Kelli Jo Trusley v. State of Indiana (11/24/04 IndCtApp) [Criminal Law & Procedure]
May, Judge
Kelli Jo Trusley entered a plea of guilty to reckless homicide, a Class C felony. The trial court sentenced her to eight years, with two years suspended. Trusley appeals her sentence, contending the enhancement of her sentence violated her Sixth Amendment right to have a jury determine the facts on which the enhancement was based. * * *The State argues any Blakely error was harmless, as Trusley admitted to the facts that would support one of the aggravating circumstances the court found--i.e., that she was in a position of trust with respect to the victim and his family. The State correctly notes the “statutory maximum” sentence is that which may be imposed solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.
The State asserts, without explanation or citation to authority, that Trusley’s admission at the guilty plea hearing that she was the victim’s day care providerSee footnote and her admission at the sentencing hearing that she provided daycare services amounts to an admission to the facts supporting the finding as an aggravating factor that Trusley was in a position of trust with respect to the victim and his family. We decline to hold that a defendant’s admission she is a day care provider, without more, necessarily substitutes for a jury’s determination she was in a position of trust with respect to the victim to such an extent that sentence enhancement is warranted.
CONCLUSION. Trusley’s sentence was enhanced because of aggravating factors other than criminal history, which aggravating factors were not found by a jury or admitted by Trusley. We accordingly remand for resentencing.
SULLIVAN, J., concurs.VAIDIK, J., dissents with separate opinion.
I respectfully dissent with the majority’s conclusion that Trusley’s admissions at her guilty plea and sentencing hearings do not constitute an admission to facts underlying the aggravating circumstance that she was in a position of trust with the ten-month-old victim. Consequently, I would affirm Trusley’s enhanced sentence. * * *I believe these admissions are sufficient to establish that Trusley was in a position of trust with the victim. Because Trusley admitted that she was the victim’s daycare provider and that she had custody of him at the time of his death, it is hard to imagine what other information would be necessary in order to establish that Trusley was in a position of trust with the victim. Because Trusley admitted to facts underlying the position of trust aggravator, a jury did not have to find that this aggravator existed. Because a single aggravating circumstance is adequate to justify a sentence enhancement, see Powell v. State, 769 N.E.2d 1128, 1135 (Ind. 2002), reh’g denied, I would affirm Trusley’s enhanced sentence.
Indiana Business College v. Tracy V. Hollowell, et al (11/24/04 IndCtApp) [Procedure]
Darden, Judge
Indiana Business College ("IBC") brings this interlocutory appeal of the trial court's order certifying as a class action the lawsuit brought by Tracy V. Hollowell and forty-six other plaintiffs asserting their claims of fraud by IBC. Issue. Whether the trial court erred in certifying the class pursuant to Indiana Trial Rule 23. * * *C.A. Bean v. State of Indiana (11/24/04 IndCtApp) [Criminal Law & Procedure]
We affirm.
FRIEDLANDER, J., and MATHIAS, J., concur.
C.A. Bean appeals his conviction for Reckless Possession of Paraphernalia, as a Class D felony, following a bench trial. Bean raises two issues for our review, one of which we find dispositive, namely, whether the State presented sufficient evidence to support his conviction. We reverse. * * *Troy Cudworth v. State of Indiana (11/24/04 IndCtApp) [Criminal Law & Procedure]In sum, the State’s failure to prove that Bean’s possession was “reckless” constitutes a failure to prove an essential element of the offense. We therefore reverse Bean’s conviction for insufficient evidence, and he may not be retried on this charge. See Cockrell v. State, 743 N.E.2d 799, 803 (Ind. Ct. App. 2001) (“When a conviction is reversed due to insufficient evidence, double jeopardy precludes retrial of the overturned conviction.”). Reversed.
SULLIVAN, J., and BARNES, J., concur.
Troy Cudworth appeals his convictions for Conspiracy to Commit Dealing in Methamphetamine, a Class B felony, and Possession of Chemical Reagents or Precursors with Intent to Manufacture Controlled Substances, as a Class D felony, following a jury trial. Cudworth raises three issues on appeal, one of which we find dispositive, namely, whether the trial court abused its discretion when it denied Cudworth’s motion to suppress evidence. We reverse. * * *State Farm Mutual v. Ruth Estep (11/24/04 IndCtApp) [Insurance; Procedure]In sum, the State failed to demonstrate either exigent circumstances or probable cause required to support a lawful warrantless search. Therefore, we hold that the officers’ warrantless search of the home violated the Fourth Amendment, and the trial court erred when it denied Cudworth’s motion to suppress the evidence.
Admissions of evidence in violation of the Fourth Amendment are subject to harmless error analysis. * * * Here, the State does not argue that, even if the warrantless search violated the Fourth Amendment, the admission of the evidence recovered from Cudworth’s home amounts to harmless error. Indeed, without that evidence, the State presented little if no evidence to support Cudworth’s convictions. Therefore, we reverse and order the trial court to vacate his convictions with prejudice. Reversed.
SULLIVAN, J., and BARNES, J., concur.
While operating his motorcycle, Dan Estep (Estep) was struck by a truck being driven by James D. Perkins. Estep suffered devastating injuries that rendered him quadriplegic. At the time of the accident, Perkins was covered by an auto insurance policy issued by State Farm Insurance Company. Estep filed a personal injury lawsuit against Perkins seeking compensatory and punitive damages. Estep died before the matter came to trial almost two years later. After Estep’s death, his Estate was substituted as the plaintiff. Estep’s widow, Ruth Estep, acted as personal representative for the Estate. Following a trial, a jury returned a verdict in favor of the Estate and against Perkins, in the amount of $650,000 in compensatory damages and $15,000 in punitive damages. State Farm paid the limits of its policy, which was $50,000, to the Estate. Thereafter, in proceedings supplemental initiated by the Estate, the Estate asked Perkins to assign his rights to the Estate for any bad faith claim he may have against State Farm. Perkins refused and the Estate petitioned the court to order Perkins to make the assignment. The trial court granted the Estate’s request and ordered Perkins to assign the aforementioned rights to the Estate. State Farm appeals that ruling, presenting the following consolidated, restated issues for review:James David Marsh v. State of Indiana (11/24/04 IndCtApp) [Criminal Law & Procedure]
1. Is an insurer entitled to intervene in proceedings supplemental to defend itself against the involuntary assignment of a bad-faith claim against the insurer?
2. Did the trial court err in forcing Perkins, against Perkins’s wishes, in a proceeding supplemental, to assign any claim he might have against State Farm for refusing to defend him in good faith?
3. Did the trial court err in ordering the assignment of rights without affording State Farm the opportunity to appear at a hearing and defend its interests in a proceeding supplemental?
In addition to the issues presented by State Farm, we raise the following issue sua sponte:
4. May State Farm’s liability to Perkins for bad faith representation be determined in a proceeding other than the instant proceeding supplemental filed by the Estate? * * *In summary, in view of the nature and purpose of proceedings supplemental, the trial court did not err in forcing Perkins to assign his rights to any proceeds from a bad-faith claim against State Farm. State Farm was entitled to notice and to appear at all hearings on that matter, however, and therefore was entitled to intervene in the proceedings. The trial court erred in denying that request. Finally, the proceedings supplemental court must make a determination regarding the merits of the bad-faith claim, which it should do after convening a hearing at which evidence will be presented on that issue. This cause is remanded with instruction to make that determination consistent with the principles set out in this opinion.
Judgment affirmed in part, reversed in part, and remanded.
BAILEY, J., and BAKER, J., concur.
James David Marsh appeals the revocation of his probation, presenting the following restated issues for review:In Re: A.B. v. S.B. (11/24/04 IndCtApp) [Family Law]
1. Did the probation court err at the revocation hearing in admitting an out-of-court statement made by a minor child?
2. Did Marsh receive ineffective assistance of counsel at the revocation proceeding when counsel failed to object to the aforementioned hearsay statement?
3. Was the evidence sufficient to support revocation?
We affirm. * * *
MATHIAS, J., and DARDEN, J., concur.
[Note: This is a significant decision concerning the rights of domestic partners with respect to a child conceived by artificial insemination. I have posted it as an easier-to-read PDF document, accessible via the link above. It also may be of significance that Judge Friedlander is on the panel that heard oral arguments in Morrison v. Sadler, concerning same-sex marriage, on Jan. 12, 2004, now more than ten months ago -- see this ILB entry from 9/16/04.]Posted by Marcia Oddi at November 24, 2004 02:47 PM* * * Stephanie asserts, with little analysis, that establishing Dawn as a parent, over Stephanie’s objection as the child’s biological parent, would violate her constitutional right to make decisions concerning the custody and control of her daughter. We do not dispute that the Due Process Clause of the Fourteenth Amendment of the United States Constitution protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children. See Troxel v. Granville, 530 U.S. 57 (2000) (plurality); Guardianship of L.L., 745 N.E.2d 222 (Ind. Ct. App. 2001), trans. denied. In the instant case, however, we have determined that both Stephanie and Dawn are the legal parents of A.B. and stand on equal footing with respect to the child. When Stephanie agreed to bear and raise a child with Dawn and, thereafter, consented to and actively fostered a parent-child relationship between Dawn and A.B., she presumptively made decisions in the best interest of her child and effectively waived the right to unilaterally sever that relationship when her romantic relationship with Dawn ended.[*] Cf. T.B. v. L.R.M., 567 Pa. 222, 786 A.2d 913 (2001) (observing, under similar circumstances, that biological mother’s rights do not extend to erasing a relationship between her partner and her child which she voluntarily created and actively fostered simply because after the parties’ separation she regretted having done so); Parentage of L.B., 121 Wash. App. 460, 484, 89 P.3d 271, 283 (2004) (“de facto parentage rule recognized by other states emphasizes the original consent of the legal parent to the relationship”) (emphasis in original).
We conclude that the facts alleged in the complaint, including the reasonable inferences that can be drawn from those facts, are capable of supporting the relief sought by Dawn in her claim for declaratory judgment. Therefore, the trial court erroneously granted the motion to dismiss. We remand for further proceedings consistent with this opinion.
Judgment reversed and remanded.
DARDEN, J., and MATHIAS, J., concur.
____
*Contrary to Stephanie’s assertion on appeal, Dawn’s relationship with A.B. has its source in Stephanie’s original consent to and fostering of said relationship, rather than in the power of the State through its judiciary. Further, we do not find Dawn’s position akin to foster parents seeking to prevent the return of their foster children to the children’s natural parents. As our supreme court has observed: “Unlike parent and step-parent relationships, foster relationships are designed to be temporary, providing a ‘safe, nurturing environment’ until the child can either be returned to the natural parents or adopted by new ones.” Worrell v. Elkhart County Office of Family and Children, 704 N.E.2d 1027, 1029 (Ind. 1998) (quoting Indiana Foster Family Handbook 46 (1995)). Based on the facts before us, Stephanie cannot sincerely argue that the relationship between Dawn and A.B., which she helped create, was designed to be temporary.