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Friday, March 10, 2006

Ind. Decisions - Court of Appeals issues five today

In State of Indiana v. Christopher Huber, a 6-page opinion, Judge Najam writes:

The State appeals from the trial court’s grant of Christopher Huber’s motion for discharge under Criminal Rule 4(C). The State presents a single dispositive issue for our review, namely, whether the trial court erred when it found that the State had not brought Huber to trial within the time allotted under Criminal Rule 4(C). We affirm. * * *

Again, the State concedes that it was properly charged with 296 days in the delay of Huber’s trial. In addition, we hold that the trial court did not err when it charged the State with the seventy days between February 24 and May 5, 2003, which brought the total number of days chargeable to the State to 366, or more than one year.3 We affirm the trial court’s grant of Huber’s motion to discharge under Criminal Rule 4(C).

In Franklin D. Turner v. State of Indiana, a 17-page opinion (including a dissent beginning on p. 15), Judge Najam writes:
Franklin Turner pleaded guilty to Dealing in Cocaine, as a Class A felony. He presents a single issue for our review, namely, whether the trial court should have granted his motion to withdraw his guilty plea because it was necessary to correct a manifest injustice. We hold that because Turner’s case was not yet final, and he has a credible defense under the new constitutional rule announced in Litchfield v. State, 824 N.E.2d 356 (Ind. 2005), his motion should have been granted. * * *

Turner contends that the trial court should have granted his motion to withdraw his guilty plea. In particular, he maintains that when he filed his motion the trial court had not accepted his plea, nor had it entered judgment of conviction. Likewise, he alleges that withdrawal of his plea is necessary to correct a manifest injustice because a new constitutional rule provides a credible defense against the admissibility of evidence in the State’s case against him. * * *

Therefore, pursuant to our supreme court’s recent opinion in Litchfield, we reverse and remand for a full hearing on the merits of Turner’s motion to suppress. On remand, the question presented is whether the affidavit in support of the search warrant demonstrated that before the officers searched Turner’s trash, they had an “articulable individualized suspicion” that Turner was or had engaged in illegal activity. We caution that the court may consider only the evidence presented when the warrant was issued and may not rely on post hac justifications for the affidavit.

BAILEY, J., concurs.
BAKER, J., dissents with separate opinion.

I respectfully dissent from the majority’s conclusion that Turner should have been permitted to withdraw his guilty plea in these circumstances. In essence, I cannot agree that allowing Turner to withdraw the plea was “necessary to correct a manifest injustice.” * * *

When considering the posture of this case and the circumstances presented here, I believe that the rule announced in Litchfield should have prospective application only. Thus, I cannot agree with the majority’s decision to permit Turner to withdraw his plea, as there is no “manifest injustice” to correct.

In Maurice Dew v. State of Indiana, a 22-page opinion, Judge Crone writes:
The dispositive issue is whether the failure of Dew’s attorney to inform him about a plea offer from the State constitutes ineffective assistance of counsel. * * *

Dew’s testimony highlights the consequences of counsel’s failure to inform him about the State’s second plea offer. At least five members of the first jury did not believe Dew’s claim that his encounter with T.C. was consensual. The State interviewed the jury and subpoenaed additional witnesses to rebut Dew’s claim. Dew had explored the possibility of pleading guilty during the first trial, and there is no indication that he was adamantly opposed to further plea negotiations. As such, we conclude that there is a reasonable probability that, but for his counsel’s actions, Dew would have accepted the State’s plea offer. The post-conviction court’s conclusion that Dew received effective assistance of counsel is clearly erroneous. We therefore reverse Dew’s convictions and remand for further proceedings. If the State decides not to renew its plea offer, or if the trial court decides not to accept a guilty plea, then Dew shall be granted a new trial. Reversed and remanded.

In Indiana-American Water Company, Inc. v. Indiana Office of Utility Consumer Counselor, a 28-page opinion, Judge Crone writes:
Indiana-American Water Company, Inc. (“IAWC”), appeals the order of the Indiana Utility Regulatory Commission (“the Commission”) on its petition to increase rates and charges for water and sewer service. We affirm.
In City of Gary v. Walter Mitchell, a 12-page opinion, Judge Crone writes:
The City of Gary and Gary Police Chief Garnett Watson (collectively, “the City”) appeal the trial court’s granting of a preliminary injunction preventing their enforcement of the City’s mandatory retirement policy against Walter Mitchell, Louis Perunko, and David Mosby (collectively, “Appellees”). We reverse.

Posted by Marcia Oddi on March 10, 2006 12:38 PM
Posted to Ind. App.Ct. Decisions