Kenton Bennett v. State of Indiana (7/19/04 IndCtApp] [Criminal Law & Procedure]
[This opinion was issued as Not for Publication 7/19/04; the docket shows "7/23/04 APPELLEE'S VERIFIED MOTION FOR PUBLICATION OF MEMORANDUM DECISION." On 8/6/04 the court granted to motion for publication.]
Baker, Judge
Appellant-defendant Kenton R. Bennett appeals his conviction for Operating While Intoxicated, a class D felony, and Driving While Suspended, a class A misdemeanor. Specifically, Bennett argues that his sentence was manifestly unreasonable. Finding no error, we affirm. * * *Cheryl Sanford v. Castleton Health Care Center (8/13/04) [Arbitration; Contracts; Torts; Medical Malpractice]In May 2003, Bennett attempted to resolve this case by entering into a plea agreement in which he agreed to plead guilty to the charges at issue here in exchange for the dismissal of the charges in the first case and an eighteen month suspended sentence. The trial court rejected the plea because the sentence was not severe enough in light of Bennett’s extensive criminal record.
In October 2003, Bennett entered into a plea agreement that the trial court accepted. Pursuant to the agreement, Bennett pleaded guilty to operating while intoxicated and driving while suspended, and the State dismissed the charges that arose out of Bennett’s other two arrests for operating while intoxicated. The plea agreement provided that sentencing was to be left to the discretion of the trial court.
The trial court found Bennett’s prior criminal history as an aggravating circumstance. * * * The trial court found as a mitigating circumstance that Bennett had started attending a substance abuse program, but did not give much weight to that factor because he did not seek out this treatment until shortly before his plea was entered, nearly ten months after he was charged in this case. Bennett admitted to consuming alcohol on one occasion even after entering the program. The trial court imposed a three-year sentence for the operating while intoxicated conviction and a concurrent one-year sentence for the driving while suspended conviction, and Bennett now appeals. * * *
Our inquiry does not end here inasmuch as Bennett also contends that the length of his sentence was inappropriate. We note that when a defendant is sentenced in accordance with a plea agreement, he has implicitly agreed that his sentence is appropriate. Gist v. State, 804 N.E.2d 1204, 1207 (Ind. Ct. App. 2004); Mann v. State, 742 N.E.2d 1025, 1026 n. 1 (Ind. Ct. App. 2001), trans. denied. Moreover, when no term is specified in the plea bargain recommendation, sentencing falls within the ambit of the trial court’s discretion upon acceptance of the agreement. State ex rel. Goldsmith v. Marion County Superior Court, Criminal Division No. 1, 419 N.E.2d 109, 114 (Ind. 1981).
Although Bennett was given the maximum sentence for each count, this was still within the purview of the plea agreement, and he may not now complain. Furthermore, Bennett’s sentence is appropriate in this case. He had numerous prior convictions, his BAC was two and one-half times the legal limit when he was arrested, he knew that his license had been suspended yet continued to drive, and he continued to use alcohol after his arrest. Given these circumstances, Bennett’s sentence was appropriate. The judgment of the trial court is affirmed.
FRIEDLANDER, J., and BAILEY, J., concur.
[Cheryl Sanford], as Personal Representative of the Estate of Dortha Bagley (the “Estate”) appeals the trial court’s order compelling arbitration of the Estate’s survival and wrongful death claims against [Castleton Health Care Center] (“Castleton Center”). We affirm. * * *David Westenberger v. Patricia Westenberger (7/27/04 IndCtApp) [Family Law]The Estate argues that the trial court’s order compelling it to arbitration was erroneous because: (1) the Contract is an unconscionable adhesion contract; (2) the arbitration clause of the Contract conflicts with the Federal Arbitration Act; (3) Sanford’s waiver of Bagley’s constitutional right to a jury trial was unknowing and involuntary; and (4) Sanford, as personal representative of the Estate, was not a party, nor in privity with a party, to the Contract. We address each argument separately. * * *
[T]he Estate has failed to show that Sanford signed the Contract containing the arbitration clause unwillingly and without being legally aware of its terms. Consequently, the trial court did not err by compelling the Estate to arbitrate the survival and wrongful death claims.
Further, the amici curiae [including AARP and the National Senior Citizens Law Center] caution that the potential for abuse surrounding the inclusion of arbitration clauses in nursing home admission contracts, such as the one at issue, is great because admittees are typically older, suffer diminished physical and/or mental health, and enjoy reduced mobility. In addition, in most cases, the family members have resorted to seeking admission to the nursing home because they are no longer able to care for their loved ones. We are mindful that the decision to place a family member or loved one in a nursing home is a difficult one. We note, however, that the arbitration clause at issue does not limit the Estate, in any way, from seeking to recover for the alleged negligent acts of Castleton Center. Moreover, the arbitration agreement does not prevent admittees from challenging the validity of any of the remaining contractual provisions. Rather, the only limitation imposed on an admittee by virtue of the arbitration clause is the forums wherein the issues may be raised, i.e., mediation followed by arbitration, if necessary. * * *
Here, because the claims asserted in Count II of the amended complaint arose out of or related to the Contract or any tort claim, they are governed by the arbitration clause of the Contract. As such, regardless of whether these claims were asserted by Bagley, while alive, or the Estate, upon her death, they are not justiciable in a court of law, except as a review of an arbitral award. Accordingly, the trial court did not err when it compelled the Estate to arbitrate the wrongful death claims alleged in Count II of the amended complaint.
For the foregoing reasons, we affirm the trial court’s order compelling the Estate to arbitrate its survival and wrongful death claims. Affirmed.
BAKER, J., and FRIEDLANDER, J., concur.Ftnote. In light of exclusive arbitration clauses, like the one at issue, we query whether qualified medical health care providers retain the ability to avail themselves of the provisions and attendant benefits of the Medical Malpractice Act, including a limitation on the amount of the provider’s liability—i.e., Indiana Code Section 34-18-14-3—and review of the plaintiff’s claim by a medical review panel—i.e., Indiana Code Section 34-18-8-4. Thus, these qualified providers need to be cognizant that, should they include these exclusive arbitration clauses in their contracts, they might be relinquishing not only their rights to a jury trial and to a broader review on appeal, but also their right to avail themselves of the Medical Malpractice Act.
David Westenberger appeals the trial court’s decision that his petition to modify custody of his children should be heard in Arkansas, where the children now live with their mother, instead of Indiana. We affirm.Douglas M. Mitchell v. State of Indiana (8/16/04 IndCtApp) [Criminal Law & Procedure]Issue. The sole issue is whether the trial court abused its discretion in concluding that Arkansas would be a more convenient forum to hear David’s petition to modify custody. * * *
David points to some facts that arguably weigh in favor of Indiana maintaining jurisdiction over this proceeding, such as that he did not consent to it being litigated in Arkansas, that he would wish to call a number of Indiana residents to testify on his behalf in an evidentiary hearing on the matter, and that Indiana had fairly recently been the children’s “home state” and that they had spent significant time in Indiana, even after formally moving to Arkansas. These facts might have supported a decision not to relinquish jurisdiction in this particular case. However, they do not invalidate the decision the trial court did make. In order to find an abuse of discretion, we must conclude that the trial court’s action was clearly against the logic and effect of the facts and circumstances before it, or that it misinterpreted the law. We cannot say that the trial court’s decision here meets those criteria.
Conclusion. The trial court did not abuse its discretion in concluding that Indiana was an inconvenient forum and that it would be more appropriate to litigate David’s petition to modify custody in Arkansas instead of Indiana. We affirm.
CRONE, J., and BAKER, J., concur.
Douglas Mitchell appeals his convictions for battery with injury to a child as a Class D felony and disorderly conduct as a Class B misdemeanor. We affirm both convictions, finding that Mitchell’s conduct exceeded his legal authority to discipline his child; that Mitchell did not have to be asked to stop making unreasonable noise by a law enforcement officer in order to be convicted of disorderly conduct; that his constitutional right to free expression was not implicated because there was no state action; and that it was harmless error for the trial court to determine that Dr. An, Mitchell’s wife, could not qualify as an expert witness. * * * Affirmed.Posted by Marcia Oddi at August 16, 2004 04:58 PM
SULLIVAN, J., and MAY, J., concur.