Indiana Court Decisions – May 13 to 26, 2015

Indiana Supreme Court

May 13

Juvenile – CHINS Adjudication/Duty of Court/Coercion

In the Matter of J.K., A Child in Need of Services: M.K. v. Marion County Department of Child Services and Child Advocates, Inc.

49S02-1505-JC-260

Because a Marion Superior Court judge’s remarks and conduct in their cumulative effect breached the court’s duty of impartiality and amounted to coercion of a 17-year-old girl’s father to admit she was a child in need of services, the Indiana Supreme Court reversed the CHINS adjudica.tion.

The Marion County Department of Child Services initiated CHINS proceedings for J.K., alleging her grandmother locked her out of their home after coming home too late from work, that J.K.’s mother said she was tired of J.K., and her father refused to talk to them while at work or take time off to do so.

At the fact-finding hearing before Judge Marilyn Moores, the judge expressed impatience regarding the potential overlap between custody in the divorce and placement in the CHINS case, and during the hearing she called the parties’ dispute “ridiculous and retarded,” faulted the parties for “stupidity,” and continued the hearing to order mediation. When mediation failed, Moores again made disparaging comments about the matter, calling the parties knuckleheads and then told father that he should admit to the CHINS adjudication so that J.K., if placed with him, could be bused to her current school district. Father could not drive J.K. to school because of a suspended driver’s license and his work schedule.

According to the record, Moores said, “If I were you I’d waive fact-finding otherwise you’re going to find your butt finding a new job.”

Father did not want to admit to the adjudication, but relented. He later appealed, arguing the trial court’s comments deprived him of a fair tribunal and coerced his admission that J.K. was in need of services.

“[We] conclude the cumulative effect of the trial court’s comments breached its ‘duty to remain impartial and refrain from making unnecessary comments or remarks,’ such that Father was coerced into admitting that J.K. was a CHINS – a matter he had firmly contested just moments earlier,” Chief Justice Loretta Rush wrote.

The justices reversed J.K.’s adjudication, and because J.K. is now older than 18, there is no need to remand the matter, Rush mentioned in a footnote.

Civil Plenary – Pro Hac Vice Admittance/Local Rules

YTC Dream Homes, Inc., et al. v. DirectBuy, Inc., et al.

45S03-1505-PL-264

A Lake County court erred when it relied on a local rule to determine that five out-of-state attorneys should not be granted pro hac vice admission because the party seeking their admission could potentially hire capable Indiana attorneys to provide the franchise law work, the Indiana Supreme Court ruled.

In a three-page per curiam opinion, the justices reversed the denial of YTC Dream Homes Inc.’s motion requesting temporary admission of the five attorneys to represent YTC in its contract-related action against franchisor DirectBuy Inc. and other parties.

The trial court ultimately decided not to allow their admission, even though the five attorneys were qualified and in good standing in their respective states, based in part on Lake County Local Rule 5(C). That rule, according to the judge, has a presumption that “an attorney not licensed in Indiana is not permitted to practice before it … .” The judge also noted that YTC could find capable attorneys in Indiana to represent it.

The Court of Appeals reversed the lower court, ordering the trial court to grant the attorneys’ petition for temporary admission. The justices agreed, remanding with instructions to determine whether good cause exists to admit the attorneys.

“As the trial court correctly recognized, ‘temporary admission of an out-of-state lawyer pursuant to Admission and Discipline Rule 3(2) is within the discretion of the trial court.’ We agree with the Court of Appeals’ conclusion that Local Rule 5(C) does not create a presumption against pro hac vice admissions. The local rule cannot vitiate the trial court’s discretion to find good cause for temporary admission under Admission and Discipline Rule 3(2),” the Supreme Court opinion states.

Attorney Discipline –Suspension

In the Matter of: Andrew D. Thomas

82S00-1305-DI-386

A southern Indiana attorney has been suspended for violating several professional conduct and discipline rules after he failed to adequately manage his trust account and neglected a client’s case, among other actions constituting misconduct.

The Indiana Supreme Court handed down a 240-day suspension without automatic reinstatement for Andrew D. Thomas after finding he engaged in attorney misconduct. He was charged with multiple rule violations, but the hearing officer did not find Thomas violated Counts 2 through 6 of the complaint filed by the Disciplinary Commission. The counts alleged are: mismanagement of Thomas’ trust account (counts 1 and 2); Thomas’ failure to list his attorney trust account in his bankruptcy disclosures (Count 3); payments of his personal expenses from the trust account (counts 4 and 6); using client funds deposited into his operating account to purchase credit reports (Count 5); and failure to file an answer in representing a client sued by a bank (Count 8).

Count 7 was withdrawn by the commission at the beginning of the hearing.

The Disciplinary Commission asked the Supreme Court to review the hearing officer’s adverse findings and conclusions on Counts 2 through 6 as well as several mitigating factors found by the hearing officer.

In the per curiam decision, the justices noted that Thomas expressly stipulated in advance of the hearing that he committed conversion, and in doing so, violated Professional Conduct Rules 8.4(a) and 8.4(b). Thomas is bound by these stipulations, and the hearing officer erred by not giving them effect, the opinion notes.

The justices also found that Thomas violated his duty of candor toward a tribunal under Professional Conduct Rule 3.3(a)(1) by failing to list his attorney trust account in his bankruptcy schedules and Statement of Financial Affairs. While in most instances, an attorney’s trust account will not vest in the bankruptcy estate because it contains property of other people, Thomas’ account at the time was in such shambles that he could not adequately identify whose money was in the account.

Thomas violated Professional Conduct Rule 1.15(a) and Admission and Discipline Rule 23(29)(a)(4) by improperly commingling client funds with his own when purchasing credit reports. Money he received from clients should have been deposited into his trust account and withdrawn only as expenses incurred instead of depositing these advanced fees into his operating account, the justices ruled.

The hearing officer recommended Thomas receive 90 days suspended without automatic reinstatement; the Disciplinary Commission wanted at least three years, without automatic reinstatement. The justices’ discipline met somewhere in the middle, suspending Thomas for 240 days without automatic reinstatement beginning June 23.
__________

May 14

Criminal – Battery/Fair Notice

Billy Young v. State of Indiana

49S02-1505-CR-275

Marquise Lee v. State of Indiana

49S02-1505-CR-276

An Indianapolis teen and another man convicted and sentenced to 15 years in prison for their roles in a planned beatdown that ended with a fatal gunshot will be freed after the Indiana Supreme Court reversed their convictions and ordered them acquitted.

Billy Young and Marquise Lee were convicted in a bench trial by Marion Superior Judge Grant Hawkins of attempted aggravated battery for attacking Ramon Gude at his Indianapolis apartment in 2012. Young and Lee were accompanied by 16-year-old Lee’s mother, Latoya Lee, who Gude had punched in the face two days earlier, and an unidentified third man, who apparently fired the fatal shot.

Young and Marquise Lee initially were charged with murder and conspiracy, but Hawkins dismissed those charges, finding reasonable doubt about whether the shooting had been planned. He subsequently convicted the two men of attempted aggravated battery as a lesser included offense, which the justices unanimously ruled was fundamental error.

“(F)air notice was lacking. Defendants were charged with murder as accomplices in a shooting. At their bench trial, the court found that they intended a group beating of the victim, but that there was insufficient evidence that they knew a member of their group would shoot him. The trial court thus dismissed the murder charge, but convicted Defendants instead of attempted aggravated battery for planning the beating,” Chief Justice Loretta Rush wrote for the court.

“Under these circumstances, however, attempted aggravated battery by beating was not just a lesser offense than the charged murder by shooting — it was a completely different offense, based on a completely different ‘means used’ than alleged in the charging informations. This deprived Defendants of fair notice to extend their defense to that very different lesser charge and constituted fundamental error. We therefore grant transfer in both cases by separate orders and reverse both Defendants’ convictions.”

Different Court of Appeals panels had reached contradictory opinions for the defendants, affirming Lee’s conviction and reversing Young’s.

“Defendants must have ‘fair notice’ of the charges of which they may be convicted, including inherently or factually included lesser offenses,” Rush wrote. “But under the unusual operative and procedural facts of this case – the actual shooter remaining unidentified, the resulting ambiguity as to whether these Defendants intended to carry out a shooting, the State’s choice to rely on the shooting alone in the charging instruments and at trial, and the trial court’s unambiguous finding of reasonable doubt on that particular theory – we hold Defendants  lacked  fair  notice  of the charge of which  they were ultimately convicted. … We therefore grant transfer, reverse both Defendants’ convictions, and remand to the trial court with instructions to enter judgments of acquittal in both cases.”

In a footnote, the court observed, “Latoya Lee did not seek transfer in her unsuccessful appeal of her conviction and sentence.”
__________

May 19

Attorney Discipline – Suspension

In the Matter of: Thomas R. Philpot

45S00-1304-DI-224

The former clerk of Lake County who used federal funds to pay himself bonuses has been suspended from the practice of law after the Indiana Supreme Court found he had betrayed the public’s trust and violated both his oath of office and of attorneys.

A majority on the Supreme Court agreed to suspend attorney Thomas Philpot for four years without automatic reinstatement. However, Chief Justice Loretta Rush and Justice Brent Dickson dissented, believing Philpot should be disbarred.

Philpot has been under an order of interim suspension since June 15, 2013.

Philpot was charged in the U.S. District Court for the Northern District of Indiana with three counts of mail fraud and two counts of theft from a federally funded program. After post-trial proceedings, Philpot was adjudicated guilty on two counts of mail fraud and one count of theft and was sentenced to 18 months and fined $10,000.

As mitigating factors, the parties cited Philpot’s lack of prior discipline and his cooperation with the Supreme Court Disciplinary Commission as well as his repayment with interest of the federal monies.

The Supreme Court ruled Philpot’s criminal act reflected adversely on his honesty, trustworthiness and fitness as a lawyer, and that he violated Indiana Professional Conduct Rule 8.4(b).

The majority accepted the proposal from both Philpot and the commission that he be suspended from the practice of law for at least four years without automatic reinstatement. After four years, Philpot may petition for reinstatement.

Criminal – Battery/Double Jeopardy

Cornelius Hines v. State of Indiana

52S05-1408-CR-563

An inmate in the Miami Correctional Facility scored a partial victory before the Indiana Supreme Court. The justices reversed one of his convictions for battering a correctional officer, but declined to reduce his eight-year sentence.

Cornelius Hines lunged toward officer Regina Bougher, pinned her to the wall and put her in a headlock. She was able to escape about five minutes later and suffered a cut to her mouth, pain and bruising in her ribs, and a concussion as a result of the attack. Hines was convicted of Class C felony criminal confinement and Class D felony battery, and he was sentenced to an aggregate of eight years. The trial court, concerned with double jeopardy issues, ordered the sentences served concurrently.

Hines argued that his convictions violated double jeopardy under the Indiana Constitution and common law. He claimed that the continuous crime doctrine applies regardless of whether actions are charged as the same or distinct offenses and that his act of pushing the officer constitutes just one criminal conviction, citing Buchanan v. State, 913 N.E.2d 712, 720-21 (Ind. Ct. App. 2009).

“To the extent that Buchanan stands for the proposition that the continuous crime doctrine may be judicially extended to two distinct criminal offenses, we disagree,” Justice Brent Dickson wrote. The high court found the doctrine does not apply to the facts of these cases as Hines was not convicted of multiple charges of criminal confinement or multiple convictions of battery.

But under the actual evidence test, Hines’ convictions violate double jeopardy under Article 1, Section 14 of the Indiana Constitution.

“Based on the charging information, jury instructions, and arguments of counsel, we find a reasonable possibility that the same evidence used by the jury to establish the essential elements of battery was also included among the evidence used by the jury to establish the essential elements of criminal confinement,” Dickson wrote. The justices ordered the Class D felony battery conviction vacated.

But they declined to revise Hines’ eight-year sentence – which included eight years on the confinement conviction and three years for the battery conviction. The justices cited his criminal history and character as reasons to uphold the sentence.
__________

May 20

Death Penalty – Murder/Consecutive Sentences

Kevin Charles Isom v. State of Indiana

45S00-0803-DP-125

A Gary man who shot and killed his wife and her two children at close range will remain on death row, the Indiana Supreme Court concluded.

Kevin Charles Isom was convicted of three counts of murder for the 2007 shooting deaths of wife Cassandra, and his 13-year-old stepdaughter, Ci’Andria Cole, and 16-year-old stepson, Michael Moore. All three victims were shot multiple times with various weapons. The SWAT team responded to the incident and eventually gained entry to Isom’s apartment, finding him in a bedroom with the guns and blood from all three victims on his clothing.

The jury recommended the death penalty and the trial court sentenced Isom to three death sentences to be served consecutively.

Isom appealed, raising several claims, including that certain for-cause challenges of certain jurors should have been granted; his jury instruction on voluntary manslaughter should have been given and allegations of prosecutorial misconduct.

The justices rejected all of his claims, finding no error by the judge to not dismiss certain jurors and the lack of sudden heat to support an instruction on voluntary manslaughter. Comments by the prosecutor during the penalty phase – that Isom failed his wife as a partner and his children as a father – stepped over the line because it is misconduct for a prosecutor to request a jury to return a death penalty for anything other than the mitigating factors are outweighed by the aggravating factor or factors, Justice Robert Rucker wrote. But Isom did not object at trial to the state’s remarks and they do not amount to fundamental error. Any harm done by the remark was minimal and not substantial based on the other evidence, the justices held.

His death sentence is appropriate given the nature of the crimes, but the trial court erred in imposing consecutive life sentences. The death penalty is not a “term of imprisonment” that would allow for the imposition of consecutive sentences, so the trial court exceeded its statutory authority by ordering the death sentences served consecutively, Rucker wrote.

The case is remanded for the trial court to issue a new sentencing order.

Indiana Tax Court

May 13

Tax – Notice of Assessments

Property Development Company Four, LLC v. Grant County Assessor

49T10-1401-TA-3

Although the Grant County assessor was authorized to assess two subject properties under I.C. 6-1.1-9-1, which allows for retroactive assessment, the assessor did not give the taxpayer sufficient notice of certain assessments, the Indiana Tax Court ruled.

Property Development Company Four LLC appealed the Indiana Board of Tax Review’s final determination that upheld the Grant County assessor’s assessments of its real property for the 2004, 2005 and 2006 tax years. Property Development purchased two parcels in separate subdivisions in 2003 to construct homes for the disabled. The assessor did not assess the subject properties at that time because she did not have notice construction began.

In 2006, the assessor assessed the Eastway Drive property for the 2004 and 2005 tax years, and she found the assessments increased nearly 10-fold. In 2007, the assessor assessed the Aspen Court property for the 2004, 2005 and 2006 tax years, and the assessments for those years also substantially increased. The assessor applied each assessment retroactively under I.C. 6-1.1-9-4 because the improvements were omitted from the assessment rolls post-construction.

The assessor also mailed Form 122s to Property Development and to Coronado Ridge Development Corp., the prior owner of the Aspen Court property, indicating the assessments increased.

Ultimately, the Indiana Board of Tax Review upheld the assessments of the Eastway Drive property and the 2005 and 2006 assessments of the Aspen Court property. Property Development appealed, claiming the tax board misapplied the law when it upheld the assessments and that the board erred in concluding Property Development received proper notice of the assessments.

“The fact that these properties could have been assessed when they were subdivided for development under Indiana Code § 6-1.1-4-12 cannot preclude their retroactive assessment, as Property Development urges, because doing so would defeat the purpose of Indiana Code § 6-1.1-9-4. Consequently, Property Development has not shown that the Indiana Board’s final determination that upheld the assessments of the subject properties under Indiana Code § 6-1.1-9-4 was contrary to law,” Judge Martha Wentworth wrote.

Wentworth found the Form 122s sent by the assessor do not comport with the notice requirements of I.C. 6-1.1-9-1 because none contained statements regarding Property Development’s rights to a preliminary conference or review under I.C. 6-1.1-15.1. In addition, the company’s tax bills do not satisfy the notice requirements of I.C. 6-1.1-9-1.

Wentworth remanded the matter to the tax board for further action.
__________

May 22

Tax – Local Government/Appeal

Marion County Auditor v. State of Indiana

49T10-1406-TA-25

Because the Marion County auditor does not have statutory or common law standing to appeal a property tax assessment board of appeals’ decision under Indiana Code 6-1.1-15-12 to the Indiana Tax Court, its judge, Martha Wentworth, held that the constitutional challenge raised regarding the statute will have to be decided another day.

Grandville Cooperative Inc., which owns a multi-family cooperative apartment complex in Indianapolis, successfully challenged through petitions for correction of an error (Forms 133) that it was entitled to homestead deductions for the tax years 2010 through 2012. The Marion County Property Tax Assessment Board of Appeals reversed the decision of the auditor when it found Grandville did qualify for the deduction. The Marion County auditor appealed to the Indiana Board of Tax Review, which dismissed, finding the auditor didn’t have standing to appeal under Indiana Code 6-1.1-15-12. That statute only permits taxpayers to appeal to the Board of Tax Review from a PTABOA determination on a Form 133. The auditor then appealed to the Tax Court. The state sought a dismissal based on the auditor’s lack of standing, which Wentworth granted.

The auditor conceded she lacked standing but argued that the Tax Court should still review her appeal because government officials have standing to challenge the constitutionality of laws in court, and this issue will affect auditors around the state.

 “This Court is a creature of statute. As such, it may only determine the constitutionality of Indiana Code § 6-1.1-15-12 when a case containing such a claim is properly before it. Here, the Auditor does not have statutory or common law standing to appeal the PTABOA’s decision on Grandville’s Forms 133 to this Court. Accordingly, the issue of whether Indiana Code § 6-1.1-15-12 is unconstitutional must be decided another day. The State’s motion to dismiss the Auditor’s appeal pursuant to Trial Rule 12(B)(6) is hereby GRANTED,” Wentworth wrote.  

Indiana Court of Appeals

May 15

Civil Plenary – Annexation/Petition for Remonstrance

Fight Against Brownsburg Annexation, et al. v. Town of Brownsburg, Indiana, et al.

32A01-1407-PL-300

Opponents of the Town of Brownsburg’s planned annexation of 4,461 acres to its north prevailed before the Indiana Court of Appeals. The court ruled the trial judge erred in determining he lacked subject matter jurisdiction to determine whether the residents’ remonstrance petition was valid.

Fight Against Brownsburg Annexation opposed plans to add the acreage to the town and appealed the ruling by now-retired Hendricks Superior Judge David H. Coleman. The Court of Appeals panel found not only that the matter should have been heard, but that it was clear the petition against the annexation had collected more than the required number of signatures to contest it.

“The trial court had subject matter jurisdiction to determine the sufficiency of FABA’s remonstrance petition under Indiana Code Section 36-4-3-11. We hold that a Trial Rule 12(B)(1) motion is not a proper vehicle for challenging the sufficiency of a remonstrance petition … and the trial court erred when it dismissed FABA’s petition for lack of subject matter jurisdiction,” Judge Edward Najam wrote for the panel.

“The remonstrance petition is sufficient on its face, and we reverse and remand for a hearing on the merits.  On remand, should Brownsburg challenge the validity of the signatures in support of FABA’s petition at the merits hearing, we hold that:  (1) any otherwise valid signatures of owners obtained prior to publication of the annexation ordinance are to be counted; and (2) only one owner need have signed on behalf of each parcel.”

The panel noted that under new laws taking effect in July, an annexation ordinance is void if a remonstrance petition is signed by at least 65 percent of landowners in the annexation area, among other changes.
__________

May 22

Criminal – Intimidation

Leonard Blackmon v. State of Indiana

71A03-1411-CR-413

The state did not prove that a St. Joseph County man intimidated another person when the man pulled out a knife after being confronted about stealing water, the Indiana Court of Appeals held. A dissenting judge believed there to be no distinction between the defendant being “caught” stealing water and “confronting” the defendant about stealing it.

The state charged Leonard Blackmon with Level 5 felony intimidation, alleging “Blackmon did communicate a threat to another person, with the intent that said other person be placed in fear of retaliation for a prior lawful act, to-wit; Leonard Blackmon threatened to cut Donald Courtway with a knife, after Donald Courtway caught Leonard Blackmon stealing water.”

Courtway was at his daughter’s house when he heard running water and saw a bucket under an outside spigot, which had been locked, but the lock was removed. He confronted his daughter’s neighbor because he knew she did not have running water. After the neighbor agreed to pay for the water, Courtway said he was going to call the police. Then Blackmon, who was with the neighbor at the time Courtway confronted her, pulled out a knife and brandished it.

“Here, the State presented no evidence that Courtway caught Blackmon stealing water nor did it present any evidence that Blackmon believed he had been caught stealing water. Courtway did not testify that he believed Blackmon would retaliate because he had been caught stealing water. Courtway testified that Blackmon said nothing prior to drawing the knife. It was not until after Courtway threatened to call the police that Blackmon drew the knife,” Judge John Baker wrote. “While this may have been evidence that Blackmon intended to stop Courtway from calling the police and thereby intended to make Courtway engage in conduct against his will – a crime under Indiana Code section 35-45-2-1(a)(1) – this was not how the charge was brought. Consequently, we are compelled to conclude that the State failed to present sufficient evidence to prove that Blackmon intended to put Courtway in fear of retaliation for having caught him stealing water – an essential element of the crime as it was charged.”

Judge Cale Bradford took issue with the majority’s differentiating between the charging information using the word “caught” and what they said Courtway actually did, which was confront Blackmon because Courtway did not see Blackmon actually stealing the water.

“I find it inconsequential that Courtway did not know affirmatively that it was Blackmon, specifically, who had stolen the water considering the circumstantial evidence that indicated as much. In fact, the victim’s subjective knowledge is irrelevant under Indiana’s intimidation statute so long as the victim’s prior act was lawful. Regardless of Courtway’s knowledge, Blackmon seems to have been of the mind that he had been caught and reacted aggressively. As such, I think it was reasonable for the jury to find that Blackmon threatened Courtway in retaliation for the prior lawful act of catching Blackmon stealing water,” Bradford wrote.
__________

May 26

Agency Action – Unemployment Benefits

James E. Reed v. Review Board of the Indiana Department of Workforce Development, and A.W. Holdings, LLC

93A02-1410-EX-745

The Indiana Court of Appeals reversed the denial of a man’s application for unemployment benefits, finding the record doesn’t support that he was fired for just cause for violating his employer’s professional conduct rules. The man kept a mentally disabled client in a hot car, citing his safety and the safety of other riders.

James Reed worked as a direct support professional for A.W. Holdings LLC in Fort Wayne, which provides day services for disabled people. Reed was transporting three clients when “Client D” as he is referred to in the record, became upset and said he was going to fight. Based on that client’s history, Reed immediately pulled the vehicle over, removed the two other passengers, and kept Client D in the car. He called his supervisors and someone responded to the scene approximately 30 minutes later.

It was warm that day, with temperatures in the car reaching more than 90 degrees. Reed testified at his unemployment benefits hearing that he would open the car door periodically and provide the client with water. He felt keeping the client in the car was best so that he would not run away. One of the other clients Reed had at the scene also had a history of fleeing.

A.W. Holdings fired Reed, claiming he violated a professional conduct rule that employees “in no way exploit, neglect or inflict physical or psychological harm on a client.” His supervisors said he could have called the police or employed a “Mandt” hold, but Reed claimed he did not know he was allowed to call the police and that he would have been unable to restrain the client on his own.

The administrative law judge ruled in favor of the employer, as did the Review Board of the Indiana Department of Workforce Development.  

Reed appealed and the Court of Appeals reversed.

“We conclude that the record lacks substantial evidence to support a finding that Employee knew that his conduct violated Employer’s professional conduct rule that employees ‘in no way exploit, neglect or inflict physical or psychological harm on a client,’” Judge Elaine Brown wrote. “The record does not establish Employee knew or could be charged with the knowledge or reasonably anticipate that his action to restrain Client D in the vehicle under the circumstances could result in the termination of his employment. We reverse the decision of the Board that Employee was terminated for just cause and denying Employee unemployment benefits and remand for further proceedings consistent with this opinion.”

Criminal – Withdrawal of Plea Agreement

Bobby Dunn v. State of Indiana

49A02-1407-CR-470

A Court of Appeals judge dissented from his colleagues when he voted to support a trial court’s decision to throw out a plea agreement on the day of sentencing. The trial court discovered the victim in the case had not been notified of the plea agreement.

Judges Melissa May and Rudolph Pyle III reversed Marion Superior Judge Lisa Borges’ decision to grant the state’s motion to withdraw the guilty plea it entered into with Bobby Dunn. Dunn agreed to plead guilty to one count of Class D felony theft in exchange for other charges being dropped.

Marion County Deputy Prosecutor Kevin E. Kelly signed the agreement which said the victim in the case had been notified of the plea deal and the court accepted the agreement. But on the day of sentencing, deputy prosecutor Timothy Baldwin moved to withdraw the plea agreement based on a “mistake in fact” because the victim had not been notified, which he asserted is the victim’s constitutional right under Article 1, Section 13(b).

The majority pointed out that the COA at times has allowed for a guilty plea to be vacated after a court has accepted it, such as when the defendant later claims he or she is innocent, but that the circumstances in this case do not warrant vacating the agreement.

“To the extent the trial court permitted withdrawal based on Deputy Prosecutor Baldwin’s assertion at the sentencing hearing that the victim had not been notified, any error in the trial court’s original acceptance of the plea was invited by the State, as Deputy Prosecutor Kelly’s affidavit represented at the guilty plea hearing that the State had, in fact, notified the victim,” May wrote.  

Judge Michael Barnes dissented, pointing to the Indiana Constitution and the victim’s right to be notified of any public hearings regarding prosecution of the accused defendant.

“It is without question that the ultimate decision regarding the course of a prosecution and whether to enter into a plea agreement belongs to the prosecutor and is an inherent part of his or her power and authority,” he wrote. “Although I emphasize that victims do not control the prosecution or plea bargaining processes, they do have the right to have their opinion considered by the prosecuting attorney.”

Barnes also wrote that he believes that withdrawing a guilty plea after accepting it but before sentencing does not negatively impact a defendant’s constitutional rights.

The majority remanded for resentencing.

Criminal – Drugs

William Bowman v. State of Indiana

21A04-1404-CR-180

Because police did not prove the product of a controlled drug buy was heroin, the Court of Appeals reversed a man’s conviction of Class A felony dealing in a narcotic within 1,000 feet of a school.

Ciji Angel, a previous confidential informant, contacted police and told them she had just purchased heroin from William Bowman. Detective Scott Phillips arranged for Angel to perform a controlled drug by from Bowman, who lived near an elementary school. Angel performed the buy and gave the substance to Phillips, who did not field test it or have it tested in a lab. Phillips testified that the drug “looked like heroin.”

Bowman was convicted of the Class A felony and was found to be a habitual offender.

The state was required to show that Bowman knowingly or intentionally possessed heroin within 1,000 feet of a school in order to convict him. But the drug was never tested, and other circumstantial evidence as well as testimony supporting how the detective could know the drug was heroin was never introduced in this case.

This requires reversal of Bowman’s conviction, as well as reversal of the finding he is a habitual offender, the COA held.•