Opinions Aug. 15, 2019

Indiana Court of Appeals
John Laboa v. State of Indiana
18A-CR-00951
Criminal. Finds the Floyd Superior Court erred in the procedure it used to dispose of John Laboa’s petition for post-conviction relief. Finds the trial court’s judgment was not decided as provided by the post-conviction rules. Remands with instructions to either order the cause to be submitted by affidavit, allowing Laboa time to gather and submit affidavits he feels are relevant to his allegations, or hold an evidentiary hearing.

Jimmy Tyree Neal v. State of Indiana
19A-CR-00174
Criminal. Affirms Jimmy Neal’s Level 5 felony convictions of dealing in or possessing a lookalike substance and dealing in marijuana, finding his prior Wisconsin convictions constituted prior convictions for drug dealing offenses under I.C. 35-48-4-10(d)(1). Also finds the evidence sufficient to support the conviction. Reverses and remands to the Marshall Superior Court its order that Neal pay a public defender fee of $250 and reimburse Marshall County for medical expenses paid on his behalf. Remands for an inquiry to determine his ability to pay.

Jarvis Peele v. State of Indiana
19A-CR-313
Criminal. Reverses Jarvis Peele’s convictions of Level 6 felony possession of methamphetamine, Class B misdemeanor possession of marijuana and Class A misdemeanor possession of a controlled substance. Finds the warrantless search of Peele’s sock was conducted in violation of his Fourth Amendment rights, so evidence obtained in the search should not have been admitted at trial.

Indy Diamond, LLC v. The City of Indianapolis
18A-OV-2552
Ordinance violation. Affirms the Marion Superior Court’s order requiring Indy Diamond to demolish the dilapidated Oaktree Apartments complex as a contempt sanction. Indy Diamond was not denied due process, the court did not abuse its discretion in denying Indy Diamond’s second motion to correct error, nor could Indy Diamond demonstrate the judge was biased against it.

City of New Albany v. Board of Commissioners of the County of Floyd, New Albany Floyd County Indiana Building Authority
18A-MI-1627
Miscellaneous. Grants the city of New Albany’s petition for a rehearing but affirms its original decision that the holdover tenancy continues the terms and conditions of the lease. Rules because Floyd County continued to occupy the criminal justice center and pay rent, it can purchase the center as allowed in the 1992 lease option even though the lease expired in 2008.

Allison Campbell, et al. v. Tara Eary
19A-MI-00006
Miscellaneous. Reverses the St. Joseph Circuit Court’s denial of Allison and Kyle Lanthier’s joint motion to dismiss Tara Eary’s visitation order for her two grandchildren on the ground that the Lanthiers’ marriage had legitimized the children and that, as a matter of law, the visitation order did not survive the marriage. Finds the trial court erred in its denial and remanded with instructions to vacate the visitation order.

Gino P. Burelli v. Dominico Idoni, et al.
19A-MI-136
Miscellaneous. Affirms the Porter Superior Court order appointing a receiver for the sale of a vintage 1960 Briggs Cunningham Corvette #1 said to be worth millions of dollars. Reverses as legal error that part of the trial court’s order that did not require the receiver to post bond as required by statute. Remands with instructions for the trial court to amend its order to require the receiver to post an appropriate bond to secure his oath to faithfully discharge his duties.

Ronald L. Emery v. State of Indiana (mem. dec.)
19A-CR-00464
Criminal. Affirms the Tippecanoe Superior Court’s denial of Ronald Emery’s motion to withdraw his guilty plea to Level 4 felony vicarious sexual gratification. Rejects Emery’s assertion that he maintained his innocence during his guilty plea.

Michael Burkhart v. State of Indiana (mem. dec.)
18A-CR-2295
Criminal. Affirms Michael Burkhart’s conviction of Level 5 felony stalking. Finds Burkhart’s substantial rights were not prejudiced by the Marion Superior Court’s refusal to give his tendered instruction. Finds no abuse of the trial court’s discretion.

Caitilin Ashley v. Richard F. Ashley, Jr. (mem. dec.)
19A-DR-354
Domestic relation. Affirms in part, reverses in part. Finds the motion for contempt against Richard Ashley, Jr. was properly denied in that his actions were found to be inadvertent and not willful. Finds the contempt order against Caitilin Ashley must be reversed as an abuse of the Marion Superior Court’s discretion for lack of evidentiary support. Also finds the award of attorney fees as a sanction for contempt an abuse of discretion.

Rentokil North America, Inc., and Hunter Horne v. Brenda Hendricks (mem. dec.)
18A-CT-2731
Civil tort. Affirms the finding of Rentokil North America, Inc. at fault for negligence in connection with an auto accident involving Brenda Hendricks and Hunter Horne. Also affirms the award of $250,000 in damages to Hendricks. Finds the trial court did not err in its evidentiary rulings prior to and during trial.

Rashawn M. Appleton v. State of Indiana (mem. dec.)
18A-CR-2507
Criminal. Affirms in part, reverses in part, remands. Finds Rashawn Appleton’s convictions of Level 5 felony dealing in marijuana and Level 6 felony maintaining a common nuisance were based on the same actual evidence therefore must be vacated due to a double jeopardy violation. Remands to the trial court to vacate Appleton’s conviction and sentence for maintaining a common nuisance.

Ryan T. Baxter v. State of Indiana (mem. dec.)
18A-CR-3019
Criminal. Affirms Ryan Baxter’s conviction of Level 1 felony rape and Level 6 felony strangulation. Finds the Elkhart Superior Court did not abused its discretion in its admission and exclusion of evidence. Also finds the prosecutor’s statement during closing argument did not amount to fundamental error.

Donovan Andrew Thomas v. State of Indiana (mem. dec.)
18A-CR-2979
Criminal. Affirms Donovan Thomas’ convictions for murder, Level 3 felony conspiracy to commit armed robbery and Level 3 felony attempt to commit armed robbery. Finds the Vanderburgh Circuit Court did not commit fundamental error in instructing the jury or abuse its discretion in admitting recordings. Also finds the trial court did not abuse its discretion in denying Thomas’ request for a continuance.

Lavern Baltimore v. State of Indiana (mem. dec.)
22A01-1707-PC-1562
Post conviction. Affirms the Floyd Superior Court’s denial of Lavern Baltimore’s petition for post-conviction relief. Finds Baltimore was not denied effective assistance of trial counsel.

Todd Daniels v. State of Indiana (mem. dec.)
19A-PC-388
Post conviction. Affirms the denial of Todd Daniels’ petition for post-conviction relief. Finds the Ripley Circuit Court did not err when it determined that his trial counsel was not ineffective.