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Thursday, March 16, 2006

Ind. Decisions - Court of Appeals issues five today

In Walter Townsend v. State of Indiana, a 5-page opinion, Judge May writes:

Walter Townsend appeals his convictions of unlawful possession of a firearm by a serious violent felon1 and intimidation,2 and the finding that he is an habitual offender.3 The trial court granted Townsend’s belated notice of appeal. Townsend raises two issues in his appeal. However, we find the trial court erred in granting Townsend’s petition for permission to file a belated notice for appeal as he failed to show he was without fault or was diligent in pursuing the belated appeal. Because we lack jurisdiction to review Townsend’s appeal, we dismiss. * * *

Accordingly, the trial court erred when it granted Townsend’s petition for permission to file a belated notice of appeal, and we dismiss his appeal for lack of jurisdiction.

In Jeffrey D. Puckett v. State of Indiana, an 11-page opinion, Judge Riley concludes:
Here, our review of the record shows that Puckett resisted the advice given by his counsel at his plea hearing, and that his counsel subsequently withdrew prior to sentencing. In addition, the sentencing hearing transcript indicates that Puckett appeared pro se during sentencing. However, the record is void of any evidence that Puckett knowingly and voluntarily waived his right to be represented by counsel at his sentencing hearing. In particular, the record fails to show that Puckett was advised of the consequences of representing himself before sentencing began. If Puckett did request to represent himself, the trial court should have made record of its determination that Puckett was competent to proceed without counsel and that he knowingly waived his right to counsel. Our state’s supreme court has previously stated that it is much easier to evaluate these claims on appeal if trial courts would err on the side of being cautious and hold a hearing to determine whether a defendant is waiving the right to counsel, even if such a hearing may not strictly be required.

Therefore, because the record does not show that Puckett effectively waived his right to counsel prior to sentencing, we conclude that the trial court violated his Sixth Amendment right to counsel. Thus, we remand for a new sentencing hearing and instruct the trial court to follow the statutory parameters for sentencing discussed in Section I above.

Scott E. Bova v. Theaodis Gary, Jr., a 12-page opinion by Judge Baker, begins:
This case presents us with an S corporation in which one person is the president, sole shareholder, and primary decision maker of the company. Indeed, for all intents and purposes, the company at issue is akin to a sole proprietorship because its only shareholder is so actively engaged in daily operations that he is essentially the company’s alter ego.

Appellant-defendant Scott E. Bova appeals from the denials of his motion in limine and motion to dismiss for failure to state a claim. In essence, he argues that it was improper for the jury to be permitted to consider evidence of the lost profits of the S corporation of appellee-plaintiff Theaodis Gary, Jr., following an automobile accident between Bova and Gary.

In these limited circumstances, we will entrust to the discretion of the trial court whether it is proper to introduce evidence of an S corporation’s lost profits following an injury to its sole shareholder and virtual alter ego. Finding that the trial court did not abuse its discretion when it allowed the introduction of such evidence, we affirm the judgment of the trial court.

Bradley W. Duncan v. Rhonda S. Duncan concerns parenting time. Affirmed.

Joint Noble-LaGrange County Drainage Board v. Acres, Inc., et al. is a 15-page opinion by Judge Baker that begins:
Appellant-respondent The Joint Noble-LaGrange County Drainage Board (Joint Board) appeals from the trial court’s order vacating the Joint Board’s Final Order establishing certain portions of the Elkhart River and its tributary branches as a regulated drain. Specifically, the Joint Board raises the following arguments: (1) the trial court erred in finding that the Joint Board failed to comply with the Indiana Nature Preserves Act1 because the act of establishing a drain is not a “taking” of nature preserves that triggers required statutory procedures; (2) the trial court erred in interpreting Indiana Code section 36-9-27-54(b)(2), which authorizes a county executive to petition for the creation of a new regulated drain to provide for the drainage of “a public highway”; and (3) appellees-petitioners City of Ligonier and Rome City Conservancy District have waived all issues on appeal because they failed to file objections to the Surveyor’s final report and schedules with the Joint Board.

Finding that the Joint Board failed to comply with the Indiana Nature Preserves Act, that the petition to establish the regulated drain was insufficient as a matter of law, and that the City of Ligonier and the Rome City Conservancy District should be dismissed because they have waived all issues on appeal, we affirm the judgment of the trial court.

Posted by Marcia Oddi on March 16, 2006 09:42 AM
Posted to Ind. App.Ct. Decisions