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Monday, April 18, 2005

Ind. Decisions - Court of Appeals posts three today

Joshua J. Kendall v. State of Indiana (4/18/05 IndCtApp) [Criminal Law & Procedure]
Barnes, Judge

* * * Conclusion. The trial court did not abuse its discretion in denying Kendall’s motion for severance and his challenge to the State’s use of peremptory strikes, and in admitting evidence recovered during the search of 407 North Hamilton. The trial court also did not err in modifying the findings of its pretrial motion to suppress ruling during trial. We find Kendall’s sentence to be appropriate. Finally, we reject the State’s argument that the trial court erred in refusing to enter a judgment of conviction for possession of cocaine and a firearm in addition to a judgment of conviction for dealing in cocaine by possession of cocaine with intent to deliver. We affirm.
Affirmed.
SULLIVAN, J., concurs.

NAJAM, J., concurs in part and dissents in part, with opinion. I fully concur with the majority on Issues I, II, IV, and V, but respectfully dissent from the majority’s determinations on Issue III and the State’s cross-appeal. Consistent with the panel in Hardister v. State, 821 N.E.2d 912 (Ind. Ct. App. 2005), I would hold that the officers in this case violated the Fourth Amendment when, after the occupants exercised their right not to answer the front door, the officers ran to the back door of the residence in pursuit of those inside. Further, the trial court erred when it sua sponte vacated Kendall’s possession of cocaine and a firearm conviction because possession of cocaine and a firearm is not a lesser-included offense of possession with intent to deliver. * * *


David Fields v. State of Indiana (4/18/05 IndCtApp) [Criminal Law & Procedure]
May, Judge
David Fields appeals the sentences imposed after he entered pleas of guilty to burglary, conspiracy to commit burglary, attempted robbery, and conspiracy to commit robbery, all as Class A felonies. He raises two issues on appeal, which we consolidate and restate as whether the conspiracy to commit a burglary and a robbery that is attempted during the burglary amount to a single episode of criminal conduct for sentencing purposes.

The State asserts on cross-appeal the trial court erred in allowing Fields to challenge two of his convictions on double jeopardy grounds, which challenge resulted in the merger of the convictions of attempted robbery and conspiracy to commit robbery. Finally, we address sua sponte whether there was a factual basis for Fields’ plea of guilty to conspiracy to commit burglary as a Class A felony. We affirm in part, reverse in part, and remand. * * *

We accordingly vacate Fields’ conviction of conspiracy to commit burglary as a Class A felony and direct the trial court on remand to enter a conviction of conspiracy to commit burglary as a Class B felony. We further instruct the court to resentence Fields in a manner consistent with our determination his offenses of conspiracy to commit burglary and attempted robbery represent a single episode of criminal conduct for purposes of Ind. Code § 35-50-1-2.
Affirmed in part, reversed in part, and remanded.
BAKER, J., and BAILEY, J., concur.

Timothy F. Kelly d/b/a Timothy F. Kelly & Assoc. v. Stanley Levandoski d/b/a Stan's Service (4/18/05 IndCtApp) [Contracts, Agency]
May, Judge
* * * We cannot say as a matter of law Kelly’s statements to Levandoski could not have created a contract for services. Kelly’s request that Levandoski keep the van because Kelly needed it for litigation purposes was a request for services in connection with litigation. The trial court did not err when it excluded portions of the testimony of Kelly’s expert witness, and the evidence supported the trial court’s instructions. As Kelly has not demonstrated error, we affirm the judgment of the trial court. Affirmed.
DARDEN, J., and SHARPNACK, J., concur.

Posted by Marcia Oddi on April 18, 2005 02:08 PM
Posted to Ind. App.Ct. Decisions