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Monday, October 29, 2007

Ind. Decisions - Court of Appeals issues 3 today (and 8 NFP)

For publication opinions today (3):

Smith & Wesson Corp., et al & United States of America v. City of Gary, Indiana by its Mayor Rudy Clay - see ILB summary here, prepared earlier today.

In Mark A. Kline v. State of Indiana, a 7-page opinion, Judge May writes:

Mark A. Kline challenges his sentence for multiple counts of sex offenses against minors, arguing it exceeded the judge’s authority. We agree and remand for resentencing. * * *

Kline did not file a belated appeal for the purpose of taking advantage of the new rule in Blakely. He raised other valid claims, which resulted in his case being remanded for resentencing in a post-Blakely world. If Kline must be resentenced, we see no reason why the trial court should not comply with the current state of constitutional law. Therefore, on remand, the trial court may not enhance Kline’s sentence based on additional facts “unless those facts are either (1) a prior conviction; (2) facts found by a jury beyond a reasonable doubt; (3) facts admitted by the defendant; [or] (4) facts found by the sentencing judge after the defendant has waived Apprendi rights and consented to judicial factfinding.” Robertson v. State, 871 N.E.2d 280, 286 (Ind. 2007).

This case is remanded for resentencing in accordance with this opinion and the terms of the original plea agreement.

In Henry Banks, Jr. v. Dick Brown, C. Kinnaman, Sheryl Keyes, Janice Snider, Craig Hanks, a 4-page opinion (with high-powered counsel arguing on behalf of appellant), Judge May writes:
Henry Banks, Jr. appeals the judgment of the small claims court, arguing he is entitled to reimbursement from the State for his costs. We affirm. * * *

Costs are punitive in nature. City of Hammond v. Conley, 498 N.E.2d 48, 53 (Ind. Ct. App. 1986). Banks’ claim was brought pursuant to the Indiana Tort Claims Act, which prohibits awards of punitive damages against the State: “A governmental entity or an employee of a governmental entity acting within the scope of employment is not liable for punitive damages.” Ind. Code § 34-13-3-4(b). Accordingly, Ind. Code § 34-13-3-4(b) prohibits the assessment of costs against the State. For these reasons, the court’s order denying Banks’ request for costs is affirmed.

NFP civil opinions today (6):

Molly Allen, Joe M. Gilstrap, et al. v. Great American Reserve Insurance Company and CONSECO Insurance Company (NFP) - "The determinations by this court and our Supreme Court that the Flex II policy had a front-end load are the law of the case, and the trial court was obliged to so find in considering the subagents’ amended complaint on remand. We accordingly affirm.
Affirmed."

In Re the Matter of the Involuntary Commitment of R.K. (NFP) - "The trial court found that R.K. was gravely disabled, and the trial court’s commitment order represents a conclusion that a reasonable person could have drawn and was sufficiently supported by clear and convincing evidence."

Steven B. Sexton v. Deborah L. Sexton (NFP) - "Steven B. Sexton appeals the division of marital property in the dissolution of his marriage to Deborah L. Sexton. He claims the court erred in finding certain of his retirement benefits were vested and erred in dividing the marital assets equally between the parties. We affirm."

Frank Polston v. Donna Jean Polston (NFP) - "Frank Polston appeals the order dissolving his marriage of twenty-nine years to Donna Jean Polston. Frank claims the court abused its discretion when it divided the marital estate equally and declined to award him spousal maintenance. We affirm."

James Jason Boren v. Valerie L. Boren (NFP) - "We conclude that the trial court did not err in denying Father’s petitions for contempt and to terminate parenting time, granting Mother’s petition to modify parenting time, and rescinding its order appointing a CASA."

Aaron (Israel) Isby v. Allen Finnan (NFP) - "Aaron (Israel) Isby appeals the Allen Superior Court’s determination it did not have jurisdiction over his motion for writ of habeas corpus. Because exclusive jurisdiction over his motion lies in Sullivan County, we affirm."

NFP criminal opinions today (2):

Simon Wills v. State of Indiana (NFP)

Benny Knight v. State of Indiana (NFP)

Posted by Marcia Oddi on October 29, 2007 12:10 PM
Posted to Ind. App.Ct. Decisions