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Tuesday, October 26, 2004

Indiana Decisions - Three today from Court of Appeals

Joshua Cowens v. State of Indiana (10/6/04 IndCtApp) [Criminal Law & Procedure]
Sullivan, Judge

Joshua Cowens has filed a petition for rehearing alleging that the imposition of consecutive sentences in this case was in violation of the holding in Blakely v. Washington, 124 S.Ct. 2531 (2004). Concluding that Blakely is not implicated in the situation where a trial court orders consecutive sentences based upon its discretion as granted by [IC] 35-50-1-2(c), we decline to extend the holding of Blakely to consecutive sentences.
Judgment affirmed.
MAY, J., and VAIDIK, J., concur.
Note: The initial opinion was issued 6/21/04 according to the docket. The docket does not indicate the opinion was NFP, but I do not find it online. The opinion on rehearing (above) was issued 10/06/04, but was listed as NFP. On 10/25/04, according to the docket, pursuant to the appellee's motion for publication, the court's decision on rehearing was ordered published, and hence it was also posted online.

Jack's Wholesale Windows v. Review Board (10/26/04 IndCtApp) [Administrative Law]
Friedlander, Judge

Wholesale Windows and Design of Hammond, Inc. (Jack’s) appeals a decision of the Unemployment Insurance Review Board, Indiana Department of Workforce Development (the Review Board), affirming an administrative law judge’s (ALJ’s) decision to grant unemployment benefits to Karen M. Bulmer-Marsh. Jack’s presents several issues, but we address only the following issue, which is dispositive of the appeal: Did the review board err in refusing to allow Jack’s to introduce evidence in the hearing before the ALJ to rebut a claim not raised until after the hearing deputy’s decision with respect to a reason Bulmer-Marsh quit her job? We reverse and remand. * * *

Bulmer-Marsh’s factual assertions on the claimed second reason for quitting have not been put to the test. We therefore must remand with instructions to the Review Board to conduct a fact-finding hearing to that end. Judgment reversed and remanded.
BAKER, J., and DARDEN, J., concur.

Henry Brewer v. State of Indiana (10/26/04 IndCtApp) [Criminal Law & Procedure]
Riley, Judge
Appellant-Defendant, Henry Brewer (Brewer), appeals the revocation of his probation for his conviction of dealing in cocaine, a Class B felony, Ind. Code § 35-48-4-1. * * *

Based on the foregoing, we find that although the trial court properly followed the probation revocation hearing procedures for admitting evidence, the trial court denied Brewer’s due process right to present witnesses. Therefore, we conclude that the trial court abused its discretion by not properly revoking Brewer’s probation. Affirmed in part, reversed in part, and remanded.
CRONE, J., and VAIDIK, J., concur.

Posted by Marcia Oddi on October 26, 2004 02:12 PM
Posted to Indiana Decisions