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Thursday, December 02, 2010

Ind. Decisions - Court of Appeals issues 3 today (and 0 NFP)

For publication opinions today (3):

In Paul J. Kocielko v. State of Indiana, a 19-page opinion, Judge Bailey writes:

Appellant-Defendant Paul J. Kocielko appeals his convictions for two counts of Sexual Misconduct with a Minor, one count as a Class B felony, and one count as a Class C felony, and his adjudication as a habitual offender.2 We affirm the Class B felony conviction and habitual offender adjudication but remand to the trial court with instructions to set aside the Class C felony conviction.

Kocielko presents six issues for review:
I. Whether his retrial violated double jeopardy prohibitions because an acquittal on one count in his first trial acquitted him of the other counts against him;
II. Alternatively, assuming his retrial was permissible, whether double jeopardy principles preclude his convictions on multiple counts as opposed to one count;
III. Whether he is entitled to a new trial because of undue prejudice from trial safety measures including a hidden leg restraint and police officer seating arrangements;
IV. Whether he knowingly and intelligently waived his right to be represented by counsel;
V. Whether he was entitled to a DNA expert at public expense; and
VI. Whether his sentence is inappropriate in light of the nature of the offense and his character.

In Kenneth Pope and Judie Pope v. Hancock County Rural Electric d/b/a Central Indiana Power, a 9-page opinion, Judge Kirsch writes:
Kenneth Pope (“Kenneth”) and Judie Pope (“Judie”) (collectively, “the Popes”) appeal the trial court's order granting Central Indiana Power's (“CIP”) motion for judgment on the evidence. The Popes raise two issues, which we consolidate and restate as: whether the trial court abused its discretion when it entered judgment on the evidence in favor of CIP at the close of the Popes' case in chief. * * *

We therefore conclude that CIP's actions were not the proximate cause of Kenneth's injuries, and the trial court did not abuse its discretion in granting CIP's motion for judgment on the evidence.

In James and Robert New v. Personal Representative of the Estate of Martha New, a 14-page opinion, Judge Bailey writes:
We affirm the probate court and remand this matter for determination of appellate attorney fees.

James and Robert raise numerous issues for our review, which we consolidate, restate, and reorder as:
I. Whether certain assets of the estate were improperly divided and distributed among the heirs;
II. Whether James New was improperly deprived of reimbursement of costs advanced on behalf of the Estate;
III. Whether the probate court erred in approving the Estate’s attorney fees;
IV. Whether the personal representative properly accounted for certain debts owed to the Estate; and
V. Whether the probate court failed to give James and Robert adequate notice and time to respond to the Estate’s Third Amended Accounting.

The Estate in turn requests that we dismiss the appeal for procedural bad faith and failure to comply with this court’s procedural rules. * * *

James and Robert have waived numerous issues they raised before this court because they failed to cite the record or authority in support of their arguments. The probate court did not err as a matter of law when it did not afford James and Robert notice and a hearing before it approved the Estate’s Third Amended Final Accounting. Moreover, we find that James and Robert have engaged in procedural bad faith in their pursuit of this appeal, and that attorney’s fees should therefore be assessed against them. Affirmed and remanded.

NFP civil opinions today (0):

NFP criminal opinions today (0):

Posted by Marcia Oddi on December 2, 2010 11:08 AM
Posted to Ind. App.Ct. Decisions