« Environment - More on Great Lakes issues; logging Indiana' state forests | Main | Gov't. - Putting lobbying records online is fiasco in Congress »

Monday, October 31, 2005

Ind. Decisions - Court of Appeals decides contractual dispute between builder; several criminal cases

In S.C. Nestel, Inc., et al. v. Future Construction, Inc., a 14-page opinion entered today, Judge Baker writes:

Appellant-defendant S.C. Nestel, Inc. d/b/a Advantage Design Build (Nestel) appeals the trial court’s judgment in favor of apellee-plaintiff Future Construction, Inc. (Future) regarding Future’s claims for negligence and breach of contract. Specifically, Nestel contends that the trial court erred in denying its motion for summary judgment and in failing to enforce the contractual waiver of subrogation clause in its judgment. Finding that the waiver of subrogation clause is controlling, we reverse the judgment of the trial court.
One of the issues in Stephen Lewis Wells v. State of Indiana involves what the majority terms "a scriviner's error". Judge Baker writes:
Concluding that an apparent scrivener’s error resulted in the omission of one count to which he pleaded guilty and the imposition of the sentence, we remand this cause to the trial court for the purpose of allowing the trial court and the parties to correct the clerical error and for further proceedings, if necessary, that are consistent with this opinion.
Judge Riley dissents, quoting from Griffin v. State, a 2001 CtApp decision:
[a] plea agreement is a contract, an explicit agreement between the State and the defendant which is binding upon both parties when accepted by the trial court. Because a plea agreement is a contract, the principles of contract law can provide guidance in the consideration of plea agreements. The primary goal of contract interpretation is to give effect of the parties’ intent. When the terms of the contract are clear and unambiguous, they are conclusive of that intent, and the court will not construe the contract or look to extrinsic evidence. Rather we will merely apply the contractual provisions.
In Phillip Logan v. State of Indiana, the panel, in an opinion written by Judge Bailey, rejects Logan's contention that the child pornography law, IC 35-42-4-4, unconstitutionally infringes upon Logan’s free speech rights provided by the federal and Indiana constitutions:
Here, Logan has not demonstrated that regulation of child pornography is an abuse of his right to expression. Child pornography is not political expression, and we cannot say it is a “core” value under the Indiana Constitution. We therefore apply a rationality review in determining whether the State could reasonably conclude that, to the extent Logan’s activity was expressive, it was an “abuse” of his right to expression, i.e., whether it constitutes “a threat to peace, safety, and well-being.” See id. at 1371. The State’s interest in protecting child welfare easily passes this standard. Accordingly, as limited by our prior discussion, Indiana Code Section 35-42-4-4 does not contravene the right to free expression as guaranteed by Article I, Section 9.
Deangelo Pinkston v. State of Indiana is a sentencing case. Judge Robb writes:
Pinkston raises one issue for our review, which we expand and restate as follows: 1. Whether the aggravator phase of Pinkston’s bifurcated trial, in which the jury found the existence of two aggravating circumstances later used by the trial court in sentencing Pinkston, violated the Distribution of Powers Clause of the Indiana Constitution; and 2. Whether the trial court properly enhanced Pinkston’s sentence. * * *

Therefore, the addition of an aggravator phase to Pinkston’s trial did not violate the Distribution of Powers Clause of the Indiana Constitution. * * *

Pinkston next argues that the trial court erred in enhancing his sentence because it relied upon improper aggravators. We agree. * * *

Therefore, based on Indiana Code section 31-32-2-6 and our supreme court’s statement in Jordan, we hold that juvenile adjudications are not prior convictions under Blakely/Apprendi. A trial court’s use of a defendant’s juvenile adjudications to enhance his or her sentence beyond the statutorily prescribed presumptive sentence violates the defendant’s Sixth Amendment right to a trial by jury and is improper unless (1) the defendant was afforded the right to a trial by jury during the juvenile proceedings; or (2) during an aggravator phase of the defendant’s criminal trial the defendant’s juvenile adjudications are submitted to the jury and proved beyond a reasonable doubt. * * *

Conclusion. Pinkston waived his constitutional argument regarding the aggravator phase of his trial. Notwithstanding that waiver, we conclude that the aggravator phase of Pinkston’s trial was constitutional because our supreme court has specifically authorized such proceedings. Juvenile adjudications are not prior convictions under Blakely/Apprendi. The trial court’s reliance on Pinkston’s juvenile adjudications as an aggravating factor was improper and violated Pinkston’s Sixth Amendment right to a trial by jury because Pinkston’s juvenile adjudications were not submitted to a jury and proven beyond a reasonable doubt. The trial court’s reliance on the aggravating factors that (1) Pinkston was in need of correctional or rehabilitative treatment, and (2) that the imposition of a reduced sentence would depreciate the seriousness of the offense, were also improper. Because each of the aggravating factors relied on by the trial court in enhancing Pinkston’s sentences were improper, Pinkston’s enhanced sentence is inappropriate. Therefore, we remand this case to the trial court for re-sentencing in accordance with this opinion.

Affirmed in part, reversed in part, and remanded. BAILEY, J., concurs. FRIEDLANDER, J., dissents with opinion:

I agree with the majority that there was no error in conducting a hearing for the purpose of asking the jury to determine the existence of aggravating circumstances, for sentencing purposes. I do not agree with the resolution of the second issue, however, in which the majority concludes that true findings of juvenile delinquency are not “criminal history” for purposes of Blakely v. Washington, 542 U.S. 296 (2004).

Posted by Marcia Oddi on October 31, 2005 10:44 AM
Posted to Ind. App.Ct. Decisions