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Tuesday, March 11, 2008

Ind. Decisions - Court of Appeals issues 3 today (and 13 NFP)

For publication opinions today (3):

In State of Indiana on the Relation of the Indiana State Police v. Chad Arnold, a 10-page opinion, Judge Darden concludes:

Indiana Code section 35-38-5-1(f) provides that the trial court shall grant a petition for expungement unless it finds that the conditions in subsection (a) have not been met; the petitioner has a record of arrests other than minor traffic offenses; or additional criminal charges are pending against the petitioner. * * * Thus, where, after a hearing, the trial court does not find that any of the factors listed in subsection (f) apply, it must grant—and therefore lacks the discretion to deny—the petition for expungement.

The legislature’s intent is clear as to when a trial court must grant a petition for expungement. We, however, are asked to address whether the legislature intended to deny expungement to petitioners who, as in this case, meet the conditions in subsection (a) yet have a record of unrelated arrests other than minor traffic offenses5 or have additional charges pending against them.

The mandatory language of “shall” in subsection subsection (f) only addresses the granting of a petition for expungement; it does not appear in subsection (f) as a directive regarding the denial of a petition for expungement. * * *

Given the legislature’s omission of language mandating the denial of a petition for expungement, we find that the legislature intended the granting or denial of a petition under Indiana Code section 35-38-5-1 to be within the trial court’s sound discretion where the petitioner meets the conditions of subsection (a) yet falls within subsection (f)(2) or (f)(3). * * *

Given this holding, we reverse the trial court’s order dated May 31, 2006, and remand for a new evidentiary hearing on Arnold’s petition for expungement of his arrest record for robbery.

In Eric D. Smith v. Indiana Dept. of Correction, et al, a 10-page opinion, Judge Darden writes:
Eric D. Smith, pro se, appeals the trial court’s grant of the motion for summary judgment made by the Indiana Department of Correction and Westville Control Unit in his action seeking injunctive and declaratory relief. We dismiss.

Cahisa Jones v.State of Indiana - "On May 10, 2007, Officer Greg Taylor of the Indianapolis Metropolitan Police Department received a dispatch concerning suspicious activity near a residence on 19th Street. Upon arriving at the scene, Officer Taylor noticed a car parked in a driveway behind a vacant house, next to an alley. Officer Taylor considered the driveway to be private property. Jones was inside the car, reclining in the front passenger seat and clearly intoxicated. There was a can of beer and a mostly empty whiskey bottle in the car. In the middle of the back seat of the car, approximately two feet away from Jones, was a handgun lying on top of a pile of clothes. The car was owned by and had been driven that evening by Leroy DeJourney, Jones’s cousin. * * *

"There is insufficient evidence to support Jones’s convictions for public intoxication and carrying a handgun without a license. We reverse both convictions."

NFP civil opinions today (7):

Shawn Karst v. The Town of Mount Etna, Indiana (NFP) "This case, however, does not involve Mt. Etna changing the zoning of Karst’s property or his continuation of a “non-conforming use.” Instead, this case involves Mt. Etna enacting an ordinance limiting nuisances and imposing fines for the failure to abate such. Unlike a non-conforming use associated with a zoning change, we cannot conclude that Karst had a vested right in continuing a nuisance simply because it was ongoing prior to the enactment of the Ordinance. Karst’s argument fails.

"Conclusion The trial court properly concluded that Karst’s dog breeding operation constituted a nuisance and imposed a fine pursuant to the Ordinance. We affirm."

In Indiana Dept. of Transportation v. U.S. Outdoor Advertising Company, Inc. (NFP), a 10-page opinion [which is inexplicably NFP], Judge Friedlander writes:

Indiana Department of Transportation (INDOT) appeals the trial court’s order on judicial review reversing INDOT’s decision to deny two of U.S. Outdoor Advertising Company, Inc.’s (U.S. Outdoor) applications for outdoor advertising sign permits. This case involves the continuing saga of two billboards that have remained standing along Interstate 70 for fourteen years after they were first determined by INDOT to be ineligible for outdoor advertising permits. This case returns to our Court approximately nine years after we remanded the case to INDOT for a definitive determination of the zoning for the properties on which the two billboards at issue are located. On remand, INDOT determined that the properties were zoned residential, and not commercial or industrial, thereby making the two billboards ineligible for outdoor advertising permits and requiring their removal. On judicial review, the trial court determined that although the properties were zoned residential under a zoning ordinance, the permitted uses in this residential zoning category allowed for commercial uses, such as agricultural activity, and reversed INDOT’s decision. INDOT presents the following restated issue for review: Did the trial court err by reversing INDOT’s denial of U.S. Outdoor’s sign permits? We reverse. * * *

The undisputed evidence reveals that the Bodkin sign and Shelby sign are located on properties that are zoned residential or R-1 under the Hancock County Zoning Ordinance. Under the plain language of 105 IAC 7-3-6(1) and the applicable definition in I.C. § 8-23-1-47, the signs are ineligible for permits. See id. (explaining that if the properties are zoned residential, the signs are ineligible to receive permits). Accordingly, we reverse the trial court’s order on judicial review.

Indiana Dept. of Environmental Management v.Subhen Ghosh (NFP) - "Ghosh failed to comply with the statutory procedure when he neither filed the agency record nor requested an extension for said filing within thirty days of his May 23, 2007, petition for judicial review. That failure was “cause for dismissal of the petition.” I.C. §4-21.5-5-13(b). Therefore, the trial court erred when it denied IDEM’s motion to dismiss. Reversed."

Brian Wuest v. Dawn M. Dickerson (NFP) - "We commend Wuest for his interest in B.W.’s welfare. Nevertheless, we conclude that the trial court did not abuse its discretion in concluding that Wuest did not prove a substantial change that would have warranted modification of custody."

Reanna Frye b/n/f Doretha Lee-Tutson v.City of South Bend d/b/a Erskine Municipal Golf Course, et al (NFP) - "Here, considering the facts in the light most favorable to the Appellants as the non-moving party and assuming that the paramedic told ReAnna that she was fine and faking, we can conclude as a matter of law that the paramedic’s conduct does not constitute “outrageous” behavior as contemplated by the narrow definition adopted from the Restatement. In other words, however insensitive the paramedic’s comment may have been, we cannot say that it was so extreme in degree as to go beyond all possible bounds of decency or can be regarded as atrocious and utterly intolerable in a civilized society. As this Court has observed: “The law does not provide a remedy for every annoyance that occurs in everyday life. Many things which are distressing or may be lacking in propriety or good taste are not actionable.” Branham v. Celadon Trucking Servs., Inc., 744 N.E.2d at 518 (citations omitted). Such is the case here. The trial court did not err in granting the City’s motion for summary judgment on the Appellants’ claim for intentional infliction of emotional distress."

Loretta S. Erikson v. Review Board and Bio Lab, Inc. (NFP) - "Erikson, however, failed to show good cause for not introducing the evidence during the hearing before the ALJ. Therefore, we find no abuse of discretion in not hearing additional evidence."

In the Matter of the Commitment of S.C. v. Wishard Health Services, Midtown Health Center (NFP) - "Dr. Kellams’s testimony was unequivocal. This evidence alone is clear and convincing evidence that S.C. is gravely disabled. The trial court’s commitment order is supported by sufficient evidence."

NFP criminal opinions today (6):

In the Matter of A.L. v. State of Indiana (NFP)

Ronald G. Wood v. State of Indiana (NFP)

Phillip Gregory Yeary v. State of Indiana (NFP)

John Keith Barkdull v. State of Indiana (NFP)

Jesse J. Blakey v. State of Indiana (NFP)

Johnnie Williams v. State of Indiana (NFP)

Posted by Marcia Oddi on March 11, 2008 02:44 PM
Posted to Ind. App.Ct. Decisions