China Ann Long v. Phillip Barrett, et al (11/10/04 IndCtApp) [Torts]
Darden, Judge
China A. Long ("Long") appeals the trial court's order granting summary judgment to Phillip Barrett, Richard Davidson, John K. White and Deena Pattingill (collectively, "the defendants") on Long's amended complaint, which alleged that each was individually liable for having falsely arrested and falsely imprisoned her and being negligent. We affirm. * * *City of Vincennes v. Kevin Emmons d/b/a Cherokee Rentals, et al (11/10/04 IndCtApp) [Constitutional Law]
SHARPNACK, J., concurs.
ROBB, J., concurs with separate opinion.
The City of Vincennes (the “City”) appeals from the trial court’s order finding the Vincennes Rental Housing Code (the “housing code”) unconstitutional in an action by the City against landlords Kevin Emmons, doing business as Cherokee Rentals, Eric Klein, and Jeffrey Hendrixson See footnote (the “Landlords”) for failure to pay landlord registration fees in violation of the housing code. We affirm. * * *Indiana Farmers Mutual Insurance Company v. Richard Imel, et al (11/10/04 IndCtApp) [Insurance]The housing code at issue herein does not expressly state that the Landlords’ consent to an inspection is a required condition of being granted an occupancy permit; however, neither does it include a warrant procedure in the absence of the Landlords’ consent. The housing code only provides a warrant procedure if the tenant refuses to consent to the search. The housing code thus implies that the Landlord has consented to an inspection merely by applying for an occupancy permit and has no right to refuse. In order to satisfy the requirements of Camara and thus pass muster under the Fourth Amendment, the housing code must give the Landlords the option to consent and include a warrant procedure to be followed in the event the Landlords refuse to consent to a search. It does not, and it is therefore unconstitutional on its face. * * *
Conclusion. The Landlords, whose interests are at issue, do have standing to raise the constitutionality of the housing code. Because the housing code fails to provide a warrant procedure when landlords refuse to give consent to an inspection, that provision of the housing code is unconstitutional on its face, and because the inspection provision is not “distinctly separable” from the remainder of the housing code, the trial court did not err in declaring the housing code as a whole unconstitutional. The trial court’s order is therefore affirmed. Affirmed.
SHARPNACK, J., and DARDEN, J., concur.
* * * Indiana Farmers raises two issues on appeal, which we consolidate and restate as the following issue: whether the trial court erred in concluding that the residency requirement contained in the liability coverage exclusion provision of Indiana Farmers’ insurance policy applies only to a policyholder’s relatives and not to persons in the policyholder’s care or persons in the care of the policyholder’s relatives. * * *Jason Traylor v. State of Indiana (11/10/04 IndCtApp) [Criminal Law & Procedure]Therefore, based on the clear and unambiguous language of the insurance policy, we conclude that there are no genuine issues of material fact. See American Family Mut. Ins. Co., 764 N.E.2d at 783. Viewing all the evidence before us, we find that A.T. is not a resident of Imel’s household, even though he was in Imel’s care at the time of the accident. Accordingly, A.T.’s bodily injuries are not excluded from coverage under the liability provisions of Indiana Farmers’ policy. Consequently, the trial court did not err by denying Indiana Farmers’ motion for partial summary judgment and granting Smith’s and Imel’s motion for summary judgment.
Conclusion. Based on the foregoing, we conclude that the trial court properly granted summary judgment as a matter of law in favor of Smith and Imel and denied Indiana Farmers’ motion for partial summary judgment. Affirmed.
CRONE, J., and VAIDIK, J., concur.
Jason Traylor was found guilty by a jury and convicted of dealing (manufacturing) in methamphetamine over three grams, a Class A felony, possession of methamphetamine over three grams, a Class C felony, and visiting a common nuisance, a Class B misdemeanor. The trial court sentenced him to forty years for the Class A felony conviction, six years for the Class C felony conviction, and 180 days for the Class B misdemeanor, sentences to be served concurrently. Traylor appeals his convictions and sentences. We affirm in part and remand. * * *Posted by Marcia Oddi at November 10, 2004 02:06 PMTraylor was sentenced to an enhanced term of forty years for the Class A felony conviction and an enhanced term of six years for the Class C felony conviction. In enhancing Traylor’s sentences, the trial court found the following aggravating circumstances: (1) there is a great risk that Traylor will commit another crime; (2) the particularized nature and circumstances of the crime committed; (3) Traylor’s prior criminal history; (4) Traylor’s character; and (5) Traylor is in need of correctional and rehabilitative treatment that can best be provided by commitment to a penal facility.
Under Apprendi, “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi, 530 U.S. at 490 (emphasis added). Because the aggravating circumstances upon which the trial court enhanced Traylor’s sentences were not submitted to a jury and proved beyond a reasonable doubt, under Apprendi, only Traylor’s prior criminal convictions could be used by the trial court to enhance Traylor’s sentences in this case.
Traylor contends, however, that it was improper for the trial court to enhance his sentences based on his prior criminal history. We agree. Traylor’s prior criminal history consists of one misdemeanor conviction in 1998 for battery. The trial court noted that it found “this to be an aggravating factor of minimal weight.” A misdemeanor battery conviction nearly five years before the instant offenses, standing alone, is insufficient to enhance Traylor’s sentences. See, e.g., Newsome v. State, 797 N.E.2d 293, 300 (Ind. Ct. App. 2003), trans. denied (stating that a criminal history that consisted of three fairly recent misdemeanor convictions, two of which were for battery, would not be sufficient, standing alone, to enhance a defendant’s sentence); Westmoreland v. State, 787 N.E.2d 1005, 1010 (Ind. Ct. App. 2003) (concluding that “a criminal history comprised of misdemeanors that are unrelated to the present offense are not significant aggravators in the context of a sentencing hearing for criminal deviate conduct.”); Watson v. State, 784 N.E.2d 515, 523 (Ind. Ct. App. 2003) (holding “a criminal history comprised of two, nonviolent misdemeanors that are unrelated to the present offense are not significant aggravators in the context of a sentencing hearing for battery.”). Therefore, we vacate Traylor’s sentences for his Class A felony conviction and his Class C felony conviction, and we remand this cause to the trial court for further proceedings consistent with this opinion.[ftnote] * * *
Conclusion. The trial court did not err in admitting evidence of items found at the Erlingers’ property, and Traylor was not denied his right to present a defense. Furthermore, the State presented sufficient evidence to sustain Traylor’s convictions. The trial court did not err in revoking Traylor’s bond prior to a hearing. However, because Blakely controls the outcome of this case, and because the trial court erred in failing to assess Traylor’s ability to pay the $1,000 drug fee imposed and in withholding Traylor’s cash bond, we remand this cause to the trial court for proceedings consistent with this opinion. Affirmed in part and remanded.
SHARPNACK, J., and DARDEN, J., concur.
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*We note that in Carson v. State, 813 N.E.2d 1187 (Ind. Ct. App. 2004), a panel of this court held a trial court did not err, under Apprendi/Blakely, in enhancing a defendant’s sentence, based on the following aggravating circumstances: prior criminal history; a need for corrective or rehabilitative treatment best provided by commitment to a penal facility; and the strong likelihood that the defendant would commit another crime. Id. at 1189. After stating that prior criminal convictions are exempt from the requirement of jury findings under Apprendi, the panel held the other two aggravating circumstances “are simply derivative of that extensive history of convictions and thus would seem also not to implicate the Blakely analysis.” Id. at 1189. Because we hold Traylor’s one misdemeanor criminal conviction five years ago is not a proper aggravator to enhance his sentence, any circumstances that may or may not derive from his prior criminal history also are not proper aggravators to enhance Traylor’s sentences.