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Monday, February 28, 2005

Ind. Decisions - Court of Appeals posts eight today

Lisa R. Bigley v. MSD Wayne Township Schools (12/9/04 IndCtApp) [Statutes; Public Procurement] [Initially NFP]
Kirsch, Judge

Lisa R. Bigley, as a taxpayer within the Metropolitan School District of Wayne Township, and for all similarly-situated citizens and taxpayers, brings this appeal alleging that the trial court erred when it denied her motion for a preliminary injunction on the basis that Bigley failed to show a reasonable likelihood of success on the merits. She argues that she has a reasonable likelihood of success on the merits because the bidding process for the construction of a public works project was not open to competition, the Wayne Township School Board (“Board”) improperly determined that the bid of R.L. Turner Corporation (“Turner”) was the lowest responsive bid, and the Board improperly determined that Turner was a responsible bidder, all in violation of statute. We affirm. * * *

We conclude that the trial court’s conclusions are supported by its findings and that its findings are supported by the evidence. The trial court did not err in determining that Bigley failed to show a reasonable likelihood of success on the merits and therefore in denying Bigley’s motion for a preliminary injunction. Affirmed.
BAKER, J., and ROBB, J., concur

Blimpie International, Inc. and Blimpie Pershing Indiana Ventures, Inc. v. Tina Choi and 8TA.Choi Corp. (2/28/05 IndCtApp) [Contracts; Arbitration]
May, Judge
Blimpie International, Inc. and Blimpie Pershing Indiana Ventures, Inc. (collectively “Blimpie”) appeals the denial of its motion to stay proceedings pending arbitration of the action brought by Tina Choi and 8TA.Choi Corporation (collectively “Choi”). Blimpie raises three issues, which we consolidate and restate as whether the trial court properly determined a reference in the franchise agreement to non-waiver of jury trial manifested the parties’ intention that claims arising under the Indiana Franchise Disclosure Law (the “Indiana Act”) would not be resolved by arbitration. We reverse. * * *

The trial court improperly determined claims under the Indiana Act were outside the parties’ arbitration agreement. Accordingly, we reverse the decision of the trial court and instruct the court to enter a stay pending arbitration of Count I of Choi’s claim.
SULLIVAN, J., and VAIDIK, J., concur.
_____
The trial court also noted Blimpie drafted the franchise agreement at issue, and Blimpie asserts the court erred to the extent it accordingly resolved any ambiguity in the agreement against Blimpie. We agree. Under the Federal Arbitration Act, ambiguities in an arbitration clause are to be resolved in favor of arbitration, notwithstanding the rule that a contract is construed most strongly against the drafter. Chan v. Drexel Burnham Lambert, Inc., 223 Cal. Rptr. 838, 842 (Cal. Ct. App 1986). And see Chesterfield Mgmt., Inc. v. Cook, 655 N.E.2d 98, 102 (Ind. Ct. App. 1995) (Indiana recognizes a strong policy favoring enforcement of arbitration agreements, and arbitration agreements will be interpreted in light of that policy), trans. denied.

Scottie Edwards v. State of Indiana (2/28/05 IndCtApp) [Criminal Law & Procedure]
Sullivan, Judge
Appellant, Scottie Edwards, challenges the forty-year sentence imposed upon his conviction for Attempted Murder, a Class A felony. See footnote Specifically, Edwards argues: (1) that in sentencing him to an enhanced sentence, the trial court relied upon facts not found by a jury in violation of his Sixth Amendment right under Blakely v. Washington, 124 S.Ct. 2531 (2004), and (2) that his sentence is inappropriate. We reverse and remand. * * *

Thus, the facts of planning and preparation are not necessarily “reflected in the jury verdict.” Under Blakely, the trial court could not itself make the finding of “planning and preparation” and then rely upon such in sentencing Edwards to an enhanced term of imprisonment. Such is a violation of Edwards’s Sixth Amendment right to trial by jury. See Aguilar v. State, 820 N.E.2d 762 (Ind. Ct. App. 2005).

While it was error for the court to consider additional facts not inherent within the jury’s verdict in sentencing Edwards, a sentence may still be upheld if there are other valid aggravating factors from which we can discern that the trial court would have imposed the same sentence. See Holden v. State, 815 N.E.2d 1049, 1060 (Ind. Ct. App. 2004), trans. denied; Powell v. State, 751 N.E.2d 311, 317 (Ind. Ct. App. 2001).

Here, we cannot say that reconsideration by the trial court without regard to the circumstances of the crime as an aggravating factor would result in the same outcome. In its sentencing statement, the trial court made clear that “[p]robably the most significant aggravating factor” was the circumstances of the offense—specifically referring to Edwards’s planning and preparation. Further, as to the remaining aggravators, we note that Edwards’s criminal history consists of only one unrelated misdemeanor battery conviction in 1996 and thus of minimal significance. With regard to the court’s finding that Edwards was in need of correctional rehabilitation which can only be provided by a penal facility or the Department of Correction, we observe that such was merely a rote recitation of the statutory aggravating factor. The trial court did not explain why the circumstance was aggravating and did not seem to afford it much weight. Given the foregoing, we must reverse Edwards’s forty-year sentence and remand to the trial court with instructions to either convene a jury for sentencing purposes or impose the presumptive sentence of thirty years for Edwards’s attempted murder conviction.

The judgment of the trial court is reversed and the cause is remanded with instructions.
NAJAM, J., concurs.

BARNES, J., dissents with opinion. I respectfully dissent. The majority here concludes that Blakely v. Washington impacts Indiana’s sentencing scheme and, therefore, a jury rather than a judge must find any “fact” other than criminal history that warrants an increase in a defendant’s sentence above the statutory presumptive. Indeed, in the months following the Blakely decision, every judge of this court who considered the issue, myself included, readily concluded that Blakely did impact Indiana’s sentencing scheme. The broad language used in the Blakely majority opinion seemed to leave little choice. * * * Because Indiana trial judges are only permitted to impose a presumptive sentence following a judgment of conviction unless they specifically “find” aggravating circumstances, it was widely believed by members of this court that Blakely invalidated sentences where a judge enhanced a sentence based on aggravating circumstances, other than criminal history, that relied upon judicial “fact-finding.” * * *

Now, the Supreme Court has decided United States v. Booker. -- U.S. --, 125 S. Ct. 738 (2005). In my view, Booker requires a significant reconsideration of our earlier holdings regarding Blakely’s impact in Indiana. It contains an important clarification and limitation on Blakely’s holding, agreed upon by all nine justices, that was not apparent in Blakely itself. * * *

I conclude, pursuant to Booker’s clarifications, that Blakely does not impact Indiana’s sentencing scheme. Simply put, Indiana’s sentencing scheme now somewhat resembles the Federal Sentencing Guidelines as reshaped by the Supreme Court, albeit that the Federal rules are much more explicit and precise as to what sentence ought to be imposed in response to particular facts. * * *

In other words, while Indiana’s sentencing scheme does not allow judges to increase a sentence above the presumptive unless they have found at least one aggravating circumstance, which seemed to run afoul of Blakely, neither does the scheme mandate judges to increase a sentence if they find aggravating circumstances, which makes the scheme constitutional under Booker. * * *

[In a footnote, Judge Barnes writes: "I am in full agreement with Judge Robb’s concurring opinion in Abney v. State, (Ind. Ct. App. Feb. 15, 2005)." Access the ILB summary of that case here, labeled "Court of Appeals posts four today, including one fascinating concurring opinion based on Blakely/Booker."]

"Sentence Overturned in Star Columnist Stabbing" is the headline to a brief story on this ruling today on the WISH-TV 8 website. The Indianapolis Star also has posted a story, titled "Sentence overturned in stabbing case." Both are based on an AP story and state: "The decision was the latest in a series of reversals in Indiana and across the nation resulting from a U.S. Supreme Court ruling last June that juries -- not judges -- should consider factors that can add years to defendants' prison sentences."

Amerisure v. Wurster Construction (2/28/05 IndCtApp) [Rehearing]
Ratliff, Senior Judge

Wurster Construction Co., Inc. petitions for rehearing in Amerisure, Inc. v. Wurster Construction Co., Inc., 818 N.E.2d 998 (Ind. Ct. App. 2004), challenging the language of the Court’s opinion. We grant Wurster’s petition for the sole purpose of clarification, and we affirm our original opinion. * * * This Court’s decision in Amerisure, Inc. v. Wurster Construction Co., Inc. was not intended as a final adjudication of the facts regarding the alleged defects in the Dens-glas and EIF systems and was in no way intended to foreclose any factual issues in the underlying dispute regarding the damage of these systems. Therefore, we grant Wurster’s Petition for Rehearing for the sole purpose of clarifying this issue and in all other respects affirm the Amerisure opinion.
KIRSCH, C.J., and CRONE, J., concur.
Larry Kirby v. State of Indiana (2/28/05 IndCtApp) [Criminal Law & Procedure]
Bailey, Judge
* * * Kirby raises one issue on appeal, which we restate as whether the post-conviction court erred by determining that his claims were barred by the doctrine of laches. * * *

From his repeated contacts with the criminal justice system, the trial court could have reasonably inferred that Kirby enjoyed access to the law library and, thus, could have learned about post-conviction remedies. Kirby’s twenty-eight-year delay in filing the petition for post-conviction relief, coupled with his presumed knowledge of the criminal justice system, is sufficient for the trial court to infer that the delay in dispute was unreasonable. See, e.g., Mahone v. State, 742 N.E.2d 982, 985 (Ind. Ct. App. 2001) (noting that, although lapse of time does not by itself constitute laches, a long delay in filing for post-conviction relief may be sufficient to infer that the delay was unreasonable), reh’g denied.

Turning now to the prejudice prong of the laches analysis, the evidence reveals that, at the time of Kirby’s petition for post-conviction relief, the State’s files for the applicable offenses, including photographs and other tangible evidence, had been destroyed. The evidence also demonstrates that the State was unable to locate all the victims of Kirby’s offenses and was unaware of their present addresses. This evidence is sufficient to show that, because of Kirby’s lengthy delay in filing his petition for post-conviction relief, the State was unable to reconstruct its case against Kirby and has, thus, suffered prejudice. As such, the post-conviction court did not err by denying Kirby’s petition for post-conviction relief on the basis of laches.
For the foregoing reasons, we affirm the post-conviction court’s denial of Kirby’s petition for post-conviction relief. Affirmed.
SULLIVAN, J., and MATHIAS, J., concur.


David Whitezel v. Judith Burosh and The Estate of Vincent Burosh (2/28/05 IndCtApp) [Trusts and Estates]
May, Judge
David Whitezel brings an interlocutory appeal of the trial court’s removal of Whitezel as trustee of the Burosh Living Trust. Whitezel raises one issue, which we restate as whether the trial court’s decision to remove Whitezel as trustee was clearly erroneous. We dismiss for lack of jurisdiction. * * *

Unlike the situation in Koch, none of the corpus in the Burosh Living Trust is being sold. Rather, the substance of the Trust is remaining in the Trust. The court is simply ordering a new trustee take over management of the Trust. Theoretically that order could be reversed on final judgment from Judith’s complaint and Whitezel’s counter-complaint, as the court could at that time order Whitezel reinstated as the trustee without serious legal or financial ramifications. Cf. id. This appeal was not permitted under App. R. 14(A)(3), see Hogan, 582 N.E.2d at 825, and we must dismiss for lack of jurisdiction. See Bayless, 580 N.E.2d at 966. Dismissed.
SHARPNACK, J., and BAILEY, J., concur.

Travis J. Carroll v. State of Indiana (2/28/05 IndCtApp) [Criminal Law & Procedure]
Friedlander, Judge
Travis J. Carroll brings an interlocutory appeal of the trial court’s denial of his motion to suppress. He presents the following restated issue for review: Was the warrantless search of his person proper when he was being detained while officers executed a search warrant on his residence? We affirm. * * *
SHARPNACK, J., and BAKER, J., concur.
Billy Joe Branum v. State of Indiana (2/28/05 IndCtApp) [Family Law; Contempt Sentence]
Najam, Judge
Billy Joe Branum appeals from the trial court’s order finding him in contempt for failure to pay child support. He presents several issues on appeal, which we consolidate and restate as: [1] Whether the trial court erred when it did not advise him of his right to counsel at the contempt hearing. [2] Whether the State presented sufficient evidence to support the contempt finding. [3] Whether the trial court erred when it sentenced him. * * *

Branum next contends that the trial court erred when it did not condition his release from jail on compliance with the child support order. The State maintains that the lack of such a provision is not grounds for reversal. Because we remand for a new hearing, we address this issue, as it is likely to recur. Our supreme court has held that:

The primary objective of a civil contempt proceeding is not to punish the defendant, but rather to coerce action for the benefit of the aggrieved party. Punishment in the form of imprisonment or a fine levied against the defendant, which goes to the State and not to the injured party, is characteristic of a criminal proceeding. In a civil contempt action the fine is to be paid to the aggrieved party, and imprisonment is for the purpose of coercing compliance with the order. * * *
Here, as in Emery, it is unclear from the sentencing statement whether Branum’s incarceration was intended to be punitive or coercive in nature. The trial court did not include an express provision whereby Branum’s release was conditioned upon his compliance with the child support order. See Hunter v. State, 802 N.E.2d 480, 484 (Ind. Ct. App. 2004). Because we are remanding for a new hearing, if the trial court should find Branum in contempt and impose a sentence, we instruct the court to specify that Branum can obtain his release from incarceration upon complying with the child support order. See Emery, 788 N.E.2d at 860-61 (holding only permissible sentence is coercive in nature). Reversed and remanded with instructions.
KIRSCH, C.J., and VAIDIK, J., concur.

Posted by Marcia Oddi on February 28, 2005 02:00 PM
Posted to Ind. App.Ct. Decisions