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Wednesday, January 20, 2010

Ind. Decisions - Court of Appeals issues 2 today (and 10 NFP)

For publication opinions today (2):

In Town of Dyer, Lake County, Indiana v. Town of St. John, Indiana, CWS, LLC, et al., a 14-page opinion dealing with annexation, Judge Barnes writes:

The restated issue before us is whether the trial court properly denied the validity of Dyer's attempt to annex land that St. John also was attempting to annex. * * *

The trial court correctly concluded that Dyer's complaint for a declaratory judgment and permanent injunction against St. John failed to state a claim upon which relief could be granted because Dyer's own annexation ordinance was void and invalid for attempting to annex multiple, disconnected parcels of land in a single proceeding. We affirm the dismissal of the complaint. Affirmed.

Joshua G. Nicoson v. State of Indiana is a 9-page, 2-1 opinion involving double jeopardy. Chief Judge Baker writes:
Today we decide an issue of first impression regarding the application of double jeopardy principles when a defendant's sentence is enhanced based on his use of a deadly weapon. Appellant-defendant Joshua G. Nicoson appeals the five-year sentence enhancement that the trial court imposed for the use of a firearm following his conviction for Criminal Confinement with a Deadly Weapon, a class B felony. Specifically, Nicoson argues that the enhanced penalty constituted an impermissible “double enhancement” in violation of double jeopardy principles. Concluding that the enhancement was proper and no double jeopardy violation occurred, we affirm the judgment of the trial court. * * *

In sum, the enhancement of the sentence is connected to, and punishes a defendant for, the additional escalation of danger, which is based on the actual use of the deadly weapon. Thus, the trial court sentenced Nicoson for criminal confinement as a class B felony because he was in possession of a deadly weapon, and it subsequently enhanced the sentence pursuant to Indiana Code section 35-50-2-11in light of Nicoson's use of the gun. As a result, we reject Nicoson's argument that the sentence amounted to an impermissible double enhancement in violation of federal or state double jeopardy prohibitions.
The judgment of the trial court is affirmed.

MAY, J., concurs.
DARDEN, J., dissent with opinion. [that begins, at p. 8] I respectfully dissent. As noted, Nicoson was charged and convicted of confining the victims while “armed with a deadly weapon,” and of “us[ing]” a firearm while committing the confinement. The majority concludes that the second offense/conviction merely constitutes an enhancement of the first, but I cannot agree. If that “deadly weapon” is a firearm, how could a person thereby armed not also commit the offense of confinement “us[ing]” a firearm?

NFP civil opinions today (5):

Spine, Sports, and Pain Medicine, P.C. v. Daniel H. Nolan, M.D. (NFP) - "In sum, the evidence demonstrated that Spine did not have an office in Warsaw on June 8, 2007, when the Agreement was signed. Moreover, the Agreement prohibited Dr. Nolan from competing within twenty-five miles of any office of Spine that previously or currently existed when Dr. Nolan tendered his resignation from Spine’s employment. Because Spine did not “previously or currently” have a Warsaw office as of that date, the Agreement did not prohibit Dr. Nolan from opening a medical practice in Warsaw. As a result, Spine cannot enjoin Dr. Nolan from working at that location, and we conclude that the trial court properly denied Spine’s motion for a preliminary injunction.
The judgment of the trial court is affirmed."

Term. of Parent-Child Rel. of L.W.; G.W. v. IDCS (NFP)

D.S. v. Review Board (NFP)

Term. of Parent-Child Rel. of M.A., et al.; S.A. v. IDCS (NFP)

Term. of Parent-Child Rel. of T.J., et al.; T.J. v. IDCS (NFP)

NFP criminal opinions today (5):

Chad Buttery v. State of Indiana (NFP)

Robert W. Smith v. State of Indiana (NFP)

Annalisha Murray v. State of Indiana (NFP)

Scott Bryant v. State of Indiana (NFP)

Keith Chandler v. State of Indiana (NFP)

Posted by Marcia Oddi on January 20, 2010 12:54 PM
Posted to Ind. App.Ct. Decisions