Indiana Court Decisions – April 21-May 4, 2022

7th Circuit Court of Appeals

April 28

United States of America v. Adam T. Williams, Jr.

21-2401

7th Circuit chastises Northern Indiana District Court for plain error in sentencing

Finding the error in sentencing affected the “fairness, integrity, and public reputation of the proceedings,” the 7th Circuit Court of Appeals has vacated a judgment and remanded an Indiana man’s sentence on federal drug charges because the district court failed to properly calculate the incarceration time under the First Step Act.

Adam Williams was convicted in 2001 of conspiring to sell more than 50 grams of crack cocaine, distributing more than 50 grams of crack and distributing more than five grams of crack. The late Judge Rudy Lozano of the U.S. District Court for the Northern District of Indiana sentenced Williams under federal guidelines to life imprisonment for the first two convictions and to the statutory maximum 40-year term for the third conviction.

Lozano explained his sentence by pointing to Williams’ participation in a sizeable drug operation, firearm possession, repeated perjury and efforts to help others evade arrest for an unrelated homicide.

After two unsuccessful attempts to have his sentence reduced, Williams filed a third motion in 2014. By then, the guideline range for sentencing had dropped, so Lozano lowered Williams’ sentence from life to 30 years. The judge explained a “small reduction” was warranted because of Williams’ youth, lack of prior contact with the criminal justice system and efforts for self-improvement while incarcerated.

In 2019, Williams filed his fourth sentence-reduction motion, this time under the First Step Act, which made retroactive the lower statutory penalties for crack offenses. The new statutory range was 60 to 480 months for Williams’ first two convictions and 240 months for his third conviction.

However, Senior Judge James Moody, who had been reassigned the case, declined to disturb the sentence. Rather than recalculating the new statutory ranges for the three convictions, Moody “apparently assumed” that Williams’ 2014 sentence conformed to the statutory maximums in the First Step Act.

The 7th Circuit found plain error in Moody’s sentencing in United States of America v. Adam T. Williams, Jr., 21-2401. In vacating the judgment, the appellate panel remanded for reconsideration of Williams’ motion.

Not only did the judge fail to recalculate the new statutory range for Williams’ three convictions as he was required to do, the 7th Circuit also found Moody misstated the new statutory penalty for Williams’ third conviction.

“The error here was plain. It affected Williams’s substantial rights because Williams was deprived of the benefit of any anchoring effect that the new statutory ranges could have had on Judge Moody’s decision. This effect plays a ‘central role in sentencing,’ and its absence can be ‘particularly serious,’” Judge Diane Wood wrote, citing Molina-Martinez v. United States, 578 U.S. 189 (2016), and United States v. Blake, 22 F.4th at 643 (7th Cir. 2022). “Indeed, without the benchmark of the new sentencing framework, Judge Moody — despite saying he was giving the facts a ‘fresh look’ — ended up balancing the same factors in the same way as Judge Lozano.”

But the 7th Circuit declined Williams’ invitation to adopt the 4th Circuit Court of Appeals’ reasoning in United States v. Collington, 995 F.3d 347 (4th Cir. 2021), and reduce his sentence for his third conviction to no more than the new statutory maximum of 20 years.

Indiana Supreme Court

April 21

In the Matter of Jared M. Thomas

21S-DI-16

Suspended Evansville lawyer disbarred for trust mismanagement, forgery, falsifying doc

Evansville attorney Jared M. Thomas has been disbarred by the Indiana Supreme Court for criminally mismanaging his trust account, forging a judge’s signature and falsifying at least one document.

Thomas was already under an order of interim suspension when the Supreme Court issued the per curiam decision, In the Matter of Jared M. Thomas, 21S-DI-16, on April 21.

The justices found Thomas violated Indiana Professional Conduct Rules 1.15(a), failing to safeguard the property of clients and hold client property separately from lawyer property; 8.4(b), committing criminal acts; 8.4(c), engaging in dishonesty, fraud, deceit or misrepresentation; and 8.4(d), engaging in conduct that is prejudicial to the administration of justice.

According to the order, Thomas engaged in a check kiting scheme in which he wrote several checks from his trust account to his operating account and vice versa. His trust account became overdrawn and a $6,000 check that was owed to a client in a marital dissolution case was instead used to reduce the loss written off by the bank when it closed the account.

The Indiana Supreme Court Disciplinary Commission is investigating Thomas for several additional matters. As part of one of the investigations, Thomas admitted he fraudulently created a document purporting to order a sentence modification to a client and forged the presiding judge’s signature.

The order cited a prior discipline, Matter of Thomas, 111 N.E.3d 1013 (Ind. 2018), as an aggravating factor. The justices also found Thomas engaged in a pattern of misconduct that was illegal in nature.

“We have imposed severe sanctions in prior cases involving crimes of dishonesty, misappropriation of client funds, creation of fraudulent documents, or forging of signatures,” the order stated, citing Matter of Fraley, 138 N.E.3d 262 (Ind. 2020), Matter of Schuyler, 97 N.E.3d 618 (Ind. 2018), and Matter of Brown, 766 N.E.2d 363 (Ind. 2002). “Here, Respondent admits having done all of these things. These acts demonstrate Respondent’s unfitness to practice law, now or ever.”

According to his firm’s website, Thomas is a 2011 graduate of Valparaiso Law School and runs a solo practice in Evansville.

Court of Appeals of Indiana

April 21

Jesse L. Mathews v. State of Indiana

20A-CR-2229

Appellate court affirms use of state’s jury instruction on motive in partial decapitation case

A pattern jury instruction on motive used in a murder case adequately equipped the jury to perform its role in convicting a man who tried to decapitate a woman he killed, the Court of Appeals of Indiana has ruled.

Jesse Mathews argued to the appellate court that the Clay Circuit Court was wrong in declining to use his proposed jury instruction in the case of Jesse L. Mathews v. State of Indiana, 20A-CR-2229. In that case, Mathews was charged and ultimately convicted of murdering Virginia “Dee” Myrtle in 2016 and attempting to cut off her head.

Myrtle, who for days did not respond to messages and did not appear for a previously arranged visit with her incarcerated son, was eventually discovered by her family and friends when they searched her home. The family found Myrtle’s partially decapitated body on the floor of her bedroom, concealed under blankets and debris.

During the week prior to her death, Myrtle had spent time with Mathews in the mobile home she shared with Daniel Speck. In the days following her radio silence, Mathews came in and out of her bedroom, which usually stayed closed and locked, saying Myrtle wasn’t there.

Myrtle’s family and friends became suspicious when interacting with Mathews, specifically after noticing a “fresh cut” on his hand and spotting blood in the mobile home, among other inconsistencies.

A medical examiner later determined Myrtle had been killed by two gunshots to the head from a small caliber weapon, which was never located, and the attempts to sever her head occurred post-mortem. DNA testing revealed that a mixture of Mathews and Myrtle’s DNA profiles had contributed to genetic material found on the handle of a saw found in her neck, a stethoscope in the room and a roll of tape.

For his part, Mathews argued the court should have stuck with its own proposed jury instruction, which read: “Motive is what causes a person to act. Motive is not an element of the crime and therefore does not have to be proven beyond a reasonable doubt. However, presence of motive may tend to establish guilt, and absence of motive may tend to establish innocence. You may therefore give its presence or absence the weight you believe it should have as evidence.”

Instead, the court accepted the state’s proposal to use Indiana’s pattern jury instruction: “Motive is what causes a person to act. The State is not required to prove a motive for the crime charged.”

Ultimately, the COA concluded that both the court and the state’s instructions would have produced the same verdict. Specifically, it noted that the trial court’s original proposed instruction correctly stated the law and that the state didn’t dispute that sufficient evidence existed regarding motive to support giving the instruction.

Asking then whether the substance of the trial court’s original instruction was covered by other instructions, the COA looked to Cook v. State, 544 N.E.2d 1359 (Ind. 1989).

“In Cook, the Indiana Supreme Court determined that a motive instruction based on the pattern jury instruction was sufficient, and Cook’s more elaborate instruction, although ‘even-handed,’ did not require reversal of the jury’s verdict,” Senior Judge Randall Shepard wrote. “That reasoning applies here.”

Additionally, the COA found the jury received ample information about motive and could weigh the evidence accordingly. As such, the appellate court concluded the trial court did not abuse its discretion by choosing to give the pattern jury instruction on motive over the instruction it originally proposed.

Neither did the trial court abuse its discretion in excluding testimony from one of Myrtle’s friends, who attempted to contact a police officer with information about Myrtle’s murder. The friend claimed an unknown woman had told her a man named Craig Wilson was the real killer.

“(Jamia) Keuthan’s testimony did not tend to make a fact — the police’s allegedly unreasonable failure to investigate other suspects — more or less probable because there is no evidence that the detective or any other officer received her information about the unknown woman who had implicated Wilson,” Shepard wrote. “Keuthan was unsure if she had called the correct number, and the detective did not recall receiving a call from her during the relevant period of time. The trial court did not abuse its discretion in excluding this evidence.”

The appellate panel further found that Wilson’s statement during cross-examination that he would take a polygraph test to prove he didn’t kill Myrtle did not make a fair trial impossible or amount to a clearly blatant violation of basic and elementary principles of due process. As such, there was no fundamental error in the trial court choosing not to order a mistrial after Wilson offered to take a polygraph.

Finally, the COA rejected Mathews’ argument that the cumulative effect of the trial court’s decisions required a reversal of his convictions because the state’s case against him was “circumstantial and weak.”

“Reversal is not warranted,” it concluded.

___________

Christopher Harris v. State of Indiana

21A-CR-1315

Change to habitual offender statute does not violate state constitution, COA rules

A defendant challenging his habitual offender status based on a change to state statute did not persuade the Court of Appeals of Indiana, which found the Legislature’s move to limit the jury’s role did not infringe on any constitutional rights.

Christopher Harris was found guilty of Level 3 felony robbery while armed with a deadly weapon and Level 5 felony battery with a deadly weapon after a bench trial in Marion Superior Court. A jury trial was then conducted to determine whether Harris was a habitual offender.

The parties stipulated that Harris had two prior, unrelated felony convictions: one for robbery in 2002 and one for unlawful possession of a firearm by a serious violent felon in 2013. The prosecution rested on that stipulation.

Harris then took the stand, and when his attorney asked him if there was “anything going on in (his) life,” the state objected that the answer would not be relevant. The trial court agreed but allowed Harris to make an offer of proof outside the presence of the jury.

Harris explained he had been diagnosed with PTSD and had been having trouble with his medications. Also, he maintained he had no part in the robbery that led to his 2002 conviction.

When the jurors returned, they found Harris to be a habitual offender.

Harris appealed, arguing the limitation of his testimony during the habitual-offender proceeding violated Article 1, Section 19 of the Indiana Constitution.

Although the Court of Appeals noted Harris waived his constitutional claim for appeal because he did not raise it in the trial court, the panel found his claim failed on the merits.

Article 1, Section 19 provides, “In all criminal proceedings whatever, the jury shall have the right to determine the law and the facts.” The Indiana Supreme Court addressed that provision twice in connection with the habitual offender statute.

In Seay v. State, 698 N.E. 2d 732 (Ind. 1998), the justices found Article 1, Section 19 gives the jury the discretion to find the defendant is not a habitual offender even if that individual has the requisite prior felony convictions. Three years later in Hollowell v. State, 753 N.E.2d 612 (Ind. 2001), the Supreme Court held evidence regarding the defendant’s convictions, beyond the mere fact of the convictions, is admissible because it is relevant to the jury’s exercising of its discretion under Seay.

However, after the rulings in Seay and Hollowell, the Indiana General Assembly amended the habitual offender statute, Indiana Code § 35-50-2-8(h).

No longer were juries allowed to decide whether a defendant was a habitual offender. Instead, they were tasked with solely determining whether the defendant has “been convicted of the unrelated felonies.” If the jury finds prior felony convictions, habitual-offender status is automatic.

Harris argued the amended statute did not impact his constitutional claim. That provision enables juries to “determine the law” and, Harris asserted, the Legislature cannot infringe upon a right by statute.

The Court of Appeals was not convinced.

“But again, Article 1, Section 19 applies during habitual-offender proceedings only because the legislature has provided for a jury role in those proceedings,” Vaidik wrote for the court in Christopher Harris v. State of Indiana, 21A-CR-1315. “And because the legislature could eliminate the jury’s role entirely without violating Article 1, Section 19, it can limit the jury’s role without violating Article 1, Section 19.

“It has done so in the current version of the habitual-offender statute,” Vaidik wrote, “providing that the only decision the jury makes is whether the defendant has the requisite prior convictions.”

As for the habitual offender enhancement added to Harris’ sentences, the COA remanded with instructions to correct the sentencing documents to show that the enhancement specifically attaches to his 12-year sentence for robbery, for a total sentence of 27 years on that count.

____________

April 29

B.M. and R.M. v. A.J. by Child’s Next Friend, R.J.

21A-PO-2290

COA reverses protective orders, remands classmates’ stalking case for judge’s improper comments

A pair of protective orders issued against two brothers by a classmate have been reversed after the Court of Appeals of Indiana determined the defendants weren’t given an impartial hearing and were denied due process by the Lawrence Circuit Court.

On Sept. 13, 2021, A.J., by next friend R.J., filed a petition for an order of protection against B.M. and his brother, R.M. The court held a hearing on both petitions on Sept. 24.

At the start of the hearing, Lawrence Circuit Judge Nathan Nikirk told the parties, “I’ll warn everybody before we get started, I am not in a good mood today. I was up all night dealing with a child abuse case, and I’m here this morning at 8:30 a.m. on this nonsense.”

A.J. testified that she was 17 years old and a junior in high school. She said she and B.M. had been in school together since middle school and that she had noticed his stalking activity back in sixth grade.

Once the students got to high school, A.J. testified that the stalking got worse, with B.M. driving his vehicle in circles around her while she was in her vehicle in the parking lot and waiting for her in the parking lot when she finished math tutoring after school.

A.J. provided other examples of alleged stalking, including B.M. sitting behind her in classes, smelling her hair and following her around the school.

When asked how she felt about being followed in her car, A.J. testified, “I’m scared, especially the way he looks. He looks like he wants to hurt me, like he wants to kill me, and he’d have pleasure in it.”

A.J.’s counsel called R.J., her father, as a witness. R.J. was a conservation officer and, after an incident in which B.M. ran at A.J. at school, he went to B.M. and R.M.’s house, asked to speak with their parents, sat at their kitchen table and explained the daily stalking.

R.J. indicated B.M. did not deny anything, and B.M. and R.M.’s parents led him to believe they wanted to take care of it and it would stop. He said was in uniform but spoke to B.M. and R.M.’s parents as a father.

R.J. testified that, after an incident at a Denny’s restaurant, he went to B.M. and R.M.’s house a second time, was not in uniform and again spoke to their parents. B.M. and R.M.’s father said “my boys will be boys,” “[t]his is America” and “[y]our girl’s just going to have to get over it.”

Several improper exchanges happened when B.M. and R.M., and parent K.M., were questioned by the judge, according to court documents.

However, the protective orders were ultimately granted.

But after reviewing the transcript, the Court of Appeals reversed, concluding the boys weren’t given an impartial trial. The COA determined B.M. and R.M. had made a prima facie showing that the trial court failed to preside over the hearing as a neutral, impartial decision-maker.

“When K.M. attempted to clarify that a question by A.J.’s counsel related to ninth grade, the court stated ‘[y]ou will sit there and shut your mouth’ or would be ‘out of here or across the street in the county jail,’” Judge Elaine Brown wrote for the appellate panel. “The court stated ‘I don’t care if he came with a bazooka.’

“The court took control of the hearing and called B.M. as a witness,” Brown continued. “After it heard testimony, the court stated: ‘Okay. I’ve heard enough. I’m ready to rule,’ ‘if I were this man and this was my daughter, it would have went a hell of a lot further than it did. Anyone called my daughter a whore, there’d be hell to pay for it from me,’ and ‘this pisses me off.’”

Brown wrote that that while the COA is “mindful of the pressures and stresses on trial courts,” judges “are expected to adhere to the Judicial Canons and treat litigants and their counsel with civility.”

Thus, the COA remanded for a new hearing before a different judicial officer and ordered that, pending the hearing, there be no contact between A.J. and B.M. and between A.J. and R.M.

Judge Melissa May concurred in result without a separate opinion.

The case is B.M. and R.M. v. A.J. by Child’s Next Friend, R.J., 21A-PO-2290.

____________

May 2

In Re: The Change of Gender of: O.J.G.S., A Minor, S.G.S.

21A-MI-2096

Split COA affirms denial of minor’s gender-marker change, calls on Supreme Court for help

Making an about-face, a sharply divided panel of the Court of Appeals of Indiana has affirmed the denial of a mother’s second request to change her transgender child’s birth certificate gender marker. But noting its own conflicting precedent, the COA called on the Indiana Supreme Court to help resolve the issue.

The case of In re: The Change of Gender of: O.J.G.S., A Minor, S.G.S., 21A-MI-2096, stems from a consolidated case in which another split Court of Appeals panel ordered two Indiana trial courts to reconsider several parents’ requests to change their children’s birth certificate gender markers.

As a matter of first impression, the COA majority ruled in February 2021 that the parents had the authority to petition for a gender marker change on their minor children’s birth certificate. It determined the appropriate standard to apply to such a petition is whether the proposed change is in the child’s best interests.

Judge Rudolph Pyle dissented, opining that the decision was a judicial overreach into legislative powers.

Also, Pyle said the plain language of Indiana Code § 16-37-2-10 does not provide Indiana trial courts with the authority to grant petitions to amend gender markers on birth certificates.

Among the families involved in that consolidated suit were mother S.G.S. and her minor transgender child, O.J.G.S.

In March 2020, the mother asked the Allen Circuit Court to change the gender marker on her child’s birth certificate from male to female when the child was, at the time, 7 years old.

The trial court denied the petition without explanation before facing a remand from the COA to look at the issue in light of the child’s best interests.

On remand, the trial court issued a second denial of S.G.S.’s petition, explaining that the child’s age was “extremely young” and that the mother’s wishes as a “very loving and caring parent” were based “more on a mother’s speculation and future worry than on current conditions.”

The trial court ultimately determined it could not make a finding that granting the petition would be in O.J.G.S.’s best interests.

S.G.S. appealed again to the COA, arguing the trial court abused its discretion by relying on its own assumptions rather than the evidence presented through her testimony and the letters from the child’s medical providers. She asserted that the trial court’s order “thwarts the reasoned decision of a ‘very good parent’ instead of deferring to it,” and that the trial court “refuse[d] relief that would increase [Child’s] safety and wellbeing when her current and future welfare should be the chief concern.”

Despite finding her arguments “compelling,” Judge Robert Altice concluded the COA “cannot overlook the fact that this court made an improper lane change beginning in 2014, as highlighted by Judge Pyle’s dissent in this case’s first appeal.”

“In light of this second plurality opinion in less than a year, I urge the Supreme Court to speak on this matter, which has divided this court and resulted, unfortunately, in unpredictability for petitioners who earnestly desire a remedy,” Altice wrote. “In my view, the mechanism for such a change, no matter how vital to certain members of our society, must be crafted by the General Assembly.”

Concurring in result, Judge L. Mark Bailey wrote separately that absent a statutory framework, he would vote to affirm the trial court’s denial of the petition for a gender marker change.

The concurring judge partially agreed with both the majority and dissent, finding “ample evidence … that a gender marker change is consistent with the family’s wishes and the child’s best interests as understood by the child’s medical providers.” He added that a trial court would welcome an independent evaluation of a child’s psychological makeup and the sincerity of the child’s and parent’s expressed wishes.

“But we simply have no statutory context,” Bailey wrote. “At bottom, a parent has the right to ask, but no right to order the registrar to effect a change, absent an error in the designated sex of the child at the time of birth.”

In a 17-page dissent, Judge Paul D. Mathias joined the majority in calling for the Indiana General Assembly to provide guidance but disagreed that Indiana’s judiciary is unable to act without a statutory framework in this case.

The dissent concluded that “there is no question that the trial court’s judgment is wholly unsupported by the record and, thus, is clearly erroneous.”

“In the end, we are left with Child, and many other Hoosier children like Child, with no remedy for the condition in which they find themselves through no fault of their own. It does not need to be this way,” Mathias wrote. “Unless and until the General Assembly and Governor create a fair resolution structure, or clearly forbid any change of gender markers on birth certificates for any reason, equity jurisprudence provides the remedy to consider Mother’s request on Child’s behalf.

“For all of these reasons, I respectfully dissent,” he wrote. “I would find that the trial court’s decision to deny Mother’s petition is clearly erroneous, and I would reverse and remand with instructions for the trial court to grant Mother’s petition.”

____________

May 4

Joel Williams, Jr. v. State of Indiana

21A-CR-1581

COA allows rape case to proceed 35 years after incident

A Lake County man charged with multiple rapes 35 years after they occurred failed to convince the Court of Appeals of Indiana that his due process rights were violated and that the decadeslong delay was unjustified.

In 1984, Joel Williams Jr. was charged with participating in several Gary home invasions involving robbery, rape and sexual assault. Williams was eventually convicted of multiple counts of robbery and sentenced to an aggregate of 45 years behind bars.

During the same time frame as the Gary robberies, a similar home invasion took place in Hobart during which three victims were raped by three men while being held at knifepoint and gunpoint.

Williams was one of the men accused of raping the women. Two months after the incident, he was arrested for the rapes and robberies in Gary.

The Hobart victims immediately submitted sexual assault kits for testing after the incident, but those kits were returned unexamined by Great Lakes Forensic Laboratories in May 1984.

During a subsequent lineup containing Williams, the victims could not positively identify him as one of the men who entered their residence. However, they recognized his voice and said he had a similar build to one of the attackers.

Williams, who was 17 at the time of the robberies and rapes, indicated to police after the lineup that he had participated in the Hobart home invasion with the other men.

Meanwhile, the victims’ sexual assault kits were submitted to the Indiana State Police Lab for analysis. Although the examination revealed hairs that were not inconsistent with the perpetrators’ hair and seminal fluid on several items of evidence, analysts concluded further analysis of the items could not be conducted “due to the lack of suspect standards for comparison.”

More than three decades later in 2018, testing was performed on one of the Hobart victim’s sexual assault kits and revealed a match to Williams. As a result, the state charged Williams with two counts of rape and two counts of criminal deviate conduct in 2019.

Williams moved to dismiss the charges, asserting a violation of his due process rights because of the delay. But the Lake Superior Court denied that motion.

Following oral arguments last month, the COA affirmed the denial of the motion to dismiss on interlocutory appeal in Joel Williams, Jr. v. State of Indiana, 21A-CR-1581.

The unanimous appellate panel found that although Williams showed that Irene Comsa, an assumed clerk who signed the form when the sexual assault kits were returned to Hobart police in May 1984, was deceased, he failed to show how she would have helped his defense if she were alive today. It similarly rejected Williams’ argument that one of his co-assailants was deceased and, therefore, Williams was prejudiced by being unable to obtain that individuals’ DNA.

One of the victims was raped by two men, the appellate court observed, adding that “identification of the second man does not alter the result of the testing that identified Williams.”

The appellate court further pointed out that Williams demonstrated no effort to locate, contact or question the ISP lab analysts to support his claim of their unavailability for questioning.

“Therefore, we find that, with regard to the deceased witnesses, Williams has not established that they likely possessed information that would aid his defense,” Senior Judge John Baker wrote. “Furthermore, he has not established the unavailability of the remaining witnesses. Accordingly, we conclude that Williams has not demonstrated that he will suffer actual and substantial prejudice to his right to a fair trial as a result of the delay in charging him.”

The COA also rejected as “sheer speculation” his claim that charging him with the Hobart rapes 35 years after they occurred was fundamentally unfair.

“While we agree that thirty-five years is a substantial delay, we are constrained to abide by the precedent set by our Supreme Court,” Baker wrote, citing Ackerman v. State, 51 N.E.3d 171 (Ind. 2016), throughout the opinion. “In doing so, we conclude Williams has not demonstrated the required prejudice and therefore has not established that the evidence is without conflict and leads inescapably to the conclusion that he was entitled to dismissal. Thus, we affirm the trial court’s denial of Williams’ motion to dismiss and remand.”

Indiana Tax Court

May 2

Joseph R. Guy, P.C. v. Indiana Department of State Revenue

22T-TA-00005

Tax Court dismisses law firm’s appeal for lack of jurisdiction

The Indiana Tax Court has dismissed an appeal from an Indianapolis law office that was ordered to pay an outstanding liability after it mislabeled withholding tax returns in 2021, finding the court lacked jurisdiction in the case.

Joseph R. Guy P.C. ran into trouble with the Indiana Department of State Revenue in December 2021 after the department determined Guy, an attorney in Indianapolis, had not submitted a withholding tax return for Sept. 1-30, 2021. If the return was not filed by Jan. 6, 2022, the department said it would prepare an assessment based on the best information it had.

However, in November 2021, Guy had electronically filed a withholding tax return for that period via the Indiana Taxpayer Information Management Engine, or INTIME, and paid the corresponding tax liability of $688.26 to the department.

Upon the department’s notice of failure to file, Guy sent a letter explaining the firm had filed the withholding tax return for the period at issue but had mistakenly labeled it for the October 2021 tax period. Despite attaching the firm’s September and October 2021 payroll ledgers and the related INTIME payment receipts to the letter, the department did not respond to Guy.

Near the end of January, an outstanding withholding tax liability of $1,273.22 was issued against Guy for the December 2021 tax period. A back-and-forth discussion continued between Guy and the department until the department issued a “Notice of Balance Due” reducing Guy’s withholding tax liability for the period at issue from $1,266.52 to $578.26.

Guy appealed, but the department filed a motion to dismiss the case for lack of subject matter jurisdiction pursuant to Indiana Trial Rule 12(B)(1).

The Tax Court granted the motion to dismiss, finding the evidence before it failed to establish that the “Notice of Balance Due” constituted a final determination.

“While the Notice of Balance Due did impose an obligation upon Guy, i.e., it required Guy to pay additional withholding tax for the period at issue, it did not constitute a final determination because Guy failed to initiate either of the Department’s administrative processes under Indiana Code § 6-8.1-5-1 (to appeal an assessment) or under Indiana Code § 6-8.1-9-1 (to appeal the denial of a refund claim),” Judge Martha Blood Wentworth wrote. “Therefore, the Notice of Balance Due could not constitute the consummation of the administrative appeal process, and Guy’s case is not an original tax appeal subject to the Court’s jurisdiction.”

As such, the Tax Court dismissed without prejudice in the case of Joseph R. Guy, P.C. v. Indiana Department of State Revenue, 22T-TA-00005.•