Indiana Court Decisions — Jan. 13-26, 2022

7th Circuit Court of Appeals

Published Jan. 12, posted to theindianalawyer.com Jan. 13

Criminal-Sentence/Ineffective Assistance

United States of America v. Dayonta McClinton

20-2860

An Indianapolis man who at 17 robbed a pharmacy then shot and killed one of his accomplices will have to serve his 19-year sentence after the 7th Circuit Court of Appeals found the district court was allowed to consider the acquitted charge of murder when calculating the sentence.

Dayonta McClinton was part of a group of six who entered a CVS pharmacy in October 2015, pointing guns and demanding cash and drugs. They were only able to get one bottle of hydrocodone, promethazine syrup and acetaminophen because the pharmacy technician could not get access to a majority of the drugs, which were stored in a time-delayed safe.

The team of robbers fled the store, then drove to an alley about 10 minutes away to split the proceeds. Malik Perry took all the drugs and left the vehicle, declaring “ain’t nobody getting none.” McClinton followed Perry and shot him four times in the back, killing him.

A jury found McClinton guilty of robbing the pharmacy in violation of 18 U.S.C. § 1951(a) and brandishing a firearm during the CVS robbery in violation of 18 U.S.C. § 924(c)(1)(A)(ii). But he was found not guilty of robbing Perry in violation of 18 U.S.C. § 1951(a) and causing death while using a firearm during and in relation to the robbery of Perry in violation of 18 U.S.C. § 924(j)(1).

However, at sentencing, the U.S. District Court for the Southern District of Indiana found by a preponderance of the evidence that McClinton was responsible for Perry’s murder. Consequently, his sentence was enhanced and he was sentenced to 19 years in federal prison.

On appeal, McClinton argued the district court could not consider acquitted crimes when calculating his sentence.

The 7th Circuit acknowledged McClinton’s argument has been a source of dissension at the U.S. Supreme Court. Justices have questioned the fairness and constitutionality of allowing courts to include acquitted conduct when calculating sentences.

In particular, the court pointed to Jones v. United States, 574 U.S. 948, 949-50 (2014), and United States v. Watts, 519 U.S. at 170 (1997).

“But despite the long list of dissents and concurrences on the matter, it is still the law in this circuit — as it must be given the Supreme Court’s holding — that a sentencing court may consider conduct underlying the acquitted charge, so long as that conduct has been found by a preponderance of the evidence,” Judge Ilana Rovner wrote for the appellate panel in United States of America v. Dayonta McClinton, 20-2860. “Until such time as the Supreme Court alters its holding, we must follow its precedent.”

The circuit court did review the district court’s factual findings that Perry’s murder was relevant conduct, but found no clear error.

As Rovner explained, Perry’s murder occurred in the course of the planned robbery. The connection to the crime was not severed just because McClinton and his accomplices traveled a safe distance away from the pharmacy and waited a few minutes before divvying up the drugs and cash.

Moreover, McClinton became angry when Perry refused to share the drugs and, because the offenders had decided to arm themselves for the robbery, McClinton had a firearm ready to shoot Perry.

“There is no doubt that under Watts, the murder was relevant conduct that could be used to calculate McClinton’s sentence,” Rovner concluded.

McClinton also tried to make a claim of ineffective assistance of counsel before the 7th Circuit.

The defendant, who was 17 at the time of the pharmacy robbery, argued that his attorney, Ralph Staples, who represented him during the juvenile transfer proceeding, was ineffective for failing to appeal the order transferring him to adult court.

In fact, Staples was sanctioned $1,000 by the district court for failing to appear for a status conference, show cause hearing and McClinton’s initial hearing upon transfer for adult prosecution.

McClinton was so adamant about bringing the claim that he even moved to file his own pro se supplementary brief in addition to his appellate lawyer’s brief. However, with “some prompting from the panel,” the attorney withdrew the claim.

Rovner explained the withdrawal enabled McClinton to preserve the claim at a secondary or collateral proceeding where the defendant can develop and present all the evidence, including a deposition from the attorney.

If McClinton had made the claim as part of his direct appeal, he could have lost and been prohibited from raising it again. That’s because the court’s review is limited to the factual record developed at the district court, which does not include evidence concerning prior counsel’s advice and decision making.

“At the end of the day, counsel’s duty to vigorously defend her client in an effective manner means that she should not make a claim that she knows has zero chance of success, when she knows that reserving such a claim for a collateral proceeding is the only means of preserving whatever chance of success on the merits that the claim might have,” Rovner wrote. “… In this case, McClinton’s counsel chose the only competent strategy by withdrawing the claim of ineffective assistance, thus preserving the claim for a later proceeding under 28 U.S.C. § 2255.”

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Jan. 24

Civil Plenary-Inmate Grievance/Administrative Remedies

Eric Gooch v. S. Young and J. Wilson

21-1702

An inmate who was not given the necessary paperwork to file a grievance will get to litigate his Eighth Amendment complaint in federal court after the 7th Circuit Court of Appeals issued the reminder that administrative remedies provided to prisoners must be “available in fact and not merely in form.”

Eric Gooch, a federal prisoner in the U.S. Penitentiary in Terre Haute, filed a Bivens action in December 2019 against two correctional officers. He alleged the two guards — identified in court documents as Lt. S. Young and Officer J. Wilson — encouraged another inmate to assault him.

Three days after the attack, Gooch filed a lawsuit in the U.S. District Court for the Southern District of Indiana against Young and Wilson for violating his Eighth Amendment rights. The defendants moved for summary judgment, arguing Gooch had not exhausted his administrative remedies as required by the Prison Litigation Reform Act before filing his lawsuit.

Gooch countered that he had tried to use the administrative process, but officials would not give him the grievance form. Also, he alleged multiple guards began to threaten him with bodily harm if he filed the grievance. He told the district court he feared for his life and thought by filing a lawsuit, he would get protection.

The Southern Indiana District Court found for the defendants. In granting summary judgment, the court reasoned that even though Gooch did not have the proper form and was receiving threats, he still had the option of sending his request directly to the regional office.

But finding exhaustion was not required because of how Gooch was treated by the prison guards, the 7th Circuit vacated the summary judgment order and remanded for further proceedings.

“The defendants were not entitled to summary judgment because they did not demonstrate that administrative remedies were available to Gooch and Gooch provided evidence to the contrary,” the court ruled in a per curiam opinion in Eric Gooch v. S. Young and J. Wilson, 21-1702.

Young and Wilson had argued Gooch should have been more persistent in getting a grievance form before “rushing to court.” But pointing to Hill v. Snyder, 817 F.3d 1037 (7th Cir. 2016), the 7th Circuit described that proposal as “unworkable” and noted the PLRA does not require prisoners to “go on scavenger hunts just to take the first step toward filing a grievance.”

Also, the panel found the suggestion that Gooch could have filed directly with the regional office was “hard to square with (Bureau of Prisons) regulations.” Although an inmate is allowed to submit “sensitive” content to the regional director, the government did not establish that Gooch’s matter would be considered sensitive. Moreover, he still would have been required to file a grievance form.

“Under Hill and (Dale v. Lappin, 376 F.3d 652 (7th Cir. 2004)), the prison’s refusal to provide the form suffices to show that Gooch did not have administrative remedies available. But he also attested that prison officials threatened and intimidated him to prevent him from reporting the defendants’ conduct. An administrative remedy that a prison is required to exhaust under the PLRA must be ‘available in fact and not merely in form,’” the court held, citing Schultz v. Pugh, 728 F.3d 619, 620(7th Cir. 2013).

“A remedy is not considered ‘available’ to an inmate who is prevented by threats or intimidation by prison officials from submitting a grievance according to the prescribed policies,” the court concluded.

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Jan. 25

Civil Plenary-Vaccine Mandate/Mootness

Ryan Klaassen, et al. v. Trustees of Indiana University

21-2326

A challenge to Indiana University’s COVID-19 vaccine mandate has been dismissed as moot after the final plaintiff who was not granted a vaccine exemption from IU withdrew from the school.

In a per curiam opinion, the 7th Circuit Court of Appeals remanded for the Indiana Northern District Court to dismiss the litigation first filed in June 2021 by eight IU students challenging the university’s vaccine mandate.

The Bloomington-based university imposed the mandate in May, requiring all students, faculty and staff to get a COVID vaccine. Exemptions are available for religious, medical and “ethical” reasons, but unvaccinated students are required to undergo regular COVID testing.

The Indiana Northern District Court upheld the mandate in July, ruling in a 101-page opinion that the 14th Amendment allows the school “to pursue a reasonable and due process of vaccination in the legitimate interest of public health.”

The students, represented by The Bopp Law Firm in Terre Haute, sought a stay in the 7th Circuit, which was denied. They then sought review by the U.S. Supreme Court, but that motion was also denied.

The students next returned to the 7th Circuit, arguing the mandate violated their rights to bodily autonomy and integrity and to medical choice — fundamental rights they said can only be infringed if a heightened standard of scrutiny is met. They argued the district court erred by upholding the mandate under rational review.

But of the eight students challenging the mandate, seven have received a religious exemption, while the eighth does not qualify for any exemption.

In the Jan. 25 opinion, the 7th Circuit noted that “standing depends on the eighth plaintiff, who does not assert that vaccination is religiously unacceptable.”

That plaintiff was identified in the opinion as Natalie Sperazza, who has withdrawn from the school. Asked about that issue at oral arguments, Sperazza submitted a declaration saying, “I have no plans to return as a student at Indiana University.”

“At the pre-briefing stage, plaintiffs told us that the suit is justiciable for two reasons: Sperazza’s status (now altered) and the fact that all plaintiffs contest the requirement that unvaccinated students wear masks and be tested regularly for COVID-19,” the three-page opinion says. “Their appellate brief ignores the mask-and-test requirement, however, so that aspect of the suit has been abandoned. Plaintiffs’ attempt to revive this subject in a post-argument memorandum comes too late.

“Plaintiffs nonetheless ask us to treat this litigation as justiciable because the subject is capable of repetition but evading review,” the opinion continues. “That contention is mistaken, for two reasons.”

The first reason is that the capable-of-retention doctrine only applies if the dispute can recur between the same parties. According to the 7th Circuit, “Given the religious exemption enjoyed by seven plaintiffs, and the withdrawal of the eighth, these plaintiffs will not be aggrieved by the University’s vaccination requirement in the future.”

Second, the vaccine mandate is not a “short-lived dispute” that can evade review.

“The problem in obtaining judicial review does not stem from an evanescent policy, whose application will be complete before a court can act,” the court held. “The obstacle to resolution of this suit is that the only plaintiff with standing withdrew from the University.

“The judgment of the district court is vacated, and the case is remanded with instructions to dismiss as moot.”

The case is Ryan Klaassen, et al. v. Trustees of Indiana University, 21-2326.

Indiana Supreme Court

Jan. 13

Juvenile-Juvenile Placement/Dismissal

I.J. v. State of Indiana

22S-JV-14

The Indiana Supreme Court has dismissed as moot a juvenile’s appeal challenging her placement at a residential treatment facility, doing away with an appellate decision it says may not correctly advise courts regarding competency-related treatment.

I.J., a 14-year-old girl, was ordered by the Marion Superior Court to be detained at a residential treatment facility while she received competency restoration services following numerous acts of domestic battery and criminal recklessness she committed against her mom, including an instance where she reportedly wielded a knife.

The state had filed petitions alleging I.J. was delinquent, but the trial court found her incompetent to have those petitions adjudicated. It therefore ordered that I.J. receive competency-restoration services at the Youth Opportunity Center, where she remained for 63 days.

Before the Court of Appeals of Indiana could review I.J.’s petition to accept jurisdiction over the interlocutory appeal she brought regarding the placement, the residential center was granted its request for I.J. to be removed from its facility.

“The Court of Appeals later implicitly acknowledged this appeal had become moot because I.J. had been released from YOC and the delinquency petitions dismissed without objection. But it declined the State’s request to dismiss the appeal as moot, and it affirmed the appealed order,” the high court wrote in a per curiam decision.

“While moot appeals ordinarily are dismissed, Indiana recognizes an exception that may be invoked when the appeal involves a question of great public importance that is likely to recur. … When appellate courts invoke this exception, it results in ‘decisions which are, for all practical purposes, advisory opinions.’

“… We grant transfer, vacating the Court of Appeals opinion, and dismiss this appeal because the appeal is moot and we are not convinced the opinion correctly advises courts regarding competency related treatment before Indiana Code Chapter 31-37-26 (addressing competency in the delinquency context) takes effect on December 31, 2022,” the high court concluded.

Chief Justice Loretta Rush and Justices Steven David, Mark Massa and Christopher Goff concurred in I.J. v. State of Indiana, 22S-JV-14, while Justice Geoffrey Slaughter concurred in the judgment to dismiss the appeal as moot.

Miscellaneous-Public Access/Personnel Files

WTHR-TV v. Hamilton Southeastern Schools and Rick Wimmer

21S-MI-345

A central Indiana school district that placed a football coach on unpaid leave failed to provide a local TV station with a sufficient factual basis for that discipline, the Indiana Supreme Court ruled Jan. 13 in a partial reversal. However, the high court upheld the ruling that the school district does not have to provide the TV station with the coach’s underlying personnel files.

The case of WTHR-TV v. Hamilton Southeastern Schools and Rick Wimmer, 21S-MI-345, centers on Rick Wimmer, who was a teacher and head football coach at Fishers High School in Hamilton Southeastern Schools. Wimmer was placed on paid leave in September 2016 following an incident with a student during class. The discipline was later converted to unpaid leave.

The situation made the news on WTHR-TV in Indianapolis, which filed a formal public records request for Wimmer’s personnel file under Indiana Code § 5-14-3-4(b)(8). That statute requires public agencies to disclose three types of information from personnel files: basic identifying information, information about formal charges and the “factual basis” for certain types of final discipline.

HSE responded with “a compilation of information in an email” but did not provide copies of the underlying personnel files. In its compilation, the school district disclosed that Wimmer was suspended for five days without pay in December 2016 “due to not implementing instructions for classroom management strategies consistent with Board of School Trustees Policy G02.06.”

Unsatisfied, WTHR sued the school district for copies of disclosable records and data comprising the factual basis for the discipline, as well as for the disclosure of the factual basis itself. The Hamilton Circuit Court ruled in HSE’s favor, finding that the TV station was not entitled to the underlying documents and that HSE had provided a sufficient factual basis.

The Court of Appeals of Indiana affirmed, finding that because I.C. 5-14-3-4(b)(8) identifies categories of information, the school district only had to provide the relevant information, not the underlying documents. Additionally, HSE’s factual basis was sufficient because, according to the COA, it “explained the type of disciplinary action that was taken, the date the discipline was imposed, the length of the discipline, and why the discipline was issued … .”

In the Jan. 13 opinion, the Supreme Court affirmed the trial court’s finding regarding the compiled information emailed to WTHR, but reversed on the issue of the factual basis.

Agreeing with the lower courts’ interpretation of I.C. 5-14-3-4(b)(8), Justice Mark Massa wrote for the unanimous Supreme Court that under the Indiana Access to Public Records Act, “specific information can be conveyed without providing the underlying documents.”

“The Act constantly references ‘information’ in personnel files, not documents,” Massa wrote. “The personnel file exception means that although public agencies generally do not have to disclose public employee personnel files, they must disclose certain categories of information found in those files.”

“Of course, the three categories of required information are exceptions to the general personnel file exception,” Massa continued, citing Unincorporated Operating Div. of Ind. Newspapers, Inc. v. Trs. Of Ind. Univ., 787 N.E.2d 893, 915 (Ind. Ct. App. 2003), trans. denied. “Thus, the information in those three categories is subject to Indiana Code section 5-14-3-3(a), which allows any person to ‘inspect and copy the public records of any public agency.’ This means that public agencies must allow the inspection and copying of public records that contain the required personnel file information.

“… When an agency compiles the required information into a new document, it creates a public record. If it allows a requester to inspect and copy that record, it has satisfied its obligations. Agencies must only turn over public records that retain the required information.”

Massa, a former journalist, added the act does not prohibit public agencies from turning over underlying documents, noting there are “strong public policy arguments” for doing. However, he said, “the legislature has only required agencies to turn over public records that contain certain types of personnel file information.”

But while HSE sufficiently conveyed the first two types of information required under I.C. 5-14-3-4(b)(8), the justices determined it failed to convey the third, a sufficient “factual basis” for Wimmer’s discipline.

The high court adopted the COA’s definition of “factual basis” as being a “fact-based account of what led to the discipline,” then determined that definition was not met in the instant case. What constitutes a factual basis will be a case-by-case determination, Massa said, but a public agency cannot satisfy that definition by making “bald conclusions.”

“HSE’s most comprehensive ‘factual basis’ was that ‘Mr. Wimmer was suspended for five days without pay on December 14, 2016 due to not implementing instructions for classroom management strategies consistent with Board of School Trustees Policy G02.06,” Massa wrote for the court. “It provides no facts about Wimmer’s actions that led to his suspension.

“… HSE’s ‘factual basis’ was merely a bald conclusion that Wimmer violated a broad policy,” the justice concluded. “It did not contain facts about Wimmer’s actions that would allow a reasonable person to understand why he was suspended. HSE’s ‘factual basis’ was insufficient.”

The case was remanded for further proceedings.

Court of Appeals of Indiana

Jan. 18

Domestic Relations-Dissolution of Marriage/Lawyer Disqualification

Robert E. Duff and Lydia Rockey v. Brian Rockey

21A-DR-1750

An Indiana attorney who was disqualified from representing his ex-wife in her post-dissolution matter from a previous marriage was not prevented from doing so a second time because the basis for his first disqualification no longer existed, the Court of Appeals of Indiana has ruled.

About 10 years after parents Lydia and Brian Rockey divorced in 2010, Lydia filed a contempt petition against the father alleging that he had denied her parenting time. Brian responded by petitioning to modify parenting time, and a guardian ad litem was appointed.

Fishers attorney Robert E. Duff of Indiana Consumer Law Group entered an appearance for Lydia in the matter in 2020 before Brian moved to disqualify Duff on grounds of violation of professional conduct rules. Lydia was married to Duff from 2013 to 2019 and at the time was pregnant with Duff’s child.

Specifically, Brian alleged that Duff’s representation of Lydia violated Professional Conduct Rule 3.7 and that Duff had spoken to the GAL on Lydia’s behalf about parenting time and would likely be a “necessary” witness at the parenting time hearing.

The Hamilton Circuit Court disqualified Duff and the parties subsequently came to an agreement about parenting time, eliminating the need for a hearing.

Eight months later, in June 2021, Brian sought reimbursement for his alleged overpayment of child support. Duff again entered an appearance for Lydia, to which Brian moved to disqualify Duff on the sole basis that he had been “previously disqualified from representing” Lydia. However, he raised no new grounds to support his motion.

The trial court again entered an order disqualifying Duff and certified the issue for interlocutory appeal. But the Court of Appeals of Indiana reversed and remanded, finding the trial court abused its discretion in Robert E. Duff and Lydia Rockey v. Brian Rockey, 21A-DR-1750.

“After parties divorce, post-dissolution issues can crop up at different times, even years apart,” Judge Nancy Vaidik wrote for the COA. “These issues can be vastly different, requiring different evidence and witnesses. Given this reality, an attorney disqualified from one post-dissolution matter is not automatically disqualified from a second, later arising post-dissolution matter if the basis for the first disqualification no longer exists. This is especially so considering motions to disqualify under Rule 3.7 are viewed with caution given the potential for abuse.

“… Because the second post-dissolution matter is different from the first post-dissolution matter and the basis for the first disqualification no longer existed, the trial court abused its discretion in disqualifying Attorney Duff from representing Mother in the second post-dissolution matter,” Vaidik concluded.

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Jan. 20

Civil Plenary-Public Disclosure/Attorney Fees

Holli Sullivan, Secretary of State, in her Official Capacity v. National Election Defense Coalition

21A-PL-349

A nonprofit that secured judgment against the Indiana secretary of state after documents related to election security were withheld has also been awarded appellate attorney fees.

In January 2021, Marion Superior Judge Heather Welch ordered then-Indiana Secretary of State Connie Lawson’s office to pay the National Election Defense Coalition attorney fees totaling $48,683.20 and costs totaling $219.95, for a total award of $48,903.15. NEDC, a nonpartisan nonprofit whose stated mission is to promote secure, reliable and transparent elections, received the award after suing the Indiana secretary of state for not complying with the Indiana Access to Public Records Act.

The nonprofit had alleged in June 2019 that the office repeatedly denied or delayed turning over emails and attachments that would support Lawson’s “frequently issued statements” about the security and trustworthiness of voting systems in the United States, made in her role as president of the National Association of Secretaries of State. The secretary had asserted that the correspondence between herself and NASS were exceptions to the Indiana Access to Public Records Act, but Welch ordered the Secretary of State’s Office in June 2020 to give to the court the materials it had been withholding under the counterterrorism exception.

The court subsequently issued an order telling Lawson to turn the documents over to NEDC with limited redactions, and to pay attorney fees and costs.

The secretary of state — now Republican Holli Sullivan — appealed Welch’s decision, but the Court of Appeals of Indiana affirmed, finding the trial court did not err in ordering the disclosure of the documents.

“The trial court found that the Secretary failed to meet its burden of showing that documents were excepted from disclosure because they are trade secrets. We agree,” Judge Margret Robb wrote.

The COA found that the secretary simply made conclusory statements that the emails at issue met each of the elements of a trade secret. It also concluded that the secretary did not designate any evidence to establish the content of the records with adequate specificity, nor in support of its assertions that NASS derives economic value from the content of the emails.

The appellate judges also noted NASS was the party that would suffer the greatest harm by disclosure of its trade secret information, and the fact that it did not intervene “strongly suggests that the information at issue does not meet the requirements for the trade secret exemption[.]”

The COA ruled similarly on the deliberative materials discretionary exception. It found that the secretary had not shown that the particular records requested by NEDC were intra-agency communications, or that they contained expressions of opinion or were speculative in nature and communicated for the purpose of decision-making.

It also agreed with the trial court on the public safety exception in Holli Sullivan, Secretary of State, in her Official Capacity v. National Election Defense Coalition, 21A-PL-349.

“Synthesizing the approaches of our sister states with our own statute and rules of statutory construction, we conclude that where a class of documents closely resembles the records listed as examples of protected documents in our public safety exception, they are more likely to fall within the exception and proof they do meet the exception need not be as detailed,” Robb wrote for the appellate court. “… However, regardless of the record sought, the public agency cannot simply rely on its own assessment of the documents and the likely risks and consequences of disclosure or a conclusory or speculative statement that disclosure has a reasonable likelihood of threatening public safety by exposing a vulnerability to terrorist attack.”

The COA agreed with the trial court that the secretary did not met its burden of showing that the majority of the withheld documents were “[i]nfrastructure records that disclose the configuration of critical systems such as voting system and voter registration system critical infrastructure,” or other records, the disclosure of which “have a reasonable likelihood of threatening public safety by exposing a vulnerability to terrorist attack.”

Finally, the court concluded NEDC is entitled to reasonable trial and appellate attorney fees.

The court rejected as “too broad” the secretary’s reading of Anderson v. Huntington Cnty. Bd. of Comm’rs, 983 N.E.2d 613 (Ind. Ct. App. 2013), trans. denied, in its argument that NEDC did not “substantially prevail” because the trial court found on summary judgment that NEDC’s request for records was not reasonably particular.

Thus, the COA remanded for the trial court to determine and award reasonable appellate attorney fees and costs to NEDC.•