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Monday, December 08, 2008

Ind. Decisions - Court of Appeals issues 1 today (and 14 NFP)

For publication opinions today (1):

In Tommy D. Alvey v. State of Indiana , a 9-page opinion, Judge Najam writes:

Tommy D. Alvey appeals from the trial court’s order denying his pretrial motion to suppress following a “conditional guilty plea” in which Alvey and the State agreed that Alvey had reserved his right to appeal the court’s order. Alvey raises three issues for our review. However, we address only the following dispositive issue: whether Alvey may challenge the court’s denial of his motion to suppress now that he has pleaded guilty. We affirm. * * *

On November 28, Alvey entered into a plea agreement with the State. In that agreement, Alvey agreed to plead guilty to dealing in methamphetamine, as a Class B felony, and carrying a handgun without a license, as a Class A misdemeanor. In exchange, the State agreed to dismiss the remaining charges. Alvey agreed to leave sentencing open to the trial court’s discretion. However, he expressly “reserve[d] the right to appeal the Court’s ruling [o]n the motion to suppress, and the State does not object.” Alvey then acknowledged that “the entry of my guilty plea pursuant to this agreement . . . constitutes an admission of the truth of all facts alleged in the Information . . . to which I plead guilty . ..”

On January 30, 2008, the trial court held a hearing on Alvey’s guilty plea. At that hearing, the court expressly informed Alvey that he was permitted to appeal the court’s decision on his pretrial motion to suppress despite his admission of guilt. * * *

Alvey’s plea forecloses his right to challenge the pretrial motion to suppress, and we must affirm the trial court’s entry of judgment of conviction against Alvey.

NFP civil opinions today (4):

Muriel Hillsamer, et al. v. Sun Trust Bank, et al. (NFP) - "The Estate of David E. Hillsamer (“the Estate of David”), by his widow and personal representative Muriel C. Hillsamer, appeals the trial court’s grant of summary judgment in favor of Sun Trust Bank as trustee of the Reita R. Hutchins Trust, Connie Rautenkranz, Patricia Spahn, and Re/Max Realty. An agreement three siblings entered into in 1974 regarding ownership of approximately 150 acres of land in Monroe County, Indiana, limits the exercise of an option to purchase that land to the siblings while they were alive. The siblings are now dead. Accordingly, the estate of one of those siblings cannot now exercise his option to purchase the land. We therefore affirm the trial court. "

View Outdoor Advertising v. Porter County Board of Zoning Appeals (NFP) - "View Outdoor Advertising, LLC (“View Outdoor”), appeals from the trial court’s affirmance of a decision of the Porter County Board of Zoning Appeals (“BZA”) denying it special exceptions for four billboards. On appeal, View Outdoor contends that the agency’s decision was based upon improper considerations and that several of the BZA’s findings were not supported by substantial evidence and explanations by the BZA. We conclude that aesthetics, the impact upon adjacent properties’ values, and the size of a proposed billboard are all appropriate considerations for the BZA when ruling upon petitions for special exceptions and are supported by sufficient evidence and explanation. We also conclude that the BZA’s consideration of the impact of one of the billboards upon public safety was based upon sufficient evidence. We therefore affirm. "

Phillis Coppock v. Truman Coppock, Jr. (NFP) - "Former wife, Phyllis Coppock (“Phyllis”), appeals the trial court’s order that granted a motion to correct error filed by former husband, Truman Coppock, Jr. (“Truman”). Phyllis raises the following restated issue: whether the trial court erred when it reversed its prior order allowing Phyllis to begin receiving her interest in Truman’s pension benefits, despite the fact that Truman had not yet retired. We affirm. * * *

"Here, Judge Embrey expressly addressed and ruled on the issue of whether Phyllis could begin receiving her share of Truman’s retirement benefits prior to Truman’s retirement twice and determined on both occasions that, according to the terms of the divorce decree, Phyllis would not begin receiving her share of Truman’s benefits until Truman retired. Phyllis did not appeal these two previous decisions. Because the issue at hand has been decided, more than once, in earlier proceedings between the same parties, res judicata precludes Phyllis from relitigating it.

"In closing, we acknowledge that equities may support Phyllis’s request. As Judge Spahr remarked, “Ma’am, you have to wait until he dies or retires. It’s not fair, is it? It’s not fair. And you [Truman] can continue to work and I’m proud of you for working but if all it takes is a signature on a, on a QDRO that will allow her to have access to a cash flow, . . . then I wonder about why you would remain so adamant. But I can’t change it.” Tr. at 22. “I can’t change anything without an agreement signed by both parties.” Id. at 21.

"Phyllis’s remedy was to appeal Judge Embrey’s earlier rulings. Accordingly, the trial court’s decision to grant Truman’s motion to correct error was not an abuse of discretion."

In the Termination of Parent/Child Rel. of D.H. (NFP) - "In sum, we conclude that Harris has demonstrated prima facie error in the trial court’s application of the best interests requirement, as well as its conclusion that the conditions that caused D.H.’s removal will not be remedied. While we are mindful of Harris’s past frailties, we are also mindful of the sweeping and permanent effect of a parental termination order. Accordingly, we reverse the trial court’s termination order and remand to the trial court for further proceedings consistent with this decision. Reversed and remanded. "

NFP criminal opinions today (10):

Harry Paxton v. State of Indiana (NFP)

Jacsean P. Thomas v. State of Indiana (NFP)

Joseph A. Ruthrauff v. State of Indiana (NFP)

Steven Cook v. State of Indiana (NFP)

Jeremiah McCoy v. State of Indiana (NFP)

Brent G. Rosenbaum v. State of Indiana (NFP)

Reyel Tarver v. State of Indiana (NFP)

Frank Burrello v. State of Indiana (NFP)

Robert Lee Shorter v. State of Indiana (NFP)

Reyes Manuel Maldonado, Jr. v. State of Indiana (NFP)

Posted by Marcia Oddi on December 8, 2008 12:52 PM
Posted to Ind. App.Ct. Decisions