The Indiana Law Blog: Ind. Decisions - Court of Appeals issues 3 today (and 12 NFP)

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Tuesday, May 13, 2008

Ind. Decisions - Court of Appeals issues 3 today (and 12 NFP)

For publication opinions today (3):

In Gary Tapely II v. State of Indiana , a 5-page opinion, Judge May writes:

Gary Tapely II was convicted of Class D felony possession of two or more precursors with the intent to manufacture methamphetamine. The house where Tapely was found contained substantial evidence of “multiple prior episodes of manufacturing” methamphetamine. Tapely asserts he could not be guilty of possession with intent to manufacture because the house did not contain precursors “sufficient to begin or otherwise advance the process of manufacturing.” We affirm. * * *

Tapely knew what Hand and his brother were doing in Hand’s house that evening; they were preparing all the ingredients for manufacturing methamphetamine. Tapely helped light incense to cover the smell of ether. As he was the only person in Hand’s house when the police arrived, Tapely presumably flickered the lights off and on in response to the honks from the passing car. Tapely took thirty seconds to open the door after the police knocked, and then he claimed he did not notice a smell of ether. The combination of all this conduct permits a reasonable person to infer Tapely intended to be part of the manufacturing process, even if the process had been moved elsewhere.

In Lisa Dawn Owens v. State of Indiana , a 9-page, 2-1 opinion, Judge Riley writes:

Appellant-Defendant, Lisa Dawn Owens (Owens), appeals the trial court’s denial of her Motion for Sentence Modification. We reverse and remand.

ISSUE Whether the trial court erred in concluding that it lacked authority to modify Owens’ sentence pursuant to Ind. Code § 35-38-1-17. * * *

We hold that the trial court erred in concluding that it lacked authority to modify Owens’ sentence pursuant to Indiana statutory law and the terms of the plea agreement Owens reached with the State of Indiana. IC 35-38-1-17(b) states in pertinent part: “If more than three hundred sixty-five (365) days have elapsed since the convicted person began serving the sentence and after a hearing at which the convicted person is present, the court may reduce or suspend the sentence, subject to the approval of the prosecuting attorney.” Under typical circumstances, a trial court has no discretion to reduce or suspend a defendant’s sentence pursuant to that statute unless the prosecuting attorney gives approval. State v. Fulkrod, 753 N.E.2d 630, 633 (Ind. 2001). In this case, however, we find that the State waived its right to give approval. The “consents and approves” provision does more than illustrate applicable law. Appellant’s App. at 13. Indeed, its inclusion is sensible only if it differs from the applicable law in some fashion. If the State did not forfeit something in stating that it “consents and approves” Owens filing petitions to modify her sentence after one year, then it would not have been necessary for the State to establish its right to object to such modification. The only sensible interpretation of the “consents and approves” language is an interpretation meaning that the State waived its right to approve Owens’ petition for sentence modification and has not forfeited its right to object to such a modification. Otherwise, there is no reason for the provision to have been included in the plea agreement.

CONCLUSION Based on the foregoing, we conclude that the trial court erred in determining that it lacked authority to modify Owens’ sentence pursuant to Indiana statutory law and the terms of the plea agreement Owens reached with the State of Indiana. We remand this case to the trial court to exercise its discretion in deciding whether to grant Owens’ Petition for Modification of Sentence. Reversed and remanded.

KIRSCH, J., concurs.
MAY, J., dissents with separate opinion. [that concludes] Because I believe the trial court correctly found it had no authority to modify Owens’ sentence from the forty years provided by the plea agreement unless the prosecutor decided not to object to Owens’ motion, I would affirm.

In State of Indiana v. Anthony Pollard , a 10-page opinion, Judge Mathias writes:

The State of Indiana appeals Blackford Superior Court’s dismissal of the charge of Class D felony sex offender residency offense against Anthony Pollard (“Pollard”). The State argues that the trial court erred when it found that Indiana Code section 35-42-4-11, as applied to Pollard, violated Article 1, Section 24 of the Indiana Constitution. We affirm. * * *

The State challenges the trial court’s conclusion of law that Indiana Code section 35-42-4-11 is an unconstitutional ex post facto law as applied to Pollard. * * *

Conclusion. For all of these reasons, we hold that Indiana Code section 35-42-4-11, otherwise known as the residency statute, is an ex post facto law as applied to a person in Pollard’s circumstances. The residency statute is a criminal statute that criminalizes residency because of the resident’s status as a sex offender. In addition, the statute’s effect is punitive because it is applied retroactively to sex offenders who established ownership and property rights in a residence prior to the effective date of the statute, and because it forces them to relinquish some or all of their ownership rights or face a felony charge. Perhaps most importantly, Indiana’s residency statute does not exempt ownership established prior to the statute, provide a constitutional taking procedure, or exempt ownership impacted by later construction of a protected facility or area.

For all these reasons, we conclude that the trial court did not err when it found that Indiana Code section 35-42-4-11 violated Article 1, section 24 of the Indiana Constitution, as applied to Pollard. Therefore, we affirm the trial court’s dismissal of the Class D felony charge filed against Pollard pursuant to that statute.

See this April 16th ILB entry for more on the Pollard case.

NFP civil opinions today (0):

NFP criminal opinions today (12):

Brian Taylor v. State of Indiana (NFP)

Sherry Russell v. State of Indiana (NFP)

Eric Alter v. State of Indiana (NFP)

Raymond T. Bennett v. State of Indiana (NFP)

Raymond Elmer Bennett v. State of Indiana (NFP)

T.B. v. State of Indiana (NFP)

Aniya Crayton v. State of Indiana (NFP)

Jason W. Hoeppner v. State of Indiana (NFP)

Loren Naylor v. State of Indiana (NFP)