Thursday, March 31, 2011
Ind. Decisions - Court of Appeals issues 4 today (and 19 NFP)
For publication opinions today (4):
In Indiana Dept. of Natural Resources v. Ronald W. Ritz and Sandra J. Ritz, a 20-page opinion, Judge Crone writes:
The Indiana Department of Natural Resources (“DNR”) and Ronald W. and Sandra J. Ritz each claim possession of a deed conveying ownership of a tract of real estate. DNR sought to develop this disputed real estate as part of its park system. The Ritzes removed DNR‟s survey equipment from the property and denied DNR employees access to the property. DNR filed suit against the Ritzes for ejectment and trespass. The trial court dismissed the suit for failure to prosecute. DNR appeals, asserting that the dismissal was an abuse of discretion. We conclude that the desirability of deciding this case on the merits is of particular import because of the alleged public interest in the disputed property. We also conclude that the prejudice to the Ritzes caused by DNR‟s delay in prosecuting the case is minimal and that DNR is now diligently pursuing the case. Therefore, even though the length of DNR‟s delay in prosecuting the case is considerable, we conclude that the trial court abused its discretion in dismissing the case. Accordingly, we reverse and remand for further proceedings.In Thomas Dexter v. State of Indiana , an 11-page opinion, Judge May writes:
Thomas Dexter was convicted after a jury trial of Class A felony neglect of a dependent and found to be an habitual offender. He argues on appeal the trial court abused its discretion by permitting an expert to express an opinion concerning Dexter’s guilt, it abused its discretion by rejecting jury instructions on negligent conduct, and the evidence is insufficient to support the conviction and the habitual offender finding. We affirm.In Michael B. Adams v. State of Indiana , a 5-page opinion, Judge May writes:
Michael B. Adams appeals his conviction of Class A misdemeanor possession of marijuana. He also appeals the trial court’s decision to suspend his driver’s license and registration pursuant to Ind. Code § 35-48-4-15. We affirm. * * *In Anjanette L. Silvers v. State of Indiana , a 6-page opinion, Chief Judge Robb writes:
Adams argues the phrase indicating suspensions should occur when a “motor vehicle was used in the commission of the offense,” Ind. Code § 35-48-4-15, is ambiguous. He asserts the statute does not make clear what role the motor vehicle must serve in the commission of the offense, nor does it define the nexus required between the offender and the motor vehicle. Ultimately, he urges us to hold the statute does not apply to him because he was a passenger in the car. We cannot agree. * * *
Based on the similarities in the language used by the legislature in the two statutes, we interpret similarly the statute at issue in this case. Ind. Code § 34-48-4-15 requires only that the vehicle be used in the commission of the crime. Pursuant to Ind. Code § 34-24-1-1, we have held mere transportation of an illegal substance from one place to another is sufficient to demonstrate the vehicle was used in the commission of the crime of possession. See Cantrell, 894 N.E.2d at 1086 (Ind. Ct. App. 2008) (vehicle used to facilitate the transportation when vehicle used to transport cocaine across state lines and back). We apply the same reasoning to the facts herein: marijuana was in the vehicle in which Adams was riding, and the vehicle was being used to transport the marijuana, thus Adams’ driving and registration privileges were properly suspended pursuant to Ind. Code § 35-48-4-15.
Anjanette Silvers appeals the trial court’s order revoking her probation and ordering her to serve 180 days in jail. For our review, Silvers raises two issues, one of which we find dispositive and restate as whether Silvers validly waived her statutory right to representation by counsel at the probation revocation hearing. Concluding Silvers did not validly waive her right to counsel because the trial court failed to properly advise her concerning that right, we reverse and remand. * * *NFP civil opinions today (3):
For the above reasons, we reverse the revocation of Silvers’s probation and remand for a new hearing at which she may be represented by counsel. See Eaton v. State, 894 N.E.2d 213, 217-18 (Ind. Ct. App. 2008) (reversing and remanding when probationer received inadequate advisements during the probation revocation hearing and therefore did not waive the right to counsel voluntarily, knowingly, and intelligently), trans. denied.
In Indiana Department of Natural Resources v. United Minerals Co., LLC (NFP), a 6-page opinion, Judge May writes:
The Indiana Department of Natural Resources (DNR) issued a Notice of Violation after a seismograph indicated United Minerals (United) exceeded the blast vibration limit at a mine it operated. United sought administrative review. After cross-motions for summary judgment, an administrative law judge (ALJ) affirmed the Notice of Violation. United sought judicial review, and the trial court set aside the ALJ’s decision and vacated the Notice of Violation. As the issues the parties present could not have appropriately been resolved on summary judgment, we reverse and remand for further proceedings. * * *NFP criminal opinions today (16):
United and DNR disputed below, and continue to dispute on appeal, the validity of the seismographic reading on which the ALJ’s order is based – in other words, they disagreed on the factual inferences the ALJ should have drawn from the evidence. At the proceedings before the ALJ, both parties agreed “the underlying facts were not disputed and that the proceeding might be appropriately disposed of through summary judgment.” (App. at 21.) But even if the facts were undisputed, there was disagreement over the determinative inferences to be drawn from the facts – i.e., whether the reading that showed a violation was accurate or was an aberration because of the placement of the seismograph and the condition of the geophone. As these are determinations of ultimate facts, not legal decisions, summary judgment for either party was improper.
Posted by Marcia Oddi on March 31, 2011 12:54 PM
Posted to Ind. App.Ct. Decisions