Indiana Court Decisions – April 29–May 12, 2015

7th Circuit Court of Appeals

May 1

Criminal – Death Penalty/Evidence

Bruce Carneil Webster v. Charles A. Daniels

14-1049

A killer sentenced in Texas and awaiting execution on federal death row in Terre Haute will be allowed to proceed with efforts to present new evidence of intellectual disability that would make him ineligible for capital punishment, a 7th Circuit Court of Appeals en banc review determined in a 6-5 opinion.

Bruce Webster was one of five men involved in a marijuana ring and was indicted in 1994 for the kidnapping and brutal murder of 16-year-old Lisa Rene. She was taken from an apartment near Dallas, repeatedly raped and found buried in a park in Pine Bluff, Arkansas.

Chief Judge Diane Wood wrote for the majority that reversed a 7th Circuit decision rejecting Webster’s efforts to present evidence that he was diagnosed with intellectual disability (referred to as “mental retardation” in the opinion) a year before his crimes. Webster was convicted in the Northern District of Texas of kidnapping resulting in death, conspiracy to commit kidnapping, and using a firearm during a crime of violence. He was sentenced to die under the Federal Death Penalty Act of 1994, which had taken effect 12 days before Rene’s murder.

The 7th Circuit panel concluded that new evidence can never satisfy the demanding habeas corpus standard of 28 U.S.C. § 2255(e), but the majority of the en banc panel disagreed. “We conclude there is no such bar to the use of the safety valve found in section 2255(e) for new evidence that would demonstrate categorical ineligibility for the death penalty. We therefore reverse the district court’s judgment and remand for further proceedings,” Wood wrote in the 62-page opinion.

“There is no doubt that Webster and his co-defendants committed a horrible crime. … (T)he only question is what (the facts) show, or do not show, about Webster’s intellectual functioning.” The majority pointed to evaluations placing Webster’s I.Q. below 70, among other things.

The majority concluded further proceedings are necessary to determine if Webster may be entitled to relief from the death penalty. Webster must meet his burden that he is categorically and constitutionally ineligible for the death penalty in accord with U.S. Supreme Court rulings in Atkins v. Virginia, 536 U.S. 304 (2002) and Hall v. Florida, 134 S. Ct. 1986, 1990 (2014). Failing to meet the requirements, Webster’s petition for writ should be denied, Wood wrote.

Circuit Judge Frank Easterbrook writing in dissent noted that Atkins and Hall are not favorable to Webster. “Whether Webster is ‘retarded’ was the principal issue at his trial and sentencing. He raised mental shortcomings as a mitigating factor, and four jurors found that they mitigated his culpability, but the jury still voted unanimously for capital punishment.”

Easterbrook also argued Webster’s new evidence did not meet the “clear and convincing” language required for relief. Easterbrook was joined in dissent by Circuit Judges William J. Bauer, Michael S. Kanne, Diane S. Sykes and John Tinder.

“Webster’s argument is fundamentally that the jury, the trial judge, and the Fifth Circuit got the facts wrong, and that he should be allowed an opportunity to relitigate with more evidence,” Easterbrook wrote. The majority’s holding, he wrote, “is unwarranted, and it places this court as a minority of one among the circuits at the same time as we assert final say over all federal capital cases.”

Indiana Court of Appeals

April 30

Civil Plenary – Property/Adverse Possession

William Arnold Henry and Mary Ann Henry v. Margo Liebner

09A02-1401-PL-53

Because there is evidence that both the woman who purchased land from a trust and the trustee paid taxes on a disputed 1.8 acres of land for at least 10 years, the woman’s claim for adverse possession of the land should be granted, the Indiana Court of Appeals held.

Neighbors William and Mary Ann Henry and Margo Liebner went to court over who owned a 1.786-acre triangular parcel of farmland. It is located to the south of the Henrys’ property and to the north of Leibner’s property. Leibner obtained her property via auction in 2004 from a living trust set up by previous owners Charles and Marguerite Niblock, who purchased the land in 1962.

The Henrys’ purchased their land in 2011 after it was foreclosed upon. The previous owners, Kenneth and Kathleen Gibbs, purchased the land in 2001. The land was originally owned by the Niblocks and later conveyed in 1990 via warranty deed to David and Cheryl Ide, who sold it to the Gibbs.

Leibner, believing the triangular portion of land belonged to her, rented it to a farmer. When the Henrys moved in, they believed the land belonged to them and sought to have the farmer pay them or quit farming the land.

The trial court determined that the Henrys did not have title to the parcel and that the Niblocks had obtained title via adverse possession. The trial court did not conclude that Liebner had obtained title to the parcel by adverse possession, but that the Niblocks or their heirs may have an interest in the parcel.

The Henrys don’t dispute that Liebner had adverse possession over the land for the seven years she lived on her property, but challenge her attempt to meet the necessary 10-year period required to establish adverse possession by tacking on the Niblocks’ possession. They argued she did not show her predecessors had paid taxes on the parcel in question, and the COA agreed.

“Our review of the record reveals that there is simply no testimony or other evidence regarding the Niblocks’ or the Trustee’s payment of taxes during the relevant period of June 1990 to June 2000. Thus, there is no evidence to support a finding (even an implicit one) that they had substantially complied with the adverse possession tax statute during the required ten-year period from 1990 to 2000 in order to support the trial court’s conclusion that ‘Niblock’ had acquired title to the triangular parcel in June 2000 based on adverse possession,” Judge Rudolph Pyle III wrote.

But there is evidence to support a determination that there was compliance with the adverse possession tax statute after the property was purchased by the Gibbses in May 2001 until March 2004 when Liebner purchased her property from the trustee. Kathleen Gibbs testified that she believed the land belonged to the trustee and the trust paid taxes on it and that she and her husband never paid taxes on it.

Because there is evidence that Leibner and her predecessor paid taxes and complied with the adverse possession tax statute from May 2001 until 2011, the judges remanded to the trial court to enter judgment in favor of Liebner on her claim of adverse possession.

Criminal – Sentence

Casie S. Rudisel v. State of Indiana

84A01-1410-CR-425

The Indiana Court of Appeals found that a trial court incorrectly calculated the sentence a woman should serve in the Department of Correction after she had her probation revoked.

After pleading guilty in 2012 to Class D felony operating a vehicle while intoxicated, Casie Rudisel was sentenced to three years in the DOC with all that time suspended except for 180 days served on home detention as a direct commitment. She was later placed on work release, but over the next two years, did not comply with the terms of her sentence and even left Freedbirds Solution Center where she was placed. At a September 2014 hearing, the trial court revoked her probation and ordered her to serve the remainder of her sentence in the DOC. She would serve two years and six months in the DOC with credit for five actual days served in jail.

Rudisel disputed the amount of credit time she was awarded, believing she should have received credit for 104 days she served in jail as well as the five days the judge awarded her. The trial court denied her motion.

Judge Elaine Brown wrote that Rudisel previously received credit for 104 days for actual time served. The presumption from Robinson v. State, 805 N.E.2d 783, 786 (Ind. 2004) – that sentencing judgments that fail to expressly designate credit time earned shall be understood by the court and the DOC to automatically award the number of credit time days equal to the number of pre-sentence confinement days – indicates that the court also awarded her 104 days of credit time. But the trial court order did not note that, but instead just credit for the five days. Rudisel was entitled to 109 days for incarceration plus 109 days of credit time for a total credit of 218 days.

The 2014 order was in excess of the maximum sentence for a Class D felony, so the COA remanded for the trial court to take into account the 2018 days and resentence Rudisel within the statutory limit.
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May 7

Domestic Relation – Jurisdiction

In Re the Marriage of: Teasha J. Harris v. Anthony J. Harris

49A04-1501-DR-14

The Indiana Court of Appeals sent a divorce case back to the trial court because the trial court erred in concluding that it lacked jurisdiction over the husband on division of property and spousal maintenance issues.

Teasha and Anthony Harris married in 1995 in New York, had one daughter, and then separated in 2005. Teasha Harris and the daughter moved to Indiana. She filed for divorce in Marion County in 2008; at that time, Anthony Harris was a resident of North Carolina but was stationed in Germany.

In 2009, without husband present, the trial court dissolved the marriage, awarded wife custody of their child, ordered child support and spousal allowance as well as 32 percent of husband’s military pension. Husband appealed and the COA affirmed the dissolution of the marriage but held that judgments as to child support, spousal allowance, military retirement pay and all other incidences of marriage were void for lack of personal jurisdiction. Child custody was also reversed.

In 2014, husband petitioned the court to find wife in contempt because he tried to see his daughter before deploying but wife would not respond to his requests. The trial court, citing the COA ruling, found that husband only submitted to jurisdiction in Indiana for the limited purposes of the parties’ child. Wife sought a ruling on spousal allowance, payment on a vehicle, the pension and other matters, but the trial court declined.  

Judge John Baker pointed out that its previous opinion did not render the issue of jurisdiction over husband res judicata. The husband asked the trial court to approve an agreed entry for decree of resolution in 2011, and by doing so, consented to the court’s exercise of jurisdiction over him.

“At that point, this Court’s decision as to the trial court’s jurisdiction as it existed in 2010 no longer applied,” Baker wrote. The court also erred in determining it only had jurisdiction over the husband on certain matters. The COA remanded the case to the trial court for wife to again petition the trial court for equitable division of marital assets and spousal maintenance.

Wife did lose her appeal regarding receiving a portion of her husband’s pension. At the time the marriage dissolved, husband was not yet vested, and so under I.C. 31-9-2-98, wife was not entitled to a portion of it.
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May 11

Post Conviction – Probationary Period

Mary K. Davis v. State of Indiana

20A03-1411-PC-408

A post-conviction court incorrectly calculated when a woman’s probation ended, so it erred in finding that she violated probation after the probationary period was complete, the Indiana Court of Appeals ruled.

Mary Davis was imprisoned for Class C felony possession of a handgun following a felony conviction. As part of her eight-year sentence, four years were suspended to probation. She was released from prison on Feb. 3, 2005. On Feb. 4, 2009, the state filed a notice that she violated her probation. Davis admitted she hadn’t paid probation fees, and hearings were continued for several years on whether she could pay. In 2011, the state claimed she violated probation by failing a drug test; in 2012, the state sought to revoke her probation because new criminal charges were filed against Davis. In 2012, the state found she violated her probation because of the new criminal charges and ordered her to serve the four-year suspended sentence.

She sought post-conviction relief, saying the state sought to revoke her probation for a crime committed after the probationary period ended. The PCR court denied her petition, and she appealed.

The COA found several errors in the PCR court’s ruling, such as its finding that her probationary period ended Feb. 14, 2009, based on evidence Davis signed the terms of her probation on that date in 2005. But a probationary period begins immediately after sentencing, Judge Melissa May wrote. Thus, Davis’ probation period began when she was released from prison Feb. 3, 2005.

Because the remainder of the PCR court’s findings and conclusions are based on this erroneous date, the COA reversed the denial of her petition and ordered her released from incarceration.
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May 12

Miscellaneous – Tax Sale Surplus

Mary Ellen Stump v. St. Joseph County Treasurer, St. Joseph County Auditor, Cavallino Financial, LLC, Donald Wertheimer, James H. Shallenbarger, Jr., and Phillip Miller

71A04-1407-MI-327

The Indiana Court of Appeals determined that a woman who obtained a judgment lien in 2006 against a co-owner of a property later sold in a tax sale has priority over other claims for the tax sale surplus and that she made a timely claim for the surplus.

James Shallenbarger Jr. and Phillip Miller owned property in Mishawaka as joint tenants with the rights of survivorship. In 2007, the property was sold at a tax sale for $25,000 and generated approximately $20,000 in surplus.

Cavallino Financial LLC in 2008 tried to claim the full amount of the surplus as limited power of attorney of Shallenbarger. Regatta Capital LTD, the mortgage lender on the property, also tried to claim the surplus in 2009. Shallenbarger also sought his half of the surplus, but the county auditor refused to release the surplus and told the parties that a court must determine ownership of the funds.

In 2010, Cavallino again filed a petition for release of surplus. In 2013, Mary Ellen Stump, who obtained the judgment lien in 2006 against Shallenbarger, filed a motion to intervene, claiming “first and prior judgment lien” on the share of Shallenbarger’s tax sale surplus. She was allowed to intervene, but the trial court denied her petition to release the tax sale surplus.  

“Cavallino filed its petition for a disposition of the tax sale surplus within the three-year time period after receipt of the money, as envisioned by the statute. Despite the longevity of the claim and the parties’ inactivity in the proceedings, a legal determination on its validity is still pending and the cause was never disposed of or dismissed by the trial court,” Judge Patricia Riley wrote. “Because the proceedings are still ongoing, Stump could intervene and request a release of the tax sale surplus. Even though the Auditor had the opportunity to object to her intervention, he failed to do so and the trial court approved her motion. Therefore, we conclude that Cavallino’s claim was timely asserted, and Stump properly intervened in these pending proceedings.”

The judges also concluded that Stump’s lien on the tax sale surplus takes priority over Cavallino’s and Regatta’s interest.

Because Shallenbarger and Miller created a joint tenancy relationship in the property and there is no evidence that they expressed an interest that the tax sale surplus be held in any other way than as joint tenants, the COA remanded for the trial court to determine the extent, if any, of Shallenbarger’s interest in the tax sale surplus.•