« Ind. Courts - "Justice O’Connor argues against electing judges in St. Joseph County" | Main | Ind. Law - US News Law school rankings out, now officially »

Thursday, April 23, 2009

Ind. Decisions - Court of Appeals issues 1 today (and 5 NFP)

For publication opinions today (1):

In Joshua Michael Upton v. State of Indiana , a 12-page opinion, Judge Brown writes:

Joshua Michael Upton appeals his sentences for two counts of child molesting as class A felonies and three counts of child molesting as class B felonies. Upton raises five issues, which we consolidate and restate as:
I. Whether the trial court abused its discretion in sentencing him;
II. Whether Upton‟s sentence is inappropriate in light of the nature of the offense and the character of the offender; and
III. Whether the trial court‟s application of the 2008 credit restricted felons statute violated the constitutional prohibition against ex post facto laws.
We affirm in part, reverse in part, and remand. * * *

III. The final issue is whether the trial court's application of the 2008 credit restricted felons statute violated the constitutional prohibition of ex post facto laws. The trial court applied the newly enacted credit restricted felon statute to Upton‟s credit time. The credit restricted felon statute was enacted through Pub. L. 80-2008, Sec. 6, which was effective on July 1, 2008 and applied “only to persons convicted after June 30, 2008.” * * *

Upton argues that application of the credit restricted felon statutes to him violated the constitutional prohibition of ex post facto laws. * * *

“To fall within the ex post facto prohibition, a law must be retrospective – that is, 'it must apply to events occurring before its enactment' – and it 'must disadvantage the offender affected by it.'" * * *

Upton argues that, at the time he committed his offenses, he was eligible for Class I credit time, which would have allowed him to receive one day of credit time for each day he was confined awaiting sentencing, or Class II credit time, which would have allowed him to receive one day of credit time for every two days he was confined awaiting sentencing. Ind. Code § 35-50-6-3. However, under the credit restricted felon statute, he is only entitled to one day of credit for every six days confined awaiting sentencing. We addressed a similar argument in the context of educational credit time in Paul * * *

Based upon Paul and Weaver, the State concedes that Upton is correct, and the application of the credit restricted felon statute to him is an ex post facto violation. Consequently, we reverse the trial court's determination of Upton's credit time classification and remand for proceedings consistent with this opinion.

For the foregoing reasons, we affirm Upton's sentence for two counts of child molesting as class A felonies and three counts of child molesting as class B felonies, but we reverse the trial court's credit time classification of Upton and remand for proceedings consistent with this opinion.

NFP civil opinions today (2):

Jennifer J. Danielewicz v. Review Board, and Mickey's Linen & Towel Supply, Inc. (NFP) - " Danielewicz did not establish that she voluntarily terminated her employment for good cause."

In the Matter of the Supervised Estate of George A. Curts; Christine Ruby v. James F. Scarpone, et al (NFP) - "George A. Curts (“Curts”) died testate, leaving his daughter Christine N. Ruby (“Ruby”) as his sole beneficiary. James F. Scarpone (“Scarpone”) served as the initial personal representative, but was removed at Ruby’s request. The trial court awarded him a total of $50,000 for his attorney fees and for his services as personal representative. Ruby, who succeeded Scarpone as personal representative, filed a motion to correct error, arguing, inter alia, that the award was too great. She now appeals from the denial of her motion to correct error. We affirm."

NFP criminal opinions today (3):

Glenn L. Hepp v. State of Indiana (NFP)

Dewayne Washington v. State of Indiana (NFP)

David Cooper v. State of Indiana (NFP)

Posted by Marcia Oddi on April 23, 2009 11:49 AM
Posted to Ind. App.Ct. Decisions