Opinions July 27, 2022

Court of Appeals of Indiana
William F. Braun Milk Hauling, Inc., and Joseph Daugherty v. Peggy Malanoski
22A-CT-333
Civil tort. Affirms the denial of William F. Braun Milk Hauling Inc. and Joseph Daugherty’s motion to dismiss a complaint filed by Peggy Malanoski following a car accident involving Malanoski and a semi-tractor and trailer driven by Daugherty. Finds Malanoski timely filed her complaint in light of the Indiana Supreme Court’s March 13 and 23, 2020, orders that tolled the statutes of limitations in response to the COVID-19 pandemic.

Richard A. Means II v. State of Indiana
21A-CR-2570
Criminal. Dismisses Richard Means’ appeal of the order from the Hendricks Superior Court granting the state’s motion in limine. Finds the issue of the trial court’s preliminary determination regarding the admissibility of the CHINS order at Means’ upcoming trial was not ripe for appellate review.

Kurt Wertz v. State of Indiana (mem. dec.)
21A-CR-456
Criminal. Grants petition for rehearing, vacates the Court of Appeals’ April 29, 2022, decision dismissing Kurt Wertz’s appeal and reverses the Montgomery Circuit Court’s denial of Wertz’s motion for sentence modification. Finds the trial court erred with respect to its finding that the sentences under Cause Nos. 51 and 50 were ordered consecutively and its reliance on a disciplinary report of rioting, which was vacated by the U.S. District Court for the Southern District of Indiana. Remands for the trial court to hold another hearing to determine the merits of Wertz’s petition for sentence modification. Judge Derek Molter dissents with separate opinion.

Naison Jean v. State of Indiana (mem. dec.)
21A-CR-1711
Criminal. Affirms Naison Jean’s conviction of Level 4 felony burglary. Finds the Daviess Superior Court did not err by determining that Jean had knowingly and intelligently waived his right to counsel. Also finds Jean has not met his burden of showing prosecutorial misconduct and fundamental error.

Roger Dale Robinson v. Sharon Dawn Robinson (mem. dec.)
21A-DR-1849
Domestic relations. Affirms the denial of father Roger Dale Robinson’s petition to modify child support. Finds ample evidence supports the Orange Superior Court’s judgment.

David Pannell v. Janna Carey, et al. (mem. dec.)
21A-PL-2224
Civil plenary. Dismisses David Pannell’s appeal of the denial of his motion to amend his complaint against four Indiana Department of Correction employees and his motion to correct error. Finds the motion to correct error was untimely.

Darren Lavar Taylor v. State of Indiana (mem. dec.)
21A-CR-2371
Criminal. Reverses the enhancement imposed on Darren Lavar Taylor for using a firearm during the commission of offenses including two counts of felony murder and one count of Level 3 felony armed robbery. Finds Taylor did not personally waive his right to trial by jury during the use-of-a-firearm sentence enhancement phase of his trial. Also finds the Lake Superior Court erred by conducting a bench trial. Remands with instructions to proceed to a new trial limited to the enhancement charge.

In Re: The Termination of the Parent-Child Relationship of A.M. and N.M. (Minor Child); C.M. (Mother) v. Indiana Department of Child Services (mem. dec.)
21A-JT-2734
Juvenile termination of parental rights. Affirms the termination of mother C.M.’s parent-child relationships with A.M. and N.M. Finds there is sufficient evidence to support the Fountain Circuit Court’s decision to terminate the parent-child relationships.

Homer W. Faucett III v. State of Indiana (mem. dec.)
22A-CR-10
Criminal. Affirms Homer Faucett III’s convictions of Class A misdemeanor operating a motor vehicle while intoxicated and endangering a person and Class C infraction failure to signal for turn or lane change. Reverses Faucett’s conviction for Class C misdemeanor operating a vehicle while intoxicated. Finds Faucett’s Class A and Class C misdemeanor convictions violate double jeopardy principles. Also finds there was sufficient evidence to support Faucett’s remaining convictions. Remands with instructions to vacate the Class C misdemeanor conviction.

Phillip E. Beeks, Jr. v. State of Indiana (mem. dec.)
22A-CR-93
Criminal. Affirms the revocation of Phillip E. Beeks Jr.’s probation. Finds the Huntington Superior Court did not abuse its discretion.

Jesse Adkins v. State of Indiana (mem. dec.)
22A-CR-166
Criminal. Affirms Jesse Adkins’ three-year aggregate sentence for his convictions of Level 5 felony burglary and Class A misdemeanor attempted theft. Finds Adkins has not carried his burden of proving that the placement of his fully-executed sentence is inappropriate based upon his character and the nature of his offenses.

Shaheen Zamani v. State of Indiana (mem. dec.)
22A-PC-263
Post-conviction. Affirms the denial of Shaheen Zamani’s petition for post-conviction relief. Finds Zamani has not shown that he was denied the effective assistance of trial counsel or that he was denied his right to due process. Also finds the post-conviction court did not clearly err when it denied his PCR petition.

Joshua T. Bladen v. State of Indiana (mem. dec.)
22A-CR-398
Criminal. Affirms the sanction imposed on Joshua T. Bladen — the revocation of the balance of his suspended sentence and the order for him to serve 752 days — for violating the terms of his probation. Finds the Ripley Superior Court did not abuse its discretion.

Murphy Enterprises, Inc. v. The Board of Zoning Appeals for Floyd County, Indiana (mem. dec.)
22A-PL-584
Civil plenary. Affirms the grant of a Trial Rule 41(E) motion to dismiss filed by the Board of Zoning Appeals for Floyd County in a dispute with Murphy Enterprises Inc. Finds Murphy has waived its claim that Trial Rule 41(E) does not apply to judicial review of zoning decisions for failure to raise it to the trial court. Also finds the Floyd Circuit Court did not abuse its discretion when it dismissed Murphy’s petition for judicial review for failure to prosecute.