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Wednesday, September 02, 2009

Ind. Decisions - Court of Appeals issues 4 today (and 12 NFP)

For publication opinions today (4):

This case, Bradley G. Shively v. State of Indiana , brings up the issues relating to court-appointed counsel for the indigent. The ILB has looked at this issue most recently in the August 20th entry, "Channel 6 finds public defender appointed upon request, with no effort at determining financial need." In today's 11-page opinion, Judge Barnes writes:
Bradley Shively appeals his convictions for Class D felony domestic battery, Class A misdemeanor battery, and Class D felony criminal confinement, for which the trial court entered judgment as a Class A misdemeanor. We reverse and remand.

The sole issue is whether the trial court properly denied Shively’s request for court-appointed counsel.

[The opinion goes into a thorough discussion of Shively's finances and the applicable law.]

Although we understand the reluctance of a trial court to appoint an attorney for one who may be “gaming the system,” in this instance we do not believe sufficient care was given to a close examination of Shively’s financial situation. The pre-trial inquiries regarding indigency were not ones that truly analyzed Shively’s means to pay for a private attorney. Such hearings should have considered not only his actual income as of the time of the hearings, but also his fixed monetary obligations, including his obligations to his family. The trial court conducted a proper, more thorough examination of Shively after trial, and its conclusion at that time that Shively was indigent is inconsistent with its earlier findings that he was not. In other words, the trial court abused its discretion in refusing to appoint counsel for Shively before trial because it lacked sufficient information to conclude that he was not indigent at that time.

We reverse Shively’s convictions because the trial court failed to adequately ascertain before trial whether he was indigent for purposes of court-appointed counsel. If it were not for the fact that Shively was found indigent after trial, we might remand for the trial court to further consider whether Shively is indigent. As this case stands now, however, Shively is indigent and should be considered to still be so for purposes of further proceedings on remand, unless there is evidence his financial situation has markedly improved.

In Portside Energy v. Northern Indiana Commuter Transportation District, a 27-page opinion, CJ Baker writes:
Appellant-plaintiff Portside Energy Corporation (Portside) appeals the trial court's grant of summary judgment in favor of appellee-defendant Northern Indiana Commuter Transportation District (NICTD), in which the trial court denied Portside's request for a declaratory judgment. Specifically, Portside argues that the trial court erred in determining that an indemnification agreement between Portside and NICTD was enforceable as a matter of law. Portside also maintains that the trial court erred in ordering it to pay NICTD's attorneys fees and interest on the amount that it allegedly owed NICTD. Concluding that the trial court properly granted NICTD's motion for summary judgment, we affirm. * * *

In light of our discussion above, we conclude that the trial court properly determined as a matter of law that NICTD did not engage in willful and wanton misconduct so as to negate the applicability of the indemnity provisions of the agreement between Portside and NICTD. Moreover, the damages that NICTD sustained to its train cars obligated Portside to pay for the loss under the agreement. Portside has not shown that NICTD engaged in the transfer of nondelegable duties, that the agreement was a construction contract within the meaning of Indiana Code section 26-2-5-1, or that NICTD had breached the agreement.

We also note that NICTD was not estopped from pursuing its claims against Portside and NICTD did not waive its rights to proceed against it. Finally, we find that the trial court properly ordered Portside to pay NICTD's attorney fees and prejudgment interest. As a result, we conclude that the trial court properly granted NICTD's motion for summary judgment.

In Bruce T. Harris and Allegheny Casualty Company v. State of Indiana , a 10-page opinion, Judge Barnes writes:
Bruce T. Harris and Allegheny Casualty Company (collectively “Harris and Allegheny”) appeal the trial court's denial of their motion for relief from judgment, which sought to set aside a bond forfeiture judgment. We remand.

The dispositive issue is whether the trial court provided adequate notice to Harris and Allegheny of orders to produce a criminal defendant. * * *

In the present case, we conclude that there is insufficient evidence in the record that the statutorily-required notices were mailed to both the bail agent and surety. * * * Here, the returned envelope of the notice sent to Allegheny at its listed Newark address arguably might be sufficient proof of mailing as to it, but there is no comparable evidence of mailing to Harris. Under the present statute, mailing to both the surety and the bail agent is required. * * * Instead, as to Harris there are only handwritten notations on the bottom of two court orders, which the trial court interpreted as sufficient proof that a court staff member mailed the required notices.

We cannot agree with the trial court that this was sufficient proof, even though the trial court is presumed to know its own records. * * *

We remand for further proceedings consistent with this opinion, and with directions to vacate the bond forfeiture judgment against Harris and Allegheny if no further evidence showing service of notice is forthcoming.

In Austin C. Weatherspoon v. State of Indiana , an 8-page opinion, Judge Vaidik writes:
Austin C. Weatherspoon appeals his conviction for Class B felony robbery, contending that the jury was improperly instructed. Specifically, Indiana Jury Rule 20(a)(8) provides that jurors, including alternates, are permitted to discuss the evidence among themselves in the jury room during recesses from trial when all are present, as long as they reserve judgment about the outcome of the case until deliberations commence. Under Indiana law, alternates are not allowed to deliberate with the jury. Weatherspoon argues that discussions are the equivalent of deliberations and therefore he was denied his constitutional and statutory right to a jury of twelve when the alternates were instructed that they were permitted to discuss the evidence during recesses from trial. Because Jury Rule 20(a)(8) makes a clear distinction between discussions and deliberations and because there is no evidence that the alternates participated in the deliberations, we affirm Weatherspoon’s conviction.
NFP civil opinions today (3):

Digital Lifestyles v. Robert Lynn (NFP) - "Digital Lifestyles, LLC, appeals the trial court’s refusal to enforce Digital’s Kentucky judgment against Robert Lynn. We reverse and remand.

"The sole issue for our review is whether the trial court erred in refusing to enforce Digital’s Kentucky judgment against Lynn.

"Digital argues that the trial court erred in refusing to enforce its Kentucky judgment. Specifically, Digital contends that the trial court erred when it 1) concluded that the Kentucky trial court lacked jurisdiction; 2) concluded that Digital failed to comply with the Indiana statutory service of process requirement; and 3) struck Digital’s amended affidavit as untimely filed. We address each of its contentions in turn."

Paul Phillips v. City of Richmond (NFP) - "Appellant-petitioner Paul Phillips appeals the trial court's order affirming the decision of appellee-petitioner City of Richmond, Indiana's, Police Department Merit Commission (the Commission) to demote Phillips from Lieutenant to Patrolman. Phillips argues that the Commission's decision was arbitrary, capricious, and not based on substantial evidence. He also emphasizes that the Commission failed to enter any findings of fact or conclusions of law. Finding that sufficient factual findings can be inferred from the Commission's decision and that the decision is based on substantial evidence and neither arbitrary nor capricious, we affirm."

Term. of Parent-Child Rel. of D.W.; L.A. & J.S. v. IDCS (NFP)

NFP criminal opinions today (9):

Glenn Edmond v. State of Indiana (NFP)

Aster Wilson, III v. State of Indiana (NFP)

John Kader v. State of Indiana (NFP)

Paul Benjiman Murphy v. State of Indiana (NFP)

Tracy Goodall v. State of Indiana (NFP)

Ross Crawford v. State of Indiana (NFP)

Vance Bridgemon v. State of Indiana (NFP)

Robert E. Ginsbach v. State of Indiana (NFP)

James Miller v. State of Indiana (NFP)

Posted by Marcia Oddi on September 2, 2009 12:21 PM
Posted to Ind. App.Ct. Decisions