The Indiana Law Blog: Ind. Decisions - Court of Appeals issues 4 today (and 15 NFP)

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Wednesday, December 26, 2007

Ind. Decisions - Court of Appeals issues 4 today (and 15 NFP)

For publication opinions today (4):

In Todd L. Jensen v. State of Indiana , a 10-page, 2-1 opinion, the Court rules that "the amendments to Indiana’s Sex Offender Registry as applied to Jensen violate the ex post facto clauses of the federal and state constitutions." Senior Judge Robertson writes:

Defendant-Appellant Todd L. Jensen (“Jensen”) appeals from the trial court’s order classifying him as a sexually violent predator and requiring Jensen to register as such for the remainder of his life. We reverse and remand.

ISSUES. Jensen’s appeal presents the following dispositive issue for our review: whether the amendments to Indiana’s Sex Offender Registry as applied to Jensen violate the ex post facto clauses of the federal and state constitutions.

FACTS. On January 18, 2000, Jensen pled guilty to vicarious sexual gratification, a Class C felony, and child molesting, a Class C felony. Jensen was sentenced on February 18, 2000, to three years executed with three years suspended on each count. The sentences were ordered to be served concurrently. Pursuant to Ind. Code §5-2-12-13 (repealed by P.L. 140-2006, SEC. 41 and P.L. 173-2006, SEC. 55), Jensen was to report as a sex offender for a period of ten years.

Jensen was released from prison, began the probationary period of his sentence on July 12, 2001, and was formally released from probation on July 12, 2004. Since his release from prison, Jensen has annually reported and registered as a convicted sex offender. On September 20, 2006, the Allen CCounty Sheriff Department’s Sexual Offender Registry Coordinator informed Jensen that he would have to register for life as a sexually violent predator and as an offender against children. Jensen filed a motion to determine registration status with the trial court, and a hearing was set on that motion for February 12, 2007. Ultimately, the trial court found Jensen to be a sexually violent predator, and determined that Jensen must register for life. This appeal arises from the trial court’s ruling. * * *

We hold that imposition of a lifetime registration requirement in Jensen’s case violates ex post facto considerations. We reverse the trial court’s order determining that Jensen is a sexually violent predator, and instruct the trial court to enter an order determining Jensen’s registration requirement to be for ten years’ duration. * * *

SHARPNACK, J., concurs.
BRADFORD, J., dissenting with separate opinion. [which concludes] Given the public interest in certain informational filings, it is my opinion that requiring a sexually violent predator to maintain his current address in the registry, even for a lifetime, does not rise to the level of being so punitive as to overcome its non-punitive legislative intent, that is, to monitor the whereabouts of a violent sexual predator, the necessity of which does not diminish over time. I would affirm the trial court on this issue.

In Harvey N. Berman v. James Cannon and Rhonda Cannon, a 12-page opinion, Judge Sharpnack writes:

Harvey N. Berman appeals the judgment against him in favor of James and Rhonda Cannon. Berman raises three issues, which we consolidate and restate as: I. Whether the trial court abused its discretion when it refused to allow Berman’s counsel to explain the medical reasons behind Berman’s absence from the trial; and II. Whether the jury’s damage awards to Rhonda and James Cannon were excessive and unreasonable in light of the evidence. We affirm.

In State of Indiana v. Michael A. Cozart , a 10-page opinion, Chief Judge Baker writes:

When Michael Cozart agreed to plead guilty, he did not understand that the trial court was without discretion to suspend any of the minimum sentence he faced because of his prior felony convictions. After Cozart fully understood the trial court’s sentencing authority, he moved to withdraw his guilty plea, but the trial court refused to permit the withdrawal. On post-conviction, the court found that Cozart had not knowingly and voluntarily pleaded guilty because the trial court had not adequately advised him regarding the potential length of the sentence it was about to impose.

Appellant-respondent State of Indiana appeals from the post-conviction court’s order granting appellee-petitioner Michael A. Cozart’s petition for post-conviction relief. The State argues that the trial court was not required to advise Cozart regarding the effect his prior felony convictions would have on its authority to suspend any portion of the minimum sentence he faced following a guilty plea to a class A felony. Finding that Cozart did not plead guilty knowingly and voluntarily, we affirm the judgment of the post-conviction court.

Trenyon R. Page v. State of Indiana - "Trenyon Page appeals his sentence for three counts of robbery as class C felonies.1 Page raises two issues, which we revise and restate as: I. Whether the trial court abused its discretion in sentencing Page; and II. Whether Page’s sentence is inappropriate in light of the nature of the offense and the character of the offender. We affirm."

NFP civil opinions today (4):

Aubrey Anderson v. Patricia Anderson (NFP) - "Appellant-Respondent Aubrey Anderson (“Father”) appeals parenting time and child support orders concerning L.A. and B.A., his children with Appellee-Petitioner Patricia Anderson (“Mother”). We affirm."

In Invol. Term. of Parent-Child Rel. of A.G., K.G., A.R., and K.N., and Debra Gillard v. Marion Co. Dept. of Child Services, and Child Advocates, Inc. (NFP), a 3-page opinion out of Marion Superior Court, Judge Sharpnack writes:

This case comes to us on appeal from an order terminating the parental rights of Debra Gillard to A.G., A.R., Z.N., and K.G. The order included in the record reflects that it was signed by the magistrate presiding over the case but does not indicate that the juvenile court judge approved entry of the order. The docket indicates that the order was approved on April 5, 2007, but there is no indication as to how this approval was accomplished.

The authority of magistrates to act is determined by statute. As provided in Ind. Code §§ 33-23-5-5(14) and 33-23-5-9(b), a magistrate presiding at a criminal trial may enter a final order, conduct a sentencing hearing, and impose a sentence on a person convicted of a criminal offense. There is no such provision for magistrates to act in termination of parental rights cases. Rather, Ind. Code § 33-23-5-9(a) provides that, except in criminal proceedings, a magistrate “shall report findings” in an evidentiary hearing or a trial and that “the court shall enter the final order.” Because the record does not establish judicial approval of the magistrate’s findings in this case, we remand to the juvenile court for its consideration and further action consistent with this opinion. We retain jurisdiction of this appeal pending action by the juvenile court. Remanded.

Eric D. Smith v. Dept. of Correction, Westville Control Unit, et al (NFP) - "Appellant-plaintiff Eric D. Smith appeals the trial court’s orders entering summary judgment in favor of appellees-defendants Indiana Department of Correction, Westville Control Unit, Correctional Lieutenant Brooks, Correctional Officer Jason Jacob, Correctional Officer Marty Sexton, and Counselor Steve Euler (collectively, the DOC) on Smith’s complaint against the DOC, denying his motion for appointment of an attorney, and denying his motion to amend the complaint. Finding no error, we affirm the judgment of the trial court."

Wal-Mart Stores v. Timothy Kinnison, et al (NFP) - "Wal-Mart’s principal place of business is in Bentonville, Arkansas, and it is licensed to operate in Indiana. Its registered agent for service of process in Indiana is CT Corporation, which is located in Indianapolis. When a lawsuit is filed against Wal-Mart in Indiana, CT Corporation forwards the complaint and summons to the legal department in Bentonville. At that time, the case is assigned to one of Wal-Mart’s in-house attorneys.

"On September 21, 2006, the Kinnisons filed a complaint against Wal-Mart in Noble County, seeking damages stemming from an allegedly negligent oil change performed by Wal-Mart employees in Perris, California. Despite the facts that the alleged tort occurred in California and that CT Corporation is Wal-Mart’s registered agent in Indiana, the Kinnisons attempted to serve the complaint and summons by sending them via certified mail to a Wal-Mart Store in Kendallville. The envelope was addressed to “Wal-Mart Stores, Inc. * * *

"In sum, because service of process was inadequate, the trial court did not have personal jurisdiction over Wal-Mart and the default judgment is void. Therefore, the trial court abused its discretion when it refused to grant Wal-Mart’s motion for relief from the default judgment. The judgment of the trial court is reversed and remanded for further proceedings on the Kinnisons’ complaint."

NFP criminal opinions today (11):

Dean Jones v. State of Indiana (NFP)

Hannah Rae Birdsong v. State of Indiana (NFP)

Roger L. Brooks v. State of Indiana (NFP)

David Paul Clark v. State of Indiana (NFP)

Thomas J. Eaton v. State of Indiana (NFP)

Anthony W. Kramer v. State of Indiana (NFP)

Richard H. Lyons v. State of Indiana (NFP)

George E. Winget v. State of Indiana (NFP)

Leonard Thomas v. State of Indiana (NFP)

Ronald D. Luthe v. State of Indiana (NFP)

Brandon Rutherford v. State of Indiana (NFP)