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Monday, January 10, 2011

Ind. Decisions - Court of Appeals issues 4 today (and 5 NFP)

For publication opinions today (4):

In Francisco Onan Delao v. State of Indiana , an 8-page opinion, Judge Kirsch writes:

Following a jury trial, Francisco Onan Delao (“Delao”) appeals his four convictions for dealing in cocaine,1 each a Class A felony. Delao raises two issues that we restate as: I. Whether the trial court erred when it admitted into evidence audio recordings of the drug transactions; and II. Whether Delao's sentence was inappropriate in light of the nature of the offenses and the character of the offender. We affirm. * * *

At the beginning of trial, the trial court explained to counsel for both parties that, because of logistics and courtroom equipment, bench conferences would not be recorded, and the court advised counsel that they would need to inform the court if they desired those to be “on the record.” During the State's case-in-chief, the State moved to admit the four audio recordings of the transactions. The September 7, 2007 audio recording was admitted without objection. The State also moved and was granted permission to publish to the jury the audio recording, and a translator in the courtroom translated portions of the conversation that were spoken in Spanish. Thereafter, Delao objected during unrecorded sidebar conferences to the admission of the audio recordings of the second, third, and fourth transactions. The trial court overruled the objections and admitted the recordings into evidence. The audio recordings were played for the jury, and the translator again translated those portions that were in Spanish. * * *

“On appeal, the appellant carries the burden of presenting a record for sustaining his argument.” House v. State, 535 N.E.2d 103, 109 (Ind. 1989) (objection made during unrecorded sidebar conference was not preserved and defendant should have corrected any deficiency in record according to appellate rule allowing for reconstruction of alleged missing portions of transcript). In this case, Delao has failed to present a sufficient record for our review and, accordingly, has waived any error in the admission of the audio recordings of the cocaine transactions occurring on September 11, September 25, and October 1, 2007.

In State of Ohio Conviction Against Mickey Shawn Gambler , a 7-page opinion, Chief Judge Robb writes:
The Indiana Department of Correction (“DOC”) appeals the trial court’s order removing Mickey Shawn Gambler from the Indiana sex offender registry. DOC raises one issue for review, which we restate as: whether the trial court erred in ordering Gambler removed from the Indiana sex offender registry without providing notice to the appropriate parties or holding a hearing. Concluding the trial court erred by not providing notice to the appropriate parties or holding a hearing, we reverse and remand. * * *

Consequently, we reverse the trial court’s order for the Allen County Sheriff and DOC to remove Gambler from the sex offender registry, and on remand, order the trial court to dismiss the case without prejudice subject to further proceedings in the event Gambler files a sufficient petition.

Conclusion. Gambler’s letter was insufficient to constitute a petition to be removed from the Indiana sex offender registry. DOC presents a prima facie case that the trial court erred in concluding otherwise, failing to provide notice to the appropriate government actors, failing to hold a hearing, and ultimately erroneously granting Gambler’s request to be removed from the sex offender registry.

ILB note: The Allen County Superior Court's action was in response to an April 23, 2010 letter from Gambler. The Court's order to the DOC stated in part: "Pursuant to Indiana Code and Wallace v. State, 905 N.E. 2d, 371 [sic] (Ind. 2009), the Defendant is not required to register as a sex offender or violent offender on the Indiana State Registry as a result of this conviction in Ohio. WHEREFORE, the Sheriff of Allen County and Indiana Department of Correction are ordered to remove Defendant’s name from the Indiana Sex/Violent Offender Registry, based upon conviction in this matter. . . .."

In Anthony Taylor v. State of Indiana , an 11-page opinion involving a pro se appellant, Chief Judge Robb writes:

Anthony Taylor appeals the post-conviction court’s denial of his petition for permission to file a belated appeal of its denial of his petition for post-conviction relief, raising as the sole issue for our review whether the post-conviction court abused its discretion in denying him permission to file a belated appeal. Concluding, pursuant to our inherent authority to grant equitable relief that Taylor should be allowed to file a notice of appeal considered timely, we reverse and remand. * * *

[T]his court has inherent power to entertain an appeal after the time permitted has expired. We exercise this inherent power to grant equitable relief “only in rare and exceptional circumstances, such as in matters of great public interest, or where extraordinary circumstances exist.” * * * Such is the situation with this case. Taylor, acting pro se, and with limited resources and ability to monitor the progress of his case, did everything he knew to do to bring this case to the appellate courts. The record supports his assertion that he corresponded with the post-conviction court around the time of his move from one DOC facility to another. Despite specifically requesting a copy of this correspondence in his notice of appeal, it was not supplied to him. The CCS shows his Trial Rule 72 motion was both granted and denied, and further shows that Taylor was supplied with both orders in response to his motion for ruling on petition for permission to file belated appeal, though only the order denying his Trial Rule 72 motion appears in the record. What appears to be a handwritten ruling on one of Taylor’s motions has been obscured, thereby further confusing the record on review. The post-conviction court distributed an order to Taylor at his prior address even after being undeniably notified of his new address multiple times. And, as Taylor points out, this particular court has a documented history of failing to organize and keep abreast of its post-conviction relief files. See In re Hawkins, 902 N.E.2d 231, 242-43 (Ind. 2009) (imposing discipline upon trial court judge for violating to the appellate courts. * * *

In sum, what transpired after Taylor filed his petition for post-conviction relief is confusing even to us; it is little wonder Taylor was confused about how to proceed. The CCS, which acts as the court’s official record, T.R. 77(B), is riddled with inaccuracies and contradictions and does not match the pleadings and orders in the record. The documents compiled by the clerk pursuant to Taylor’s notice of appeal are incomplete and in one instance, seem to have been altered. And most relevant to Taylor’s specific allegations in his Trial Rule 72 motion, the post-conviction court did not send notice of at least one order to his current address even though the record undeniably supports the court’s knowledge of his correct address. Under these circumstances, and considering Taylor should have prevailed on the merits of his Trial Rule 72 motion, we believe Taylor has demonstrated the extraordinary circumstances justifying exercise of our inherent power to grant equitable relief; in this case, that relief being the opportunity to appeal the denial of his petition for post-conviction relief. We therefore remand this case to the post-conviction court with instructions to accept a notice of appeal from the denial of Taylor’s petition for post-conviction relief within thirty days of this opinion being certified.

In Brian S. Christie v. State of Indiana, a 6-page opinion, Chief Judge Robb writes:
Brian Christie appeals the trial court’s order revoking his community corrections placement and ordering him to serve the entirety of his remaining sentence at the Department of Correction (“DOC”). For our review, Christie raises two issues: 1) whether the trial court properly took judicial notice of a new conviction entered in a different Indiana court, and therefore had sufficient evidence Christie violated his conditions of community corrections placement; and 2) whether the trial court properly ordered Christie to serve his entire remaining sentence at the DOC. Concluding the trial court’s judicial notice and its dispositional order were proper, we affirm. * * *

Christie argues the trial court erred by taking “judicial notice, not of its own records, but of the records of another court in an unrelated matter.” In support, Christie cites case law concerning the propriety of judicial notice of court records. Both Christie and the State overlook Indiana Rule of Evidence 201[1] * * *

Thus, even in a proceeding governed by the Evidence Rules, a trial court may take judicial notice of records of another Indiana court, and may do so at any stage of the proceeding. Probation revocation hearings, to which the Evidence Rules do not apply, Evid. R. 101(c)(2), allow even more flexibility in the admission of evidence, and the same more flexible standard applies in community corrections revocation hearings. Cox v. State, 706 N.E.2d 547, 551 (Ind. 1999) (“[W]e hold that in probation and community corrections placement revocation hearings, judges may consider any relevant evidence bearing some substantial indicia of reliability.”). Therefore, the trial court was permitted to take judicial notice of court records showing Christie’s new conviction in Knightstown Town Court. Further, because judicial notice of these records was proper, Christie’s counsel was not ineffective for failing to object to the same. * * *
[1] We are concerned that neither party, particularly the State, cited Rule 201(b)(5) in its appellate brief, as the pertinent amendment went into effect on January 1, 2010 – over one year ago.

ILB note: Rule 201(b) is also important in the Dec. 29, 2010 opinion by J. Vaidik, In Paternity of P.R., et al.; H.B. v. J.R. , which the ILB listed as a "must read." J. Robb and J. May concurred in that opinion.

NFP civil opinions today (1):

Kevin D. Ables v. Wray J. Ables (NFP)

NFP criminal opinions today (4):

Marshall Sims v. State of Indiana (NFP)

George Burnett v. State of Indiana (NFP)

Mrtyrone Demon Metcalf v. State of Indiana (NFP)

Justin Trevor Stetler v. State of Indiana (NFP)

Posted by Marcia Oddi on January 10, 2011 03:10 PM
Posted to Ind. App.Ct. Decisions