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Thursday, March 04, 2010

Ind. Decisions - Court of Appeals issues 2 today (and 8 NFP)

For publication opinions today (2):

In Michael Kilgore v. State of Indiana , a 12-page opinion, Judge Darden writes:

Michael Kilgore appeals his conviction for escape as a class D felony and his adjudication as an habitual offender. We affirm in part, reverse in part, and remand.

Kilgore raises the following issues: [1] Whether the State violated Kilgore's due process rights when it charged him with escape.[ 2] Whether the trial court abused its discretion in refusing a tendered jury instruction.

The State also raises the following issue: [3] Whether the trial court improperly sentenced Kilgore. * * *

Here, Kilgore “was serving an executed sentence” on home detention when he violated the detention order by leaving his residence and failing to return. He therefore was not entitled to an instruction on unauthorized absence from home detention. * * *

In this case, the trial court improperly imposed a separate sentence for the habitual offender finding, rather than enhancing Kilgore's felony sentence. Accordingly, we reverse and remand the case to the trial court for re-sentencing in accordance with this opinion.

In Melvin Washington v. State of Indiana , a 9-page opinion (with a separate concurring opinion) on an interlocutory appeal, Judge Kirsch writes:
Melvin Washington brings this interlocutory appeal of the trial court’s denial of his motion to suppress evidence discovered during a search of his automobile. Although he contends that the search violated both the Fourth Amendment to the United States Constitution and Article 1, Section 11 on the Indiana Constitution, we find the following issue dispositive: whether the warrantless search of Washington’s vehicle to find a handgun that Washington admitted he had and for which he possessed a valid permit, violated the Fourth Amendment when the officer lacked an articulable basis of concern for officer safety. * * *

As in Malone, we conclude that in the absence of an articulable basis that either there was a legitimate concern for officer safety or a belief that a crime had been or was being committed, the search of Washington’s car for a handgun was not justified. Here, because neither of these conditions was satisfied, the search was illegal, and the trial court should have suppressed the evidence. Reversed.

DARDEN, J., concurs.
MAY, J., concurs in result with separate opinion. [that begins at p. 8, and quotes Arizona v. Gant (USSC, 2009)] While I concur with the majority’s result, I would reach that result with a slightly different analysis and, thus, I write separately to explain.

NFP civil opinions today (2):

Term. of Parent-Child Rel. of H.M.; J.M. v. IDCS (NFP)

Term. of Parent-Child Rel. of E.J.; S.H. v. IDCS (NFP)

NFP criminal opinions today (6):

Wilfredo Almodovar v. State of Indiana (NFP)

Lanell T. Ayers v. State of Indiana (NFP)

Arthur L. Beatty v. State of Indiana (NFP)

Ralph E. Farris v. State of Indiana (NFP)

James Brackin v. State of Indiana (NFP)

Craig Mitchell v. State of Indiana (NFP)

Posted by Marcia Oddi on March 4, 2010 12:21 PM
Posted to Ind. App.Ct. Decisions