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Tuesday, June 30, 2009

Ind. Decisions - Supreme Court rules in sex offender case

I've received this report:

The following case has been granted transfer with opinion:

State v. Anthony Pollard -- 05A02-0707-CR-640 -- 6/30/09 -- Transfer granted with opinion

No opinion has been posted however. Pollard was the case where the COA "declared unconstitutional a 2006 state law barring registered sex offenders from living near schools, parks and youth centers in cases where the offender had already owned his home when the law took effect," to quote a 5/14/2008 story in the South Bend Tribune. Here, from the May 13th opinion of the COA:
The State of Indiana appeals Blackford Superior Court’s dismissal of the charge of Class D felony sex offender residency offense against Anthony Pollard (“Pollard”). The State argues that the trial court erred when it found that Indiana Code section 35-42-4-11, as applied to Pollard, violated Article 1, Section 24 of the Indiana Constitution.
We affirm.

Here, from the docket today, is the Supreme Court's holding:

WE AFFIRM THE TRIAL COURT'S JUDGMENT--------RUCKER, J., SHEPARD, C.J., AND DICKSON AND SULLIVAN, JJ., CONCUR.. BOEHM, J., CONCURS IN RESULT AND CONCURS IN THE OPINION EXCEPT AS TO PART B3, BELIEVING THE ABSENCE OF A SCIENTER ELEMENT FOR CERTAIN FORMS OF CHILD MOLESTING IS NOT SIGNIFICANT IN EVALUATING THE PUNITIVE CHARACTER OF THIS STATUTE.

Posted by Marcia Oddi on Tuesday, June 30, 2009
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - More on: Court of Appeals caseload down considerably in calendar 2009

Updating this ILB entry from Monday, today the ILB has received this information from Chief Judge Baker about the Court of Appeals current caseload:

We are down 200 cases from 2008. We still have 100% clearance.
And here are the preliminary numbers:
Monthly intake: 230
YTD intake: 1281 (down 202 from 2008)
YTD intake 2008: 1483

Avg cases per day for June: 10.45

Disposed: 228 majority opinions + 0 dispositive order = 228 total disposed
YTD disposed: 1304 + 8 dispositive orders = 1312 total disposed (down 173 from 2008)
YTD disposed 2008: 1476 + 9 disp. orders = 1485 total disposed

Previous pending: 342
Current pending: 345 (up 3)

Posted by Marcia Oddi on Tuesday, June 30, 2009
Posted to Ind. App.Ct. Decisions

Ind. Courts - Courts should operate tomorrow, no matter what

Chief Justice Shepard has issued this message:

As of this hour, the General Assembly appears poised to adopt a new biennial budget, but neither house has yet convened to consider the proposal that has been negotiated over the last few days. Thus, we may not know before the end of the business day whether there will be a budget passed or not.

There can be little doubt that just as public safety requires the continuation of state law enforcement and corrections activities it likewise relies on the availability of Indiana's trial courts for search warrants, arraignments and bail, protective orders, child support, and a host of other needs. We therefore ask that you be at your post tomorrow, as we will.

In the event that there is not a budget, of course, the appellate courts and the support structure for the judicial branch will need to shut down, save for certain emergency functions, beginning tomorrow. Detailed decisions about those closings and furloughs will be made tomorrow morning should that be necessary.

Posted by Marcia Oddi on Tuesday, June 30, 2009
Posted to Indiana Courts

Ind. Law - More on: What about the new budget agreement? What will be in it? [Updated]

Updating this ILB entry from this morning, the Conference Committee Report (or draft #1 at least) has been posted online, within the last two hours. Access it here, at the bottom of the page. Both houses' versions should be the same. As soon as I have had a chance to review it, I will post more here.

[5:59 PM] - The Star reports the House has passed the budget. As the House was the hurdle, one can assume the Senate will follow suit and the bill will soon be on its way to the Governor.

Here are some things I've noticed in the new version:

Some "Augumentation" provison, p. 11 of PDF. Same "withholding allotment" powers on p. 105 of PDF.

One reference to "Notre Dame," as before.

94 references to "ombudsman."

P. 143, assessment of golf courses.

P. 341, operation of golf cart on highway

Twenty references to "Virtual charter schools"

CIB language beginning on p. 459 - terms of members.

P. 464, SECTION 505 -- "Effective Dates of HEA 1001(ss)-2009"

P. 465, SECTION 507 - 509 -- Interesting amendments that may impact the liability of railroad companies.

Very interesting language beginning at p. 469 of the PDFthat does not follow established procedure to amending and repealing the law -- SECTION 514 - 518 providing that specified changes made earlier in the report "shall not take effect" and telling the publisher of the Indiana Code what to do: i.e. "The publisher of the Indiana Code shall publish IC 20-28-11-3 as amended by this SECTION."

Keeps the court automated recordkeeping (JTAC) fee at the current $7 annually until 7-1-11, then $4 annually thereafter. P 389 of PDF, SECTION 394. See these ILB entries for background.

Posted by Marcia Oddi on Tuesday, June 30, 2009
Posted to Indiana Law

Ind. Courts - More on: A bizarre story this afternoon involving the wife of a Marion Superior Court judge

Updating this entry, Jon Murray reports this afternoon:

A senior judge today asked the Indiana Supreme Court to appoint a special judge to handle a politically sensitive forgery case with connections to two sitting Marion Superior Court judges.

Neither judge is accused of wrongdoing. But the wife of one is accused of forging the signature of the other — her sister-in-law — in a bid to stop the foreclosure of the couple’s Geist home. * * *

Her attorney and Marion County prosecutors were in court this morning. Senior Judge Ruth Reichard, filling in for Judge Grant Hawkins, recused herself and signed the special judge motion.

It says no judge in the county could handle the case without a potential conflict of interest.

Reichard had earlier granted Marion County prosecutors’ request to appoint Clinton County deputy prosecutor Judith Johnson as special prosecutor.

But Mario Massillamany, spokesman for Marion County Prosecutor Carl Brizzi, said today that Johnson has since declined to participate. That leaves the case in a holding pattern until the special judge selected by the Indiana Supreme Court can appoint another special prosecutor, he said.

Posted by Marcia Oddi on Tuesday, June 30, 2009
Posted to Indiana Courts

Ind. Decisions - A second opinion today from the Supreme Court

In East Chicago v. East Chicago Second Century, Inc., a 21-page, 4-1 opinion, Chief Justice Shepard writes:

When riverboat gambling came to Indiana and to East Chicago, the applicant for the gaming license and the City of East Chicago negotiated certain arrangements to commit part of the resulting revenue toward economic and workforce development in the City. Several private corporations were created to facilitate those efforts. When the Indiana Gaming Commission issued a license for East Chicago, it conditioned the license on those arrangements.

On the issues joined by the City and these corporations in the present appeal (one of several appeals), we hold certain of the City‟s claims should survive a motion to dismiss and others should not. We also hold the existing arrangements are subject to alteration, through the appropriate administrative channels, as the Indiana Gaming Commission on advice of the City and others may deem best for the future of East Chicago‟s residents. * * *

Conclusion. As detailed above, the trial court is affirmed on some points and reversed on others. We remand so that there can be further proceedings on the merits.

Sullivan, Boehm, and Rucker, JJ., concur.
Dickson, J concurring and dissenting with separate opinion.

Posted by Marcia Oddi on Tuesday, June 30, 2009
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Two Indiana opinions today from the 7th Circuit

In U.S. v. Rolls-Royce (SD Ind. Judge Barker), a 13-page opinion (that is not readily summarized) from a panel including Judges Wood and Posner, Chief Judge Easterbrook writes:

Now that the question has been squarely presented, we join the fifth circuit in concluding that the resolution of personal employment litigation does not preclude a qui tam action, in which the relator acts as a representative of the public. The special status of the United States counsels against reflexive transfer of rules of preclusion from private to public litigation. See United States v. Mendoza, 464 U.S. 154 (1984) (non-mutual issue preclusion does not apply to suits involving the United States). Cf. EEOC v. Waffle House, Inc., 534 U.S. 279 (2002) (an employee’s private disposition, via arbitration, of a claim against an employer does not diminish the federal government’s ability to pursue judicial relief independently); EEOC v. Sidley Austin LLP, 437 F.3d 695 (7th Cir. 2006) (employee’s failure to make a timely charge of discrimination does not prevent EEOC from suing to vindicate interest in law enforcement). * * *

The judgment of the district court is affirmed with respect to the claim under §3729(a)(7) and otherwise reversed. The case is remanded for a decision on the merits.

In U.S v. Cole (ND Ind., Judge Moody), a 10-page opinion, Judge Sykes writes:
Parrish Cole entered into a written plea agreement with the government in which he acknowledged distributing less than 400 grams of heroin and less than a kilogram of marijuana. The district court accepted the plea agreement but found, based on information in the presentence report, that Cole should be held responsible for a greater quantity of drugs than the amounts he had admitted in the agreement. The court increased Cole’s guidelines range accordingly and sentenced Cole to 97 months in prison, which was nearly double the sentence Cole expected if the court had followed the recommendations in the plea agreement. Cole challenges his sentence; although in his plea agreement he waived his right to appeal, he argues that the appeal waiver is unenforceable because the district court’s independent calculation of the drug quantities effectively nullified the agreement.

We disagree. The enforceability of Cole’s appeal waiver hinges on whether the drug quantities in Cole’s plea agreement were binding on the district court for sentencing purposes. Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure provides that if the district court accepts a plea containing an agreement between the government and the defendant about a specific sentence, sentencing range, or the applicability of a specific guidelines provision, policy statement, or sentencing factor, the court is bound by the parties’ agreement for purposes of sentencing. Cole’s drug-quantity admissions in the plea agreement do not fall into any of these categories but are instead factual stipulations that fall outside Rule 11(c)(1)(C)’s scope and thus do not bind the district court. See U.S.S.G. § 6B1.4(d). Accordingly, when the district court independently quantified the amount of drugs attributable to Cole based on information in the presentence report, it did not nullify the plea agreement. The appeal waiver in Cole’s agreement is enforceable, and we dismiss his appeal.

Posted by Marcia Oddi on Tuesday, June 30, 2009
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 8 today (and 24 NFP)

For publication opinions today (8):

Francis W. Splittorff v. Jerry Aigner, Pam Aigner and Beverly Childs - "Splittorff cannot prevail on his statutory claims for relief. Neither statute upon which Splittorff relies was written in contemplation of a former owner who holds over after title has passed under a tax sale deed. And Splittorff’s other contentions on appeal amount to a request that we reweigh the evidence, which we will not do. There is evidence in the record to support the trial court’s damages award. Accordingly, we affirm the trial court."

Helene C. Uhlman v. Rodrigo R. Panares, M.D., et al - "We conclude as a matter of law that Uhlman was an at-will employee when she served as Administrator of the health department. She has pointed to no evidence in the record to show that she was employed for a definite term or that she provided adequate consideration to convert the presumptively at-will employment to one in which she could only be terminated for good cause. We further conclude as a matter of law that Dr. Panares, as Health Officer, had authority to terminate Uhlman as Administrator. The legislative scheme in existence when Uhlman was terminated gave the Health Officer executive authority to make employment decisions. Thus, the legislature accorded broad discretion regarding employment decisions to the Health Officer, as executive officer of the Department. We conclude that the Health Officer‟s authority to make employment decisions includes the authority to terminate employees without the approval of the Board. And, as an at-will employee, Uhlman could be terminated from her employment for any cause or for no cause at all. See Trinity Baptist Church v. Howard, 869 N.E.2d 1225, 1228 (Ind. Ct. App. 2007), trans. denied. The trial court did not err in granting partial summary judgment to Defendants."

Andrew King v. State of Indiana is a 27-page opinion by Judge Crone dealing with online child solicitation. The issues are set out as:

I. Did the trial court abuse its discretion in admitting certain evidence? [ILB - The opinion discusses admission of internet evidence in depth here]

II. Is impossibility a defense to the crime of attempted dissemination of matter harmful to minors?

III. Did the State establish the corpus delicti of the crimes?

Re "impossibility", the Dec. 31st, 2-1 Court of Appeals ruling in the case of Randy Gibbs v. State of Indiana is referenced 21 times in the opinion; Aplin v. State is cited 34 times. The Court notes in footnote 13 - "Our supreme court denied transfer in Gibbs on May 14, 2009. Justice Dickson voted to grant transfer." Footnote 14 reads: "Justices Dickson and Sullivan voted to grant transfer in Aplin." [See this Jan. 4, 2009 ILB entry headed "Rulings target Internet sex stings: Appeals court says there must be an actual victim."] The Court concludes Part II:
We agree with Judge May [who dissented in Gibbs] that impossibility is not a defense to the crime of attempted dissemination of matter harmful to minors and believe that the legislature could not have intended to foreclose prosecution under Indiana Code Section 35-49-3-3 when the defendant erroneously believes the victim is a minor. Both Indiana Code Section 35-41-5-1(b) and our supreme court's interpretation of the statute in Zickefoose support this conclusion. Here, King intended to send a photo of an exposed penis to a fifteen-year-old via the internet and did all he believed was necessary to complete the offense of dissemination of matter harmful to minors. He failed to complete the offense only because it was impossible under the circumstances, i.e., because Detective Odier was not a minor. Consequently, we affirm his conviction for attempting that crime.
Jonathan Parahams Jr. v. State of Indiana - "Parahams does not argue that the variance between the charging information and the proof at trial misled him in the preparation of his defense. Moreover, on the record before us, we cannot conclude that the variance prejudiced Parahams. Parahams's one charged act of resisting was fleeing from a police officer after he was told to stop. The probable cause affidavit attached to the charging information listed the five officers that were present at the scene. The State proved that one of those officers, Officer Chicowicz, ordered Parahams to stop when he began to flee. For all of these reasons, we cannot conclude that the variance was fatal to the State‟s case. The State therefore presented sufficient evidence to prove that Parahams resisted law enforcement and we affirm his Class A misdemeanor resisting law enforcement conviction."

K.M.K. v. A.K. and Jeffry G. Price - "Although we can discern no basis in the record for an award of attorney fees, in light of the statutory language allowing for attorney‟s fees in any civil case where the trial court deems such an award to be necessary or proper, we conclude that Price is not barred from requesting attorney‟s fees in the instant matter."

Tanette Kinnon v. State of Indiana - "On July 7, 2005, the Indiana Office of Inspector General received a complaint from the Office of Management and Budget regarding mileage reimbursements for State employees during the fiscal year of July 1, 2004 to June 30, 2005. After conducting an audit, the Office of Management and Budget referred to the Office of Inspector General the names of the ten State employees who submitted the highest reimbursement claims. Kinnon was number one on the list. For the time period the Office of Inspector General initially examined, July 1, 2004 until June 30, 2005, Kinnon reported 95,869 miles, which translated into $32,595.69 in reimbursements. Although four homemakers in Kinnon‟s district were all in the top ten for mileage statewide, Kinnon‟s amount was about three times that of the next-highest claim."

Regunal Dowell v. State of Indiana - "The State cross-appeals, arguing that Dowell‟s appeal must be dismissed because he failed to timely file his underlying motion to correct error, thereby depriving this Court of jurisdiction to entertain his appeal. Concluding that the prison mailbox rule applies, we determine that Dowell timely filed his motion to correct error. We also conclude that the post-conviction court did not err by denying Dowell‟s petition for post-conviction relief without an evidentiary hearing. We affirm."

N.S., Alleged to be CHINS; T.S. & S.B. v. IDCS - "Having concluded that Indiana Code section 31-40-3-2 clearly states that the fiscal body of the county shall appropriate money for use by the courts in providing GAL or CASA services, and that Indiana Code section 33-24-6-4 supports the proposition that the burden of financially supporting GAL and CASA programs lies with the county, we conclude that the trial court erred in ordering DCS to pay the fees associated with the services provided by the GALs in the instant matters. In addition, we recognize the distinct roles of each of our three branches of government and thus leave to the legislative branch the question of whether, in light of the trend toward State funding of child welfare costs, the costs associated with GALs and CASAs should be shifted to the State. Under our current statutory scheme, however, it is clear that the burden of paying for services rendered by GALs or CASAs should be attributed to and paid for by the county. The judgment of the trial court is reversed, and this matter is remanded for further proceedings."

NFP civil opinions today (6):

Term. of Parent-Child Rel. of D.G., et al; S.K. & C.G., et al v. IDCS (NFP)

The Invol. Term. of the Parent-Child Rel. of D.H.; B.M. v. Marion Co. Dept. of Child Svcs. (NFP)

Term. of Parent-Child Rel. of J.D.; B.D. v. IDCS (NFP)

A.P. v. Indiana Dept. of Child Svcs. (NFP)

Scott County Area Plan Commission v. Townes Half-Way House, Inc. (NFP)

Jeff Canen v. Fisher Vorhis Draper Chapel (NFP)

NFP criminal opinions today (18):

Jarrode E. Phillips v. State of Indiana (NFP)

Troy A. Wright v. State of Indiana (NFP)

Loyce Williams v. State of Indiana (NFP)

Lawaine Smith v. State of Indiana (NFP)

Andre Payton v. State of Indiana (NFP)

Tony Lynn Reed v. State of Indiana (NFP)

Brian Devlin v. State of Indiana (NFP)

Jose A. Cortez v. State of Indiana (NFP)

Kenneth Bartley v. State of Indiana (NFP)

Leonard Sago v. State of Indiana (NFP)

Christopher Jackson v. State of Indiana (NFP)

Lavarter Lewis, Jr. v. State of Indiana (NFP)

Jennifer Whitesell v. State of Indiana (NFP)

A.D. v. State of Indiana (NFP)

Seth Beck v. State of Indiana (NFP)

Matt Taylor v. State of Indiana (NFP)

Andres Jackson v. State of Indiana (NFP)

Terry Fennessee v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, June 30, 2009
Posted to Ind. App.Ct. Decisions

Ind. Laws - More on "New Ind. laws include teen driver cell phone ban"

Updating this ILB entry from June 28th, two stories today:

From the Elkhart Truth, "Dog breeders face license law." The bill is HEA 1468.

From the Gary Post-Tribune, a lengthy story by Karen Snelling, headed "New state law requires all cigarettes burn out quickly." Some quotes:

Retailer Dhiren Shah expects his tobacco sales to drop starting July 1, when a new law will require that all cigarettes sold in Indiana burn out more quickly when left unattended.

"Our customers complain that fire-safe cigarettes go out too quickly and taste very funky," said Shah, owner of Karma Tobacco and Cigar Lounge in Merrillville.

Smokers buy traditional cigarettes by the carton, Shah said, but turn around and walk out if he only has fire-safe smokes in stock.

"It's definitely hurting business already," he said. "And once the regular cigarettes are gone, I think people will probably try to quit smoking because of the terrible taste."

The fire-safe cigarette started appearing in area stores in May, two months ahead of the state mandate.

The cigarettes are made with two to three bands of less porous paper designed to slow down the burning tobacco. Smokers have to puff on the cigarette for it burn through the bands.

Indiana will join 31 other states that already or by the end of summer will require vendors to sell only fire-safe, or low-ignition, cigarettes designed to reduce fire deaths.

"There's no difference in the tobacco or the paper used in the new cigarettes and the regular cigarettes," Indiana State Fire Marshal James Greeson said. "But smokers have to inhale in order for the tobacco to burn through the band or the cigarettes will self-extinguish."

Note that this s actually a 2008 law, that by its terms will not take effect until July 1, 2009. It may be found at IC 22-14-7.

Posted by Marcia Oddi on Tuesday, June 30, 2009
Posted to Indiana Law

Ind. Decisions - One today, so far, from Supreme Court

Referring back to this June 24th ILB entry headed "Many more Indiana Supreme Court opinions expected before July 1," one more of the 2008 argued criminal cases still pending has been decided today.

In George Jackson v. State of Indiana, a 7-page, 5-0 opinion, Justice Rucker writes:

George Jackson appeals his conviction for unlawful possession of a firearm by a serious violent felon. Finding the search warrant for Jackson's home valid under the good faith exception to the warrant requirement, we affirm the conviction. * * *

Jackson appealed contending the trial court erred in denying his pretrial motion to suppress. Noting that because he is appealing following a conviction, and thus the issue is more appropriately framed as whether the trial court properly admitted the evidence at trial, a divided panel of the Court of Appeals reversed Jackson's conviction. According to the majority the search warrant was invalid under Indiana Code § 35-33-5-2, and the evidence seized during the search was not otherwise admissible under the good faith exception to the warrant requirement. Jackson v. State, 889 N.E.2d 830 (Ind. Ct. App. 2008). Having previously granted transfer we now affirm the trial court. * * *

The Court of Appeals' majority examined the evidence before the issuing judge and concluded it fell short of the probable cause required under Indiana's warrant statute. More particularly, the court noted that Detective Blackwell‟s sworn oral testimony was based on hearsay statements of the confidential informant and determined there was no testimony establishing the informant‟s credibility as required by I.C. § 35-33-5-2(b). Chief Judge Baker dissented emphasizing that the confidential informant had a relationship with police, formed by making several controlled buys in the past for the Drug Task Force. Jackson, 889 N.E.2d at 835-36. * * *

We acknowledge that Detective Blackwell's testimony is abbreviated, and public complaints have their limitations. See, e.g., Pawloski v. State, 269 Ind. 350, 354-55, 380 N.E.2d 1230, 1232-33 (1978) (test for determining reliability of information varies based on whether the source is an anonymous tipster, a professional informant, or a cooperative citizen). But the heart of the matter is not whether a court of review agrees or disagrees about the existence of probable cause sufficient to support the issuance of a search warrant; rather the issue is whether when viewed from a totality of the circumstances there was enough evidence before the issuing court that would allow the court to make that call. We are of the view the evidence in this case meets that standard.

Conclusion. We therefore affirm the judgment of the trial court.

Posted by Marcia Oddi on Tuesday, June 30, 2009
Posted to Ind. Sup.Ct. Decisions

Ind. Law - What about the new budget agreement? What will be in it?

Reports this morning are that a budget agreement may have been reached and that the House and Senate will vote on it later today. If agreement is reached, it will be sent to the Governor, who would be expected to act on it before the end of the day.

This agreement initially will be in the form of a Conference Committee Report. The question is, what precisely will be in it?

The papers report about only the broadest of outlines of an agreement. Will anyone have a chance to review it in detail before it is acted upon?

As we have seen in past years, the budget bill is not limited to appropriations. Seemingly anything may be contained within its hundreds of pages of dense text. (See this ILB entry from June 23rd on some of what is in the version of HB 1001 adopted by the Senate.)

The House and Senate rules contain some safeguards to insure that legislators, member of the public, and the Governor, have at least a limited opportunity to review a bill before it becomes a law. Here is Senate Standing Rule 83(a):

83. (a) Each report of a conference committee for the adjustment of differences between the Senate and House, together with a digest of the bill and the changes made, shall be reduced to writing, signed by the appointed conferees, reviewed by the Majority Attorney and Minority Attorney, filed with the Office of the Principal Secretary at least eight (8) hours before action is taken thereon, and distributed to the Senators at least four (4) hours before action is taken thereon.
Here are House Standing Rules 163 and 164:
163. Placed on Members’ Desks. All reports of conference committees for adjustment of differences between the House and Senate together with a digest of the bill shall be filed with the Principal Clerk, reproduced, placed on each member’s desk, and made available on the House computer network as soon as practicable.

164. Time on Members’ Desks.

164.1 During the first regular session, conference committee reports shall be laid over for twenty-four (24) hours after filing.

164.2 During the first regular session, the budget bill shall be laid over for twenty-four (24) hours after filing. This rule may not be suspended without a two-thirds (2/3) vote of the members of the House.

164.3 During the second regular session, such reports shall be laid over for twenty-four (24) hours after filing.

164.4 Such reports shall then be read in their entirety again and placed before the House for action.

Expect these rules to be suspended. Ordinarily, within the next few hours, the CCRs on HB 1001 of this special session would be available for review here, at the very bottom of the page. But today is when all the safeguards break down.

Posted by Marcia Oddi on Tuesday, June 30, 2009
Posted to Indiana Government | Indiana Law