The Indiana Law Blog: Ind. Decisions - Court of Appeals issues 2 today (and 15 NFP)

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Tuesday, January 13, 2009

Ind. Decisions - Court of Appeals issues 2 today (and 15 NFP)

For publication opinions today (2):

In Kenneth Ricks v. State of Indiana , a 6-page opinion, Judge Riley concludes:

Here, the trial court did not hold a hearing on Ricks’ request for permission to file a belated appeal, but, nevertheless, several of the above factors weigh in his favor. From the trial court’s findings at Ricks’ sentencing hearing we know that Ricks had no prior convictions, and was thus relatively unfamiliar with the legal system. Moreover, Ricks was young at the time of sentencing, and had not yet earned a high school diploma or any equivalent. Further, he was not advised of his right to appeal his sentence at his sentencing hearing, although he had been advised at his guilty plea hearing.

That being said, all of these factors could be outweighed if Ricks contributed to, or was responsible for, the delay in the filing of a notice of appeal. Although we know for certain that Ricks requested counsel to perfect an appeal over two months after his sentencing, and stated by letter that he had made that same request earlier, we cannot glean from the record before us exactly when, or if, that earlier request was made. It is possible that Ricks expressed to his trial counsel that he did not want to appeal, and then changed his mind sometime more than thirty days after his sentencing. Such a series of events would place the fault of the delay squarely on Ricks and would make him ineligible for treatment under Post-Conviction Rule 2. As such, Ricks’ letter alone has not proved by a preponderance of the evidence that he was without fault for the failure to timely file his notice of appeal. Therefore, we conclude that the trial court erred when granting Ricks permission to file a belated appeal. However, this error on the part of the trial court should not prevent Ricks from pursuing permission to file a belated appeal if he can present sufficient evidence that he was not at fault for failing to file a timely notice of appeal.

CONCLUSION. Based on the foregoing, we conclude that the trial court erred when it granted Ricks permission to file a belated notice of appeal, but remand so that the trial court can hold a hearing to determine whether Ricks is at fault for failing to file a timely notice of appeal. Reversed and remanded for further proceedings.

In Motorists Mutual Insurance Co. v. Alexis Wroblewski, a 10-page opinion, Judge Riley writes:

Motorists Mutual presents one issue on appeal, which we restate as follows: Whether Motorists Mutual’s insurance policy provides liability coverage to the named insured for the damages sustained by Alexis by virtue of the named insured’s signature on the financial responsibility form, pursuant to Indiana Code section 9-24-9-3. * * *

Even though Bertha’s liability derives from her signature on a financial responsibility form pursuant to
I.C. § 9-24-9-3, it is the language of the policy that determines whether this liability is covered by an insurance company. We have previously held that an insurance policy that is unambiguous must be enforced according to its terms, even those terms that limit an insurer’s liability. [cites omitted] We may not extend insurance coverage beyond that provided by the unambiguous language in the contract. Id. Here, the unambiguous provisions of the policy clearly include an exclusion that applies to accidents involving non-covered automobiles owned by family members. Even though Aaron was a family member, his car was not covered under Motorist Mutual’s policy. Therefore, we conclude that the trial court erred in granting summary judgment in favor of the Wroblewskis.

Based on the foregoing, we conclude that the trial court erred in granting summary judgment to the Wroblewskis. We reverse and remand to the trial court with instruction to enter summary judgment in favor of Motorists Mutual.

NFP civil opinions today (1):

Deborah K. Johnson v. Indiana Thoroughbred Breeders & Owners Assoc., Inc. (NFP) - "Based on the foregoing, we conclude that it is unnecessary for us to determine whether the trial court abused its discretion by denying Johnson’s motion for a continuance because Johnson has failed to show that she was prejudiced by the denial. Affirmed."

NFP criminal opinions today (13):

Jeffrey L. Gleason v. State of Indiana (NFP)

Joseph L. Arrington v. State of Indiana (NFP)

Matthew Thomas Franks v. State of Indiana (NFP)

Jeremy M. Brandeberry v. State of Indiana (NFP)

William M. Sims v. State of Indiana (NFP)

Derrick Hall v. State of Indiana (NFP)

Kenny Sturdivant v. State of Indiana (NFP)

Ian McCullough v. State of Indiana (NFP)

Jerry Pellegrino v. State of Indiana (NFP)

Alejandro Ramirez v. State of Indiana (NFP)

Timothy A. Parker v. State of Indiana (NFP)