Indiana Court Decisions: Aug. 11-24, 2022

7th Circuit Court of Appeals

Aug. 17

Circle Block Partners, LLC and Circle Block Hotel, LLC v. Fireman’s Fund Insurance Company

21-2459

7th Circuit upholds denial of COVID insurance coverage to downtown Indy’s Conrad Hotel

Continuing a national trend, an Indianapolis hotel that suffered significant blows as a result of the COVID-19 pandemic did not prevail before the 7th Circuit Court of Appeals in its attempts to secure insurance coverage for its pandemic-
related losses.

In 2020, occupancy rates at downtown Indianapolis’ Conrad Hotel dropped “into the single digits” due to the COVID-19 pandemic. The hotel “lost virtually all of its business income” while incurring “additional expenses for cleaning and disinfecting the property.”

At one point, just six of the hotel’s 247 rooms were occupied, and the hotel suspended all operations in April 2020.

Circle Block Partners LLC and Circle Block Hotel LLC, which own and operate the Conrad, had purchased a commercial property insurance policy from Fireman’s Fund Insurance Company to cover the property. When the insurer denied Circle Block’s claims for losses, the owners initially sued in Indiana state court, alleging breach of contract and seeking a declaratory judgment of coverage under the policy.

Once the case was removed to the U.S. District Court for the Southern District of Indiana, Judge James P. Hanlon granted Fireman’s Fund’s motion to dismiss, denying as moot Circle Block’s motions for oral argument and to compel.

The 7th Circuit affirmed in Circle Block Partners, LLC and Circle Block Hotel, LLC v. Fireman’s Fund Insurance Company, 21-2459, citing to the Indiana Supreme Court’s recent denial of transfer in a similar case involving the Indiana Repertory Theatre.

Court of Appeals of Indiana judges had previously ruled in the state-court case that the IRT could not claim loss-of-use coverage due to COVID under its insurance policy because the theater was not physically damaged when it could not use the property to host live performances.

The 7th Circuit determined the Conrad was in a similar boat: The business, although forced to shut down or reduce operations during the pandemic, failed to allege “direct physical loss” or “direct physical damage” to property.

“We recognize that Circle Block was not able to use the Conrad property as it would have preferred. But as Indiana Repertory Theatre and the overwhelming majority of similar cases under other states’ law have held, a temporary denial of a plaintiff’s preferred use of its property, absent some physical alteration, does not fall within the plain meaning of ‘direct physical loss or damage,’” Circuit Judge David Hamilton wrote.

The appellate panel added that because of the Conrad’s status as an essential business for certain purposes, it was permitted to remain open to provide lodging and delivery or carryout food services. Essentially, it concluded the hotel was not rendered “completely uninhabitable by the pandemic.”

The 7th Circuit pointed to the period-of-restoration policy language to reinforce its conclusion. It found problems with the hotel’s argument — supported by amicus Purdue University — that virus particles physically attached to surfaces at the Conrad, “adsorbing” onto surfaces in the building and materially altering them.

Further, the court noted that neither Sandy Point Dental, P.C. v. Cincinnati Insurance Co., 20 F.4th 327 (7th Cir. 2021), nor Indiana Repertory Theatre hold that any imaginable physical alteration is sufficient. Also, adopting Circle Block’s argument would require the court to “carve out a narrow sliver of circumstances in which a business’s COVID-19 insurance claim may proceed.”

“At oral argument, Circle Block acknowledged that its position would effectively be limited to hotels in Indiana, based on both length of exposure and the types of surfaces present in hotels,” Hamilton wrote. “But many other businesses where employees and patrons may be subject to prolonged exposure — dental offices or restaurants or childcare centers — have draperies, carpeting, and other surfaces like the ones Circle Block identifies.

“For that matter,” he continued, “we have also rejected other hotels’ COVID-19 coverage claims. … We see no principled distinction for holding that Circle Block can succeed where those plaintiffs did not.”

Turning to Circle Block’s “broad definition” of “direct physical damage,” the 7th Circuit said such an understanding would extend coverage to any situation where “material matter” is added to a surface.

“A sneeze that spreads cold virus particles, for example, would be deemed to have inflicted ‘direct physical damage,’” Hamilton concluded. “We have a hard time imagining that a reasonably intelligent policyholder would share such an expansive understanding of that phrase. Nor does Circle Block explain how this addition of ‘material matter’ would ‘require restoration or relocation.’”

Finally, the appellate panel found that the district court did not err by dismissing the case without leave to amend the complaint. It also concluded that the certification of two questions of state law to the Indiana Supreme Court was not warranted.

Those questions included:

• Does the undefined insurance policy term “direct physical loss or damage” require tangible, visible physical alteration or destruction of property under Indiana law?

• Does the persistent attachment of invisible — yet physical, dangerous and harmful — particles to property constitute “direct physical loss or damage” under Indiana law?

“These issues are undoubtedly important to policyholders and insurers, but the Indiana Supreme Court will have opportunities to address them in cases proceeding through the state courts,” the appellate court concluded. “The Indiana Supreme Court recently decided not to address those issues when it denied transfer in Indiana Repertory Theatre. … This is not a case where certification ‘may be the only way to allow the state courts to resolve an issue of state law.’”

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Aug. 22

Bradford Bohanon v. City of Indianapolis

20-3125

7th Circuit affirms for city of Indianapolis in bar brawl involving off-duty officers

A man who was knocked out by two off-duty Indianapolis police officers during a bar fight and was initially awarded more than $1 million in damages against the city could not convince the 7th Circuit Court of Appeals that the municipality should be held vicariously liable for its employees’ actions.

A 2014 bar fight involving two off-duty officers, Michael Reiger and John Serban, left bar patron Bradford Bohanon unconscious.

At the time, Reiger and Serban were at Mikie’s Pub in plain clothing while off duty and consumed several beers and a shot before their interaction with Bohanon, who had ordered a round of shots for everyone at the bar.

After receiving his bill, Bohanon argued with the bartender that he had been overcharged. When he became loud and combative and refused to leave, Reiger and Serban intervened and a fight ensued, which included the officers putting Bohanon in a chokehold that knocked him unconscious. Reiger and Serban then brutally beat Bohanon in the pub’s parking lot before taking money from his wallet and leaving him there.

Bohanon filed a complaint with the Indianapolis Metro Police Department. IMPD later determined that the officers’ actions violated a host of policies including impermissibly using excessive force, using an inappropriate chokehold, failing to render medical aid, and failing to report the incident and contact a supervisor.

Both officers were charged with felony battery, although they were acquitted of those crimes in 2016 and ultimately discharged from the force.

A jury later awarded Bohanon nearly $1.25 million in damages, but a federal judge granted Indianapolis’ motion for judgment as a matter of law and vacated the jury’s verdict.

The 7th Circuit affirmed in Bradford Bohanon v. City of Indianapolis, 20-3125, concluding that although the officers’ conduct was “egregious,” Bohanon’s theory for holding the city liable was flawed.

Specifically, Bohanon had sued the city under 42 U.S.C. § 1983, alleging that the officers used excessive force in violation of his rights under the Fourth Amendment. His theory of municipal liability under Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978), was that his injuries were caused by a “gap” in the city’s substance abuse policy.

That policy prohibits off-duty officers with any alcohol in their blood from performing law enforcement functions subject to a narrow exception — only in an “extreme emergency situation[]” where police “action is required to prevent injury to the off duty [officer] or another, or to prevent the commission of a felony or other serious offense.”

While the 7th Circuit found Bohanon satisfied the first requirement necessary to bring a Monell claim, it found that at steps two and three — municipal fault and “moving force” causation — Bohanon’s claim collapsed.

The appellate court also found that Bohanon did not establish that his case was within the “narrow range of circumstances” where notice can be inferred from the obviousness of the consequences of failing to act.

“In the rare cases where we have found this standard to be met, the risks of municipal inaction have been blatantly obvious,” Chief Judge Diane Sykes wrote. “In contrast, it is not at all obvious that a policy prohibiting police action while drinking, subject to a narrow and specific exception to protect life and limb, would lead off-duty officers to use excessive force in violation of the Constitution. That’s especially true when coupled with the City’s policy prohibiting the use of excessive force. Nothing about the text of General Order 3.24 alone put the City on notice that constitutional violations of this kind were likely to occur.”

Finally, the 7th Circuit concluded that Bohanon failed to prove that the city’s policies were the cause of his injuries. It noted that instead, the city policy “clearly” was not the moving force behind the constitutional violation.

“What happened to Bradford Bohanon was a tragedy, and we share the district judge’s sympathy for Bohanon. But ‘a municipality cannot be held liable solely because it employs a tortfeasor,’” Sykes wrote. “Because Bohanon did not establish municipal fault and moving-force causation, the judge was right to set aside the jury’s verdict and enter judgment for the City.”

Indiana Supreme Court

Aug. 23

Frank E. Minges, III v. State of Indiana

22S-CR-285

Indiana Supreme Court tosses decades-old precedent protecting police work product

The Indiana Supreme Court has overturned a more-than-30-year-old precedent, finding the previous ruling that held police reports were covered by the work-product doctrine is no longer applicable because of changes to the state’s trial rules and technological advances that have ended the laborious task of redacting documents using a Marks-a-Lot marker.

Thirty-seven years ago, a split Supreme Court blocked the discretion of trial courts in discovery disputes over reports from law enforcement. In State ex. rel. Keaton v. Cir. Ct. of Rush Cnty., 475 N.E.2d 1146 (Ind. 1985), the majority concluded, “… a trial court’s authority to control discovery does not extend to compelling production of verbatim copies of police reports.”

However, on Aug. 23, a unanimous Supreme Court overruled Keaton.

“We stress, though, that this Court’s decision does not suggest that police reports may never qualify as work product,” Justice Steven David wrote for the Supreme Court in Frank E. Minges, III v. State of Indiana, 22S-CR-285. “… We merely clarify that Trial Rule 26(B)(3) supersedes any reliance on Keaton as preventing trial courts from exercising their discretion in determining whether the work product privilege protects a particular police report from disclosure.”

The case that inspired the reversal began in October 2020, with Frank Minges driving too fast and failing to stay in his lane of traffic. A Dearborn County police officer pulled him over and administered a field sobriety test that registered Minges’ blood alcohol content at 0.099%.

Minges was charged separately with operating his vehicle while intoxicated, a Class C misdemeanor, in a manner that endangered a person, a Class A misdemeanor. The local prosecutor refused to provide a copy of the Dearborn County Sheriff Department’s case report narrative but did offer to allow a review of the report — but only if defense counsel made an appointment to appear at the prosecutor’s office.

Dearborn Superior Judge Jonathan Cleary looked at Keaton and concluded the trial court had no discretion to compel the prosecutor to produce the police report. The Court of Appeals of Indiana affirmed in Minges v. Indiana, 21A-CR-216, although the panel agreed with Minges that Keaton should be reconsidered.

The Supreme Court accepted the requests that it reconsider Keaton. While the justices acknowledged they should be reluctant to disturb precedent, they cited to Ladra v. State, 177 N.E.3d 412 (Ind. 2021), which held that while “stare decisis often compels a court to follow its prior decisions, the doctrine is not a straitjacket … .”

Since Keaton, the state’s trial rules have been updated so that the two-pronged definition of “work product” under Indiana Trial Rule 26(B)(3) now applies to all criminal proceedings and not just to criminal appeals. The material must have been prepared in anticipation of a trial and prepared by or for “another party or … that other party’s representative or agent.”

In his opinion for the Minges Supreme Court, David noted courts have interpreted Keaton as providing a blanket privilege to police reports, which has effectively deprived the trial courts of the ability to exercise their discretion in compelling disclosure over the prosecuting attorney’s work-product objection.

But, David continued, “we see no reason to perpetuate this reading of Keaton when Trial Rule 26(B)(3) and other discovery principles provide the appropriate framework for analyzing whether the work product doctrine protects a police report from disclosure.”

David also highlighted that the reasons justifying Keaton are unsupported in the modern age. Specifically, the Keaton Supreme Court found that requiring prosecuting attorneys to produce copies of the police reports would create an undue burden.

In Minges, the Supreme Court pointed out that the advent of computers and e-filing have made redacting documents significantly less burdensome than 30 years ago, when black markers were used to cross out sensitive information. Moreover, the concerns that providing police reports would present an opportunity for abuse by defense attorneys have proven unfounded.

“Such fear of abuse by fellow legal professionals not only appears unsubstantiated, but disregards the oath taken by every attorney in our State, defense counsel and prosecutors alike, to ‘abstain from offensive personality and advance no fact prejudicial to the honor or reputation of a party or witness,’” David wrote, citing Indiana Admission and Discipline Rule 22. “And more importantly, we can rely on trial judges to control the conduct and scope of cross-examination to minimize the risks of concern to the Keaton court.”

The Minges case was thus remanded for the trial court to “reconsider whether the Police Report is protected by the work product privilege in a manner consistent with the Court’s decision.”

Court of Appeals of Indiana

Aug. 15

Greg Serbon and John Allen v. City of East Chicago, Indiana, City of East Chicago Common Council; Monica Gonzalez, Lenny Franciski, Terrence Hill, Stacy Winfield, Robert Garcia, Gilda Orange, Dwayne Rancifer, Jr., Emiliano Perez, and Kenneth Monroe, in their official capacities as City of East Chicago Common Council Members; Anthony Copeland, in his official capacity as City of East Chicago Mayor; City of East Chicago Police Department; and Hector Rosario, in his official capacity as City of East Chicago Chief of Police, State of Indiana

21A-PL-1046

COA rejects Lake County residents’ suit against East Chicago’s ‘welcoming ordinance’

Northern Indiana residents have failed in another attempt to do away with a local city “welcoming ordinance” — this time in the city of East Chicago — after the Court of Appeals of Indiana found that, like in the attempt to remove such an ordinance in Gary, the plaintiffs ultimately lacked standing to bring their claim.

Greg Serbon and John Allen, both residents of Lake County, sued the city of East Chicago and numerous other entities and officials in May 2018 seeking declaratory and injunctive relief from the city’s “welcoming ordinance.”

The plaintiffs, neither of who live in the city but do frequent there, claimed that the ordinance was in violation of Indiana Code Chapter 18.2, a provision that prevents Indiana cities and towns from becoming a “sanctuary city.”

Their complaint alleged that they had standing pursuant to Section 18.2-5 and public standing. It also claimed that the ordinance violates Chapter 18.2 and that they, therefore, may bring an action to enforce Chapter 18.2 and enjoin any violations thereof.

However, the plaintiffs did not allege or claim that they live in, pay taxes in or vote in the city. Their claim also did not state that they had been personally harmed by the ordinance.

The state of Indiana eventually intervened on behalf of the plaintiffs, who are represented by Terre Haute attorney James Bopp Jr.

Although the Lake Superior Court determined that Serbon and Allen had standing to challenge the ordinance under Section 18.2-5, the Court of Appeals determined otherwise.

The appellate court concluded that for public standing, there must be some redressable injury, even if it is an injury common to the public. It found the plaintiffs’ arguments to be distinguishable from those cited in State ex rel. Cittadine v. Ind. Dep’t of Transp., 790 N.E.2d 978, 979 (Ind. 2003).

“The only injury the Plaintiffs refer to is the simple fact that the Ordinance allegedly conflicts with Chapter 18.2. The Plaintiffs have not shown how any potential conflict between the Ordinance and Chapter 18.2 has resulted in any injury to the public at large. A potential conflict between an ordinance and a statute, without more, does not necessarily harm the public,” Judge Elizabeth Tavitas wrote.

For support, the COA pointed to the Indiana Supreme Court’s July decision to toss a similar suit in City of Gary v. Nicholson, ___ N.E.3d ___, 2022 WL 2841364 (Ind. July 21, 2022), brought against the city of Gary by one of the same plaintiffs in the case at hand, Serbon.

“The facts of the present case are indistinguishable from those in Nicholson. We therefore conclude that the Plaintiffs here, like the plaintiffs in Nicholson, do not have public standing to challenge the Ordinance,” Tavitas wrote.

As for statutory standing, the COA found that Huffman v. Ind. Dep’t of Transp., 811N.E.2d 806 (Ind. 2004), does not support the plaintiffs’ argument that the Indiana General Assembly may confer standing to anyone seeking judicial relief regardless of injury.

Judges concluded that although Section 18.2-5 clearly creates a private cause of action to enforce the provisions of Chapter 18.2, it does not confer standing on every legally domiciled Indiana resident regardless of whether the resident has been harmed or injured by the alleged noncompliance with Chapter 18.2.

“Were we to conclude that Section 18.2-5 conferred standing to all residents regardless of harm to them or to the public, it would expand standing well beyond that permitted by our Constitution,” the COA wrote in concluding that the plaintiffs failed to establish personal or public injury and to show any extreme circumstances sufficient to justify judicial intervention.

However, the appellate court noted that its holding does not denote that the ordinance, or other similar measures, cannot be challenged as being contrary to Section 18.2.

It ultimately reversed and remanded to the trial court with instructions for the dismissal of the plaintiffs’ complaint for lack of standing.

The case is Greg Serbon and John Allen v. City of East Chicago, Indiana, City of East Chicago Common Council; Monica Gonzalez, Lenny Franciski, Terrence Hill, Stacy Winfield, Robert Garcia, Gilda Orange, Dwayne Rancifer, Jr., Emiliano Perez, and Kenneth Monroe, in their official capacities as City of East Chicago Common Council Members; Anthony Copeland, in his official capacity as City of East Chicago Mayor; City of East Chicago Police Department; and Hector Rosario, in his official capacity as City of East Chicago Chief of Police, State of Indiana, 21A-PL-1046.

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Aug. 17

James Saucerman v. State of Indiana

22A-CR-501

Appellate court reverses probation revocation for man denied due process, orders new hearing

The Court of Appeals of Indiana has ordered a new probation revocation hearing after it concluded the Marion Superior Court violated a man’s due process rights by not properly advising him during the initial hearing.

In 2020, James Saucerman pleaded guilty to dealing in methamphetamine and was sentenced to three years, with 85 days executed and the remainder suspended to probation.

The state filed a notice in November 2021 alleging Saucer had violated his probation by failing to submit to drug screenings. A hearing was set, but Saucerman failed to appear and a warrant was issued for his arrest.

In December, the state amended the notice of probation violation to add a new allegation of failing to submit to a drug screen that month, as well as failing to refrain from the use of illegal drugs after Saucerman tested positive for meth at the end of November. He also failed to report to the probation department as directed on two occasions.

After his arrest, the trial court at a hearing found Saucerman had admitted two of the allegations during a colloquially between him and the court: that he had failed to submit to a drug screen as directed in December and had failed to report to probation as directed in November and December. Thus, the court revoked his probation and ordered that he serve the previously suspended time in the Department of Correction.

On appeal, Saucerman contended he was denied fundamental due process because he was not properly advised of his rights before the trial court accepted what it considered an admission and revoked his probation.

Pointing to Hilligoss v. State, 45 N.E.3d 1228 (Ind. Ct. App. 2015), the appellate panel agreed.

“Saucerman asserts, and the State concedes, that ‘[j]ust as with Hilligoss,’ the trial court did not advise him prior to accepting what the trial court considered an admission that he was giving up his rights to have an evidentiary hearing where the State proves the allegations by a preponderance of the evidence and to confront and cross-examine the witnesses against him,” Judge Margret Robb wrote. “We agree: the trial court’s failure to properly advise Saucerman denied him fundamental due process and entitles him to a new hearing.”

The case is James Saucerman v. State of Indiana, 22A-CR-501.

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Aug. 23

A.V. v. State of Indiana

22A-JV-753

COA reverses teen’s intimidation adjudication for insufficient evidence

A teenager who lashed out at her mother and sister before causing property damage has convinced the Court of Appeals of Indiana to overturn her delinquency adjudication for intimidation.

Seventeen-year-old A.V. and her daughter lived with her mother and younger sister in an apartment in December 2021.

On Dec. 16, A.V., wanting to sleep, got into an argument with her sister, who was doing e-learning. But her mother stepped in and told A.V. to leave her sister alone because it was 8 a.m.

A.V. then became “very angry like she was out of control” and “cussed” at her mother. The mother then locked herself, her younger daughter and her granddaughter in a bedroom.

In response, A.V. banged on the door and told her mother to open the door so that she could see her daughter. The mother refused and called police.

A.V. then “broke the Christmas tree,” made a hole in the wall next to the front door, and grabbed eggs from the fridge and threw them at her mother’s car.

A.V. also told her mother, “Sometimes I feel like I want to kill you.”

Police responded, and the state filed a petition alleging A.V. was a delinquent child for committing acts that would constitute Level 6 felony intimidation and Class B misdemeanor criminal mischief if committed by an adult. Regarding the intimidation allegation, the state alleged A.V. had “communicate[d] a threat [to] kill” with the intent to place her mother in fear of retaliation for the prior lawful act of “enforcing a CHINS order[.]”

At the conclusion of a factfinding hearing in February, a juvenile court determined A.V. had committed the acts of intimidation and criminal mischief as alleged and entered true findings for the offenses. Following a dispositional hearing, the juvenile court placed A.V. on probation.

On appeal, A.V. argued there wasn’t sufficient evidence to support her adjudications.

Pointing to the evidence of the destruction A.V. caused to the apartment, the Court of Appeals affirmed the criminal mischief adjudication.

She did, however, convince judges to reverse the intimidation adjudication.

Looking at Casey v. State, 676 N.E.2d 1069 (Ind. Ct. App. 1997), the COA found that even if it were to assume A.V.’s statement constituted a threat, there was insufficient evidence that any threat was made with the intent that her mother be placed in fear of retaliation for a prior lawful act.

“Here, the State specifically alleged that the prior lawful act was Mother’s act of ‘enforcing a CHINS order[.]’ However, during the factfinding hearing, the State presented no testimony or other evidence regarding a CHINS order or the enforcement thereof,” Judge Rudolph Pyle III wrote.

“… Because there was insufficient evidence that A.V. acted with the intent that Mother be placed in fear of retaliation for the prior lawful act of enforcing a prior CHINS order, we reverse A.V.’s intimidation adjudication,” Pyle wrote in A.V. v. State of Indiana, 22A-JV-753.

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Aug. 24

Paul Dean Newcomb, Jr. v. State of Indiana

22A-PC-318

Split COA reverses denied PCR petition for man convicted of crime he didn’t commit

Although neither trial nor appellate counsel proved ineffective in a man’s drug-related case, a split Court of Appeals of Indiana has reversed the denial of the defendant’s petition for post-conviction relief after finding he was convicted of a crime he did not actually commit.

After being apprehended for driving a stolen vehicle in Elkhart, Paul Newcomb Jr. was found in possession of a full array of methamphetamine precursors.

Newcomb acknowledged that he knew what the items were and “said they were for a friend,” but he refused to reveal the friend’s identity. He was ultimately charged and convicted in a bench trial of Class B felony dealing in meth by manufacturing and admitted to being a habitual substance offender.

Although there was no active meth lab, the state argued Newcomb “was in the process of obtaining ingredients” and “had all the necessary ingredients” for manufacturing meth. The Elkhart Superior Court also acknowledged that Newcomb had “everything ready to manufacture methamphetamine,” concluding that a sentence would be imposed for the Class B felony of manufacturing.

Newcomb was sentenced to 16 years, enhanced by eight years due to his status as a habitual substance offender.

On direct appeal, Newcomb argued there was insufficient evidence to support his manufacturing conviction, pointing to the unopened materials in the car and noting that the manufacturing process had not even begun at that point. But his appeal failed at the Court of Appeals, and the Indiana Supreme Court denied transfer.

Newcomb then filed a post-conviction relief petition, and the trial court granted him partial relief. Specifically, the trial court concluded Newcomb had not been advised of his right to a jury trial on the allegation that he is a habitual substance offender.

Back at the Court of Appeals, a split panel on Aug. 24 reversed the denial in the case of Paul Dean Newcomb, Jr. v. State of Indiana, 22A-PC-318, ordering that a lesser conviction be entered against Newcomb on remand.

The majority began by noting that both Newcomb’s trial and appellate counsel each argued the dealing by manufacturing offense was not supported by sufficient evidence.

“Such arguments were unavailing, and, at some point, counsel gave up,” Judge L. Mark Baily wrote. “Newcomb’s argument of ineffectiveness distills to a claim of abandonment of advocacy.”

The appellate court then determined that although Newcomb admittedly possessed precursors, there was no evidence that he had begun to manufacture meth. It pointed out that even though Newcomb indicated he knew what the items in the vehicle were, he did not admit to knowing their express purpose or that he and his “friend” had ever engaged in manufacture.

“There simply is no ‘proof of the underlying crime’ or ‘other actor’ to whom Newcomb could have been an accomplice,” Bailey wrote. “Indeed, at the sentencing hearing, the trial court, prosecutor, and defense counsel seemed to be aligned with the position that manufacturing had not begun.”

To the extent that defense counsel “strenuously argued” that the state had not proven the commission of a Class B felony, the COA said it was “hard-pressed” to say that his performance was deficient. It likewise found that Newcomb’s appellate counsel performed adequately, at bottom, but that one issue remained: Newcomb was convicted of a crime he did not commit.

“We are constrained to follow the rules of post-conviction procedure. That said, the appellant has attempted at every stage of the trial and appellate proceedings to comply with the relevant rules and draw attention to a wrongful conviction,” Bailey concluded. “In these rare circumstances of fundamental error raised in the context of ineffective assistance of counsel but demonstrated as a matter of law, we reverse the partial denial of Newcomb’s petition for post-conviction relief. We remand with instructions to vacate the conviction for Dealing in Methamphetamine, enter a conviction for Possession of Precursors with Intent to Manufacture, conduct proceedings upon the habitual substance offender allegation, and sentence Newcomb accordingly.”

Senior Judge Edward Najam joined Bailey’s majority opinion. But Chief Judge Cale Bradford dissented from the conclusion that Newcomb presented a claim of fundamental error.

“In presenting his arguments on appeal, Newcomb asserts only that he received ineffective assistance from both his trial and appellate counsel. … The Indiana Supreme Court recently reiterated that it disfavors sua sponte rulings,” Bradford wrote. “I therefore must dissent with the majority’s conclusion that vacation of Newcomb’s underlying conviction was appropriate.”•