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Tuesday, July 22, 2008

Ind. Decisions - Court of Appeals issues 5 today (and 10 NFP)

For publication opinions today (5):

Scottie Hart v. State of Indiana - "Scottie Hart, pro se, appeals from the denial of his petition for post-conviction relief. We affirm.

"Issues. 1. Whether the trial court erred in revoking Hart’s probation. 2. Whether Hart received ineffective assistance of trial counsel. 3. Whether the prosecutor committed misconduct. 4. Whether the post-conviction court exhibited prejudice."

Leslie G. Miller v. State of Indiana - "Appellant-Defendant, Leslie Miller (Miller), petitions for rehearing, asking us to revisit his sentence for three counts of child molesting, one Class A felony and two Class C felonies, Ind. Code § 35-42-4-3, in light of the trial court’s “Order Clarifying Sentence,” which the trial court entered sua sponte after we issued our original opinion. Because Miller’s sentence, as clarified by the trial court, violates the United States Supreme Court’s opinion in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d (2004), reh’g denied, we are bound to grant Miller’s petition."

In James Stafford v. State of Indiana, a 14-page opinion, Judge Brown writes:

James Stafford appeals his convictions for burglary as a class B felony and theft as a class D felony. Stafford raises two issues, which we revise and restate as: I. Whether the trial court abused its discretion by admitting evidence where a delay of six days occurred between Stafford’s arrest and a probable cause hearing; II. Whether the trial court abused its discretion by denying Stafford’s motion for a continuance, which was filed due to late disclosures and the amendment of charging informations. We affirm.
In Kyle Williams v. State of Indiana, a 16-page opinion, Judge Darden writes:
Kyle Williams appeals his convictions and sentences after a jury found him guilty of five offenses: one count of attempted rape, as a class B felony; two counts of criminal confinement, one as a class C felony and one as a class D felony; and two counts of battery, one as a class C felony and one as a class A misdemeanor. We affirm in part, reverse in part, and remand with instructions.

Issues. 1. Whether the Double Jeopardy Clause of Indiana’s Constitution bars Williams’ convictions and sentencing on three of the offenses. 2. Whether the sentences imposed for four of the offenses violate the statutory limitation for consecutive sentences in Indiana Code section 35-50-2-3.

In Jesse S. McCown v. State of Indiana , a 10-page opinion, Judge Darden writes:
Jesse S. McCown appeals his convictions, after a bench trial, for two counts of class D felony failure to register as a sex offender. We affirm the convictions and remand for proper enhancement of the habitual offender charge. * * *

[W]e wholly reject McCown’s contention that his duty to register began, at the latest, on May 1, 1994, and expired on or before May 1, 2004. The State contends, and we agree, that “it is nonsensical to suggest that the ten-year registration period began before the duty to register was imposed.” State’s Br. at 6. Simply stated, statutory amendments made effective on July 1, 2001, rendered the registration requirement applicable to McCown. Because McCown was incarcerated in a penal facility on the effective date of the statute, his ten-year duty to register was triggered upon his release therefrom and subsequent placement on probation on November 10, 2001. McCown failed to register within seven days as required by statute, and was therefore, properly charged with class D felony failure to register as a sex offender. We find no error in the trial court’s denial of his motion to dismiss the State’s charging informations.

ILB Note: See this ILB entry from May 3, 2007 re the two issues that were raised at trial.

NFP civil opinions today (3):

Commissioner of Labor, on the Relation of Lemelany S. Murphy v. Shree JI Bava, LLC, et al. (NFP) - a 2-1 opinion. "The Commissioner of Labor (“the Commissioner”) on behalf of Lemelany Murphy appeals the amount of attorney fees awarded by the trial court in a wage payment action. We reverse and remand.

"Issue. The Commissioner raises one issue, which we restate as whether the trial court properly reduced the award of attorney fees."

Sjon Martin v. Banfield Pet Hospital of Castleton, Dr. Jim Dechand and Banfield Pet Hospital (NFP) "Although Martin continues to classify the Emswiller affidavit as newly discovered evidence, we conclude it is more appropriately deemed untimely. Nothing in the record leads us to conclude it could not have been discovered within the appropriate time limits. The trial court properly struck the affidavit and did not abuse its discretion by denying Martin’s motion to correct error."

The Paternity of M.S.M.; Michael Scott Murphy v. Susan A. Way (NFP) - "Appellant-Petitioner, Michael Scott Murphy (Father), appeals the trial court’s Order denying his Petition to Modify Custody. We affirm."

NFP criminal opinions today (7):

Clinton McConnell v. State of Indiana (NFP)

Randall E. James v. State of Indiana (NFP)

Robert C. Williams v. State of Indiana (NFP)

Jimmy Lee Robinson v. State of Indiana (NFP)

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

Terry L. Shaffer v. State of Indiana (NFP)

Dennis Day v. State of Indiana (NFP)

Posted by Marcia Oddi on July 22, 2008 01:08 PM
Posted to Ind. App.Ct. Decisions