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Thursday, June 18, 2009

Ind. Decisions - Court of Appeals issues 1 today (and 5 NFP)

For publication opinions today (1):

In Melisa L. Mathews v. State of Indiana, a 7-page opinion, Chief Judge Baker writes:

Appellant-respondent Melisa L. Mathews appeals the revocation of her probation following a fact-finding hearing at which she was not present, arguing that her right to due process under the Indiana and United States Constitutions was violated. Mathews also contends that the trial court erred in ordering Mathews to serve three years and 216 days imprisonment after revoking her probation. We affirm in part and remand with instructions that the trial court explain how it calculated Mathews’s sentence and, if necessary, recalculate the amount of time she is to serve. * * *

As a probationer in a civil probation revocation proceeding, Mathews’s due process rights are no greater than that of a criminal defendant. Applying the stricter criminal standard, we must consider whether Mathews knowingly and voluntarily waived her right to be present at the September 18, 2006, fact-finding hearing. Our Supreme Court has stated that while failure to appear in court is not dispositive of a defendant’s intent to waive her right to be present, the trial court may examine the facts and determine that a knowing and voluntary waiver has occurred and proceed in absentia. Freeman 541 N.E.2d at 535. Our Supreme Court then noted that the best evidence of a knowing and voluntary waiver is the presence of the defendant in court when the trial court scheduled the date of the hearing or trial. Lampkins, 682 N.E.2d at 1273. * * * Under these circumstances, we find that the trial court did not err in determining Mathews had knowingly and voluntarily waived her right to be present at the fact-finding hearing and proceeding in absentia. Thus, Mathews’s due process claim fails.

As for the duration of the sentence * * * It is unclear from the record how the trial court calculated Mathews’s sentence. It is also unclear from the record whether Mathews earned and received credit for completion of both her G.E.D. and alcohol rehabilitation classes while incarcerated. We remand this issue with instructions that the trial court report back to us within thirty days, explaining how it calculated Mathews’s sentence and, if necessary, recalculate the amount of time she is to serve. A hearing is not necessary and the trial court should rule on the documents in the record.

NFP civil opinions today (2):

Adriana L. VanCleave v. Robert T. VanCleave (NFP) - "These findings support the trial court’s conclusion that an award to Father of T.’s primary physical custody would be in T.’s best interests. Affirmed."

Carla Cunningham v. Review Board of Indiana Dept. of Workforce Development (NFP) - "Appellant-petitioner Carla Cunningham appeals the decision of the Indiana Unemployment Insurance Review Board (Review Board) dismissing her appeal as untimely. Finding no error, we affirm."

NFP criminal opinions today (3):

Charles Thompson v. State of Indiana (NFP)

Joshua R. Barnett v. State of Indiana (NFP)

Janna Caywood v. State of Indiana (NFP)

Posted by Marcia Oddi on June 18, 2009 12:50 PM
Posted to Ind. App.Ct. Decisions