Sandy Diane Pugh v. State of Indiana (3/3/04 IndCtApp) [Criminal Law & Procedure]
May, Judge; NAJAM, J., concurs; BAKER, J., concurring in part and dissenting in part with opinion. From the majority opinion:
Sandy Diane Pugh appeals the trial court’s revocation of her probation. On appeal she questions whether the trial court abused its discretion by ordering her to serve two years of her previously suspended sentence. We affirm in part and reverse and remand in part.Joshua H. Woolley v. Washington Township Small Claims Court (WTSSC) (3/3/04 IndCtApp) [Civil Procedure; Constitutional Law]
Woolley contends that the trial court erred in finding that an affidavit signed by Judge Lynda Huppert, then judge of the WTSSC, was not a public record and that Woolley had no substantive relief available to him through the Indiana Access to Public Records Act (APRA). See footnote The WTSCC also asserts that Woolley’s action became moot when the federal lawsuit for which the affidavit was prepared was settled and dismissed. Finding that the action is not moot, that the affidavit is not a public record, and that Woolley has no relief available to him, we affirm. * * * Woolley contends that because he originally made an oral request, which was denied, and he renewed that request in writing, which was denied in writing more than seven days later without stating the specific exemption authorizing the withholding of the document, he can substantially prevail by showing that the WTSCC violated the APRA. However, Woolley’s arguments stem from the premise that the affidavit at issue is a public record. Only public records are governed by the APRA by the specific language of Indiana Code section 5-14-3-9(a). Because we have determined that it is not a public record, the WTSCC was not required to follow the mandates of the APRA with regard to the timeliness of their response and a reason for denying Woolley’s request. Even more compelling, the WTSCC simply does not have a copy of the affidavit. Quite simply, the WTSCC cannot produce what it does not possess. Inasmuch as the affidavit is not a public record and it is impossible for the WTSCC to produce it, the trial court can provide Woolley with no relief. We therefore find that the trial court did not err in finding that Woolley had no relief available to him.Vaughn Hannibal v. State of Indiana (3/3/04 IndCtApp) [Criminal Law & Procedure]CONCLUSION. In light of the above discussion, we find that this action is not moot. We further find that the APRA does not require and the Indiana constitution prohibits the WTSCC from being compelled to produce the affidavit describing the internal procedures of the court. Finally, we find that Woolley cannot substantially prevail, and thus he has no relief available to him.
"Concluding the marijuana at issue was discovered pursuant to a proper protective sweep and the plain view doctrine permitted the police to seize the marijuana, we affirm."
Thomas Schaeffer v. Atul Kumar (3/3/04 IndCtApp) [Civil Procedure]
May, Judge
Thomas Schaefer appeals a summary judgment for Atul Kumar on Schaefer’s complaint to set aside Kumar’s tax deed for a parcel of real estate (“the property”) located in Lake County. Schaefer raises one issue on appeal, which we expand and restate as: 1) whether the trial court erred in granting summary judgment in favor of Kumar on the basis that Schaefer’s complaint was barred by a one-year statute of limitation, and 2) whether the grant of summary judgment in favor of Kumar can be affirmed based upon any other theory supported by the designated materials. We affirm.James E. Clark v. State of Indiana (3/3/04 IndCtApp) [Criminal Law & Procedure; Constitutional Law]
James Clark (“Clark”) has been charged with Class A misdemeanor possession of marijuana in Johnson Superior Court. He filed a motion to suppress the marijuana found during a search of his vehicle after he was stopped for a seatbelt violation. The trial court denied his motion to suppress. Clark has filed this interlocutory appeal arguing that under Indiana Code section 9-19-10-3 and Article One, Section Eleven of the Indiana Constitution, a law enforcement officer investigating a seatbelt violation is prohibited from requesting and obtaining consent to search a vehicle. Concluding that the trial court abused its discretion when it denied Clark’s motion to suppress, we reverse and remand with instructions to grant Clark’s motion to suppress.Curtis Ray Johnican v. State of Indiana (3/3/04 IndCtApp) [Criminal Law & Procedure]
Curtis R. Johnican appeals his sentence. In particular, Johnican argues his sentence is erroneous because: (1) the State did not file his habitual offender enhancement within ten days of his omnibus date or show good cause for failing to make a timely filing; (2) the trial court improperly attached his habitual offender enhancement to his conviction for possession of cocaine, which is proscribed by Indiana Code § 35-50-2-8(b); and (3) his aggregate sentence exceeds the allowable sentence pursuant to Indiana Code § 35-50-1-2(c) because his possession of cocaine was not part of the same criminal episode as his other offenses. We find that the trial court did not err by allowing the State to belatedly file the habitual offender count or by determining that the offenses were part of a single criminal episode. Because we find that the trial court improperly attached the habitual offender count to a conviction ineligible for enhancement, however, we remand for re-sentencing consistent with this opinion.Posted by Marcia Oddi at March 3, 2004 04:10 PM