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Tuesday, March 30, 2010
Ind. Decisions - Court of Appeals issues 3 today (and 8 NFP)
For publication opinions today (3):
In Jeffrey E. Akard v. State of Indiana , a 17-page opinion, Judge Bailey writes:
Appellant-Defendant Jeffrey E. Akard appeals his convictions and sentences for three counts of Rape, two as Class A and one as a Class B felony, three counts of Criminal Deviate Conduct, two as Class A and one as a Class B felony, two counts of Criminal Confinement, as Class B felonies, and two counts of Battery, as Class C felonies. We affirm the convictions, revise the sentences and remand with instructions. * * *IU Law professor Joel Schumm notes that this is the "first case ever in which an Indiana appellate court has increased a sentence on appeal under its review and revise power. And the Attorney General did not request an increase in the case."On appeal, Akard raises three issues, which we restate as:
I. Whether the trial court erred by admitting into evidence child pornography obtained from Akard’s residence;
II. Whether it was fundamental error to permit testimony referencing Akard’s post-arrest, pre-Miranda silence; and
III. Whether his aggregate sentence of ninety-three years is inappropriate. * * *[III] Akard requests that we revise his sentences so that all his sentences run concurrently, decreasing his aggregate sentence to forty years. In McCullough v. State, the Indiana Supreme Court held that when a defendant requests review of his sentence under 7(B), “the reviewing court is presented with the issue of whether to affirm, reduce or increase the sentence.” McCullough v. State, 900 N.E.2d 745, 750 (Ind. 2009). In his concurring opinion, Justice Boehm agreed and went a step further, stating that “we should forthrightly state that although we have that power [to revise a sentence upwards], we have never exercised it and do not expect to exercise it in the future except in the most unusual case.” Id. at 751, (J. Boehm concurring). [Emphasis added by ILB]
This case is a most unusual case. * * *
Based on Akard’s character and the nature of the offenses, we conclude that this is a most unusual case that warrants the extreme rarity of this Court invoking its authority to revise a defendant’s sentence upward. We revise Akard’s sentence to an aggregate of 118 years imprisonment by ordering Counts I and IV to be served consecutively to the other Counts.
We affirm the convictions, revise the sentences and remand with instructions.
In Julie Correll v. Andrew Correll, a 20-page opinion, Judge Vaidik writes:
Julie C. (“Mother”) and Andrew C. (“Father”) had two children together before divorcing in 2006. The dissolution decree provided that the parties would share joint legal custody of the children with Mother having primary physical custody. In 2008 Father filed a motion to modify physical custody or, in the alternative, parenting time. Mother filed a response along with a cross-petition for modification of legal custody and child support and a request that the trial court find Father in contempt for failing to pay child support. Mother appeals the trial court's order entered following a hearing. We find that: (1) when modifying custody, the change in circumstances required by Indiana Code section 31-17-2-21 need not be so decisive in nature as to make a change in custody necessary for the welfare of the child and (2) when determining whether to modify joint legal custody, a trial court must consider whether there has been a substantial change in one or more of the factors listed in Indiana Code section 31-17-2-15 as well as Indiana Code section 31-17-2-8. Further finding that the trial court here did not abuse its discretion by making a de facto modification to joint physical custody, declining to modify joint legal custody to sole legal custody in Mother, declining to find Father in contempt for failing to pay child support, calculating Father's child support obligation, and declining to award partial or full attorney's fees to Mother, we affirm.
Todd A. Whitehurst v. Attorneys of Aboite, LLC - "Appellant-Defendant, Todd A. Whitehurst (Whitehurst), appeals the trial court’s entry of supplemental judgment in favor of Attorneys of Aboite, LLC (Aboite) for Whitehurst’s breach of a sub-lease agreement. We affirm in part, reverse in part, and remand for further proceedings."
NFP civil opinions today (4):
Rosa Martinez, et al. v. Maria Espinoza (NFP) - "We also cannot ignore Espinoza’s subsequent efforts to locate and personally serve Martinez. Espinoza finally tracked Martinez to the correct church on 34th Street and twice attempted to serve her there, only to find that Martinez was not there at the time. It is important to note that Martinez was represented to be a pastor at the church in question and yet did not respond to two alias summonses and complaints. Under the facts and circumstances presented in the record before us, we conclude that Espinoza did use due diligence in attempting to locate Martinez.
"Martinez has not met her burden of demonstrating the trial court’s lack of personal jurisdiction over her and Mi Familia. The trial court therefore properly denied Martinez’s motion to dismiss. Affirmed."
Wells Fargo as Personal Rep. of the Estate of Brian R. Thornhill v. Dale Bloom, et al. (NFP) - "The trial court properly concluded that Norma's trust document controls and applied the presumption of apportionment. Also, the Appellees' claim against Brian's Estate was not barred on the grounds of claim preclusion. Finally, as to the Appellees' cross-appeal, the trial court correctly calculated the taxes owed by Brian's Estate. For all of these reasons, we conclude that the trial court properly entered summary judgment in favor of the Appellees and correctly calculated all relevant tax liabilities. Affirmed."
Tijuana Tucker v. Motorists Mutual Insurance Co. (NFP) - "This appeals stems from a three-vehicle accident involving appellant Tijuana Tucker, Brittany Spellman, and Deann Burns. Tucker appeals from a verdict in favor of Motorists Mutual Insurance Company (MMIC), a subrogee of its insured, Burns, in Burns's negligence action against Tucker. Affirmed."
Roland Barker, et al v. Jesus the Messiah Church (NFP) - "Based on the foregoing, we conclude that the Church presented sufficient evidence to prove that Gloria knew of dumping that had occurred on the property, and that Gloria made a fraudulent misrepresentation to the Church. Furthermore, the Church presented sufficient evidence that Barker Pool Center, Inc., should be held liable for nuisance as well. Affirmed."
NFP criminal opinions today (4):
Jerry D. Ashley v. State of Indiana (NFP)
Chad Snyder v. State of Indiana (NFP)
Anthony J. DeMarco v. State of Indiana (NFP)
William Garrett v. State of Indiana (NFP)
Posted by Marcia Oddi on March 30, 2010 12:49 PM
Posted to Ind. App.Ct. Decisions