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Monday, December 29, 2008

Ind. Decisions - Court of Appeals issues 5 today (and 8 NFP)

For publication opinions today (5):

In Bernice Sommers, et al. v. Wendy Sommers, et al. , a 6-page opinion, Judge Bailey concludes:

The Estate argues that failure to file a motion to vacate, modify or correct does not prohibit them from defending a motion to confirm with one of the prescribed exceptions in Sections ten and eleven. Federal caselaw dictates otherwise. In Cullen v. Paine, Webber, Jackson & Curtis, Inc., a panel of the Eleventh Circuit followed the lead of the Second Circuit, holding that a party's failure to move to vacate, modify or correct an arbitration award within the three-month window provided by Section twelve precludes that party from later seeking such relief when opposing a motion to confirm the award. Cullen v. Paine, Webber, Jackson & Curtis, Inc., 863 F.2d 851, 853 (11 th Cir. 1989). The Cullen Court also noted that other Circuit Courts of Appeal arrived at the same conclusion in analogous scenarios involving state arbitration statutes that contain similar three-month statutes of limitation. Id. at 853-54 (including Chauffeurs, Teamsters, Warehousemen and Helpers, Local Union No. 135 v. Jefferson Trucking Co., 628 F.2d 1023, 1025 (7th Cir.1980) (Indiana statute)). Therefore, because the Estate failed to file a motion to vacate, modify or correct within the prescribed time it has waived these arguments in defending the Nieces?s motion to confirm. The trial court properly confirmed the arbitration award. Affirmed.
In TWH, Inc. v. Jennifer Binford, a 6-page opinion, Judge Najam writes:
TWH, Inc., d/b/a Tom Wood Honda (“TWH”), brings this interlocutory appeal from the trial court’s denial of its motion to compel arbitration in this action on Jennifer Binford’s complaint alleging breach of warranty and fraud against TWH. TWH presents several issues for our review, but we address a single, dispositive issue, namely, whether the trial court erred when it denied TWH’s motion to compel arbitration. We reverse and remand with instructions.
In James Gibson, et al. v. Indiana Dept. of Correction, et al. , a 32-page opinion, Judge Crone writes:
Effective July 1, 2007, the Indiana statutes providing for a sex offender registry were amended to create a sex and violent offender registry (“Registry”). Ind. Code § 36-2-13-5.5 (amended by P.L. 216-2007, § 52). Thus, one who is convicted of murder, voluntary manslaughter, attempted murder, or attempted voluntary manslaughter who fails to register required information with local law enforcement authority in the county where he/she resides, works, and/or is enrolled in school, commits a felony. Ind. Code §§ 11-8-8-7, -17. In the fall 2007, James Gibson and other former violent offenders (“Appellants”) filed a complaint asserting that their inclusion on the Registry and the imposition of the various registration requirements violate the Indiana Constitution, specifically Sections 23 and 12 of Article 1. The complaint was filed against the Indiana Department of Correction and various county sheriff’s departments and prosecutors (“Appellees”).

Following a hearing, the Marion Superior Court, on March 13, 2008, issued findings of fact, conclusions of law, and entry of preliminary injunction regarding the enforcement of lifetime registration by violent offenders. Appellants, now certified as a class, appeal the denial of the preliminary injunction with respect to the ten-year registration requirement for violent offenders. Appellees, also having received class certification, cross-appeal the portion of the preliminary injunction that bars lifetime registration by certain violent offenders. We affirm in part and reverse in part with instructions.

In resolving this case, we must address the following issues:

I. Whether the imposition of the Registry’s requirements on persons convicted of murder, voluntary manslaughter, attempted murder, and attempted manslaughter violates Article 1, Section 23 of the Indiana Constitution;

II. Whether the imposition of the Registry’s requirements on persons convicted of murder, voluntary manslaughter, attempted murder, and attempted manslaughter violates Article 1, Section 12 of the Indiana Constitution;

III. Whether the Appellants demonstrated either irreparable harm or that the balance of harms and public interest favors a preliminary injunction; and

IV. Whether the trial court erred in entering a preliminary injunction limiting the Registry requirements to ten years rather than lifetime. * * *

[Re Issue I, the Court rules, citing and quoting the Appellees' brief]

Because Murder and Voluntary Manslaughter, along with attempts and conspiracies to commit those crimes, involve voluntary and intentional acts by persons either designed to take the life of another person or very intentional and voluntary acts to commit certain serious felonies where commission of the crimes might reasonably cause the death of another person, the General Assembly was within its authority consistent with Article 1, Section 23 of the Indiana Constitution to determine that persons who have committed Murder and Voluntary Manslaughter represent a greater, continuing threat to society than persons who committed other crimes resulting death, so that their inclusion on the [R]egistry was warranted. Thus, contrary to [Appellants’] claims, there are inherent differences that make expedient different or exclusive treatment of persons who have committed crimes resulting in deaths.
[Re Issue II] * * * Considering our deference to legislative policies (regardless of our position as to the policies), the fact that there is some (albeit slight) recidivism among violent offenders at least for some time after release, and that community notification about violent offenders provides an opportunity for enhancing public safety (legitimate state interest), the requirement that violent offenders register for at least some19 amount of time meets the low threshold of rational relation. Thus, we see no violation of Article 1, Section 12. * * *

[Re Issue III] Given that we have not found a constitutional problem, Appellants’ preliminary injunction argument fails on the first prong, likelihood of success on the merits. Again, if the movant fails to prove even one of the prongs, the injunction cannot be granted. Planned Parenthood of Ind. v. Carter, 854 N.E.2d 853, 863 (Ind. Ct. App. 2006). Therefore, we cannot say the court abused its discretion to the extent it denied Appellants’ request for a preliminary injunction. * * *

[Re Issue IV] To the contrary, applying Indiana Code Section 11-8-8-19(d) only to sex offenders is the more logical reading of the statute. Accordingly, we clarify that a violent offender is required to comply with the Registry for ten years, unless he/she also falls within Subsections (b), (c), or (e) of Indiana Code Section 11-8-8-19, in which case lifetime registration is warranted. Therefore, we conclude that the court’s preliminary injunction should apply only to members of the subclass represented by Wade. Such members are violent offenders who are or will be more than ten years removed from the later of the date they were released from prison, placed on parole or probation, or placed in a community corrections, and who are not sexually violent predators, were not convicted of an offense while over the age of eighteen against a victim less than twelve, and have not been convicted of two or more unrelated offenses under Indiana Code Section 11-8-8-5(a). To the extent that the trial court’s order would grant a preliminary injunction against lifetime registration for all violent offenders, we reverse and remand with instructions to clarify the preliminary injunction consistent with this opinion. In all other respects, we affirm the trial court.

Owen J. Fought v. State of Indiana - "Based on the foregoing, we conclude that the State presented sufficient evidence to prove beyond a reasonable doubt that Fought committed public intoxication. Affirmed. "

In Larry L. McGhee v. State of Indiana - a 2-1 opinion, Judge Riley concludes:

The State does cite Clark v. State, 808 N.E.2d 1183, 1191-92 (Ind. 2004), where our supreme court held that “if the police have a good faith basis for a statement, even if technically false, it does not rise to the level of deception.” That is true, but Detective Cole did not have a good faith basis for his statement that consensual sex with an adult relative is lawful. The basis for his statement was that he did not know the law. We would set a dangerous precedent if we were to hold that a lack of knowledge of the law amounts to a good faith basis for a material misstatement. Such a holding would give police officers an incentive to not know the law.

In sum, we conclude that McGhee’s confession was involuntary and, therefore, inadmissible. Thus, the trial court abused its discretion by admitting it. The State makes no argument that the trial court’s error was harmless. As such, we reverse McGhee’s conviction and remand for a new trial. * * *

BAILEY, J., concurs.
BRADFORD, J., dissents with separate opinion. [that concludes] Given the nature of the statement at issue, in my view the trial court was fully justified in concluding that it did not constitute a direct promise of immunity or leniency. To the extent the statement constituted an indirect promise to that effect, I am unpersuaded that it rendered McGhee’s confession involuntary. I would affirm the judgment of the trial court.

NFP civil opinions today (1):

Patricia Sue Beck v. Mark Allen Beck (NFP) "Based on the foregoing, we conclude that the trial court did not err in applying the college expenses provision of the parties’ property settlement agreement. Affirmed. "

NFP criminal opinions today (7):

State of Indiana v. Anthony J. Cohee (NFP)

Marvin Guy Riddle v. State of Indiana (NFP)

J.V. v. State of Indiana (NFP)

Antwain Hines v. State of Indiana (NFP)

Larry Weathers v. State of Indiana (NFP)

John B. Myles v. State of Indiana (NFP)

Antonio C. Putman v. State of Indiana (NFP)

Posted by Marcia Oddi on December 29, 2008 12:54 PM
Posted to Ind. App.Ct. Decisions