October 20, 2004

Indiana Decisions - Seven posted today by Court of Appeals

Cordell Jackson v. State of Indiana (10/20/04 IndCtApp) [Criminal Law & Procedure]
Riley, Judge

STATEMENT OF CASE. Appellant-Defendant, Cordell Jackson (Jackson), appeals his conviction for rape, a Class A felony, [IC] 35-42-4-1. We affirm.

ISSUES. Jackson raises two issues on appeal, which we restate as follows:
Whether the conditions of his probation were specified in the plea agreement.
Whether his probation conditions are reasonably related to the treatment of the defendant and the protection of public safety. * * *

CONCLUSION. Based on the foregoing, we find that the sexual offender probation conditions were specified in the plea agreement, and therefore, the trial court did not abuse its discretion. Additionally, we find that the challenged probation conditions are reasonably related to the goals of rehabilitation and public safety and accordingly, the trial court did not abuse its discretion. Affirmed.
CRONE, J., and VAIDIK, J., concur.

Pamela Fackler v. Melvin Powell, et al (10/20/04 IndCtApp) [Wills, Trusts, and Estates]
Baker, Judge
Today we must determine what tribunal is authorized to hear litigation following a dissolution of marriage proceeding regarding the parties’ settlement agreement and decree of dissolution. Appellant-plaintiff Pamela S. Fackler brings this interlocutory appeal challenging the trial court’s denial of her motion for summary judgment and request for attorney’s fees. Specifically, Fackler contends that she was entitled to summary judgment because a Settlement Agreement (the “Agreement”) executed between the parties clearly and unambiguously awarded full ownership of a promissory note and mortgage to her. Moreover, Fackler argues in the alternative that if the Agreement is ambiguous, extrinsic evidence shows that the parties intended that she become the owner of the promissory note and mortgage.

Appellees-Defendants Melvin J. Powell, Jr. and M. Jack Powell, Jr. Living Trust (collectively, “Powell”) cross-appeal the trial court’s denial of their motion for summary judgment and request for attorney’s fees. Specifically, Powell contends that because the Agreement is ambiguous and emanates from a marriage dissolution proceeding in a divorce court, the trial court did not have subject matter jurisdiction to resolve this dispute. Further, Powell argues in the alternative that the Agreement clearly and unambiguously awarded only $23,000 to Fackler.

We conclude that the terms of the Agreement were not ambiguous, and that the Agreement awarded full ownership of the promissory note and mortgage to Fackler. Thus, although the trial court properly exercised subject matter jurisdiction over this case, it erred in denying Fackler’s motion for summary judgment and her request for attorney’s fees. Thus, we reverse and remand this cause to the trial court for it to determine the amount of attorney’s fees owed to Fackler. * * *

The judgment of the trial court is affirmed in part, reversed in part and remanded so that the trial court may determine the amount of attorney’s fees that Powell must pay Fackler.
KIRSCH, C.J., and ROBB, J., concur.

Lesley Krebs v. State of Indiana (10/20/04 IndCtApp) [Criminal Law & Procedure]
May, Judge
* * * Krebs argues the trial judge’s imposition of a one hundred year sentence is inappropriate and disproportionate. However, we do not address that argument. Instead we evaluate sua sponte the constitutionality of Krebs’ sentence under the United States Supreme Court’s recent decision in Blakely v. Washington, ___U.S. ____, 124 S. Ct. 2531 (2004).

Prior to Blakely, we reviewed our trial courts’ sentencing decisions for an abuse of discretion. See, e.g., Bocko v. State, 769 N.E.2d 658, 667 (Ind. Ct. App. 2002), reh’g denied, trans. denied 783 N.E.2d 702 (Ind. 2002). If a trial court used aggravating or mitigating circumstances to modify the presumptive sentence, all we required the trial court to do was: (1) identify all significant mitigating and aggravating circumstances; (2) state the specific reason why each circumstance is determined to be mitigating or aggravating; and (3) articulate the court’s evaluation and balancing of the circumstances. See id.

However, in Blakely, the Supreme Court held the Sixth Amendment requires a jury to determine beyond a reasonable doubt the existence of aggravating factors used to increase the sentence for a crime above the presumptive sentence assigned by the legislature. 124 S. Ct. at 2536. The Court held “the fact of a prior conviction” is an exception to this rule. Id. Accordingly, it appears our trial courts no longer have discretion to sentence a criminal defendant to more than the presumptive sentence unless the defendant waives his right to a jury at sentencing, a jury first determines the existence of aggravating factors, or the defendant has a criminal history. [emphasis added]

The trial court enhanced Krebs’ sentences based on the following aggravating circumstances:

I’m finding aggravating circumstances throughout this because the crime was particular [sic] heinous crime involving a 10 and a 12 year old daughter who - and he had obviously confronted the victims to commit the crime. That’s aggravating. He was obviously in a position of trust being a father and from the pattern of this occurrence, it would appear that he would probably commit these crimes again, it appears to the Court.
(Tr. at 217-18.)
The trial court then sentenced Krebs to a total of one hundred years in the Indiana Department of Correction, stating:
…I’m adding 5 years to the 30 years on that. 30 years will be executed in DOC. 5 years will be suspended. On Count II, also a Class A felony, there will be a 30 year sentence to be consecutive with Count I - it will be a 35 year sentence. 30 years executed. 5 years suspended. Count II to be consecutive with Count I. Count III, is a Class A felony. There will be a 30 year sentence. I’m finding aggravating circumstances for the same reasons I already stated and Count III will be consecutive with Counts I and II. Count IV is a Class B felony a 10 year stated term. I’m finding aggravating circumstances that I repeated and adding 2 years to that. 10 years will be executed consecutive with Counts I, II and III. Count V merged. Count VI is a Class A misdemeanor. There will be a one year sentence to be concurrent with Counts I, II, III, and IV. And executed sentence sentence thereby of 100 years and the aggravating circumstances that I stated - that I considered and repeat for deciding this sentence consecutive.
(Appellant’s App. at 218.)
The trial court enhanced Krebs’ sentences based on factual findings without a jury making those findings beyond a reasonable doubt. That procedure violates Krebs’ Sixth Amendment right to trial by jury. See Blakely, 124 S. Ct. at 2536.

CONCLUSION. Because the State did not present sufficient evidence to convict Krebs of Count I, child molesting as a Class A felony, we reverse Krebs’ conviction as to that count. However, we affirm the remainder of his convictions and remand for sentencing proceedings consistent with Blakely.
Affirmed in part, reversed in part, and remanded.
SHARPNACK, J., and BAILEY, J., concur.

In Re: Guardianship of A.R.S. & T.M.D. (10/20/04 IndCtApp) [Family Law]
Vaidik, Judge
Charlotte Hensell appeals the trial court’s denial of her petition to terminate William and Barbara Stafford’s guardianship of her two children, A.R.S. and T.M.D. (collectively, “the children”). We find that the trial court erred by failing to issue detailed and specific findings in this case, which resulted in the children continuing their placement in the care and custody of someone other than their natural parent. Additionally, because we are unable to determine whether the trial court employed the proper standard of review absent such findings, we must reverse the trial court’s denial of the petition to terminate guardianship. We therefore remand for detailed and specific findings using the clear and convincing evidence standard of review. * * *

Because the trial court did not issue detailed and specific findings in this case, we must remand. We must also reverse, however, because absent any findings and in light of the confusion below regarding what standard of review to apply to the action, we cannot be certain that the proper standard of review was employed. Consequently, we reverse and remand this cause to the trial court to issue detailed and specific findings using the clear and convincing evidence standard in arriving at its decision. Reversed and remanded.
RILEY, J., concurs.

CRONE, J., dissents with separate opinion.
I respectfully dissent. I agree with the majority that Guardianship of B.H. requires the presentation of clear and convincing evidence that a child’s interests are best served by placement with a person other than the natural parent and the entry of detailed and specific findings to support the initial removal of the child from the natural parent. Given the strong presumption that a child’s interests are best served by placement with his or her natural parent, the additional burden of entering detailed and specific findings is warranted to ensure an intelligent review of such an extraordinary remedy.

I do not agree, however, that we should expand the special findings requirement to subsequent guardianship proceedings. Once the threshold for establishing a guardianship has been met, I believe that it is overly burdensome to require special findings upon the denial of every petition for modification or termination. * * *

James Hannis v. John Deuth (10/20/04 IndCtApp) [Criminal Law & Procedure]
Sharpnack, Judge
James Hannis appeals the trial court’s denial of his petition for writ of habeas corpus relief filed against John Deuth, Superintendent of the Correctional Industrial Facility. Hannis raises one issue, which we restate as whether the trial court’s order denying Hannis’s petition for writ of habeas corpus relief is clearly erroneous. We affirm. * * *

In summary, we conclude that under Ind. Code § 35-50-6-1, Hannis was still on parole from the eight-year sentence when he committed a new offense. Thus, when the parole board revoked his parole, the parole board properly reinstated Hannis’s eight-year sentence. Consequently, we conclude that the trial court’s findings of fact and conclusions thereon denying Hannis’s writ for petition of habeas corpus are not clearly erroneous.

For the foregoing reasons, we affirm the trial court’s denial of Hannis’s petition for writ of habeas corpus relief. Affirmed.
BAILEY, J. and MAY, J. concur

Kacey M. Chandler v. State of Indiana (10/20/04 IndCtApp) [Criminal Law & Procedure]
May, Judge
* * * Chandler was also found guilty of maintaining a common nuisance. Ind. Code § 35-48-4-13(b) provides “a person who knowingly or intentionally maintains a building, structure, vehicle, or other place that is used one (1) or more times: (1) by persons to unlawfully use controlled substances; or (2) for unlawfully . . . (B) keeping . . . controlled substances . . . commits maintaining a common nuisance, a Class D felony.”
The State did not prove Chandler’s constructive possession of marijuana by his exclusive possession of the premises or by additional circumstances indicating he knew the marijuana was present. We therefore find there was insufficient evidence he was maintaining a common nuisance. See [Smith v. State, 787 N.E.2d 458, 460 (Ind. Ct. App. 2003).]

We affirm Chandler’s conviction of possession of cocaine but reverse his convictions of possession of marijuana and maintaining a common nuisance.
Affirmed in part and reversed in part.
SHARPNACK, J., and BAILEY, J., concur.

Robert Trimble v. State of Indiana (10/20/04 IndCtApp) [Criminal Law & Procedure]
May, Judge
Robert Trimble appeals his convictions of abandonment or neglect of an animal, a Class B misdemeanor, and harboring a non-immunized dog, a Class C infraction. He raises three issues on appeal, one of which we find dispositive and restate as whether a warrantless search of a doghouse and seizure of a dog located in Trimble’s yard was permissible under the Indiana and United States constitutions. We reverse. * * *

Conclusion. The police conducted a warrantless search of an area where Trimble had a reasonable expectation of privacy, and the officer’s search of Trimble’s yard and the seizure of Butchie, in the absence of exigent circumstances, was unreasonable under the totality of the circumstances. The search and seizure therefore violated both the Indiana and United States constitutions and we must accordingly reverse. Reversed.
VAIDIK, J., concurs.

SULLIVAN, J., dissents with separate opinion.
* * * My conclusion, as in Divello, is that the deputy here was in a place where he had a right to be, i.e. at the doghouse which was located further removed from the back door where he also had a right to be as part of his investigation. That conclusion does not end the inquiry, however. The question raised is whether the officer had a legitimate right or even an obligation to extract the dog from the doghouse in order to ascertain its condition.

In my view the intrusion to Trimble’s right of privacy with respect to the dog and the doghouse was minimal in comparison to the very real likelihood that delay would exacerbate the dog’s reported condition.

In short, the deputy sheriff was doing his job and did not carry out his responsibility by virtue of an unreasonable search and seizure. For this reason, I would affirm the convictions.

Posted by Marcia Oddi at October 20, 2004 01:51 PM