Clifton J. Jackson v. State of Indiana (IndSCt 3/11/04) [Criminal Law & Procedure]
Dickson, Justice
Defendant Clifton J. Jackson appeals from the denial of his motion to correct sentence, which alleged that the abstract of judgment did not properly credit his sentence with both time served and credit time. Applying the principles of Robinson v. State, ___ N.E.2d ___ (Ind. 2004), we affirm the trial court. A motion to correct sentence may not be used to challenge entries or omissions in an abstract of judgment.
Franklin E. Patterson v. Daniel W. Dykes (3/12/04 IndCtApp) [Election Law; Constitutional Law]
Riley, Judge
At the outset, we note that we have not previously had the opportunity to consider the effect of a Pardon on the eligibility of a candidate for public office, when the Pardon is granted subsequent to the election. The instant appeal is taken from the trial court’s entry of summary judgment in favor of Dykes on April 9, 2003. At the time of the trial court’s order, Patterson had a Petition for Clemency pending, as it was not granted until August of 2003. Consequently, the issue before us is whether the pendency of Patterson’s Petition for Clemency raised a genuine issue of material fact that makes the trial court’s grant of summary judgment inappropriate. * * *[Note: Access the April 11, 2003 Indiana Law Blog write-up of the Madision County Superior Court ruling here; use your browser back key to return. (Unfortunately the links to the newspaper stories are not longer active.)]Relevant portions of Indiana Code section 3-8-1-5(b) provide: “[a] person is disqualified from holding or being a candidate for an elected office if the person has been convicted of a felony.” The record shows that, in 1974, Patterson was convicted of theft, a Class D felony. Thus, pursuant to I.C. § 3-8-1-5(b), he was disqualified from being a candidate for the Madison County Council seat. Nevertheless, Patterson ran for the office and won by a majority of votes. However, as a convicted felon, he is disqualified from holding the office. Under this review, we must affirm the trial court’s grant of summary judgment in favor of Dykes, as Patterson raised no genuine issue of material fact to prevent the trial court’s grant of summary judgment as a matter of law. * * *
Nonetheless, Patterson argues that the Pardon he received from the late Governor Frank O’Bannon on August 14, 2003, retroactively removes his felony conviction, thereby restoring his eligibility and victory as a candidate for the Madison County Council seat for District 2. In support of his contention, Patterson relies on Kelley v. State, 204 Ind. 612, 185 N.E. 453 (Ind. 1933), which adopted the rule set forth by the U.S. Supreme Court in Ex Parte Garland, 71 U.S. 333, 380-81 (1866), as follows:
A pardon reaches both the punishment prescribed for the offence and the guilt of the offender; and when the pardon is full, it releases the punishment and blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offence. If granted before conviction, it prevents any of the penalties and disabilities consequent upon conviction, from attaching; if granted after conviction, it removes the penalties and disabilities, and restores him to all his civil rights; it makes him, as it were, a new man, and gives him a new credit and capacity.However, we find Patterson’s argument misplaced. * * * Furthermore, as part of our consideration, we note that allowing a Pardon obtained after an election to qualify an officeholder-elect retroactively would, for all intents and purposes, be a judicial sanction for otherwise ineligible persons to sidestep our state’s statutory requirements for political candidacy. We hold that such an action would be a manifest violation of public policy. * * *Our determination above requires us to determine further whether the trial court erred in ordering the incumbent Dykes to hold over until the next general election of the council seat for Madison County Council, District 2. Dykes agrees with the trial court that he is the proper party to hold over in the Madison County Council seat, District 2, pursuant to Article 15, Section 3 of the Indiana Constitution, which provides as follows:
Whenever it is provided in this Constitution, or in any law which may be hereafter passed, that any officer, other than a member of the General Assembly, shall hold his office for any given term, the same shall be construed to mean, that such officer shall hold his office for such term, and until his successor shall have been elected and qualified.* * * We find no error in the trial court’s conclusion of law ordering Dykes to hold over in the Madison County Council, District 2 council seat until the next general election for that office
[Update 3/13/04] Here is today's brief Indianapolis Star write-up of the ruling, headlined "Court rules felon ineligible for office despite pardon."
Phoenix Natural Resources Inc. v. Orville Messmer, et al. (3/12/04 IndCtApp) [Torts]
Bailey, Judge
Here, the evidence reveals that Phoenix, via its predecessor PV Mining, applied for and received permission to build a temporary bridge and approach road in a floodplain over the Patoka River. Obtaining the Construction permit did not elevate or change the character of the improvements to something other than an obstruction in the Patoka River floodway. Therefore, Phoenix remains liable under IC 14-28-1-20 for any obstruction, whether it is the Kessner Bridge, approach road, or debris accumulated thereunder. The Construction Permit, by its express terms, does not immunize Phoenix from liability “for the effects of [the] project upon the safety of life and property of others.” The fact that Phoenix did not foresee that a flood, caused by rainfall, might arise in a flood plain allowing for the culverts underneath the Kessner Bridge to collect debris, likewise, does not relieve it of liability, nor does it provide Phoenix with an excuse or justification for violating Indiana Code Section 14-28-1-20. As such, the trial court properly omitted the clause relating to excuse or justification in Instruction Three. For the foregoing reasons, we affirm the trial court’s judgment in favor of Farmers.Scot and Kathy Burke v. Blachly, Tabor, Bozik & Hartman (11/26/03 IndCtApp) [Attorney/Client] Posted by Marcia Oddi at March 12, 2004 03:14 PM