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Wednesday, September 01, 2010

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

For publication opinions today (4):

In Paul E. Armstrong, Jr. v. State of Indiana, a 15-page opinion involving a pro se appellant, Judge Riley concludes:

Based on the foregoing, we conclude that: (1) the post-conviction court did not err by finding that Armstrong received effective assistance of counsel; (2) Armstrong's plea of guilty was voluntary; (3) the State established a sufficient factual basis; and (4) any error that stemmed from Armstrong not being represented by counsel at the sentencing hearing is harmless beyond a reasonable doubt.
In Mickey Sloan v. Town Council of the Town of Patoka, a 7-page opinion, Judge Riley writes:
Appellant-Plaintiff, Mickey Sloan (Sloan), appeals the trial court’s decision in favor of Appellee-Defendant, the Town Council of the Town of Patoka (Town of Patoka), denying Sloan’s claim of inverse condemnation of a certain part of his real estate by the Town of Patoka. We reverse and remand for further proceedings.
In Stuart A. Clampitt v. State of Indiana, a 5-page opinion involving a pro se appellant, Judge Riley writes:
Appellant-Defendant, Stuart A. Clampitt (Clampitt), appeals the trial court’s Order denying his motion to remove his status as a sexually violent predator (SVP). We reverse and remand with instructions.

Clampitt raises five issues for our review, one of which we find dispositive and which we restate as follows: Whether the trial court has jurisdiction to rule on his motion to remove his SVP status. * * *

Clampitt argues, and the State concedes, that the trial court erred when it denied his motion to remove his name from Indiana’s sex offender registry. Specifically, Clampitt contends that pursuant to the amendment of Indiana Code section 11-8-8-22, the Indiana General Assembly provides trial courts with jurisdiction and guidance on the appropriate procedures to follow when a person challenges his status as a SVP.

In Clampitt’s previous appeal in Marion County, we addressed the same issue and advised him to file his petition in the county in which he resides. Additionally, we advised the trial court in the county where he filed an amended petition to follow the procedures set forth in I.C. § 11-8-8-22. However, after filing his revised petition, the trial court now denied Clampitt’s motion based on its perceived lack of jurisdiction over the Montgomery County Sherriff’s Department, the Indiana Sherriff’s Association, and the Department of Correction. We now direct the trial court to I.C. § 11-8-8-22(e): * * *

The procedures set forth in the amended statute allow the trial court, and this court on appeal, to be fully informed of a sex offender’s circumstances, including the offender’s full criminal history, dates of offenses, and reason for being required to register. Further, I.C. § 11-8-8-22(e) allows the trial court to provide notice of the proceedings to all interested parties and then set a hearing. For these reasons, we direct the trial court in the county where he filed his amended petition to consider the petition in light of I.C. § 11-8-8-22(e). Reversed and remanded with instructions.

In Alrita Morehead v. Duane Deitrich, a 14-page opinion involving a mail carrier and a pit bull, Judge Darden concludes:
We agree that it is reasonably foreseeable that a vicious dog, upon escaping its house or yard and encountering a stranger on a sidewalk, may bite that stranger. We, however, cannot say that it is reasonably foreseeable that that dog indeed will escape its confinement. It is not the dog's mere presence on leased property that causes harm. Rather, it is the owner's failure to adequately confine that dog. Thus, we do not conclude that there is a high degree of foreseeability that leasing property to the owners of vicious dogs will result in injury to third parties.

As to public policy, Morehead argues that it would be served “by discouraging the harboring of known vicious animals in residential neighborhoods.” * * *

We agree that society has an interest in preventing dog attacks against innocent parties, and therefore in keeping vicious dogs adequately confined. It would be unreasonable, however, to impose a duty on landlords to regulate tenants' animals, where the owners clearly are in the best position to do so.

We find no reasonable basis to impose a duty upon Deitrich, and as a matter of law, where no duty exists. We therefore find no error in granting Deitrich's motion for summary judgment.Affirmed.

NFP civil opinions today (0):

NFP criminal opinions today (4):

Nathan R. Cook v. State of Indiana (NFP)

Kenneth W. Rhymer, Jr. v. State of Indiana (NFP)

Robert Browning v. State of Indiana (NFP)

James N. Hamilton v. State of Indiana (NFP)

Posted by Marcia Oddi on September 1, 2010 01:18 PM
Posted to Ind. App.Ct. Decisions