy slope near a gas station.

Indianapolis Metropolitan Police Officer Randall Denny arrived and placed Day, who weighed 312 pounds, in a single set of handcuffs. Day told officers he was having trouble breathing and Denny responded Day had exerted himself by running then instructed him to take slow deep breaths. Day was not remaining in an upright seated position and at one point soiled himself.

Day also complained to Indianapolis Metro Police Sgt. Franklin Wooten that he could not breathe, but the officer was skeptical because the teenager was also claiming he had done nothing wrong and was asking to be released. An ambulance was called, and paramedics examined Day and concluded he was breathing normally and did not need to go to the hospital. He signed the “Treatment/Transport Refusal” form.

Denny then requested the “jail wagon” to transport Day to detention. Prior to the arrival of the vehicle, a second pair of handcuffs was added to Day’s wrists. However, when the jail transport arrived, the driver found Day unresponsive and lying on his back on the asphalt. A second ambulance was called and paramedics performed CPR for 30 minutes but were unable to revive Day.

The autopsy report listed the cause of death as “Sudden Cardiac Death due to Acute Ischemic Change.” Listed as a contributing cause was sustained respiratory compromise due to hands cuffed behind the back, obesity and underlying cardiomyopathy.

Day’s mother and father sued in September 2017 and the defendants moved for summary judgment. Denny and Wooten asserted qualified immunity, but the U.S. District Court for the Southern District of Indiana denied summary judgment on the plaintiffs’ Fourth Amendment excessive force claim. The court concluded, in part, “reasonable officers would know they were violating an established right by leaving Day’s hands cuffed behind his back after he complained of difficulty breathing.”

The 7th Circuit Court of Appeals reversed and remanded in Shanika Day, et al. v. Franklin Wooten, et al., 19-1930.

“Day never complained that the tightness of the handcuff was restricting his breathing,” Judge Daniel Manion wrote for the appellate panel, which included Judges Frank Easterbrook and Amy Coney Barrett. “The record contains no evidence that there was any indication the handcuffs were the cause of Day’s breathing difficulty until the autopsy report was released. Thus, Day’s right ‘to be free from an officer’s knowing use of handcuffs in a way that would not inflict unnecessary pain or injury’ was not violated.”

The 7th Circuit ruled the cases cited by the plaintiffs did not apply to circumstances surrounding Day. In particular, the panel found Payne v. Pauley, 337 F.3d 767 (7th Cir. 2003), involved circumstances and conduct “drastically different” than Day because the officers did not yank Day’s arms and did not make the handcuffs tighter than was required. Also, the court ruled Tibbs v. City of Chicago, 469 F.3d 661 (7th Cir. 2006) and Rooni v. Biser, 742 F.3d 737 (7th Cir. 2014) were not on point because those cases established that the officer must know the handcuffs are causing injury.

Moreover, the appellate panel was dismissive of the district court’s reliance on the 2016 ruling in Salyers v. Alexandria Police Dep’t, 1:15-cv-00265. “We have conclusively stated that district court opinions cannot clearly establish a constitutional right because they are not binding precedential authority,” Manion wrote.

However, Salyers relied on and the plaintiffs pointed to Stainback v. Dixon, 569 F.3d 767 (7th Cir. 2009), which involved an arrestee whose pre-existing arm-and-shoulder injuries were exacerbated by officers handcuffing him behind his back. The panel determined Stainback only established the right to have a known injury or condition considered, which did not help Day because while he complained of difficult breathing, he did not say the handcuffs were the problem.

“Given the facts as assumed by the district court and the information known to the officers at the time of the arrest, the only right plaintiffs can assert would be the right of an out-of-breath arrestee to not have his hands cuffed behind his back after he complains of difficulty breathing,” Manion wrote. “We find no Seventh Circuit precedent clearly establishing such a right. The cases relied upon by the district court and the plaintiffs present circumstances far different, and therefore cannot clearly establish that the officers’ conduct violated Day’s rights.”

Indiana Supreme Court

Jan. 10

Adoption – Reversal/Implied Consent

In the Matter of the Adoption of C.A.H., A.C.S. (Father) v. R.S.E. and R.K.E. (Grandparents)

20S-AD-5

A unanimous Indiana Supreme Court has reversed in an adoption case, holding that a parent’s implied consent to the adoption may not be based solely on their failure to appear at a single hearing.

Justices unanimously agreed with the dissenting judge in a divided Indiana Court of Appeals ruling, reversing and remanding in a per curiam decision, In the Matter of the Adoption of C.A.H., A.C.S. (Father) v. R.S.E. and R.K.E. (Grandparents), 20S-AD-5.

The maternal grandparents of father A.C.S.’s child served as guardians for most of the child’s life and eventually sought adoption, which the child’s mother initially consented to, but she later withdrew her consent. Father A.C.S. did not consent, but the grandparents argued his consent was not necessary pursuant to Indiana Code section 31-19-9-8.

During more than a year of proceedings, father was late to a hearing, failed to appear for a deposition due to his incarceration and failed to appear during the final hearing after numerous continuances. The Morgan Superior Court ultimately denied his motion for a continuance of the final hearing, finding no cause for his failure to appear, then issued the adoption decree.

Father moved for relief from judgment, indicating he overslept but had appeared at the courthouse during the scheduled hearing time, but the trial court denied that motion.

Father appealed the finding that his consent to the adoption was irrevocably implied. He argued he had participated in the adoption proceedings on an “ongoing and consistent” basis.

The COA panel majority had affirmed the adoption decree, finding his consent was irrevocably implied due to his failure to appear at the final hearing. The majority relied on guidance from K.S. v. D.S., 64 N.E.3d 1209 (Ind. Ct. App. 2016), but Judge Nancy Vaidik dissented, arguing that there was insufficient evidence to support the implied consent conclusion. She opined that she would remand the case to give the father an opportunity to contest the allegations that he failed to communicate with and support the child.

The Indiana Supreme Court agreed with Vaidik.

First, the justices noted that the Indiana General Assembly has created several means by which a parent’s consent to the adoption of a child may be irrevocably implied, including the parent’s failure to timely prosecute a motion to contest the adoption.

“But Father’s failure to attend the final hearing — one that had been rescheduled once at his request and three times at the request of other parties — is insufficient to overcome the important liberty interests at stake by finding him in default,” the per curiam opinion states.

“Father’s failure to appear at a single hearing also is insufficient to support a finding of implied consent when he appeared at other hearings, maintained contact with his attorney, and otherwise participated in the proceedings,” the opinion continued. “We agree with Judge Vaidik that affirming the trial court’s judgment impermissibly lowers the bar for finding implied consent in adoption cases.”

The unanimous Supreme Court therefore concluded that K.S. is inapposite and remanded for a hearing on the merits of the father’s motion to contest the adoption.

“Finally, we note that Grandparents’ verified petition alleged that Father’s consent to Child’s adoption was unnecessary because he had abandoned Child for at least six months preceding the petition’s filing; failed without justifiable cause to communicate significantly with Child; and failed to provide for Child’s care and support when able to do so. … This opinion does not resolve these claims, and our reversal of the trial court’s order does not mean that Father necessarily will succeed in rebutting these allegations on remand; it simply provides him the opportunity to try,” the justices concluded.

Indiana Court of Appeals

Jan. 10

Juvenile – Dismissal/Subject Matter Jurisdiction

State of Indiana v. N.B.

19A-JV-1659

A young adult accused of child molesting when he was a teenager has had his granted motion to dismiss a delinquency petition against him reversed. The Indiana Court of Appeals found the juvenile court had subject matter jurisdiction in the case.

In State of Indiana v. N.B., 19A-JV-1659, the state petitioned juvenile N.B. to be adjudicated delinquent for committing acts that would constitute Class B felony child molesting if committed by an adult. N.B., who was 15 or 16 years old at the time of the crime, was 21 or 22 at the time the act was disclosed by the victim.

Meanwhile, N.B. pleaded guilty to Level 5 felony criminal confinement resulting in bodily injury in an unrelated matter, prompting the state to subsequently file a motion for waiver of juvenile jurisdiction on the molesting charge. The state argued that, due to N.B.’s prior felony conviction, the juvenile court must waive N.B. to adult criminal court pursuant to Indiana Code section 31-30-3-6.

N.B. filed a motion to dismiss for lack of subject matter jurisdiction because he was no longer under age 21, which was granted by the Madison Circuit Court. On appeal, the state argued the juvenile court had subject matter jurisdiction to entertain its delinquency petition and request for waiver of juvenile jurisdiction.

The Indiana Court of Appeals agreed with the state, reversing the juvenile court’s decision and finding that it had jurisdiction to entertain the petition and determine whether N.B. should be waived to adult criminal court.

“The issue here stems from an apparent confusion between the juvenile court’s jurisdiction to enter an adjudication against an adult defendant and its ability to accept and entertain a delinquency petition and waiver to adult court,” Judge Margret Robb wrote for the appellate panel.

“Together [M.C. v. State, 127 N.E.3d 1178 (Ind. Ct. App. 2019)] and [D. P. v. State of Indiana, 19A-JV-690] stand for the proposition that a juvenile court has subject matter jurisdiction to entertain a delinquency petition and waive a defendant to adult criminal court but does not have jurisdiction to adjudicate a defendant over age twenty-one a delinquent child and enter a disposition.

“Applying that proposition here, we conclude the juvenile court in this case had subject matter jurisdiction to entertain the State’s delinquency petition and determine whether to waive N.B. to adult criminal court. The juvenile court, however, would not have jurisdiction to adjudicate N.B. a delinquent and enter a disposition,” the appellate panel concluded.

It therefore remanded to the juvenile court with instructions to rule on the state’s motion for waiver.

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Jan. 9

Criminal – Murder/Sentence, Batson Challenge

Paris Cornell v. State of Indiana

19A-CR-1101

A teenager’s 62-year sentence for murdering a man outside of an Evansville gas station and food market has been affirmed by the Indiana Court of Appeals.

Paris Cornell, who was 15 at the time of the crime, was buying food from Sam’s Food Market with three friends when he returned to the parking lot and fatally shot Kevin Colon in the chest. Colon was attempting to purchase marijuana from two men in the parking lot when Cornell shot him.

Cornell was charged as an adult and convicted of two counts of felony murder and Level 3 felony counts of attempted armed robbery and conspiracy to commit armed robbery. He was also found eligible for a firearm sentencing enhancement. Both murder counts were merged during a sentencing hearing, and the attempted robbery count was merged with the conspiracy count. Cornell received an aggregate sentence of 62 years to be served in the Department of Correction.

On appeal, he asserted among other things that he was denied equal protection under the 14th Amendment of the U.S. Constitution when the Vanderburgh Circuit Court allowed the state to strike one of only two black jurors. Cornell presented a Batson challenge, which was overruled when the trial court determined the state’s reason for striking the juror was race-neutral.

“Cornell contends that the removal of one of two Black jurors from the jury panel constitutes the type of ‘disproportionate’ exclusion contemplated by Batson and thus makes for a prima facie case of discrimination,” Judge John Baker wrote for the appellate court. “We disagree.”

Citing Hardister v. State, 849 N.E.2d 563, 576 (Ind. 2006), the appellate court noted that the Indiana Supreme Court found no prima facie discrimination where the state exercised five of six peremptory challenges to strike potential black jurors from the panel, leaving only one remaining after a sixth juror was additionally struck.

“If striking six of seven total Black jurors from the panel was not sufficient to create a prima facie case of discrimination, then we would be hard pressed to find prima facie discrimination in Cornell’s case,” the panel wrote.

It likewise concluded that taken at face value, the state’s proffered explanation was a “sufficiently race-neutral explanation” for striking the juror and that there was no evidence undermining the credibility of that explanation.

The appellate court additionally found Cornell effectively opened the door to further questioning on statements made by one of his friends, Denyae Burris, and to their admission as substantive evidence, finding the trial court did not err in its ruling on their admissibility. It also concluded that Cornell’s Sixth Amendment rights were not violated by the admission of Burris’ hearsay statements.

“Denyae was available as a witness and testified at trial; Cornell even admitted at trial that he ‘ha[d] the opportunity to cross examine’ Denyae. Rather than refusing to answer the questions posed to him, Denyae merely answered — willingly — that he did not remember or know the details, but this does not render him unavailable for purposes of the Confrontation Clause,” the appellate court wrote.

Lastly, the panel concluded Cornell’s aggregate sentence was not inappropriate in light of the nature of the offenses and his character, despite his young age. The appellate court thus affirmed in Paris Cornell v. State of Indiana, 19A-CR-1101.

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Jan. 6

Criminal – Manslaughter/Sentence

Marcus Lee McCain v. State of Indiana

19A-CR-1113

A split Indiana Court of Appeals panel has reduced a man’s voluntary manslaughter sentence after finding the judge who sentenced him did so in part “to compensate for what he believed to be an erroneous verdict.”

After an argument between Marcus McCain and Marcel Harris at a Gary restaurant in August 2017, McCain shot Harris in the head, killing him. McCain was ultimately found guilty of voluntary manslaughter and received a 45-year sentence, which had been enhanced for the use of a firearm. McCain, who maintained he acted in self-defense, waived a jury trial on the firearm enhancement.

In his appeal, McCain argued the Lake Superior Court erred when it imposed the enhancement because he was acquitted of the murder offense that was alleged in the firearm enhancement’s charging information. He alleged that because the charging information specifically stated “Murder,” as opposed to the general statutory language of “a felony under IC 35-42 that resulted in death or serious bodily injury,” and because he was acquitted of murder, the court could not impose the firearm enhancement.

The majority of the split COA panel disagreed with McCain’s arguments as to why the enhancement should be vacated, according to its decision in Marcus Lee McCain v. State of Indiana, 19A-CR-1113. The majority found that McCain did not dispute that voluntary manslaughter qualifies for the firearm enhancement under I.C. 35-50-2-11(b), that the crime is simply murder mitigated by evidence of sudden heat, and that he used a firearm to kill the man.

“To the extent McCain claims he didn’t have notice that the State was going to pursue the firearm enhancement for voluntary manslaughter, he is the one who asked for the voluntary-manslaughter instruction at the final-instructions conference,” Judge Nancy Vaidik wrote for the majority, joined by Judge Edward Najam. “Up until that point, this was a murder/self-defense case only. The trial court did not err in imposing the firearm enhancement.”

However, the majority noted the trial judge did not agree with the jury’s voluntary manslaughter determination. Specifically, the judge called the voluntary manslaughter verdict “a gift” and described surveillance video capturing the crime as “the cleanest cut video I have ever seen of my impression of a murder.”

“Although the jury found the existence of sudden heat, the judge found as an aggravator that the killing was ‘cold-blooded’ and ‘callous.’ The judge’s finding that the killing was ‘cold-blooded’ is clearly at odds with the jury’s finding that the killing was done in sudden heat,” Vaidik wrote. “When a jury finds a defendant guilty of voluntary manslaughter, aggravators like ‘cold-blooded’ and ‘callous’ are improper as a matter of law.

“In addition, we note that the judge crafted its sentence so that McCain was sentenced to exactly forty-five years, the minimum sentence for murder. It is apparent that the judge enhanced McCain’s sentence, in part, to compensate for what he believed to be an erroneous verdict.”

The panel thus vacated McCain’s sentence and ordered on remand for the sentence to be reduced to 35 years. Judge Elizabeth Tavitas, however, disagreed with the sentence reduction in a partial dissent, maintaining there was nothing improper regarding the trial court’s sentencing of McCain.

“Discussing the brutal nature of McCain’s offense is part of the review the trial court may properly perform; the trial court may consider the nature of the offense in imposing a sentence,” Tavitas opined. “… The trial court was very specific regarding the aggravators and mitigators in this case. The trial court made it clear that it was following the law and basing the sentence upon those aggravators and mitigators.

“… (G)iven the nature and circumstances of this voluntary manslaughter offense, McCain’s prior two felony convictions, and the other proper aggravators and mitigators, I do not find that the trial court abused its discretion, especially in light of the fact that the trial court did not impose the maximum sentence,” Tavitas continued. “Moreover, I do not find this sentence inappropriate. I would affirm.”

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Jan. 2

Civil Plenary – Insurance/Declaratory Judgment, Duty to Defend

Progressive Southeastern Insurance Co. v. Gregory Smith and Nolan Clayton, and Erie Insurance Group, Brackett Restaurant Group, LLC, d/b/a Stacked Pickle, and Allstate Insurance Company

19A-PL-1094

An Indiana Court of Appeals panel has reversed the grant of a quadriplegic man’s motion to dismiss a declaratory judgment action after it found he was not entitled to bodily injury liability coverage under his insurance policy.

In February 2016, co-workers Gregory Smith and Nolan Clayton were intoxicated after drinking at an Indianapolis Stacked Pickle bar, and the bar called a cab for them. When their ride was pulling up, Smith and Clayton drove off in Smith’s truck, with Clayton driving and Smith sitting in the passenger seat. The vehicle crashed, leaving Smith permanently disabled.

At the time of the accident, Smith was insured by Progressive Southeastern Insurance Co. under a policy that provided coverage for liability, medical payments and underinsured motorist coverage, among other coverage. Progressive paid some of Smith’s vehicular damages and medical payments.

Smith sued Clayton, and a jury awarded Smith a net $35 million after finding Clayton 60% at fault, for $21 million actually owed. The verdict was upheld on appeal.

Meanwhile, Progressive filed a complaint for declaratory judgment in January 2017, asking Marion Superior Judge Timothy Oakes for a determination that Smith was not entitled to coverage under the policy’s uninsured motorist provisions for injuries sustained during an accident while a passenger in his own vehicle. Without a hearing, the trial court granted judgment to Smith and against Progressive on the UM portion of the coverage declaration.

In a reversal of the summary judgment decision, the Indiana Court of Appeals held that the trial court erred by concluding Smith was entitled to receive payment under the policy’s UM coverage. However, the trial court ultimately granted Smith’s motion to dismiss and close the litigation after Smith argued that Progressive had waived the issues of the duty to defend declaration and the bodily injury liability portion of the coverage declaration by bringing its first appeal.

In its next appeal, Progressive argued it had waived no claims. In finding Progressive was entitled to judgment as a matter of law, the Indiana Court of Appeals reversed and remanded in Progressive Southeastern Insurance Co. v. Gregory Smith and Nolan Clayton, and Erie Insurance Group, Brackett Restaurant Group, LLC, d/b/a Stacked Pickle, and Allstate Insurance Company, 19A-PL-1094.

The appellate court concluded Smith is not entitled to UM coverage and, based on Supreme Court precedent and his own concession, he is not entitled to bodily injury liability coverage.

“Under these circumstances, it is readily apparent that Progressive is entitled, as a matter of law, to a declaration that Smith is not entitled to bodily injury liability coverage, and the trial court erred by refusing to enter that declaration following the First Appeal,” Judge John Baker wrote for the appellate court.

The court also found the duty to defend was not triggered and that it was “eminently reasonable to conclude that if Smith is not entitled to coverage for his bodily injuries, Progressive is not required to defend Clayton from tort claims related to those bodily injuries.”

Additionally, the appellate court directed the trial court to deny Clayton’s motion for a declaratory judgment. It found “wholly unpersuasive” his argument that he was allegedly never properly served with the complaint.

The appellate court – writing that it wanted to be “crystal clear” in its decision given outstanding confusion following the first appeal – ultimately reversed the order granting Smith’s motion to dismiss the declaratory judgment and the order denying Progressive’s request for judgment on the bodily injury coverage and duty to defend declarations.

The panel also remanded with instructions for the trial court to declare that Smith is not entitled to bodily injury liability coverage under his Progressive insurance policy and that Progressive does not have a duty to defend or indemnify Clayton under that policy.

Lastly, it instructed the trial court to deny Clayton’s motion for a declaratory judgment and enter final judgment in favor of Progressive.•