Opinions Aug. 27, 2019

Indiana Court of Appeals

Pinch-N-Post, LLC v. Verna L. McIntosh 
19A-TP-00239
Tax deed. Affirms in part Verna McIntosh’s assertion that a notice sent by Pinch-N-Post, LLC that included the redemption amount for property she owned would have led a reasonable person to conclude that the total redemption amount was far greater than it actually was. However, finds the St. Joseph Circuit Court should have ordered a new redemption period and reverses and remands with instructions to order a new 120-day redemption period, with notice under Indiana Code section 6-1.1-25-4.5 to be given not later than 90 days after the order. Judge Elizabeth Tavitas concurs in part and dissents in part with a separate opinion, and would void the tax sale.

Constance J. McGuire v. State of Indiana 
18A-CR-02554
Criminal. Affirms Constance McGuire’s conviction in Howard Superior Court of Class B misdemeanor harassment relating to threatening statements she posted on Facebook. Finds there is sufficient evidence to support the convictions and that McGuire transmitted a constitutionally proscribable true threat. Judge Rudolph Pyle dissents with a separate opinion, and finds the state harassment statute unconstitutionally overbroad.

Mark Abrell v. Delaware County Regional Wastewater District
19A-PL-585
Civil plenary. Reverses an order denying Mark Abrell compensation for legal work he performed pursuant to a contract with the Delaware County Regional Wastewater District and ordering that he pay all attorney fees incurred by the district in pursuing a replevin claim against him and defending his counterclaim. Finds Abrell is entitled to reasonable fees for his uncompensated legal work prior to his discharge as the district’s attorney. Finds the district did not demonstrate its entitlement to an award of attorney fees and remands with instructions for the Delaware Circuit Court to determine the contractual fees Abrell is owed by the district.

Jody White v. State of Indiana (mem. dec.)
19A-CR-46
Criminal. Affirms Jody White’s seven-year sentence for conviction of Class C felony nonsupport of a dependent. Finds his sentence handed down in St. Joseph Superior Court is not inappropriate in light of the significant amount of money owed over two decades and White’s prior convictions for failure to pay child support.

Robert Dewayne Coleman v. State of Indiana (mem. dec.)
18A-CR-1640
Criminal. Affirms Robert Dewayne Coleman’s 40-year sentence for conviction of Class A felony attempted child molesting and Class D felony criminal confinement. Finds the Madison Circuit Court did not clearly err in finding that the state’s race-neutral basis for striking a potential juror was credible. Finds Coleman failed to establish that the trial court abused its discretion at sentencing; that K.T.’s and L.N.’s testimony was incredibly dubious; and that the prosecutor committed misconduct that resulted in fundamental error. Also finds Coleman made no cognizable claim of error regarding the alleged “corroboration” of K.T.’s and L.N.’s allegations and waived any error regarding the trial court’s decision not to remove Guardian Angels from the courtroom.

Lance Fleming v. State of Indiana (mem. dec.)
19A-CR-47
Criminal. Affirms Lance Fleming’s conviction in Marion Superior Court of Level 3 felony counts of rape and attempted rape. Finds there is sufficient evidence to support his conviction and that his convictions do not violate double-jeopardy principles.

Nanak Holdings, Inc. v. 4M of Indianapolis, Inc., Tak Management, Inc., and Tahir Khan (mem. dec.)
18A-CC-2602
Civil collection. Affirms the Marion Superior Court’s order granting partial summary judgment to 4M of Indianapolis, Inc., Tak Management, Inc., and Tahir Khan and removing Khan as a defendant from the proceedings. Finds that because Nanak did not designate an executed guaranty to the Marion Superior Court, the trial court properly granted summary judgment to Khan, in his individual capacity, and to all defendants on count I of Nanak’s complaint.

Jeremy Colon-Nieves v. State of Indiana (mem. dec.)
18A-CR-2560
Criminal. Affirms Jeremy Colon-Nieves’ conviction of Level 4 felony burglary and Level 6 felony resisting law enforcement. Finds the Cass Superior Court did not abuse its discretion when it allowed the state to withdraw from the plea agreement. Finds there is sufficient evidence to support Colon-Nieves’ burglary conviction.

Ronny Bradley v. State of Indiana (mem. dec.)
18A-CR-2926
Criminal. Affirms Ronny Bradley’s 8½-year sentence for conviction of Level 6 felony possession of cocaine, Class B misdemeanor possession of marijuana and his adjudication as a habitual offender. Reverses and remands the $100 public defender fee order with instructions for the Marion Superior Court to determine Bradley’s ability to pay the fee.

Samuel Jude Clark v. State of Indiana (mem. dec.)
19A-CR-172
Criminal. Affirms Samuel Jude Clark’s conviction of Level 6 felonies theft, conspiracy to commit obstruction of justice, and obstruction of justice. Finds Clark’s convictions on Counts II and III do not violate Indiana’s double jeopardy clause. Finds the trial court did not adequately specify the conviction to which the habitual offender enhancement attached. Thus, remands to Tippecanoe Superior Court with instructions to correct the sentence with regard to the habitual offender enhancement.

Nancy L. Beeman v. Robert E. Wyman (mem. dec.)
18A-PL-2392
Civil plenary. Affirms the Elkhart Circuit Court’s entry of judgment in favor of Robert Wyman, finding that Nancy Beeman failed to establish that Wyman was liable for check deception. Finds Wyman did not waive his affirmative defense by failing to assert it in his responsive pleadings.

J.S. v. W.S. (mem. dec.)
19A-DC-580
Domestic relation. Reverses and remands the Morgan Circuit Court’s decree dissolving J.S.’s marriage to W.S. Finds the trial court abused its discretion in awarding sole physical custody of the parties’ minor daughter, A.S., to father based in large part upon an allegedly erroneous finding regarding Mother’s blindness disability, in declining to award child support and in denying J.S.’s request for spousal maintenance. Finds prima facie error and reverses the trial court’s dissolution decree as it relates to physical custody, child support, and spousal maintenance. Remands for reconsideration and clarification of those issues.