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Friday, November 16, 2007

Ind. Decisions - Court of Appeals issues 3 today (and 12 NFP)

For publication opinions today (3):

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

Lilia Castel appeals from her conviction for Driving While Intoxicated (“DWI”), as a Class A misdemeanor; Disorderly Conduct, as a Class B misdemeanor; and Disobeying a Traffic Control Device, an infraction. Castel raises a single issue on appeal, namely, whether the trial court erred when it failed to inform her of her right to counsel before trial. We reverse and remand. * * *

Castel contends that the trial court committed reversible error when it failed to inform her of her right to counsel at the misdemeanor trial. In essence, she argues that her self-representation at trial constituted a waiver of trial counsel that was not knowingly and intelligently made. We must agree. * * *

The State contends that “Castel did not actively safeguard her right to counsel,” Appellee’s Brief at 8, as if that were her burden. However, State also acknowledges that the trial court neither advised Castel at trial about her right to counsel nor warned her about the disadvantages of self-representation. Indeed, the trial court made no inquiries into Castel’s decision, and the record is devoid of any evidence showing Castel’s understanding of the disadvantages of self-representation, her background and experience, or the context of her decision to proceed pro se. As the State notes, Castel enjoys every presumption against the waiver of her right to counsel. Thus, we must conclude that Castel did not waive her right to counsel and that her convictions cannot stand. See Atkinson v. State, 810 N.E.2d 1190, 1192 (Ind. Ct. App. 2004) (reversing convictions where defendant at trial was apprised and waived the rights to cross-examine, present evidence, and subpoena witnesses but was not apprised of his right to counsel or dangers of self-representation).

We reverse Castel’s convictions and the judgment on the infraction and remand for a new trial in accordance with this opinion.

In State of Indiana v. Jason A. O'Grady, a 9-page opinion, Judge Najam writes:
The State appeals a reserved question of law, pursuant to Indiana Code Section 35-38-4-2(4). Specifically, the State challenges the trial court’s ruling on the State’s request to amend the charging information to a lesser-included offense in response to the defendant’s motion for directed verdict. The State raises a single issue for our review, namely, whether the trial court erred in denying that request. We reverse. * * *

The trial court erred in determining that the State’s proposed amendment to the information was an amendment to a matter of substance. The amendment neither satisfies the prerequisite definition of a matter of substance nor is it prejudicial to O’Grady’s substantial rights. See McIntyre, 717 N.E.2d at 125-26. Accordingly, we reverse the court’s ruling. Nonetheless, while we hold that the trial court erred, we may not remand for a retrial in that doing so would violate O’Grady’s rights under the Double Jeopardy Clause. See Gradison, 758 N.E.2d at 1013-14.

In Deborah Bacon v. Jeffrey Bacon , a 7-page opinion, Judge Robb writes:
Deborah Bacon asserts that she is appealing from a January 31, 2007, trial court order appointing a parenting coordinator for her and her former husband, Jeffrey Bacon. She raises two issues for our review: whether the trial court had the authority to unilaterally appoint a parenting coordinator; and whether the trial court’s appointment of a parenting coordinator without providing notice or a hearing was a violation of Deborah’s due process rights. Concluding that the order appointing a parenting coordinator is not a final judgment; that the order is not an interlocutory order appealable by right; and that Deborah did not take the steps required to have the order certified for interlocutory appeal, we dismiss.
NFP civil opinions today (3):

Termination the Parent-Child Relationship of D.H., R.W., and T.W.; Sabrina Smith v. Lake County Office of Family & Children (NFP) - "Appellant-respondent Sabrina Smith appeals from the involuntary termination of her parental rights with respect to her minor children, D.H., R.W., and T.W. Specifically, Smith maintains that the evidence was insufficient in that appellee-petitioner Lake County Office of Family and Children (“OFC”) failed to show that the conditions resulting in the children’s removal would not be remedied or that the continuation of the parent-child relationship posed a threat to the well-being of the children. We affirm."

M. Doed, LLC v. Marlan B. Harris and Mary Esther Harris (NFP) - "Appellant-Petitioner M. Doed, LLC, (“Doed”) appeals the denial of its petition to issue a tax deed based on a tax sale of property owned by the Appellees-Respondents Marlan B. and Mary Esther Harris (“Harrises”). We affirm."

In Matter of the Estate of Harry L. Dunn; Star Wealth Management v. Randy L. Dunn, et al. (NFP), a 22-page opinion, Senior Judge Hoffman writes:

Appellant-Personal Representative Star Wealth Management (a/k/a Star Financial Bank) (“Star Bank”), as personal representative for the supervised Estate of Harry L. Dunn (“the Estate”), appeals the trial court’s order—entered following a hearing on the Appellees-Heirs’ objection to Star Bank’s payment of $20,600 in personal representative fees and $20,600 in attorney fees without prior court approval—that determined that the reasonable value for personal representative fees was $2,500 and the reasonable value for attorney fees was $5,000, ordered the personal representative and his attorney to reimburse the remainder of the fee to the Estate, and ordered the personal representative to distribute certain commercial property to the Heirs. We affirm.

Star Bank raises two issues, which we restate as: I. Whether the trial court abused its discretion in its determination of fees for the Estate’s personal representative and attorney; and II. Whether the trial court erred by allowing the Heirs to keep the rental income collected from the commercial property for the period prior to the trial court’s order to distribute the commercial property to the Heirs.

NFP criminal opinions today (9):

Francisco O. Chavez v. State of Indiana (NFP)

Booker T. Sanders v. State of Indiana (NFP)

Stephanie D. Dunlap v. State of Indiana (NFP)

Kevin Eckstein v. State of Indiana (NFP)

Dion T. Wright v. State of Indiana (NFP)

Joe T. Bryant v. State of Indiana (NFP)

Orlando Branson v. State of Indiana (NFP)

Derek D.L.S. Hutchison v. State of Indiana (NFP)

Kimberly S. Yeager v. State of Indiana (NFP)

Posted by Marcia Oddi on November 16, 2007 12:50 PM
Posted to Ind. App.Ct. Decisions