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Friday, July 23, 2010

Ind. Courts - How have the judges fared? Judge Cynthia Emkes

As explained in the post headed "How Have the Judges Fared?" over the next few days the ILB is examining the records on appeal of the four trial judge semi-finalists for the Supreme Court vacancy. This feature on Judge Cynthia Emkes's record, from IU Law-Indy Prof. Joel Schumm, is the second of those entries.


Judge Cynthia Emkes has presided over Johnson County Superior Court 2 since July 1987.

A total of 42 cases have been reviewed by a higher court. Judge Emkes was reversed in 14 (or 33%) of those cases. Several reversals involved sentencing claims, including cases where lengthy sentences were reversed as inappropriately long. The Commission asked some trial court judges about reducing sentencing disparities during the first day of interviews, but Judge Emkes, who was interviewed on the second day, was not asked these questions.

Supreme Court

Trusley v. State (2005) - “Of the five aggravators found by the trial court, three were improperly considered. . . . In this case, examining the two properly found aggravators against the three substantial mitigating circumstances found by the trial court leaves us unable to say with confidence that the enhanced sentence should be affirmed on appeal.”

Court of Appeals

Excessive sentences

Kemp v. State (2008) - The Defendant convicted of forgery and other offenses against a church where he worked was sentenced to 32 years (20 in prison; 6 on work release; 6 on probation). Court of Appeals reduced to 16 years “with instructions to decide how Kemp should serve those sixteen years, keeping the goal of monetary restitution to the Church in mind.”

Gibson v. State (2007) - The Defendant pleaded guilty to dealing meth was sentenced to 30 years (15 in prison; 5 on work release; 10 on probation). Court of Appeals reduced to “an aggregate sentence of twenty-two years with eleven years executed, five years on work release, and the remainder suspended to probation.”

Eckstein v. State (2007) - Defendant who worked as a commercial loan officer was sentenced to 28 years (20 in prison; 8 on probation) for stealing nearly $200,000 from a bank to support his compulsive gambling. The Court of Appeals reduced the sentence reduced to 21 years (15 in prison; 6 on probation).

Other Sentencing Claims

Roderick v. State (2009) - “[W]e remand to the trial court with instructions to amend the sentencing order to show that Roderick's habitual offender finding is attached to his underlying possession-of-marijuana conviction and enhances the sentence for that conviction.”

Jett v. State (2008) - Though Jett's total sentence is not inappropriate, we must address, sua sponte, two technical issues concerning the sentence arising from his habitual offender finding. First, “[a] habitual offender finding does not constitute a separate crime nor result in a separate sentence, but rather results in a sentence enhancement imposed upon the conviction of a subsequent felony.” . . . Second, no part of a habitual offender enhancement can be suspended.”

Other Criminal

Muncy v. State (1999) - “Because Muncy did not have an opportunity to cross-examine Wooldridge about whether he made the statement, we hold that the trial court erred in allowing the admission of Cox's testimony about Wooldridge's alleged identification statement.”

Civil Cases

Dewbrew v. Dewbrew (2006) - “Based on the foregoing, we find that the trial court erred in its refusal to set aside the property settlement and custody agreement.”

Hardin v. Hardin (2003) - Concluding with “what the trial court found was that there was a contract between Annette, Mike and David for Annette and Mike to purchase the land from David at a specified price. The trial court did not expressly find that Mike had made a judicial admission abandoning his interest in that regard. Therefore, the property should be conveyed, consistent with the contract, to both Mike and Annette for $4,000 an acre upon the payment to David of the purchase price in full. Accordingly, we affirm the trial court's order that David sell the property but reverse the order that the sale be to Annette alone.”

Johnson County Plan Comm’n v. Tinkle (2001) - “The citizens of Johnson County, through their elected officials enacted an ordinance to prevent land ‘from being completely taken over by small lots and encroached upon by urban sprawl.’ Although the Tinkles suggest that the “public interest” is threatened by allowing the Commission ‘to arbitrarily change its practice and procedure without prior notice to the public,’ it is clear that the only interest threatened here belongs to the Tinkles. Applying equitable estoppel against the Commission would give no benefit to the public but rather would cause a direct harm by allowing the creation of yet another subdivision.”

Frazier v. Frazier (2000) - “In light of the foregoing, we reverse the portion of the trial court's order characterizing the judgment payable to Sandra as non-dischargeable maintenance or support. We affirm the trial court's determination that an education support order is appropriate. However, we remand this matter to the trial court with instructions to determine what amount, if any, of the value of Oak Outlet, Inc. must be excluded from the marital estate as the personal goodwill of Mark. We further instruct the trial court to delineate appropriate limitations upon the education support order.”

4-D Buildings, Inc. v. Palmore (1997) - “Accordingly, Kennel's payment into court did not constitute a proper tender which served to cut off the further accumulation of prejudgment interest. Therefore, we reverse and remand with instructions that the trial court award Builder an appropriate amount of additional prejudgment interest.”

Gaskin v. Beier (1993) - “An injunction is an extreme remedy which should be granted with caution. Gaskin's simultaneous service as trustee and deputy marshal does not violate the Indiana Constitution nor is it prohibited by statute.”

Hudgins v. McAtee (1992) - “Because McAtee was engaged in the activity of administrating detainees, including Hudgins, in the county jail, he is not immune from liability under the Tort Claims Act. Therefore, we reverse and remand this case with instructions to reinstate Hudgins' complaint.”

Posted by Marcia Oddi on July 23, 2010 09:07 AM
Posted to Vacancy on Supreme Ct