The Indiana Law Blog: Ind. Decisions - Court of Appeals issues 4 today (and 14 NFP) [Revised]

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Monday, November 05, 2007

Ind. Decisions - Court of Appeals issues 4 today (and 14 NFP) [Revised]

For publication opinions today (4):

In Floyd Tewell v. State of Indiana, a 7-page opinion, Chief Judge Baker writes:

Appellant-petitioner Floyd Tewell appeals from the denial of his petition for writ of habeas corpus, which the post-conviction court treated as a petition for post-conviction relief. Tewell argues that it was erroneous for the court to treat his petition as one seeking post-conviction relief and that the post-conviction court erroneously concluded that the Indiana Parole Board had not discharged Tewell from his life sentence. Finding no error, we affirm the judgment of the post-conviction court.

In Whirlpool Corporation v. Vanderburgh County, City of Evansville Human Relations Commission and Harriett Layne, a 19-page opinion, Judge Riley concludes:

Based on the foregoing, we conclude the record contains substantial evidence in support of the Commission’s decision that Whirlpool terminated and refused to reinstate Layne’s employment in retaliation for her filing a discrimination charge against Whirlpool. Affirmed.

In Samuel Fonner v. State of Indiana , a 7-page opinion, Judge Vaidik writes:

Samuel Fonner (“Fonner”) appeals his conviction for Operating a Motor Vehicle while Privileges are Forfeited for Life, a Class C felony, claiming that the evidence is insufficient to support his conviction. He also argues that his sentence is inappropriate in light of the nature of his offense and his character. Finding that there is sufficient evidence to support Fonner’s conviction and that his sentence is not inappropriate, we affirm the judgment of the trial court.

In Joseph Bauer v. State of Indiana , a 12-page opinion, Judge Crone concludes:

[O]nce the trial court amends the sentencing order to attach the habitual substance offender finding to an underlying conviction, two years of the resulting enhanced sentence may be suspended.

We further observe that Indiana Code Section 35-50-2-2(c) provides, “Except as provided in subsection (e), whenever the court suspends a sentence for a felony, it shall place the person on probation under IC 35-38-2 for a fixed period to end not later than the date that the maximum sentence that may be imposed for the felony will expire.” Therefore, the trial court must place Bauer on probation during the time his sentence is suspended.

Based on the foregoing, we remand with instructions to amend the sentencing order to attach the habitual substance offender finding to the underlying conviction and to enhance the sentence for that conviction in a manner consistent with this opinion. Affirmed in part, reversed in part, and remanded.

NFP civil opinions today (3):

Riley N. Fowler v. Katherine M. Schweitzer (NFP) - "Appellant-plaintiff Riley Nelson Fowler appeals the trial court’s exclusion of certain digital motion x-ray (DMX) evidence from the jury trial that was held regarding his personal injury claim against appellee-defendant Katherine M. Schweitzer for injuries that he sustained in an automobile accident. Specifically, Fowler claims that the trial court abused its discretion in excluding this evidence because it failed to properly apply the provisions of Indiana Rule of Evidence 702(b) in making its ruling. Finding no error, we affirm the judgment of the trial court."

American Family Mutual Insurance Co. v. John Houin (NFP) - "The trial court did not abuse its discretion by excluding evidence to which the parties had stipulated, by instructing Houin’s attorney to re-phrase a statement, or by denying American Family’s motion for a mistrial. Affirmed."

Gary Community School Corp. and Banneker Elementary School v. William Marshall and Valerie Gooch Greene, et al (NFP) - "The evidence is sufficient to allow a jury to determine that the School Corporation’s provision of only one supervisor created an unsafe environment where, over a period of time when he was unobserved by the single supervisor distracted by her other duties, a first-grade student could become frustrated by the actions of other students, which were also unobserved, and could react in accordance with that frustration. Thus, we conclude that the trial court was correct in allowing this case to go to the jury. We further conclude that the evidence supports the jury’s verdict and that the School Corporation failed to show that it should prevail as a matter of law."

NFP criminal opinions today (11):

Joseph Bauer v. State of Indiana (NFP)

David Hooker v. State of Indiana (NFP)

Gustavo Celestino v. State of Indiana (NFP)

Rachael Robertson v. State of Indiana (NFP)

James H. Gray v. State of Indiana (NFP)

Joe Thomas Bunch v. State of Indiana (NFP)

Edgar Lewis Baker v. State of Indiana (NFP)

Jeremiah Roberson v. State of Indiana (NFP)

M.S. v. State of Indiana (NFP)

David E. Hawes v. State of Indiana (NFP)

Bryan Minier v. State of Indiana (NFP)