Opinions Jan. 28, 2022

Indiana Supreme Court
Kevin Isom v. Ron Neal
21S-CQ-545
Certified question. Accepts the certified questions of the Indiana Northern District Court and answers both questions negatively. Finds that the unverified post-conviction petition tendered to the Lake Superior Court in January 2016 by death row inmate Kevin Isom was not “properly filed” as of the date of its initial submission, nor did the Indiana Supreme Court’s January 2017 order render Isom’s post-conviction petition “properly filed” as of the date of its initial submission.

Court of Appeals of Indiana
Scott Afanador v. State of Indiana
21A-CR-1000
Criminal. Affirms Scott Afanador’s conviction of Level 5 felony automobile theft and the finding that he is a habitual offender, and his aggregate 31-year sentence, with two years suspended to probation. Finds the plain language of the general habitual offender statute prohibited the state from using Afanador’s Predicate-2 handgun conviction and his Predicate-3 auto theft conviction to support an enhancement under that statute, but the state was not prohibited from using the two offenses to support separate enhancements under different recidivist offender statutes because the two crimes were not part of the same res gestae. Also finds the Lawrence Superior Court did not err in using the Predicate-3 auto theft conviction to support elevating Afanador’s automobile theft conviction to a Level 5 felony under the progressive penalty statute for repeat automobile thieves, nor in relying on Afanador’s Predicate-2 handgun conviction to enhance his sentence pursuant to Indiana’s general habitual offender statute.

D.G. v. D.H.
21A-AD-1179
Adoption. Affirms the denial of stepfather D.G.’s petition to adopt E.H. Finds the Vanderburgh Superior Court did not err in determining that biological father D.H.’s consent to the adoption was required.

Stacey Curtiss v. Robert Curtiss (mem. dec.)
21A-DC-723
Domestic relations with children. Affirms the award of half of all business assets and liabilities to Robert Curtiss in a dissolution action with Stacey Curtiss. Finds Stacey failed to establish that the St. Joseph Circuit Court erred.

Indiana Office of Utility Consumer Counselor, Citizens Action Coalition of Indiana, Inc., Vote Solar, Environmental Law & Policy Center, Solarize Indiana, Inc., Solar United Neighbors, Indiana Distributed Energy Alliances v. Southern Indiana Gas and Electric Company, Indiana Utility Regulatory Commission (mem. dec.)
21A-EX-821
Agency action. Reverses the Indiana Utility Regulatory Commission’s tariff rate rider incorporating the process of “instantaneous netting.” Finds the rider basis for the calculation of excess distributed generation credits is inconsistent with Indiana Code § 8-1-40-5. Remands for further proceedings.

Patrick Diontrey Dorsey v. State of Indiana (mem. dec.)
21A-CR-966
Criminal. Affirms Patrick Diontrey Dorsey’s conviction of Level 3 felony armed robbery and his adjudication as a habitual offender. Finds Dorsey has not established reversible error.

Megan Rose v. Cole L. Winters (mem. dec.)
21A-SC-1390
Small claims. Affirms the denial of Megan Rose’s motion to correct errors in a small claims proceeding. Finds any error made by the small claims court when it denied Rose’s request to present her mother and her friend Grace as witnesses was harmless because their testimony would have been cumulative of Rose’s earlier testimony, so her “right to be heard” was not violated. Also finds the small claims court did not err when it determined Cole Winters was a dog named Krato’s owners because Rose had not demonstrated by a preponderance of the evidence that Winters gave Krato to Rose as a gift. Finally, finds Rose has not demonstrated that the small claims court abuse its discretion when it denied her motion to correct errors.

Tracey Wheeler v. State of Indiana et al. (mem. dec.)
21A-MI-1438
Miscellaneous. Reverses the order ruling out inmate Tracey Wheeler under the so-called Three Strikes Statute that allows a court to refuse to waive the filing fee after finding that an inmate filed three prior unmeritorious lawsuits as defined by the statute. Finds Wheeler has not accumulated the required three dismissals. Remands for further proceedings.

Melissa K. Mitchell v. State of Indiana (mem. dec.)
21A-CR-1561
Criminal. Affirms Melissa Mitchell’s convictions for possession of methamphetamine and resisting law enforcement. Finds the DeKalb Superior Court did not err in the admission of evidence.

Anthony E. Spencer v. State of Indiana (mem. dec.)
21A-CR-1568
Criminal. Affirms Anthony E. Spencer’s conviction of Level 4 felony unlawful possession of a firearm by a serious violent felon. Finds the Shelby Circuit Court was not required to order bifurcation sua sponte.

Joseph Edminster v. State of Indiana (mem. dec.)
21A-CR-1889
Criminal. Affirms the reinstatement of the 130-day balance of Joseph Edminster’s suspended prison sentence after he absconded from a reentry program for five years. Finds Edminster has failed to establish that he received ineffective assistance of probation-revocation counsel.

Joseph Edminster v. State of Indiana (mem. dec.)
21A-CR-1890
Criminal. Affirms the reinstatement of Joseph Edminster’s previously suspended two-year prison sentence after he absconded from a reentry program for five years. Finds Edminster has failed to establish that he received ineffective assistance of probation-revocation counsel.

John E. Wright v. State of Indiana (mem. dec.)
21A-CR-2032
Criminal. Affirms John E. Wright’s convictions for 26 counts of child molesting. Finds the state sufficiently proved that Wright committed the offenses in Dubois County. Also finds the state sufficiently proved the allegations set forth in the charging informations that Wright challenged.

Connie Dominiack and Jerry Dominiack v. City of South Bend (mem. dec.)
21A-CT-2102
Civil tort. Affirms the grant of summary judgment to the city of South Bend on Connie and Jerry Dominiack’s claims after Connie was injured in a city-owned parking lot. Finds Connie was not an invitee. Also finds Connie has cited no evidence to suggest that the city engaged in willful and wanton conduct. Finally, finds the St. Joseph Circuit Court did not err in awarding summary judgment to the city.

Kevin Martin v. Warden Vanihel, et al. (mem. dec.)
21A-PL-1872
Civil plenary. Affirms the dismissal of Kevin Martin’s lawsuit under Indiana Code § 34-58-1-2, the Screening Statute. Finds Martin waived any contention that the trial court erred in dismissing his lawsuit under the Screening Statute by failing to address the merits of the dismissal of his lawsuit under that statute in his appellant’s brief. Also finds Martin does not demonstrate judicial bias.