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Wednesday, March 16, 2005

Ind. Decisions - Court of Appeals posts four today


Edward D. Perrey v. State of Indiana (3/16/05 IndCtApp) [Criminal Law & Procedure]
Mathias, Judge

Edward Perrey (“Perrey”) was convicted of Class C felony criminal confinement and Class D felony auto theft in Allen Superior Court. He appeals his criminal confinement conviction arguing that the evidence was insufficient to support his conviction. Concluding that the evidence was sufficient, we affirm. * * *
BAILEY, J., concurs.
SULLIVAN, J., concurs in result with opinion. * * * The majority opinion here, however, focuses upon what I perceive to be an irrelevant and therefore confusing factor. In my view, the fact that the maternal grandmother in Richards and that Christina, the child’s mother in the case before us, did not consent is irrelevant and was not a basis of the conviction in either case. Accordingly, Christina’s lack of consent in this case is of no moment.

Here, Perrey’s conviction was based upon the charge that A.B. was confined “without the person's consent.” Tr. at 321. “[T]he person” necessarily referred to A.B., i.e. the person confined, and had nothing to do with whether or not Christina, the child’s mother, consented. Accordingly, pursuant to the case law holding that a child of tender years is incapable of consent, the conviction is sustainable under subsection one of the statute. It is upon this basis that I concur in result.


Michael A. Sanders v. State of Indiana (3/16/05 IndCtApp) [Criminal Law & Procedure]
Barnes, Judge
Case Summary. Michael Sanders appeals the trial court’s granting of the State’s second petition for reimbursement of investigative costs. We reverse.

Issue. Sanders raises two issues. We address the dispositive issue, which we restate as whether the trial court properly granted the State’s petition for investigative costs that was filed after we reversed the granting of an earlier motion for release/application of funds because it was not timely filed. * * *

Despite our earlier ruling, the State refiled the same motion. The State provides no explanation for its actions and we cannot attempt to ascertain why it thought such a request would be permissible a second time around, especially given that almost an entire year had passed since it filed the first untimely motion. What was improper on direct appeal is still improper and the recaptioning of a petition cannot and does not change the relief requested in the petition. The trial court erroneously granted the State’s petition for investigative costs.

Conclusion. The trial court improperly granted the State’s petition for investigative costs, which was refiled after we ruled that a similar motion was untimely filed. We reverse. Reversed.
DARDEN, J. and MAY, J. concur

Ronnie E. Polk v. State of Indiana (2/11/05 IndCtApp) [Criminal Law & Procedure]
[Previously NFP]
Sharpnack, Judge
Ronnie E. Polk appeals the post-conviction court’s denial of his petition for post-conviction relief. Polk raises two issues, which we revise and restate as:
Whether Polk was denied the effective assistance of trial counsel; and
Whether the trial court improperly enhanced Polk’s sentence.
We affirm. * * *

The second issue is whether the trial court improperly enhanced Polk’s sentences. Polk argues that both of his convictions for possession within one thousand feet of a school were improperly enhanced because the police happened to stop Lamberson’s car within one thousand feet of a school and the stop occurred “in the middle of the night in the middle of summer, when no children were present at the school.” * * *

Polk was sentenced on March 28, 1996 and the ameliorative statute did not become effective until July 1, 2001. Thus, the ameliorative statute is not available to Polk. The post-conviction court did not err by denying Polk’s claim that he is entitled to the benefits of Ind. Code § 35-48-4-16.
For the foregoing reasons, we affirm the post-conviction court’s denial of Polk’s petition for post-conviction relief. Affirmed.
FRIEDLANDER, J. concurs
BAKER, J. concurs in result with separate opinion

Ernest Smith v. State of Indiana (2/9/05 IndCtApp) [Criminal Law & Procedure]
[Previously NFP]
Najam, Judge
* * * We conclude that the PCR court did not abuse its discretion when, after ordering the cause submitted by affidavit under Post Conviction Rule 1(9)(b), it did not hold an evidentiary hearing on Smith’s petition. We further conclude that the PCR court’s denial of Smith’s petition is not clearly erroneous. Affirmed.
KIRSCH, C.J., and VAIDIK, J., concur.

Posted by Marcia Oddi on March 16, 2005 02:06 PM
Posted to Ind. App.Ct. Decisions