« Ind. Decisions - Supreme Court issues one today | Main | Courts - "Is Sonia Sotomayor Mean?" An ILB suggestion »

Monday, June 15, 2009

Ind. Decisions - Court of Appeals issues 3 today (and 4 NFP) [Corrected]

For publication opinions today (3):

In Edward Rose of Indiana, LLC v. Metropolitan Board of Zoning Appeals, Division II, Indianapolis-Marion County, Indiana, a 14-page opinion, Judge Robb writes:

Edward Rose of Indiana, LLC (“Edward Rose”), appeals the trial court’s decision affirming the Metropolitan Board of Zoning Appeals, Division II, Indianapolis Marion County’s (the “BZA”) denial of Edward Rose’s petition for a variance. On appeal, Edward Rose raises one issue, which we restate as whether the trial court properly affirmed the BZA’s denial of Edward Rose’s petition for a variance. Concluding the trial court’s affirmation of the BZA’s denial was not improper, we affirm. We also address the trial court’s admission of supplemental evidence pursuant to Indiana Code section 36-7-4-1009. * * *

Indiana Code section 36-7-4-918.5(a) requires a petitioner to establish the following three elements to obtain a variance:

(1) the approval will not be injurious to the public health, safety, morals, and general welfare of the community; (2) the use and value of the area adjacent to the property included in the variance will not be affected in a substantially adverse manner; and (3) the strict application of the terms of the zoning ordinance will result in practical difficulties in the use of the property.

As mentioned above, the trial court concluded Edward Rose established the first two elements as a matter of law, and the BZA does not challenge this conclusion on appeal. The BZA’s concession means this appeal turns on whether Edward Rose established the third element as a matter of law. Regarding this element, it is undisputed that strict application of the zoning ordinance will result in removal of the Sign. We therefore frame this dispositive issue as whether Edward Rose proved as a matter of law that removal of the Sign will result in practical difficulties in the use of the property. * * *

To summarize, Edward Rose offered some evidence to permit a reasonable person to find that removal of the Sign will result in practical difficulties in the use of the property. On appeal from the trial court’s affirmation of the BZA’s denial, however, Edward Rose must show that no reasonable person could conclude otherwise. As the foregoing discussion indicates, the evidence was conflicting on the issue of practical difficulties, which compels a conclusion that the trial court’s affirmation of the BZA’s decision was not improper.

[The court also looked at the evidence issue and wrote on p. 10:] To summarize, we offer the foregoing discussion to clarify the proper role of a trial court when conducting certiorari review pursuant to Indiana Code section 36-7-4-1009 and to suggest some situations where supplemental evidence is and is not appropriate in conducting that review. Although we are skeptical of the trial court’s decision to admit the supplemental evidence in this case, we emphasize the BZA does not challenge that decision by way of cross-appeal. Accordingly, we proceed to determine whether, in light of the evidence presented during the BZA hearing and the supplemental evidence presented during the certiorari hearing, Edward Rose proved as a matter of law that removal of the Sign will result in practical difficulties in the use of the property.

In Fabian Gomez v. State of Indiana , a 9-page opinion, Judge Kirsch writes:
Gomez argues that the trial court erroneously allowed the State to amend the charging information to add a count of murder. He specifically contends that the amendment of the charging information was not timely filed because, under the version of Indiana Code section 35-34-1-5 in effect at the time Gomez committed the instant offense, the State could only make a substantive amendment to the charging information thirty days prior to the omnibus date, and the State.s amendment occurred several months after the omnibus date. Although Indiana Code section 35-34-1-5 was subsequently amended to allow substantive amendments to the charging information at any time prior to trial, Gomez asserts that this change to the statute was a substantive change, which cannot be retroactively applied because it implicates the prohibition on ex post facto punishments. He therefore claims that the prior version of the statute applies here, and the State.s amendment of the charging information was not timely under the statute. * * *

Generally, the prohibitions against ex post facto clauses prohibit Indiana from enacting a law that imposes a punishment for an act that was not punishable at the time it was committed or imposes additional punishment to that then prescribed. Ramon v. State, 888 N.E.2d 244, 251 (Ind. Ct. App. 2008). However, these prohibitions do not give a criminal a right to be tried, in all respects, by the law in force when the crime charged was committed. Id. The clause is not designed to limit legislative control of remedies and modes of procedure which do not affect matters of substance. Id. Although it may work to the disadvantage of a defendant, a procedural change is not ex post facto. Id. A statutory revision is procedural in nature for purposes of the ex post facto doctrine, and may be applied to crimes committed before the effective date, if it neither changes the elements of the crime nor enlarges its punishment. Id. at 252.

In Ramon, this court held that the application of the revised Indiana Code section 35-34-1-5 did not violate the ex post facto provisions of the Indiana and United States Constitutions because the statutory amendment was procedural. 888 N.E.2d at 252. In reaching this determination, we concluded that the revised statute defined the procedures the State must follow in order to amend a charging information and that the revision did not create any new crimes, change the elements of any crime, or alter any sentencing statutes. * * *

Therefore, based on the holdings of both Hurst and Ramon, this court has found that the legislative revisions to Indiana Code section 35-34-1-5 were procedural and did not implicate the ex post facto provisions of the Indiana and United States Constitutions. The amended version of the statute may accordingly be applied retroactively, and was applicable in the present case, allowing the State to amend its charging information to add the count of murder approximately ten months before the trial. * * *

Here, the time period between the amendment of the charging information and the jury trial was approximately ten months and gave Gomez the opportunity to prepare for the murder charge. Gomez cannot show that he was prejudiced by the added charge as he had ample notice of the new charge and a significant amount of time to prepare a defense for the trial. The trial court did not err when it granted the State.s request to amend its charging information.

In Rahn Davidson v. State of Indiana , a 9-page opinion, Sr. Judge Barteau writes:
Defendant-Appellant Rahn Davidson appeals his conviction of residential entry, a Class D felony, Ind. Code § 35-43-2-1.5. We affirm. * * *

Davidson was cohabitating with Sarah Ciriello. The relationship ended, and Ciriello moved to another residence. However, she allowed Davidson to store some of his belongings in the attached garage of her new residence. Subsequently, Davidson went to Ciriello’s new residence to obtain his belongings from the garage. While Davidson was still gathering all of his things, Ciriello left for work and gave Davidson permission to finish collecting his things from the garage but gave him instructions not to enter the house. Davidson kicked in the kitchen door and used the kitchen phone to call Ciriello’s cell phone.

Based upon this incident, Davidson was charged with residential entry. Following a bench trial, he was convicted of the charge. It is from this conviction that Davidson now appeals. * * *

Davidson claims that because he had no intent to commit theft or another crime once inside the dwelling, his actions did not constitute residential entry. In addition, Davidson advances the argument that because an attached garage is considered part of a dwelling, he did not commit residential entry by forcing his way into the kitchen. * * *

The offense of residential entry requires only a knowing or intentional breaking and entering of the dwelling of another, and does not require the intent to commit a felony. See Ind. Code § 35-43-2-1.5. Thus, Davidson’s argument on this issue fails. * * *

At trial, Ciriello testified that the door separating the garage from the house had a deadbolt lock on it, and she had locked the door on that particular morning. Ciriello had given Davidson permission to enter the garage, but he did not have permission to enter the residence. This evidence shows there was a clear demarcation (i.e., a locked door) between the garage and the kitchen, and Davidson had permission only to enter the garage. Thus, where there is an evident boundary, for example a door that locks and was locked at the time of the incident, the area is not only a part of the whole dwelling, but also a separate structure or enclosed space. Therefore, we hold that the locked kitchen in Ciriello’s residence constitutes a separate structure or enclosed space for purposes of Ind. Code § 35-41-1-10, and thus Davidson’s unlawful entry into the kitchen constitutes the offense of residential entry.

NFP civil opinions today (1):

In the Paternity of N.S.S.; K.H. v. D.S. (NFP)

NFP criminal opinions today (3):

Leonard Olden v. State of Indiana (NFP)

Danyon McClure v. State of Indiana (NFP)

Kyle T. Chandler v. State of Indiana (NFP)

Posted by Marcia Oddi on June 15, 2009 12:34 PM
Posted to Ind. App.Ct. Decisions