« Ind. Decisions - SCOTUS decides Indiana v. Edwards | Main | Ind. Decisions - More on SCOTUS decides Indiana v. Edwards »
Thursday, June 19, 2008
Ind. Decisions - Court of Appeals issues 4 today (and 15 NFP)
For publication opinions today (4):
In Steven I. Paul v. State of Indiana, a 17-page opinion, Judge Barnes writes:
Steven I. Paul brings his consolidated appeal of the sentence imposed by the trial court after his conviction by jury of aggravated battery, as a class B felony, and the trial court’s order finding that Paul was not entitled to credit time for earning a second associate’s degree during his incarceration. * * *In Thomas N. Schiro v. State of Indiana , a 23-page opinion, Judge Kirsch writes:Finally, Paul argues that the trial court erred in denying him educational credit time for his second associate’s degree because the statute and resulting DOC directive violate constitutional prohibitions against ex post facto laws as applied to him. We agree. * * *
When Paul committed the offense, the law provided that he could earn one year of educational credit for an associate’s degree – with no limitation as to the number of such degrees except for the statutory maximum for educational credit time. After the law and DOC policy changed to limit his earning of credit to a single associate’s degree, it reduced the educational credit time available to him for pursuing more than one associate’s degree – by limiting him to credit for a single associate’s degree. “[T]his reduction in [educational credit time] accumulation lengthen[ed] the period that [Paul] must spend in prison,” constricted his “opportunity to earn early release,” and “made more onerous the punishment” for the aggravated battery he committed “before enactment” of the new law and policy. Weaver, 450 U.S. at 33, 35-36. Inasmuch as at the time Paul committed the offense, the statute allowed him to earn more than one associate’s degree and earn one year’s credit for each degree, the application of the new statutory provision and DOC’s policy to deny him credit for both degrees is a violation of his constitutional protections against ex post facto laws. Therefore, we reverse the trial court’s order in that regard and remand to the trial court for issuance of an order to the Indiana Department of Correction consistent with this opinion.
Thomas N. Schiro appeals his conviction for Class A felony rape, raising several issues, which we consolidate and restate as: I. Whether the trial court erred when it denied Schiro’s motion to dismiss charges brought against him in 2005 for crimes that were alleged to have occurred in 1980. II. Whether the trial court erred when it admitted Schiro’s written statements and a photograph of the victim with her daughter. * * *In Christopher Tubbs v. State of Indiana , a 6-page opinion, Senior Judge Garrard writes:Back in 1981, as a result of the publicity surrounding Luebbehusen’s death, two other women, G.G. and L.S., upon seeing Schiro’s picture in the news, separately contacted law enforcement. Each woman asserted that Schiro had raped her in late 1980 in separate and unrelated incidents. These rapes are the crimes underlying the current appeal. Police investigated both rapes, but because Schiro admitted to the murder of Luebbehusen and was sentenced to death, the State did not charge Schiro with the G.G. and L.S. crimes. However, following the 1996 reversal of Schiro’s death sentence, the State reopened the investigation of the G.G. and L.S. cases in 1996 or 1997, but could not locate L.S. Because the State believed that proceeding simultaneously with both alleged victims would increase its chances for success at trial, the matter stalled for a period of time. * * * Affirmed.
Christopher Tubbs appeals the sentence imposed after his guilty plea was accepted. His primary argument is that the sentence violated his plea agreement by imposing punitive requirements not authorized by the agreement. We reverse and remand. * * *In Leon Z. Kyles v. State of Indiana , a 9-page opinion, Judge Robb writes:We conclude that Tubbs’ plea agreement did not afford the trial court broad discretion in fixing the terms of probation. Therefore, the imposition of the three years in community corrections after the nine year executed sentence constitutes an additional substantial obligation of a punitive nature not authorized by the plea agreement.
We therefore reverse the sentence and remand to the trial court for imposition of a sentence in accord with the terms of the plea agreement.
Following a jury trial, Leon Kyles appeals his conviction of unlawful possession of a firearm by a serious violent felon, a Class B felony, and the jury’s habitual offender finding. On appeal, Kyles raises two issues, which we restate as 1) whether the trial court properly admitted a shotgun into evidence that was discovered following an inventory search of Kyles’s vehicle and 2) whether the trial court properly denied Kyles’s motion for a mistrial during the habitual offender phase of the trial. Concluding that the trial court properly admitted the shotgun into evidence and properly denied Kyles’s motion for a mistrial, we affirm. * * *NFP civil opinions today (8):Kyles’s theory that the shotgun should have been suppressed does not directly challenge the reasonableness of the inventory search of his vehicle. Instead, Kyles argues the shotgun should have been suppressed because Officer Deshaies’s observation of the crack pipe did not constitute probable cause for a warrantless arrest. The theory is a valid one, * * * and the propriety of the trial court’s decision to admit the shotgun therefore turns on whether Officer Deshaies had probable cause to arrest Kyles. * * *
Because Kyles’s warrantless arrest was based on probable cause, the resulting search of Kyles’s vehicle did not violate the Fourth Amendment, and the trial court properly admitted into evidence the shotgun that was found during that search. Moreover, the trial court properly denied Kyles’s motion for a mistrial during the habitual offender stage of trial.
Tamyra and Renato D'Ippolito v. Gene R. Barley d/b/a Freedom Contracting, Inc. (NFP) - "The trial court did not err in finding and concluding that the parties entered into oral contracts for work at the café. The trial court did not abuse its discretion in making its findings as to Gene’s damages. Finally, there was evidence to support the entry of judgment against Renato. Affirmed."
T.M. v. Elkhart County Office of Family and Children (NFP)
Michael and Vicky Mason v. Landes Cup Investments, Inc. (NFP) - "While the Masons are correct that the statute makes the bond mandatory, the law does not redress trifles. See D&M Healthcare, Inc. v. Kernan, 800 N.E.2d 898, 900 (Ind. 2003); and Brockmann Enter., LLC v. City of New Albany, 868 N.E.2d 1130, 1133-34 (Ind. Ct. App. 2007), trans. denied. Indeed, remand for the entry of a nominal bond would do little to further the proceedings. Any error therefore was harmless. Affirmed."
In Sara L. Cox v. Deal$ Nothing Over a Dollar, LLC (NFP), a 13-page, 2-1 opinion, Judge Kirsch writes:
Sara L. Cox appeals the trial court’s grant of Deal$ Nothing Over a Dollar, LLC’s (“Deal$”) motion for summary judgment terminating her premises liability claim against Deal$. Cox raises three issues on appeal, which all deal with whether there were genuine issues of material fact rendering summary judgment inappropriate. We restate these issues as: I. Whether the bumper rails at the base of the table-high display refrigerator-freezer constituted a “tripping hazard.” II. Whether Deal$ owed Cox a duty of reasonable care to protect against the bumper rail. III. Whether the bumper rail caused Cox to fall. We reverse. * * *J.B., A Minor Child v. The Board of Trustees of Vincennes University (NFP)Although Deal$ claims that Cox’s deposition testimony was fraught with inconsistencies and uncertainty as to what caused her to fall, she distinctly identified the bumper rail as the cause of her fall. The remainder of her testimony goes to the weight of the evidence and the credibility of her as a witness, issues this court may not decide and that are inappropriate for summary judgment. Cox designated sufficient evidence to create a genuine issue of material fact as to whether her fall was caused by the bumper rail. Reversed.
BAILEY, J., concurs.
FRIEDLANDER, J., dissents with separate opinion. [which concludes] In summary, the undisputed designated evidence established that the bumper rail has been widely used the world over without incident for well in excess of ten years. For its part, Deal$ had never had a bumper-rail-related incident in all the time it had been used in Deal$’s store. It is beyond me how a jury could conclude from the foregoing evidence that there is an unreasonable risk inherent in the bumper rail, much less how Deal$ should have foreseen it.This brings me back to the aforementioned philosophical difference. My colleagues dismiss this line of reasoning by holding that the issue of notice of a danger is a question for the trier of fact. Applied in such a rote fashion on facts such as these, this principle seems to render summary judgment practically unattainable in this context. I can find no case that enunciates such a rule. Thus, upon my view that summary judgment is appropriate where the evidence of notice of risk and foreseeability is as threadbare as that in the instant case, I would affirm summary judgment in favor of Deal$.
Kent A. Campbell v. Deanne M. Campbell (NFP)
NFP criminal opinions today (7):
William Farno v. State of Indiana (NFP)
John W. McMaster v. State of Indiana (NFP)
Ricky Nelson Vires v. State of Indiana (NFP)
Timothy S. Keller v. State of Indiana (NFP)
Eric Kuykendall v. State of Indiana (NFP)
Casey Dyer v. State of Indiana (NFP)
Willie J. Herman, Jr. v. State of Indiana (NFP)
Posted by Marcia Oddi on June 19, 2008 01:07 PM
Posted to Ind. App.Ct. Decisions