The Indiana Law Blog: Ind. Decisions - Court of Appeals issues 8 today (and 11 NFP)

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Thursday, December 17, 2009

Ind. Decisions - Court of Appeals issues 8 today (and 11 NFP)

For publication opinions today (8):

Randy Tony v. Elkhart County - "Viewing the evidence in a light most favorable to Tony, it was improper to grant the County's motion for summary judgment. Tony has presented sufficient evidence to proceed on his claim that he was constructively discharged for filing worker's compensation claims. We reverse and remand for further proceedings consistent with this opinion."

Grinnell Mutual Reinsurance Co., et al. v. Joe Ault and Edie L. Ault, et al.

In Burkhart Advertising, Inc. v. City of Fort Wayne , a 15-page opinion, Judge Barnes writes:

Burkhart Advertising, Inc., (“Burkhart”) appeals the trial court’s grant of summary judgment to the City of Fort Wayne (“City”) and the trial court’s denial of Burkhart’s motion for summary judgment. We affirm.

Burkhart raises one issue, which we restate as whether the City’s approval of a landowner’s development plan conditioned on the removal of Burkhart’s billboard resulted in a taking under the Fifth Amendment to the United States Constitution. * * *

Burkhart has, in effect, attempted to convert a breach of contract claim against its landlord into a takings claim against the City, and this attempt must fail. We conclude that the trial court properly granted the City’s motion for summary judgment and properly denied Burkhart’s motion for summary judgment. We affirm.

Z.S. v. J.F. - "'Given the strong policy considerations where child custody is at issue'; the lack of a fully disclosed written and executed agreement; and the lack of evidence regarding C.S.'s best interests in this case, we find no abuse of discretion in granting Mother's motion for relief from judgment."

In Michael Greer and John Maggi v. Edwin Buss, et al. , a 20-page opinion, Judge Darden writes:

Michael Greer and John Maggi (“the Plaintiffs”) filed an action for a proposed class action lawsuit seeking declaratory and injunctive relief with respect to the Indiana Department of Correction (DOC) policy which provides that individuals convicted of certain sex or violent offenses requiring registration for a ten-year period must register for an additional ten-year period upon a subsequent conviction for any criminal offense. According to DOC, such additional registration was mandated by statute. Both Greer and Maggi appeal the order that dismissed their action, granted summary judgment to DOC, and denied class action certification. * * *

Beginning with “Zachary's Law” in 1994, Indiana has enacted statutes collectively referred to as the Indiana Sex Offender Registration Act that require individuals convicted of sex and certain other offenses to register with local law enforcement agencies. Wallace v. State, 905 N.E.2d 371, 373 (Ind. 2009). After July 1, 1995, sex offenders were required to register for “ten years after the date the offender was released from parole, or placed on probation, whichever occurred last,” id. at 375 (citing Ind. Code § 5-2-12-13 (1995)2); in ensuing years, the statutory framework of that ten-year registration period was repeatedly revised. Beginning July 1, 1994, the failure to register as required was a class A misdemeanor, see P.L. 11-1994 § 7 (adding former I.C. § 5-2-12-9). Currently, however, the failure to register constitutes a class D felony. See I.C. § 11-8-8-17. In addition, effective July 1, 2006, a person who has been convicted of certain sex-related crimes is barred from residing within 1,000 feet of school property, a youth program center, or a public park; and knowingly or intentionally doing so constitutes a class D felony. Pollard v. State, 908 N.E.2d 1145, 1147 (Ind. 2009) (citing I.C. § 35-42-4-113).* * *

Nevertheless, citing Wallace, wherein the defendant appealed his conviction for failure to register, the Defendants argue that Greer and Maggi may pursue their challenges to registration as a defense in a criminal proceeding if faced with criminal prosecution for failure to register. The U.S. Supreme Court has declared, however, that a plaintiff need not “first expose himself to actual arrest or prosecution to be entitled to challenge a statute that he claims deters his exercise of constitutional rights.” * * * As the Defendants note, neither Steffel nor Smith actually enjoined criminal prosecution, but we find the stated principle persuasive as applied to the circumstances faced by Greer and Maggi. * * *

Pursuant to the rule of lenity, we find it clear that prior to July 1, 2008, the statutory provision at issue contained no language suggesting that the required registration would be triggered for a second ten-year registration period upon a subsequent conviction. This leads to the logical conclusion that an offender was only required to register again after completion of the ten-year registration period upon conviction for an offense for which the statute requires registration. * * *

We hold that the trial court erred when it granted summary judgment to the Defendants on the Plaintiffs' claims that they were not required to register as sex offenders for a second ten-year period. We also hold that the trial court erred when it granted summary judgment to the Defendants on Greer's claim that the residency restriction statute violated his ex post facto rights under the Indiana Constitution. Accordingly, summary judgment should be granted to the Plaintiffs on these matters. As to the trial court's denial of class action certification, however, we affirm.

[ILB emphasis - read in conjuction with this Nov. 18, 2009 entry.]

In Crystal Sanquenetti v. State of Indiana , an 11-page, 2-1 opinion, Judge Crone writes:

Crystal Sanquenetti appeals her four-year sentence following her guilty plea to class C felony nonsupport of a dependent child, arguing that it is inappropriate in light of the nature of the offense and her character. We reverse and remand with instructions to revise her sentence to two years, executed. * * *

RILEY, J., concurs.
VAIDIK, J., dissents with separate opinion. [that concludes] Although it is true that Sanquenetti pled guilty to this offense and was working a part-time job in 2009 (though she was unemployed for the previous five years), I believe that these actions pale in comparison to her criminal activities. Therefore, I would find that Sanquenetti's advisory sentence of four years is not inappropriate.

Aaron Michael Rohr v. State of Indiana - "Aaron Rohr appeals the trial court’s denial of his request to set bail. Rohr raises one issue, which we restate as whether the trial court abused its discretion by denying Rohr’s motion to set bail. We affirm."

In Emmanuel Dwayne Branch v. State of Indiana , a 9-page, 2-1 opinion, Judge Crone writes:

Emmanuel Dwayne Branch challenges the sufficiency of the evidence supporting his conviction for failing to register as a sex offender, a class D felony. We affirm. * * *

Branch argues that in January 2009, he did not have a principal residence, and therefore the registration requirements of Indiana Code Section 11-8-8-11(a) are inapplicable. Instead, he argues, he was homeless and, as such, his registration requirements were governed by Indiana Code Section 11-8-8-12(c), under which he was not charged. * * *

Although Branch did not have a new principal residence, his principal residence address did change, in that United Caring was no longer his principal residence. Thus, Branch was required to register the change of his principal residence address within seventy-two hours pursuant to Indiana Code 11-8-8-11.3 His admitted failure to do so is sufficient evidence to support his conviction.

VAIDIK, J., concurs.
RILEY, J., dissents with separate opinion: I respectfully dissent. Branch was charged and convicted of failing to register a change in address “as required under I.C. 11-8-8-11,” which is the subsection applying our State's sex offender registry to persons with a “principal residence.” (Appellant's App. p. 8). The majority's opinion acknowledges that Branch identified the United Caring Shelter as his “Home Address.” (State's Ex. 1). However, Branch never identified United Caring Shelter as his “principal residence.” Indeed, there is no place on the form which he used to report for him to designate whether the place he was then staying was a “principal residence,” “temporary residence,” or just a transitional place because the individual is homeless and has neither a “principal residence,” or a “temporary residence,” which could be helpful considering the distinction between the reporting requirements acknowledged in the majority opinion. (Appellant's App. pp. 60 - 61).

Branch stayed at United Caring Shelter for only eleven days. This short stint at United Caring Shelter is not sufficient to prove that it was his “principal residence,” and upon review the record I find a lack of sufficient evidence proving that United Caring Shelter was ever his “principal residence.” The majority opinion asserts that “Branch effectively concedes [the] point” that United Caring Shelter was his principal residence in his Appellant's Brief. Slip op. at 5-6. To the contrary, Branch unequivocally asserted that he “fell into” what he refers to as the “third category” of reporting requirements for persons without either a “principal residence” or a “temporary residence.” (Appellant's Br. pp. 4-5 (citing I.C. § 11-8-8-12(c)). Since the charging information did not reference the proper statutory section applying to Branch, I would conclude that his conviction cannot stand. See Addis v. State, 404 N.E.2d 59, 63-64 (Ind. Ct. App. 1980) (“To permit a „conviction upon a charge not made would be sheer denial of due process.”).

NFP civil opinions today (2):

C.S. v. Review Board, and A.S., Inc. (NFP)

Saul I. Ruman, et al. v. Denise Benjamin (NFP)

NFP criminal opinions today (9):

Bryan D. Cowan v. State of Indiana (NFP)

Chester Radford v. State of Indiana (NFP)

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

Jonathan L. Reiner v. State of Indiana (NFP)

Larry L. Toops, Sr. v. State of Indiana (NFP)

Steven Edward Lewis v. State of Indiana (NFP)

Terry Lynem v. State of Indiana (NFP)

Dakevee Wiggins v. State of Indiana (NFP)