Indiana Court Decisions: Dec. 14-27, 2023

7th Circuit Court of Appeals

Published Dec. 13, posted to theindianalawyer.com Dec. 14

Chadrick Fulks v. T. J. Watson, et al.

22-3308

Death row inmate’s falsified document, perjury justified dismissal of sexual assault claim, 7th Circuit affirms

A district court’s dismissal of a death row inmate’s lawsuit that alleged sexual assault by a prison medical director was an appropriate sanction given the inmate’s litigation misconduct, the 7th Circuit Court of Appeals affirmed.

Senior Judge Diane Wood wrote the opinion in Chadrick Fulks v. T.J. Watson, et al., 22-3308.

According to court records, Chadrick Fulks is an inmate on death row at the federal prison in Terre Haute.

Fulks alleged that in September 2018, after his capital defense attorneys complained about the adequacy of the medical care he was receiving for his chronic back issues, Dr. William Wilson, who was then the medical director at the penitentiary, drugged him and, while Fulks was incapacitated, sexually assaulted him.

He also alleged that the other defendants assaulted him and prevented him from getting needed medical care in order to cover up the sexual assault.

Fulks promptly filed grievances against two prison employees, and he alerted a sexual assault reporting service, his attorneys and his spiritual adviser about the alleged incident. He also called a sexual assault hotline and wrote to the U.S. Attorney’s Office.

Later that month, Fulks complained to the Bureau of Prisons that Wilson had failed to treat his back pain and had not provided needed medication for him.

Then-Acting Complex Warden T.J. Watson denied the grievance, and the bureau’s regional director affirmed that decision.

Fulks appealed to the bureau’s central office.

This time, he again sought medication for his back pain, but he also detailed his sexual assault allegation against Wilson.

The office’s administrator of national inmate appeals found no flaw in the doctor’s decision not to prescribe medication and referred the allegation of sexual assault to the appropriate office for review.

In October 2019, Fulks, acting pro se, initiated the instant lawsuit against six prison officials, including Watson, Wilson, Lt. J. Sherman, nurse Michelle Smith, and officers Aaron Johnson and Bradley Hammon.

His complaint raised a number of claims, not all of which were related to one another. He relied for the most part on the private right of action supplied by Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971).

The defendants moved to dismiss all but his Eighth Amendment claims against Wilson for the alleged assault and failure to treat his chronic back pain.

Specifically, they contended that the following counts failed to state a claim upon which relief could be granted: a claim under the Religious Freedom Restoration Act against the warden; an Eighth Amendment excessive force claim against Hammon; an Eighth Amendment failure-to-protect claim against the warden and Johnson; and Eighth Amendment claims for deficient medical care against the warden, Lt. Sherman and Smith.

The defendants argued they were entitled to summary judgment on those claims because Fulks failed to comply with the exhaustion requirements of the Prison Litigation Reform Act.

In support of their motion, the defendants argued that Fulks’ allegations of retaliation and unconstitutional conditions of confinement lay outside the traditional scope of the Bivens remedy, and that special factors counseled against extending Bivens to cover them.

The court concluded that Fulks had not exhausted the RFRA claim and permitted the Eighth Amendment claims against Wilson for the alleged assault and failure to provide proper medical care to go forward.

The remaining claims required a hearing.

According to the Indiana Southern District Court’s order dismissing Fulks’ action, Fulks alleged the grievance process was unavailable to him and presented as evidence a purported BP-8 form with the words, “This is not a grievable issue,” written on it.

In their reply, the defendants said the purported form “reek[ed] of illegitimacy.”

The court determined that there was a genuine issue of material fact as to whether the administrative remedy program was available to Fulks and ordered a Pavey hearing.

A forensic document examiner called by the defendants at the hearing testified that the purported BP-8 form was created by photocopying a statement that an officer had written on an unrelated blue note.

After the hearing, the district court sustained the defense’s exhaustion defense and concluded the defendants had met their burden of proof by showing that administrative remedies were available to Fulks. The court also concluded Fulks knowingly produced a falsified document and perjured testimony to support his claim that the administrative remedy process was unavailable to him.

It thus found that dismissal of Fulks’ action with prejudice was an appropriate sanction.

The 7th Circuit agreed.

In her opinion, Wood noted that Fulks submitted the forged document in response to a dispositive pretrial motion and, despite ample opportunity to withdraw his unexhausted claims, lied at the Pavey hearing when he insisted that the document was genuine.

“Because of his dishonesty, the district court recruited counsel and the defendants devoted time and energy to a hearing that could have been avoided,” she wrote. “The defendants spent over $8,000 to retain an expert to analyze the purported BP-8 and refute Fulks’s false testimony.”

Further, the district court properly considered other sanctions before settling on dismissal, Wood wrote.

Fulks had proposed three additional sanctions that would have been appropriate.

“But these proposals come too late in the day, and their mere existence does not show that the court abused its discretion in the measure it chose,” Wood concluded.

Judges Michael Scudder and Amy St. Eve concurred.

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Dec. 18

United States of America v. Henry Underwood

23-1303

Firearm conviction, criminal contempt upheld for defendant who proceeded pro se

A defendant who unsuccessfully defended himself in federal court and who was found in criminal contempt for refusing to answer a prosecutor’s question did not find any relief from his firearm conviction or the contempt finding at the 7th Circuit Court of Appeals.

Defendant-appellant Henry Underwood was indicted in 2020 on a charge of being a felon in possession of a firearm after a 2019 shooting in Fort Wayne. Police had discovered a loaded gun under Underwood’s seat in a vehicle suspected to have been at the scene, and ammunition was also recovered.

Underwood was appointed counsel, but his attorney withdrew several months before trial, citing differences of opinion. He requested to proceed pro se, and after questioning by the magistrate judge, he was permitted to do so.

“Representing himself, Underwood actively participated in pretrial proceedings, filing and responding to motions and issuing subpoenas,” according to the 7th Circuit. “At trial, he cross-examined witnesses and called several others on his own behalf while regularly conferring with standby counsel.”

One issue at trial was whether Underwood actually had a gun at the December 2019 shooting. Taking the stand in his own defense, he claimed someone else had possession of it.

But when the prosecutor asked Underwood on cross-examination the name of the person who had the gun, he refused to answer, pleading the Fifth.

The judge informed Underwood that the Fifth Amendment did not protect him from incriminating someone else, and he was warned that refusing to answer could result in criminal contempt. But Underwood continued to refuse to provide a name.

The jury ultimately found him guilty, and the district judge issued a contempt order. He was sentenced to eight years for the firearm offense plus an additional six months for criminal contempt.

On appeal to the 7th Circuit, Underwood first argued that he did not knowingly and voluntarily waive his right to counsel.

The appellate court disagreed.

“Here, the magistrate judge’s inquiry, though not as thorough as it might have been, adequately informed Underwood of the dangers of self-representation,” Judge Amy St. Eve wrote in United States of America v. Henry Underwood, 23-1303. “It would have been preferable for the magistrate judge to have reiterated the penalties Underwood faced to underscore the gravity of his decision.

“Nevertheless, the magistrate judge did warn Underwood that proceeding pro se ‘is nearly always unwise,’ that he ‘may conduct a defense to [his] disadvantage,’ that the government had professional attorneys, and that he too could have a knowledgeable and professional attorney,” St. Eve continued. “He also admonished Underwood that he would not be treated more leniently or held to a different standard with respect to rules of law and procedure simply because he was representing himself, and he would be expected to know and comply with those rules.”

The 7th Circuit further rejected Underwood’s argument that the district court should have listed specific defenses for him, finding Von Moltke v. Gillies, 332 U.S. 708, 724 (1948), did not require the court to do so.

But the appellate court added, “Although not mandated for a (Faretta v. California, 422 U.S. 806, 807 (1975)) colloquy, we remind judges that the Benchbook for United States district court judges provides the relevant questions and topics about which criminal defendants seeking to represent themselves should be informed. … We encourage presiding judges to rely on this list of questions as a guide.”

Aside from the magistrate’s formal inquiry, the 7th Circuit also determined that evidence of Underwood’s understanding, his background and experiences, and his reason for waiving his right to counsel support a finding that he knowingly and voluntarily waived that right.

Underwood also appealed the district court’s summary disposition of criminal contempt, but the appellate court upheld that disposition under Federal Rule of Criminal Procedure 42(b).

“Because Underwood improperly refused to testify on cross-examination in the judge’s presence, the literal requirements of Rule 42(b) are met,” St. Eve wrote. “He already had waived his Fifth Amendment right against self-incrimination by choosing to testify. Once he took that step, he could not validly refuse to answer questions relevant to his testimony, including the prosecutor’s question about the name of the person he claimed had the gun that day in December 2019.

“… Even if Underwood could have invoked his Fifth Amendment right against self-incrimination here, he repeatedly admitted the answer he refused to give would not incriminate himself,” St. Eve continued. “The answer, he explained, might incriminate someone else instead, and he refused to be a ‘snitch.’ But the Fifth Amendment does not protect against incriminating others; when properly invoked, it only shields the witness from being forced to testify to relevant information that might be self-incriminating.

“… The district court judge warned Underwood multiple times of the consequences he might face if he continued to refuse to answer the question, including the possibility of criminal contempt, fines, and a sentence of up to six months,” the 7th Circuit concluded. “In the context of summary contempt, due process requires no more.”

Indiana Supreme Court

Published Dec. 13, posted to theindianalawyer.com Dec. 14

Brent Taylor v. Allen County Board of Commissioners, et al.

23S-CT-378

COA prematurely dismissed inmate’s appeal, justices rule in reversal

The Court of Appeals of Indiana prematurely dismissed an inmate’s appeal of the entry of judgment in favor of the Allen County public defenders he was suing, the Indiana Supreme Court ruled in reversing the dismissal.

The appeal at issue was filed by Brent Taylor, an inmate at the Indiana State Prison who sued the Allen County Board of Commissioners, the Allen County Public Defender’s Office and two individual public defenders.

In a pro se complaint filed in August 2021, Taylor alleged that his public defender, Gregory Fumarolo, “broke his legal contract and duty with (Taylor)” by preventing him from “presenting testimony of key witnesses that would have been allowed had he followed the proper pre-trial procedures, failed to investigate key witnesses, and failed to provide (Taylor) with compulsory process to obtain key witnesses, and failed to prepare an (sic) assist (Taylor) with the sentencing portion of the legal proceedings.”

The trial court dismissed Taylor’s action against the Board of Commissioners and granted judgment on the pleadings to the Public Defender’s Office and the individual public defenders.

He then appealed, filing his appellant’s brief and appendix on June 7, two days before the June 9 deadline.

The appellate clerk issued a Notice of Defect giving Taylor 20 days to submit corrected documents. But three days later, the Court of Appeals dismissed Taylor’s appeal with prejudice.

Taylor then sought transfer, which the Supreme Court granted in reversing the dismissal of his appeal.

“The record here indicates that Taylor timely tendered his brief and appendix, and he had twenty days from the date on the Notice of Defect to cure the defects in those documents, making them due by July 19, 2023,” the justices wrote in a per curiam opinion. “The record also shows the Notice of Defect’s deadline had not yet expired at the time Taylor’s appeal was dismissed.

“… Under these circumstances, we find Taylor’s appeal was prematurely dismissed,” the justices wrote. “We grant transfer, vacate the Court of Appeals’ order dismissing Taylor’s appeal, and remand for the Court of Appeals to resume jurisdiction over this appeal.”

All justices concurred in Brent Taylor v. Allen County Board of Commissioners, et al., 23S-CT-378.

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Dec. 19

In the Matter of Marco Antonio Genesis Moreno

22S-DI-413

Indy attorney disbarred after ‘abandoning’ his practice

An Indianapolis attorney has been disbarred for his lengthy history of misconduct, which includes charging and collecting unreasonable fees, engaging in deceitful behavior and ultimately abandoning his immigration law practice.

Marco Antonio Genesis Moreno had been suspended multiple times before his disbarment in In the Matter of Marco Antonio Genesis Moreno, 22S-DI-413.

According to the per curiam opinion issued by the high court, over the course of a year starting in August 2021, Moreno effectively abandoned his immigration law practice in Marion County.

Eleven clients and one attorney filed grievances against him for similar misconduct including:

• Failing to be competent and diligent in his representation.

• Failing to communicate.

• Charging unreasonable fees.

• Failing to properly end his representation upon termination.

• Engaging in deceitful behavior.

“Respondent’s neglect had adverse consequences for several clients and required the clients to hire successor counsel to remediate the harms Respondent caused. Respondent additionally failed to respond to the Commission’s demands for information concerning the grievances, prompting the initiation of numerous show cause proceedings and, eventually, an indefinite suspension for serial noncooperation that remains in effect,” the opinion stated.

The high court summarized some of the more egregious counts of misconduct, which were taken from a disciplinary complaint comprising 34 pages and 225 rhetorical paragraphs.

In one example, “Client 1,” a Korean national married to “Husband,” retained Moreno to prepare a permanent residency application for her, paid the attorney $5,410 and provided Moreno with all the necessary documentation.

The client attempted to contact Moreno numerous times by phone and email, but without success.

During that time, Moreno changed the domain name of his email address without informing the client.

After she was unable to contact Moreno, the client contacted the United States Citizenship and Immigration Services office directly and learned that none of the documentation she had provided to Moreno had been submitted.

The client retained successor counsel and filed a grievance with the Indiana Supreme Court Disciplinary Commission.

Shortly after, USCIS notified the client that it had received an application submitted on her behalf, even though her successor counsel had not yet prepared or submitted anything. The agency later sent the client a request for evidence referencing her husband’s signature on a form that the husband was not eligible to submit. The husband had neither signed nor submitted the form.

The successor counsel’s numerous attempts to contact Moreno about the request for evidence and to obtain a copy of the client’s file were unsuccessful.

Moreno also failed to comply with the commission’s subpoena duces tecum for the client’s file and, in response to a separate grievance filed by the successor counsel, failed to address the authenticity of the husband’s signature.

Another client paid Moreno $5,000 to prepare U-visas — residency visas for victims of violent crime and human trafficking — for his family, as well as some temporary work visas.

That client’s last contact with Moreno occurred in December 2021, when Moreno falsely told him that his pending matters were progressing as expected with USCIS.

Moreno did not prepare any work product for the client’s family, and the client never received a receipt number from USCIS for any pending immigration matters concerning his family.

The client was unable to contact Moreno at any point after December 2021, and Moreno failed to respond to the commission’s investigation of the client’s grievance.

In December 2022, the Disciplinary Commission filed its 11-count complaint against Moreno.

After Moreno failed to timely file an answer, the commission filed a motion for judgment on the complaint, which the hearing officer granted following a hearing.

The high court concurred in the hearing officer’s findings of fact and concluded that Moreno violated the following Indiana Professional Conduct Rules prohibiting the following misconduct:

• 1.1: Failing to provide competent representation.

• 1.3: Failing to act with reasonable diligence and promptness.

• 1.4: Failing to keep a client reasonably informed about the status of a matter and respond promptly to reasonable requests for information.

• 1.5(a): Making an agreement for, charging or collecting an unreasonable fee.

• 1.16(d): Failing to protect a client’s interests upon termination of representation.

• 8.1(b): Failing to timely respond to the commission’s demands for information.

• 8.4(c): Engaging in conduct involving dishonesty, fraud, deceit or misrepresentation.

• 8.4(d): Engaging in conduct prejudicial to the administration of justice.

“Respondent already is under suspension orders for serial noncooperation and failure to fulfill his continuing legal education requirements,” the justices wrote. “For Respondent’s professional misconduct, the Court disbars Respondent from the practice of law in this state effective immediately.”

With his disbarment, Moreno is ordered fulfill all the duties of a disbarred attorney under Admission and Discipline Rule 23(26), and the costs of the proceeding will be assessed against him.

All justices concurred in the opinion.

According to the Indiana Roll of Attorneys, Moreno was admitted to the Indiana bar in October 2003. The Roll of Attorneys lists 12 completed disciplinary actions against him.

Court of Appeals of Indiana

Dec. 19

Gerard M. Dierckman v. Sandra E. Dierckman

22A-DN-2801

Wife’s sole efforts in saving farm, reducing debts justifies real estate award in divorce, COA affirms

A wife’s ability to refinance secured debt on farm property and make an equalization payment made it “just and reasonable” to award all real estate to her in a divorce case, the Court of Appeals of Indiana affirmed.

According to court records, Gerard and Sandra Dierckman were married in 1987.

Over the course of the marriage, the Dierckmans acquired farmland in Rush and Decatur counties. All the land was held jointly by the husband and wife as a sole proprietorship.

In October 2018, Gerard was arrested and charged with strangulation and domestic battery of his wife. Following a jury trial, he was found guilty of strangulation, pleaded guilty to the domestic battery charge and was sentenced to a year in jail.

Then in December 2019, Sandra filed for divorce.

The parties’ sons, along with their wives, continued to help Sandra operate the farm, and she also helped the sons with their own farms.

In retaliation for Sandra’s refusal to “drop the divorce,” Gerard refused to provide his necessary participation to extend the Citizen’s Union Bank operating line of credit for the farm for the year 2020. The line of credit was not extended, but farm mortgage payments were still due.

Following a hearing, the Decatur Circuit Court entered a provisional order granting Sandra exclusive use, possession and control of the “marital real estate” — which included the farm and farming equipment — pending a final determination on dissolution. She was also ordered to “timely pay the monthly mortgage, taxes[,] and insurance.”

Since March 2020, Sandra has been solely legally responsible for the operation of the parties’ 1,500-acre farm, including making all decisions, managing finances, maintaining the Agri Business Finance line of credit and delivering grain.

While the dissolution proceedings were pending, Sandra used proceeds from the farming operation to pay down the parties’ marital debts. As of October 2021, she had reduced the debts by $941,728, and by August 2022, she had increased the debt reduction to $1,260,563.

During the dissolution proceedings, Sandra also used farm proceeds to pay Gerard $70,393 for his personal expenses.

In its final dissolution order, the trial court held that, per Sandra’s agreement, the parties’ marital estate would be divided evenly between them. It also found it was “just and reasonable to award all real estate to Wife along with the corresponding secured debt, subject to an equalizing payment.”

The court awarded Sandra the value of the farm equipment, inventory, accounts receivable and bank accounts and ordered her to pay Gerard an equalization payment of “$4,974,222.45 less the personal expenses she paid on his behalf [of] $70,393.00, for a net judgment of $4,903,829.45.”

Gerard appealed, arguing that the trial court’s findings were clearly erroneous and that the court erred in the valuation dates that were chosen for the marital assets.

He also argued the trial court erred in valuing the marital debt as of the date of the petition for dissolution, and erroneously reduced Sandra’s equalization payment by the amount she paid him for his personal expenses incurred during the dissolution proceedings.

The Court of Appeals affirmed in full, with Judge L. Mark Bailey writing for the appellate court.

Bailey noted that the trial court did not find fault with Gerard, but rather discussed his poor relationships with his wife, his sons, and the lenders and vendors as evidence that it was unlikely that he would be able to refinance the secured debt and make an equalization payment to his wife if the real estate were awarded to him.

“The fact that Husband’s poor and erratic behavior continued during the proceedings is further evidence of his likely continuing inability to secure the assistance he would need to take over the farm operations,” Bailey wrote.

Although Gerard challenged the factual finding that he failed to present evidence of his ability to qualify for refinancing of the approximately $5.5 million of debt for the farm mortgage and equipment, the trial court correctly found that Gerard’s 2021 income tax return showed he had a gross income of only $2,619 that year, the COA ruled. Unlike his wife, Gerard did not provide any evidence that he would be approved for an adequate loan if the court entered an order giving him exclusive use and possession of the property, Bailey wrote.

The appellate judge also disagreed with the husband’s allegations that the trial court erred by excluding from the marital estate alleged appreciation of the value of the real estate, and erroneously excluded farm inventory, farm accounts receivable and farm income allegedly accrued during the pendency of the dissolution proceedings.

Bailey wrote that the only evidence regarding possible appreciation of the land pending the final dissolution hearing was the parties’ testimonies that they believed the market price of farmland in the area had increased during that time.

“The trial court did not err in refusing to credit the parties’ anecdotal testimony over the appraised values or in finding that anecdotal testimony insufficient to support a finding of increased value,” Bailey wrote.

Further, the COA held that the evidence established that the farm income in the years 2019 through 2022 was produced solely through Sandra’s efforts and not at all through Gerard’s efforts, as Gerard was incarcerated during the year 2019 and did not help at all with the farm operations during that year or at any time thereafter.

“Therefore, there was a rational basis for the trial court’s failure to divide the 2019 and 2020 farm income between the parties,” Bailey wrote. “Any error in the failure to include that income in the marital pot was harmless, as the evidence supported an award of that income to Wife.”

Bailey also dismissed Gerard’s argument regarding the date of valuation the trial court chose for the marital debts as well as his argument that the trial court erred in how it reduced Sandra’s equalization payment.

The appellate judge pointed out that the husband’s expenses were paid using income from the farm that his wife obtained through her own efforts alone and despite his refusal to cooperate in obtaining refinancing of the farm.

“There is nothing inequitable in crediting Wife with the amount she paid for Husband’s personal expenses with farm income that she, alone, produced while the dissolution was pending,” Bailey wrote.

Judges Melissa May and Paul Felix concurred.

The case is Gerard M. Dierckman v. Sandra E. Dierckman, 22A-DN-2801.

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Maria del Carmen Casimiro Murietta v. Guillermo Fernandez Romero

23A-DC-193

COA splits, reverses in divorce case after ‘flagrant injustice’ to pro se wife

A trial court should have admitted a woman’s prenuptial agreement into evidence in her divorce case, and its failure to do so resulted in a “flagrant injustice,” a split Court of Appeals of Indiana ruled in a reversal.

According to court records, Maria del Carmen Casimiro Murietta and Guillermo Fernandez Romero were married in January 2016.

Prior to their marriage, Murietta and Romero had entered into a prenuptial agreement, which indicated that all property owned by Murietta prior to the marriage would not be considered part of the marital estate in the event of divorce.

On Dec. 9, 2021, Murietta filed for divorce. She was initially represented by counsel, who was forced to withdraw her representation after being suspended from the practice of law.

Murietta claimed to have provided counsel with numerous documents, including the prenuptial agreement.

She was then represented by subsequent counsel, who filed a motion to withdraw from representation prior to the evidentiary hearing, citing a breakdown of attorney-client communication.

Later, at a virtual evidentiary hearing in the Marion Superior Court, Murietta appeared pro se. Romero was represented by counsel.

Murietta indicated that she was ready to proceed, but it was clear from her statements to the court that she was unfamiliar with the legal process and the terminology used by the court.

Notably, she did not appear to have understood that presenting relevant documents — namely, the prenuptial agreement — to her attorney was not sufficient to ensure judicial review of the document.

Once it became clear to Murietta that submitting the agreement to her counsel had not been sufficient, she attempted to submit the agreement into evidence, but the trial court declined.

The court then issued a dissolution decree that included property that had been owned by Murietta prior to the parties’ marriage and ordered an equal division of the marital estate.

Murietta filed a motion to correct error, which the trial court denied.

She appealed.

The Court of Appeals reversed and remanded for a new trial where the prenuptial agreement could be presented for consideration, assuming a proper foundation for its admission can be met. The appellate court ruled the trial court had abused its discretion in denying Murietta’s motion to correct error.

Judge Cale Bradford wrote the opinion for the appellate court.

According to Bradford, the record reveals that Murietta’s motion made a very strong case that she was entitled to relief because the trial court’s judgment had resulted in a flagrant injustice to her.

“While she did not tender the Agreement as evidence during her case-in-chief, Maria made multiple references to it. She also attempted to tender the Agreement at the end of the hearing once she apparently came to understand that it had not previously been submitted to the court. At this point, the trial court simply denied her attempt to submit the Agreement with no further inquiry,” Bradford wrote.

While pro se litigants are generally held to the same standard as an attorney, the Indiana Supreme Court has indicated that a trial court may, under some circumstances, take steps necessary to prevent a good faith pro se litigant, like Murietta, from being placed at an unfair disadvantage, Bradford wrote, citing Zavodnik v. Harper, 17 N.E.3d 259 (Ind. 2014).

The appellate judge added that while Murietta had rested her case when she ultimately attempted to submit the prenuptial agreement, the evidentiary hearing had not concluded and the trial court easily could have allowed limited questions relating to the agreement.

“Based on the particular facts and circumstances of this case, we conclude that the trial court abused its discretion by failing to admit the Agreement into evidence when tendered to the court by Maria,” Bradford concluded.

Judge Nancy Vaidik concurred.

But Judge Elaine Brown dissented with a separate opinion.

Brown wrote that she would find Murietta’s motion was a motion for relief from judgment pursuant to Indiana Trial Rule 60(B)(1), and the erroneous belief that her prior attorney had presented the agreement did not constitute mistake or excusable neglect.

Further, according to Brown, even if Murietta’s motion were a motion to correct error, it did not comply with Indiana Trial Rule 59(H)(1).

“A party may not offer by affidavit, in connection with his or her motion to correct errors, evidence which he or she neglected to present at the prior proceeding,” Brown wrote, citing Collins v. Dunifon, 323 N.E.2d 264, 268 (Ind. Ct. App. 1975).

The case is Maria del Carmen Casimiro Murietta v. Guillermo Fernandez Romero, 23A-DC-193.

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Dec. 20

Dallas Dale Hoback v. State of Indiana

23A-CR-411

Split COA reverses denial of motion for discharge

A trial court should’ve granted a man’s motion for discharge after his drug-related trial was continued multiple times, a split Court of Appeals of Indiana ruled in a reversal.

In March 2018, Dallas Dale Hoback was charged with Level 6 felony possession of methamphetamine, Level 6 felony possession of a narcotic drug and Class C misdemeanor possession of paraphernalia.

At a January 2019 status conference, Hoback informed the court that plea negotiations were happening but also asked for a trial date. The Clark Circuit Court scheduled a jury trial for April 2019.

A plea offer was tendered at a pretrial conference in January 2019. That April, the chronological case summary noted a new status conference date of June 5, and it noted that the jury trial had been canceled, although it did not disclose why or on whose motion.

The case was continued multiple times due to the nonappearance of defense counsel and Hoback’s request for new dates. The plea hearing was continued several times, as well, until Hoback eventually withdrew from the plea in October 2020.

After a series of events including defense continuances, the entry of another plea agreement and another withdrawal of the plea, court congestion findings and public health emergency orders due to COVID-19, the jury trial was set for July 2022.

The state then filed two motions for continuance due to the unavailability of an essential witness. The motions were granted by the trial court, and Hoback didn’t object.

The trial was rescheduled for August 2022, and that same month Hoback moved for discharge. The trial court denied his motion. The jury then found Hoback guilty as charged, and the trial court sentenced him to an aggregate of 692 days.

On appeal, the COA addressed whether the trial court erred when it denied Hoback’s Criminal Rule 4(C) motion for discharge.

“Given the deficient trial court record and the State’s failure to request that the trial court make adequate docket entries, we cannot attribute any of the delays during the relevant one-year time period to Hoback,” Judge L. Mark Baily wrote. “… That is, there is no evidence that the one-year time limit imposed by Criminal Rule 4(C) was extended by Hoback’s requests or other actions, yet the State failed to bring Hoback to trial within that one year period. Therefore, the trial court erred when it denied Hoback’s Rule 4(C) motion for discharge.”

Judge Melissa May concurred in the opinion, but Judge Paul Felix penned an eight-page dissent.

Felix dissented for two reasons.

“Primarily, I believe Hoback acquiesced in, if not requested, the delay that causes my colleagues to find a violation of Indiana Criminal Rule 4(C),” he wrote. “… I also disagree with my colleagues regarding whether Hoback waived this issue for appeal. Hoback’s failure to comply with Indiana Appellate Rule 46 substantially impedes review of his C.R. 4(C) claim.

“… In addition to Hoback’s multiple failures to comply with Appellate Rule 46 in his opening brief, Hoback also failed to provide cogent argument on multiple issues in his reply brief, including whether the delay until June 5, 2019, was attributable to the State,” the dissent continued. “Hoback’s significant noncompliance with Appellate Rule 46, especially Appellate Rule 46(A)(8)(a), substantially impedes a review of his C.R. 4(C) claim.”

As for the merits of Hoback’s appeal, Felix looked to Young v. State, 765 N.E.2d 673 (Ind. Ct. App. 2002).

“Here … we have one minute entry sheet signed by both counsel and at least three docket entries from the court explaining, albeit not in great detail, why the trial was cancelled and a status conference reset,” Felix wrote. “While I would strongly prefer for the trial court here to have at least provided more detail than ‘Other’ in its CCS entry, the record is sufficient to satisfy the test set forth in Young.”

Felix also relied on Cook v. State, 810 N.E.2d 1064 (Ind. 2004), which the majority addressed in a footnote.

“In Cook, the Court reasserted that its holding did not affect ‘the proposition that a defendant’s agreement to a continuance sought by the State is not chargeable to the defendant and does not extend the time period of Crim. R. 4(C),’” the majority wrote, responding to Felix. “Due to the inadequacy of the trial court’s record, we cannot confidently say Hoback caused the cancellation of the first trial date.”

The case is Dallas Dale Hoback v. State of Indiana, 23A-CR-411.

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Dec. 21

D.H. v. A.C., C.C., and S.R.

23A-JT-1369

Proper statutory framework not used in granting of parental rights termination order, COA rules in reversal

The Court of Appeals of Indiana reversed an order to terminate an incarcerated man’s parental rights, ruling that a lower court interpreted the phrase “act of rape” too broadly and didn’t consider whether the man committed an act described in the state’s rape statute.

According to court records, D.H., a man in his mid-20s, had sex with his girlfriend’s two teenage daughters, including S.R., who was 14.

S.R. became pregnant and gave birth to a daughter.

D.H. was charged with two counts of sexual misconduct with a minor, pleaded guilty and was sentenced to 15 years in prison.

Though incarcerated, D.H. filed a pro se paternity action seeking to establish custody, parenting time and child support.

But S.R. didn’t want D.H. involved in her daughter’s life, so she and the child’s court-appointed guardians initiated a separate action seeking to terminate D.H.’s parental rights under Indiana Code § 31-35-3.5-3.

After a hearing, the Hamilton Superior Court granted the petition and terminated D.H.’s rights.

The court found it “clear” that “an act of rape occurred” because “[i]t is well established that a minor cannot consent to sexual intercourse with an adult.”

At no point in the petition, the hearing on the petition or the trial court’s order was there any mention of I.C. 31-9-2-0.9, the statute that expressly limits the scope of the phrase “act of rape.”

D.H. appealed the order, contending that if he had committed an act of rape, the state would have charged him with rape under I.C. 35-42-4-1 rather than charging him with sexual misconduct with a minor under I.C.35-42-4-9.

The Court of Appeals reversed the termination order and remanded the case to the trial court for a new termination hearing focused on the controlling definition of “act of rape.”

Judge Nancy Vaidik wrote the opinion for the appellate court.

Vaidik noted that if the appellate court were just interpreting the language of the state’s termination statute (Section 31- 35-3.5-3), it would probably agree with the appellees and affirm the termination order.

“The statute says ‘an act of rape’ but doesn’t require a rape conviction and doesn’t incorporate or otherwise reference the rape statute, such as by stating ‘an act of rape (as defined in IC 35-42-4-1).’ As such, we would be inclined to construe the phrase broadly, as the trial court did, to include an adult’s sexual intercourse with a person who is under sixteen and therefore incapable of meaningful consent,” Vaidik wrote.

However, Vaidik wrote, the termination statute doesn’t stand alone.

“Indiana Code section 31-9-2-0.9 limits the phrase ‘act of rape’ to the acts described in the rape statute (and some acts described in the child-molesting statute, which is inapplicable here because S.R. wasn’t under 14),” Vaidik wrote.

Because the trial court found incorrectly that any sexual intercourse between an adult and a person under 16 is an act of rape under the termination statute, it didn’t address whether D.H.’s intercourse with S.R. involved any of the circumstances listed in the rape statute.

Vaidik wrote that, that without such a finding, the appellate court must reverse the termination order and remand the matter to the trial court for a new termination hearing focused on the controlling definition.

The appellate judge also asked the Legislature to revisit the statutory language, noting that not all victims of such crimes who become pregnant can seek relief under the termination statute.

“This allows for some troubling outcomes. For example, a fourteen-year-old girl who is physically forced to have sex with a forty-year-old man can seek termination, but a fourteen-year-old girl who silently endures the sex in paralyzing fear cannot,” Vaidik wrote. “We encourage the legislature to consider expanding the statutes to include all acts of child molesting and sexual misconduct with a minor.”

Judges Cale Bradford and Elaine Brown concurred in D.H. v. A.C., C.C., and S.R., 23A-JT-1369.

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Dec. 27

Kiera Isgrig v. Trustees of Indiana University

23A-CT-1332

COA reverses summary judgment order in case involving IU student hit by falling window

Whether a window that fell and struck an Indiana University student in a campus building was under the control and management of the university constitutes a genuine issue of material fact, the Court of Appeals of Indiana ruled in reversing a lower court’s decision to grant summary judgment.

According to court records, Kiera Isgrig was a student at Indiana University in April 2018 and studying for final exams with her friends in Francis Morgan Swain Hall.

Isgrig sat at a table with her friends with her back to the wall. Mounted in the wall was an exterior window.

As Isgrig sat with her friends, the window fell out of the wall and landed on Isgrig’s head. The glass in the window shattered, leaving glass shards over Isgrig and the table at which she was sitting.

Isgrig’s friends drove her to the emergency room.

An investigation revealed that the university conducted only reactive maintenance on its windows and did not perform any preventive maintenance.

The last time the university had repaired the window in question was in March 2017, in response to a work order stating that the blinds would not raise.

Repairing the blinds would have required the maintenance staff to remove the window from its casing, at which time any other faults, such as broken sash springs, would have been repaired.

On April 23, 2020, Isgrig filed a complaint against the university alleging negligence and relying on the doctrine of res ipsa loquitur.

The university moved for summary judgment in June 2022.

It argued that it had neither actual nor constructive knowledge regarding any issue with the window, that the doctrine of res ipsa loquitur did not relieve Isgrig of proving that the university had either actual or constructive knowledge of an issue with the window, and that the university did not have exclusive control of the window, thereby rendering res ipsa loquitur inapplicable.

Isgrig argued that the window was under the exclusive control or management of the University and that, under the facts of this case, res ipsa loquitur allows an inference of negligence on the part of the university.

The Monroe Circuit Court held a hearing and entered an order granting the university’s motion for summary judgment.

Isgrig appealed and argued that the trial court erred by granting summary judgment in favor of the university because the doctrine of res ipsa loquitur applies to fixtures in premises liability cases, and that, given the broad definition of “exclusive control,” there is at least a genuine issue of material fact as to whether the window was under the exclusive control and management of the university at the time it fell on her.

The appellate court agreed and reversed the trial court’s grant of summary judgment in favor of the university and remanded the case.

Judge Elizabeth Tavitas wrote the opinion for the appellate court.

Tavitas wrote that there was evidence that the university exercised exclusive control and management over the window at the time it fell out of the wall.

The appellate judge noted that the court could not say that a window suddenly falling out of a wall — with no one interacting with it — is the sort of thing that can occur absent negligence.

“We acknowledge that the window was in a position such that others could access it by raising and lowering the windowpanes or the internal window blinds. But a trier of fact could reasonably conclude that this should not cause a window to fall out of a wall absent negligence,” Tavitas wrote.

According to Tavitas, the appellate court concluded that the designated evidence, including the fact that the university performed no preventive maintenance on the window, created a genuine issue of material fact regarding whether the university can be liable for the injuries caused by the window inexplicably falling from the wall and hitting Isgrig.

“The trial court, thus, erred by granting summary judgment to the University,” Tavitas wrote.

Judges Rudolph Pyle and Peter Foley concurred in Kiera Isgrig v. Trustees of Indiana University, 23A-CT-1332.•