« Law - Report of the GAO on cybersecurity and evolving threats | Main | Ind. Decisions - "Man who hit school bus is in trouble for apologizing" »

Tuesday, November 17, 2009

Ind. Decisions - Court of Appeals issues 2 today (and 4 NFP)

For publication opinions today (2):

In Paul Davis v. State of Indiana , an 11-page, 2-1 opinion, Judge Darden writes:

Davis asserts that his probation revocation hearing did not comport with due process. Specifically, he argues that the trial court did not find the underlying arrest to be reasonable and supported by probable cause. * * *

The State, however, argues that Davis was not entitled to due process rights as he admitted to violating his probation. We acknowledge that an admission of a probation violation by a probationer's attorney is binding upon the probationer. See Parker v. State, 676 N.E.2d 1083, 1086 (Ind. Ct. App. 1997). Where, however, the admission itself is insufficient to support a probation revocation, we cannot agree it renders the procedural due process safeguards and evidentiary hearing unnecessary. Cf. id. (finding no violation of Parker's rights despite no evidence having been presented as his counsel admitted that he had failed to report to the probation department as required). Given that Davis' probation revocation hearing did not comport with due process, and therefore, insufficient evidence was presented to support the revocation, we reverse the revocation of Davis' probation. Reversed and remanded.

ROBB, J., concurs.
MATHIAS, J., dissents with separate opinion. [which states in part] Here, Davis not only admitted to the historical fact that he had been arrested, his counsel also agreed that his probation would be revoked. Although Davis did not personally speak during the revocation hearing, his counsel's admission is binding on him.

In Rachel Mosco v. IDCS , a 9-page opinion, Judge Riley writes:
This court has recognized that under strict compliance with the AOPA, there exists the potential of a state agency, as custodian of the agency record, to be “intentionally slow and uncooperative in producing a complete record, in hopes of securing a dismissal.” Reedus, 900 N.E.2d at 487-88. Moreover, the legislature anticipated the possibility that the agency record would not always be readily accessible and therefore provided for the failure of the agency to timely prepare the record by allowing the litigant to request an extension of time to file the record. I.C. § 4-21.5-5-13(b).

However, once it became clear that DCS would not be able to prepare the agency record within the thirty-day window, we believe that the onus was on Mosco to request an extension, which she did not do. Thus, we cannot say that the AOPA is a “trap” for litigants or is fundamentally unfair. * * *

Based on the foregoing, we conclude: (1) Mosco did not substantially comply with the AOPA; (2) the trial court had discretion to dismiss her case. Affirmed.

NFP civil opinions today (1):

Theresa Kopchik and William Kopchik v. Mary Ann F. Dybala (NFP) - "As noted above, adverse possession cases must be decided on a case by case basis, applying the evidence to the circumstances of the land involved. McCarty, 423 N.E.2d at 300. Considering the issues of law and the facts found by the trial court, and the inferences reasonably drawn therefrom, we find that a reasonable trier of fact could conclude that the elements of adverse possession were established by clear and convincing evidence."

NFP criminal opinions today (3):

Travis McDonald v. State of Indiana (NFP)

Rachel Cusack v. State of Indiana (NFP)

Duane R. Dawson v. State of Indiana (NFP)

Posted by Marcia Oddi on November 17, 2009 02:04 PM
Posted to Ind. App.Ct. Decisions