Articles

Court clarifies, reaffirms its prior back pay ruling

The Indiana Court of Appeals denied an Attorney General’s request to clarify a previous ruling that slashed a $42.4 million damages award, and clarified the two-month period from which state employees can recover back pay.

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Opinions Dec. 30, 2010 ILD

The following opinions were posted after IL deadline Wednesday.

Indiana Tax Court

AOL, LLC v. Indiana Dept. of State Revenue (NFP)
49T10-0903-TA-7
Tax. Reverses Indiana Department of State Revenue’s final determinations, which denied AOL’s two claims for refund. Orders the department to refund to AOL the use taxes it paid during the tax periods at issue.

United Parcel Service Inc. v. Indiana Dept. of State Revenue (NFP)
49T10-0704-TA-24
Tax. Grants UPS’ motion for summary judgment and denies the Indiana Department of State Revenue’s motion for summary judgment. Reverses the department’s denial of UPS’s claim for refund of corporate income tax for 2000 and its assessment of additional corporate income tax against UPS for 2001.

Today’s opinions

Indiana Supreme Court had posted no opinions at IL deadline.

Indiana Court of Appeals
Christopher Jewell v. State of Indiana
32A04-1003-CR-187
Criminal. Affirms convictions and aggregate 40-year term for six counts of sexual misconduct and child molesting. Jewell argued recorded statements admitted as evidence in this case were procured and admitted in violation of his federal and state constitutional rights to counsel. Court of Appeals concludes that Jewell’s statements were not obtained unconstitutionally because although Jewell had been charged and had hired counsel in an unrelated case, he had not been charged with the present crimes when the subject phone calls took place.

Paternity of R.M.; K.B. v. S.M.
45A04-1001-JP-14
Juvenile. Reverses and remands trial court’s order granting the motion filed by S.M. (mother) to dismiss K.B.'s (putative father) petition to establish paternity of S.M.’s child, R.M., based on the doctrine of laches. S.M. married R.M.’s presumptive father when S.M. was pregnant with R.M., who was born in 1996. The presumptive father died in 2006, and a home DNA test that year showed a 99.99 percent chance that K.B. is R.M.’s biological father.

Roscoe C. Fry II v. State of Indiana
30A01-1005-CR-244
Criminal. Reverses trial court’s denial of Fry’s motion to correct erroneous sentence. Remands with instructions to determine whether Fry has completed his sentence and probation and, if not, to clarify or modify his sentence as necessary so that the combined term of the executed portion of Fry’s sentence, including any time served prior to the date of the sentencing order, and his probation do not exceed one year.

K.A. v. State of Indiana
49A02-1004-JV-527
Juvenile. Reverses juvenile court’s modification of dispositional orders after K.A. allegedly violated his probation. K.A. contended the juvenile court violated his due process rights by modifying his disposition after a hearing at which the state presented no evidence of the alleged probation violation. Court of Appeals concludes that because the modification was predicated on the alleged probation violation, principles of fundamental fairness required the state to present evidence of the allegation.

Dwayne Rhoiney v. State of Indiana
49A05-1007-PC-482
Post-conviction. Reverses post-conviction court’s denial of petition for post-conviction relief and remands for resentencing.

Hezekiah Colbert v. State of Indiana (NFP)
32A04-1004-CR-259
Criminal. Affirms convictions of Class A felony attempted murder, Class A felony burglary, and finding that Colbert is a habitual offender.
 
Donnie R. Pierce v. State of Indiana (NFP)
49A05-1006-CR-347
Criminal. Concludes the state presented sufficient evidence to convict Pierce of the charged offense, and that the mistake in the Abstract of Judgment should be corrected to enter the conviction of criminal mischief as a Class B misdemeanor.
 
Jeffrey Adams v. State of Indiana (NFP)
28A04-1006-CR-405
Criminal. Affirms convictions of aiding in reckless homicide, criminal recklessness with a deadly weapon, and reckless driving.
 
Termination of Parent-Child Relationship of S.H., et al.; A.M. v. Indiana Dept. of Child Services, et al. (NFP)
49A02-1005-JT-623
Juvenile. Affirms involuntary termination of parental rights.
 
Troy H. Worthington Sr. v. State of Indiana (NFP)
45A03-1004-CR-223
Criminal. Affirms sentence following a plea of guilty to criminal recklessness, a Class D felony.
 
Johnny N. Standberry v. State of Indiana (NFP)
29A02-1003-CR-508
Criminal. Affirms convictions of theft, a Class D felony; and resisting law enforcement, a Class A misdemeanor.
 
Bernard Markey v. State of Indiana (NFP)
49A02-1003-PC-371
Post-conviction. Affirms denial of petition for post-conviction relief.
 
Paternity of C.B.; D.B. v. A.C. (NFP)
29A05-1004-JP-321
Juvenile. Affirms trial court’s order awarding A.C. (father) sole physical and legal custody of the parties’ minor child, C.B.
 
In the Matter of Z.T.; S.W. v. Marion Co. Dept. of Child Services, et al. (NFP)
49A04-1004-JC-252
Juvenile. Affirms trial court’s adjudication of Z.T. as a child in need of services.
 
Dione J. Osuna v. State of Indiana (NFP)
45A03-1005-CR-252
Criminal. Affirms conviction of possession of a handgun with an obliterated serial number, a Class C felony.
 
Kenneth Hopper v. State of Indiana (NFP)
82A01-1006-CR-299
Criminal. Affirms sentence following judgment of conviction of guilty but mentally ill.
 
Chester L. Triplett v. State of Indiana (NFP)
45A03-1001-CR-33
Criminal. Affirms sentence following a plea of guilty to dealing in cocaine, a Class B felony.
 
Opie W. Glass v. State of Indiana (NFP)
30A01-1005-CR-247
Criminal. Affirms conviction of Class C felony burglary and two counts of Class C felony theft.

C.S. v. Review Board of the Indiana Dept. of Workforce Development, et al. (NFP)
93A02-1005-EX-537
Civil. Affirms the determination of the Indiana Department of Workforce Development, which denied unemployment benefits to C.S.
 
Billy R. Case v. State of Indiana (NFP)
40A01-1004-CR-230
Criminal. Affirms sentence for Class B felony sexual misconduct with a minor and trial court’s restitution order.
 
Charles Hartsell Jr. v. State of Indiana (NFP)
20A04-1005-PC-359
Post-conviction. Affirms denial of petition for post-conviction relief.
 
Wesley Crabtree v. State of Indiana (NFP)
49A02-1006-CR-646
Criminal. Affirms trial court’s order revoking probation and imposing the execution of Crabtree’s previously suspended sentence.
 
Kenny Hawkins Jr. v. State of Indiana (NFP)
84A01-1005-CR-268
Criminal. Affirms conviction of and sentence for dealing in cocaine, a Class B felony.

Indiana Tax Court had posted no opinions at IL deadline.
 

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Opinions Dec. 30, 2010

Indiana Court of Appeals
Richmond State Hospital, et al. v. Paula Brattain, Francis Ernst, et al.
49A02-0908-CV-718
Civil. Denies the state’s petition and grants the employees’ petition to clarify the Court of Appeals’ instructions on remand for determining the merit employees’ damages. Concludes merit employees are entitled to back pay for the period beginning either 10 days before the filing of the July 29, 1993, complaint, or 10 days before the filing of their individual administrative grievances, whichever comes first, until the date that the state abolished the split class system. The trial court must determine whether the state terminated the split class system on Sept. 12 or Sept. 19, 1993.

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Justices reaffirm uniform-contract interpreation approach

The Indiana Supreme Court has reaffirmed the state’s reliance on the uniform-contract interpretation approach rather than a site-specific approach for deciding which of several states’ laws should apply to an environmental remediation insurance coverage case.

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COA offers suggestion about judicial notice rule

A paternity and child custody case has given the Indiana Court of Appeals a chance to examine a newly amended evidence rule for the first time, while simultaneously offering guidance to trial judges about using publicly accessible information to dispose of cases.

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Court rules on farm tractor operation case

Farm tractor drivers can’t be charged with driving with a suspended license, but they can be charged with operating a vehicle while intoxicated, according to the Indiana Court of Appeals.

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Governor names two new trial judges

Gov. Mitch Daniels has chosen two new judges for the state’s trial bench roster, one of those to succeed the jurist elevated earlier this year to the Indiana Supreme Court.

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Opinions Dec. 29, 2010 ILD

7th Circuit Court of Appeals
USA v. James K. Taylor
U.S. District Court for the Northern District of Indiana, South Bend Division, Judge Robert L. Miller Jr.
10-2947
Criminal. Affirms sentenced for 64 months’ imprisonment following a guilty plea to possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The sentence was based in part on the District Court’s conclusion that his prior Indiana conviction for Class C felony battery qualified as a “crime of violence” under § 4B1.2(a) of the federal sentencing guidelines, enhancing his recommended base offense level. Taylor argued his battery conviction was not a crime of violence for the purposes of the federal sentencing guidelines.

USA v. Dewayne Cartwright
10-1879
U.S. District Court for the Southern District of Indiana, Indianapolis Division, Judge William T. Lawrence
Criminal. Affirms District Court’s denial of Cartwright’s motion to suppress evidence of a firearm in his car. Cartwright was charged with possessing a firearm as a felon under 18 U.S.C. § 922(g)(1). After he entered a conditional guilty plea, he was sentenced to 84 months in prison. Cartwright argued the District Court erred in applying the inevitable discovery doctrine after the District Court determined the firearm would have been inevitably discovered pursuant to an inventory search of the car.

Indiana Supreme Court
National Union Fire Insurance Company of Pittsburgh, et al. v. Standard Fusee Corporation
49S04-1006-CV-318
Civil. Reverses trial court and remands the case for application of Maryland law to be applied to the entire dispute regarding whether the insurance company had a duty to defend Standard Fusee Corporation following discovery of perchlorate contamination at factories that made flares. Concludes that Maryland is the state with the most intimate contacts to the facts and that its law should therefore be applied in this case.

Indiana Court of Appeals
State of Indiana v. Robert J. Seidl
19A01-1006-CR-309
Criminal. Reverses and remands trial court’s order granting Seidl’s motion to suppress the state’s evidence against him. In his motion to suppress, Seidl argued that his consent for officers to search his barn was involuntary.

Jeffrey L. Gavin v. Calcars AB, Inc., and Astra Financial, Inc.
49A05-1007-PL-501
Civil. Affirms trial court’s grant of summary judgment in favor of Calcars AB Inc. and Astra Financial Services Inc. on Gavin’s complaint seeking damages under the Wage Payment Statute. The parties dispute whether the Wage Payment Statute or the Wage Claims Statute applied to this wage dispute. Gavin presented a single dispositive issue: whether the trial court erred when it concluded that Gavin’s claims were governed by the Wage Claims Statute and were barred as a matter of law because he did not first file his claims with the Indiana Department of Labor.

Brian J. Woods v. State of Indiana
79A02-1004-CR-418
Criminal. Affirms trial court’s determination that Woods is a habitual offender.

J.B. v. State of Indiana (NFP)
49A05-1005-JV-323
Juvenile. Affirms J.B.’s adjudication as a delinquent child for committing aggravated battery, a Class B felony when committed by an adult.

E-Z Construction Company, Inc. v. Sellersburg Stone Co., Inc. (NFP)
10A01-1002-PL-110
Civil. Affirms award of service charges to the plaintiff in a contract dispute between a plaintiff supplier and defendant prime contractor.

In the Matter of M.M.; S.H. v. Indiana Dept. of Child Services (NFP)
85A02-1006-JC-776
Juvenile. Affirms trial court’s determination that M.M. is a child in need of services.

Leslie J. Edwards v. State of Indiana (NFP)
79A02-1006-CR-758
Criminal. Vacates Edwards’ convictions of felony possession of marijuana and paraphernalia and remands with instructions that the court retry him on those two counts.

Diven Williams v. State of Indiana (NFP)
82A01-1006-CR-286
Criminal. Affirms sentence imposed following convictions of burglary, a Class C felony, and theft, a Class D felony.

William Roberts v. State of Indiana (NFP)
22A05-1002-CR-119
Criminal. Affirms trial court’s denial of Roberts’ motion to set aside his guilty plea.

Kendall Bradbury v. State of Indiana (NFP)
49A05-1004-CR-212
Criminal. Affirms Bradbury’s conviction of invasion of privacy following his arrest for violating a protective order his wife had filed in June 2007 when the couple lived in Kentucky.

Vilma (Struss) Papa v. Nicholas Struss (NFP)
64A03-1008-DR-428
Civil. Reverses and remands trial court’s denial of notice of intent to relocate.

Edward Weaver v. State of Indiana (NFP)
48A02-1004-CR-460
Criminal. Affirms revocation of home detention and probation. Remands for court to clarify its sentencing order due to a conflict between written and oral statements.

Joseph R. Fabre v. State of Indiana (NFP)
48A04-1005-CR-378
Criminal. Affirms aggregate sentence of 11 years following convictions of possession of cocaine, a Class C felony; two counts of possession of cocaine, Class D felonies; and one count of possession of marijuana, a Class A misdemeanor.

Termination of Parent-Child Relationship of N.B.; N.B. v. Indiana Department of Child Services (NFP)
32A01-1007-JT-321
Juvenile. Affirms termination of parental rights. .

Indiana Tax Court had posted no opinions at IL deadline.
 

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Opinions Dec. 29, 2010

7th Circuit Court of Appeals
USA v. James K. Taylor
U.S. District Court for the Northern District of Indiana, South Bend Division, Judge Robert L. Miller Jr.
10-2947
Criminal. Affirms sentenced for 64 months’ imprisonment following a guilty plea to possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The sentence was based in part on the District Court’s conclusion that his prior Indiana conviction for Class C felony battery qualified as a “crime of violence” under § 4B1.2(a) of the federal sentencing guidelines, enhancing his recommended base offense level. Taylor argued his battery conviction was not a crime of violence for the purposes of the federal sentencing guidelines.

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COA: Trust not bound by ISTA employment arbitration clause

The Indiana Court of Appeals has ruled that two former leaders in the Indiana State Teachers Association who served as trustees for a legally separate insurance trust can’t force the trust’s governing board to adhere to arbitration clauses outlined in their ISTA employment contracts.

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Panel criticizes late discovery introduction

While recognizing that the state’s practice of allowing late introduction of evidence basically rewards attorneys who don’t prepare for trial, the Indiana Court of Appeals looked beyond that practice in a recent decison to how the rules still protect a person’s right to a fair trial.

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Justices accept one criminal case

The Indiana Supreme Court has taken an Elkhart County appeal challenging three felony child molesting convictions and an 80-year aggregate sentence.

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Opinions Dec. 28, 2010 ILD

The following opinions were posted after IL deadline Monday:

Indiana Tax Court
Lake County Assessor, North Township Assessor, et al. v. Amoco Sulfur Recovery Corp., and BP Products North America, Inc. (NFP)
49T10-1010-TA-55
Tax. Denies Amoco and BP’s motion to dismiss.

Today’s opinions

Indiana Supreme Court had posted no opinions at IL deadline.

Indiana Court of Appeals
Cynthia Ann Painter v. Lee Andrew Granderson (NFP)
65A04-1003-DR-203
Civil. Affirms trial court’s order that awarded custody of the parties’ minor daughter, R.K., to appellee-respondent father.

Natasha R. Lafave v. State of Indiana (NFP)
16A01-1006-CR-271
Criminal. Reverses and remands conviction of illegal possession of alcoholic beverages for consumption, a Class C misdemeanor.

Carla Tabor v. State of Indiana (NFP)
49A05-1006-CR-358
Criminal. Affirms conviction of obtaining a controlled substance by fraud or deceit, a Class D felony; reverses and remands conviction of possession of a controlled substance, a Class D felony.

Richard Huffman v. State of Indiana (NFP)
49A02-1008-CR-1057
Criminal. Affirms denial of petition for post-conviction relief related to an educational credit against the release date.

Termination of Parent-Child Relationship of A.P., et al.; K.G. and T.G. v. Indiana Dept. of Child Services (NFP)
23A04-1004-JT-334
Juvenile. Affirms trial court’s judgment terminating K.G. and T.G’s parental rights to their children.

Indiana Tax Court had posted no opinions at IL deadline.
 

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Opinions Dec. 28, 2010

Indiana Court of Appeals
Richard Childress Jr. v. State of Indiana
45A03-0911-CR-520
Criminal. Affirms convictions of robbery and criminal confinement, both Class B felonies. On appeal, appellant-defendant raised the sole issue of whether the trial court erred in admitting evidence the state did not disclose until the second day of trial. Court of Appeals concluded the state’s late disclosure did not impair his right to a fair trial.

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Justice wants attorney suspended longer

The Indiana Supreme Court couldn’t agree on the appropriate sanction for an attorney who engaged in an improper ex parte communication with a judge, leaving one judge to argue for at least a 90-day suspension.

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Opinions Dec. 27, 2010 ILD

Indiana Supreme Court had posted no opinions at IL deadline.

Indiana Court of Appeals
Victor T. Jones v. State of Indiana
32A04-1004-CR-309
Criminal. Affirms conviction of resisting law enforcement as a Class D felony. The state’s naming of Officer Stewart in the charging information, which was not the correct name, was surplusage that was not required for a conviction, and therefore the evidence was sufficient to convict Jones of resisting law enforcement. Jones was subjected to double jeopardy when he was convicted of enhanced versions of both resisting law enforcement and criminal recklessness. Remands to reduce his criminal recklessness conviction to a Class B misdemeanor and re-sentence him accordingly. Reverses the jury, public defender, and docket fees and remands for further proceedings.

The Matter of D.R. v. State of Indiana (NFP)
49A02-1003-JV-436
Juvenile. Reverses and vacates D.R.’s finding for attempted carjacking as a Class B felony if committed by an adult and remands with instructions to amend the dispositional order to reflect a true finding for attempted robbery only, a Class B felony if committed by an adult.

Joshua Beal v. State of Indiana (NFP)
49A02-1003-CR-347
Criminal. Affirms conviction of Class A misdemeanor battery and the order Beal pay restitution to his victim.

S.J. v. State of Indiana (NFP)
83A05-1005-JV-328
Juvenile. Affirms adjudication that S.J. committed what would be Class B misdemeanor battery if committed by an adult.

Miguel Alvarado v. State of Indiana (NFP)
12A02-1001-CR-159
Criminal. Affirms denial of motion to withdraw guilty pleas to criminal confinement and battery.

Michael J. Skoczylas v. Peggy C. Skoczylas (NFP)
71A03-1005-DR-317
Domestic relation. Affirms trial court’s adoption of the values of the parties United States Postal Service pensions. Reverses decision that Michael be responsible for their son’s student loans and Peggy be responsible for their daughter’s loans. Remands with instructions.

Martel Johnson v. State of Indiana (NFP)
71A03-1003-CR-169
Criminal. Affirms conviction of felony murder.

Kenneth E. Lovelace v. State of Indiana (NFP)
49A05-1003-CR-183
Criminal. Affirms convictions of guilty but mentally ill and sentence for Class B felony burglary and Class D felony attempted theft.

Term. of Parent-Child Rel. of J.B., et al.; A.M. and D.B. v. IDCS (NFP)
07A04-1005-JT-322
Juvenile. Affirms involuntary termination of parental rights.

McIntyre Brothers, Inc. v. Kim D. Henderson, Melinda J. Henderson, Sydneyco, LLC, et al. (NFP)
47A01-1004-PL-172
Civil plenary. Affirms partial summary judgment to the effect that apportion of the Fifth Third mortgage lien, specifically that attributable to the Stone City mortgage payoff, is superior to McIntyre’s mechanic’s lien. Reverses order of foreclosure which decreed that McIntyre had no mechanic’s lien. Remands for further proceedings.

Denon Dabney v. State of Indiana (NFP)
49A02-1004-CR-474
Criminal. Affirms conviction of Class B felony possession of a firearm by a serious violent felon.

Virgil L. Smith v. State of Indiana (NFP)
43A03-1004-CR-245
Criminal. Affirms sentence following guilty plea to Class B felony robbery.

William Newhouse v. State of Indiana (NFP)
49A04-1001-CR-34
Criminal. Affirms sentence following guilty plea to two counts of Class B felony burglary, Class B felony attempted burglary, Class D felony stalking, three counts of Class D felony voyeurism, Class D felony attempted residential entry, Class A misdemeanor public indecency, and Class C misdemeanor public nudity.

Steve Uribe v. State of Indiana (NFP)
49A02-1003-CR-346
Criminal. Affirms 180-day executed portion of Uribe’s 365 day sentence for Class A misdemeanor criminal recklessness.

Kenneth McCreary v. State of Indiana (NFP)
49A02-1002-CR-179
Criminal. Affirms conviction of and sentence for Class B felony dealing in cocaine.

James F. Griffith v. State of Indiana (NFP)
35A02-1006-PC-705
Post conviction. Affirms denial of petition for post-conviction relief.

Indiana Tax Court had posted no opinions at IL deadline.
 

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Opinions Dec. 27, 2010

Indiana Court of Appeals
Paternity of M.F., et al.; J.F. v. W.M.
21A04-1002-JP-84
Juvenile. Affirms denial of mother’s petition to establish paternity with respect to M.F. Mother failed to prove that insemination incurred in such a way as to render the donor agreement unenforceable and void as against public policy. Reverses finding that a valid, enforceable contract existed that would prohibit an action to establish paternity of C.F., the second child born. Remands to grant mother’s petition to establish paternity with respect to C.F. Judge Crone dissents in part.

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