The Indiana Law Blog: Ind. Decisions - Court of Appeals issues 3 today (and 16 NFP)

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Monday, July 16, 2007

Ind. Decisions - Court of Appeals issues 3 today (and 16 NFP)

For publication opinions today (3):

Anita Stuller, et al v. Mitchell Daniels, Jr., et al - This case was summarized here, earlier today, under the headling "Court of Appeals rules on closing of Fort Wayne Disabilities Center; finds associational standing."

In Richard Laker v. State of Indiana , a 9-page opinion, Judge Robb writes:

Following a bench trial, Richard Laker appeals his conviction for operating a vehicle while an habitual traffic violator (“HTV”) and the trial court’s order that he pay restitution. Laker raises two issues, which we restate as whether sufficient evidence supports his conviction and whether the trial court abused its discretion in ordering Laker to pay restitution without determining his ability to pay. Concluding that sufficient evidence exists, we affirm Laker’s conviction. However, we conclude that the trial court abused its discretion in ordering Laker to pay restitution without determining his ability to pay, and reverse the trial court’s restitution order and remand for the trial court to make such a determination. * * *

"When restitution or reparation is a condition of probation, the court shall fix the amount, which may not exceed an amount the person can or will be able to pay, and shall fix the manner of performance." Ind. Code § 35-38-2-2.3(a)(5). * * *

Here, there is no indication that the trial court made any inquiry at all into Laker’s ability to pay restitution. The trial court did question Laker regarding his financial situation in determining whether to appoint pauper appellate counsel, but this questioning came after the trial court had ordered restitution. We also note that the trial court found Laker indigent for the purposes of appeal and for fines and court costs.

Because the trial court did not inquire into Laker’s ability to pay, we must reverse its order for restitution, and remand with instructions that the trial court determine Laker’s ability to pay.

Timothy Kevin Addington v. State of Indiana - "Following a hearing on the State’s notice of probation violation, the trial court revoked Timothy Addington’s probation. Addington presents two issues for our review: 1. Whether the trial court erred when it revoked his probation. 2. Whether the trial court abused its discretion when it sentenced him. We affirm."

NFP civil opinions today (3):

John L. Olive v. Sheila A. Givens (NFP) - "John Olive appeals the trial court’s judgment on Sheila Givens’ Complaint for Partition of Real Estate and Accounting. He raises a single issue for our review, namely, whether the trial court’s conclusion that he should receive one-quarter of the value of the parties’ personal property is clearly erroneous. We affirm."

Sean Gorman v. Holly (Gorman) Cedar (NFP) - "Sean Gorman (Father) appeals the trial court’s Order, which modifies its previous Order of child support and establishes a support arrearage. We affirm."

Term. of Parent-Child Rel. of E.S. & R.S., and Cynthia Shannon a/k/a Cynthia Martinez v. Marion Co. Dept. of Child Services, and Child Advocates (NFP) - "Cynthia Shannon (“Mother”) appeals the trial court’s order terminating her parental rights to her two sons, E.S. and R.S. (collectively, “the Children”). Mother argues that the trial court erred by terminating her parental rights because: (1) she was denied due process during the Children in Need of Services (“CHINS”) proceeding because the Marion County Department of Child Services (“MCDCS”) failed to comply with a CHINS statutory requirement; and (2) the MCDCS failed to prove by clear and convincing evidence that there is a reasonable probability that the conditions that resulted in the Children’s removal will not be remedied. Concluding that Mother’s due process rights were not violated because the MCDCS made reasonable attempts to reunify the family as required by Indiana Code § 31-34-21-5.5 and that the MCDCS proved by clear and convincing evidence that there is a reasonable probability that the conditions that resulted in the Children’s removal or the reasons for placement outside the home will not be remedied, we affirm the trial court’s order terminating Mother’s parental rights to the Children."

NFP criminal opinions today (13):

Robert Whiteside v. State of Indiana (NFP)

James Beck v. State of Indiana (NFP)

William C. Davis v. State of Indiana (NFP)

Arterteo Hernandez v. State of Indiana (NFP)

Darrett Thompson v. State of Indiana (NFP)

William R. Koenig v. State of Indiana (NFP)

Timothy Kevin Addington v. State of Indiana (NFP)

Wade Russell Meisberger v. State of Indiana (NFP)

Andrew Brady v. State of Indiana (NFP)

Thomas L. Greene v. State of Indiana (NFP)

Sammy Johnson v. State of Indiana (NFP)