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Monday, August 17, 2009
Ind. Decisions - Court of Appeals issues 3 today (and 6 NFP)
For publication opinions today (3):
In Subhen Ghosh v. Indiana State Ethics Commission and Office of the Inspector General [argued July 24th], a 19-page opinion, Judge Robb writes:
Subhen Ghosh, a former employee with the Indiana Department of Environmental Management (“IDEM”), appeals the trial court's order affirming a report by the State Ethics Commission (the “Ethics Commission”) that concluded Ghosh violated a provision of the Ethics Code,1 specifically Indiana Code section 4-2-6-9(a), during his employment with IDEM. On appeal, Ghosh raises five issues, which we consolidate and restate as 1) whether the trial court properly concluded Ghosh was collaterally estopped from seeking reinstatement of his employment and 2) whether the trial court properly affirmed the Ethics Commission's decision to impose a monetary sanction. Concluding the trial court properly concluded Ghosh was collaterally estopped from seeking reinstatement and properly affirmed the Ethics Commission's decision to impose a monetary sanction, we affirm in part. However, we also conclude the amount of the sanction imposed by the Ethics Commission is not supported by substantial evidence and therefore remand for additional findings in that regard. * * *We agree with Ghosh that the Ethics Commission's decision is inconsistent to the extent it concluded his trips were authorized (and therefore not in violation of 42 Indiana Administrative Code section 1-5-12) on the one hand, while on the other hand it calculated his sanction for violating Indiana Code 4-2-6-9(a) by using the total number of miles he traveled during his trips to the gas station and described these trips as “unauthorized.” Id. at 106. Instead, the Ethics Commission should have focused on Indiana Code section 4-2-6-12(1), which authorizes it to impose a sanction for a violation of the Ethics Code in an amount “not to exceed three (3) times the value of any benefit received from the violation.” Ind. Code § 4-2-6-12(1). Because the Ethics Commission's findings and the record fail to explain how Ghosh's sanction of $456.96 is less than or equal to “three (3) times the value of any benefit” he received for violating Indiana Code section 4-2-6-9(a), we cannot say substantial evidence supports the amount of the sanction. Accordingly, we remand to the Ethics Commission for it to either make additional findings explaining how Ghosh's sanction of $456.96 is consistent with Indiana Code 4-2-6-12(1) or, in the alternative, to fashion a sanction that is consistent with the statute and supported by the evidence in the record. See Ind. Code § 4-21.5-5-15 (permitting a court conducting review under AOPA to “remand the case to the agency for further proceedings” where its decision is unsupported by substantial evidence).
In Rita V. Lang v. State of Indiana , one issue addressed is "Whether Lang filed her notice of appeal in a timely manner." Judge Riley writes:
We begin by addressing the State’s contention that Lang’s appeal is untimely, and, therefore, we do not have jurisdiction to consider the merits of this appeal. “A party initiates an appeal by filing a Notice of Appeal with the trial court clerk within thirty (30) days after the entry of a Final Judgment.” Ind. Appellate Rule 9(A)(1). “Unless the Notice of Appeal is timely filed, the right to appeal shall be forfeited except as provided by P.C. R. 2.” App. R. 9(A)(5).In Jennifer Barber v. State of Indiana , an 11-page opinion, Judge Vaidik writes:The State contends that the relevant date for timeliness is January 5, because the trial court orally rendered its sentencing order and order of restitution on that date. * * * Lang contended that January 12 was the relevant date for consideration of timeliness because that was the date when the trial court’s written order was file stamped and entered as reflected in the Chronological Case Summary. In the alternative, Lang contended that the relevant date was January 9, 2009, the date on which the trial court reduced its order to writing and signed it. Lang explained that if her time to file a notice of appeal began on January 9, 2009, the due date would have been February 8, 2009, a Sunday, and, therefore, her notice of appeal would have been due on Monday, February 9, 2009. [which was the date her NOA was filed] * * *
We conclude that the rendition of the trial court’s Final Judgment occurred on January 9, 2009, when the trial court signed the sentencing and restitution orders, not when the trial court explained orally what its intentions were at the close of the sentencing hearing. Therefore, regardless of whether we interpret the January 5th oral statement by the trial court as notice, Lang had thirty days from January 9 to file her notice of appeal. As such, Lang had at least until Monday, February 9, 2009, to timely file her notice of appeal, which she did.
Jennifer Barber appeals her convictions for Class A misdemeanor operating while intoxicated and Class C misdemeanor failure to stop after an accident resulting in property damage. Specifically, Barber argues that the trial court abused its discretion in denying the motion to continue filed on the Monday morning of her bench trial, which was set a mere two months after her arrest, because her defense counsel had located two witnesses that weekend who supported her defense of involuntary intoxication. The trial court denied her motion because the deadline to file the witness list had passed two weeks before. In light of Barber's constitutional right to present a defense coupled with the strong presumption in favor of allowing the testimony of even late-disclosed witnesses, we conclude that the trial court abused its discretion in denying Barber's motion to continue. We therefore reverse the trial court and remand for a new trial. * * *NFP civil opinions today (2):Barber's defense was involuntary intoxication. Under Indiana law, “[i]t is a defense that the person who engaged in the prohibited conduct did so while he was intoxicated, only if the intoxication resulted from the introduction of a substance into his body: (1) without his consent; or (2) when he did not know that the substance might cause intoxication.” Ind. Code § 35-41-3-5. There is obvious prejudice to Barber from not being able to present the testimony of Collier and Mathis. Although Barber testified that she believed she was drugged, Collier would have testified that she believed the same thing happened to her on the evening of October 15, 2008, at the same American Legion. And according to defense counsel, Mathis would have supported both Barber's and Collier's testimony. This is the bolstering testimony of disinterested and objective witnesses. * * *
In light of Barber's right to present a defense, the strong presumption in favor of allowing the testimony of even late-disclosed witnesses, the lack of substantial prejudice to the State, and the resultant prejudice to Barber, we conclude that the trial court abused its discretion in denying Barber's motion to continue and therefore remand for a new trial.
[See also footnote 4 on p. 11, re a second argument: "The right to due process does not include the right to be given a chemical sobriety test in all circumstances. Parker v. State, 530 N.E.2d 128, 130 (Ind. Ct. App. 1988). To hold otherwise would be to transform the accused's right to due process into a power to compel the State to gather in the accused's behalf what might be exculpatory evidence."
Michelle Smout v. Steven Smout (NFP)
NFP criminal opinions today (4):
Geoffrey L. Lehman v. State of Indiana (NFP)
Milo Walker, Jr. v. State of Indiana (NFP)
Antoine Jefferson v. State of Indiana (NFP)
Samuel V. Fancher v. State of Indiana (NFP)
Posted by Marcia Oddi on August 17, 2009 11:09 AM
Posted to Ind. App.Ct. Decisions