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Tuesday, January 31, 2006

Ind. Decisions - Court of Appeals issues three today

In Progressive Insurance Company, Inc. v. Misty Sweet Bullock, a 15-page opinion, Judge Barnes concludes:

Progressive may not borrow the anti-stacking clause in the contract between Farm Bureau and Jones and apply it to its policy. Although Progressive may set off the amount paid to the Bullocks by Indiana Insurance on behalf of Kemp, Progressive may not set off the amounts paid to the Bullocks by Jones’s UIM coverage. A limits-to-limits comparison is not the appropriate method for determining whether Kemp was underinsured, and Progressive may not set off or otherwise reduce its obligation to the Bullocks by the amount paid to Jones by Kemp. S.E.B. is a person when construing the policy against Progressive. Thus, the trial court properly denied Progressive’s motion for summary judgment. We affirm in part and reverse in part.
Justin T. Frey v. State of Indiana is a 13-page sentencing appeal with three different opinions. Judge Friedlander concludes:
We find that the aggravating circumstances outweigh the mitigating circumstances. Accordingly, we reach the same conclusion as the trial court with respect to the sentence that is appropriate in light of Frey’s character and the nature of the offense he committed. See Neale v. State, 826 N.E.2d 635 (Ind. 2005). Frey is sentenced to eight years incarceration, which, although the maximum allowable under the plea agreement, we note is nevertheless less than the presumptive sentence for a class B felony.

Judge Sullivan concurs with a separate opinion. Judge Vaidik concurs in part and dissents in part, concluding:

The task of identifying aggravating and mitigating circumstances is a matter best entrusted to our trial courts and juries and not to us. See Ind. Code § 35-38-1-7.1; Blakely v. Washington, 542 U.S. 296 (2004). This is so because the identification of aggravating and mitigating factors often depends on credibility determinations. And trial courts and juries are in a better position to judge the credibility of the evidence as they view the evidence first-hand. Our task, then, is to review the findings of aggravators and mitigators for an abuse of discretion only after the findings are made. Admittedly Indiana Appellate Rule 7(B) authorizes appellate courts to revise sentences, but that function should not give us a green light to identify aggravators and mitigators in the first place. In other words, our authority to revise sentences does not mean that when a trial court fails to identify aggravators and mitigators, we should do that for them. I therefore disagree with the lead opinion’s decision to identify and weigh the aggravators and mitigators in this case. Instead, I would remand the case for the trial court to do so.

In Edward Hopkins v. State of Indiana, a 12-page opinion, Judge Barnes writes:
Edward Hopkins appeals the denial of his petition for post-conviction relief, which challenged his two convictions for Class B felony robbery. We reverse and remand. * * *

We conclude that Hopkins received ineffective assistance of counsel on his first direct appeal. Counsel should have developed a more thorough argument and alerted this court to clear, binding precedent that would have dictated that Hopkins’s convictions for Class A felony robbery had to be reduced to Class C felonies, not Class B felonies. We reverse the denial of post-conviction relief and remand with instructions that Hopkins’s two convictions for Class B felony robbery be reduced to Class C felonies and that he be resentenced accordingly.

Posted by Marcia Oddi on January 31, 2006 01:16 PM
Posted to Ind. App.Ct. Decisions