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Thursday, July 07, 2011

Ind. Decisions - Court of Appeals issues 3 today (and 4 NFP)

For publication opinions today (3):

In Christopher Hovis v. State of Indiana, a 7-page opinion, Judge Riley concludes:

At the time of Hovis’ guilty plea, existing case law supported a direct appeal of any perceived sentencing errors after a plea of guilty. Therefore, as we cannot allow Hovis to take a second, direct appeal, we dismiss his claim. Because we decide the case before us based on the cross-appeal, we do not need to address the issue Hovis raised in his appeal.
In N.K. v. Review Board, an 8-page opinion, Judge Bailey writes:
Marz reviewed a surveillance video and reported to the store manager that Koewler was a suspected hotdog thief. At a meeting with the store manager, Koewler admitted the truth of the allegation. A police officer was summoned, and the store manager advised Koewler that he had a choice: sign a statement that he stole two leftover hotdogs from the Fourth of July independence celebration for employees or spend the night in jail. Koewler signed a statement admitting theft. He was then discharged from his employment. * * *

The record reveals that employees had been offered hamburgers and hotdogs for consumption; it does not reveal that the rescission of this offer of celebratory food was in fact communicated to Koewler. Moreover, Marz’s testimony indicates that the “off-limits” hotdogs were those destined for a freezer. However, Koewler and Marz each testified that the hotdogs at issue here were retrieved from the refrigerator.

No finding of fact was made as to whether Koewler knew his reaching into the refrigerator and consuming two hotdogs was unauthorized. As previously observed, theft requires a knowing or intentional exertion of unauthorized control. The Board’s determination of the ultimate fact that Koewler was terminated for just cause as a hotdog thief is not reasonable. Striking the ALJ “finding of fact” which lacks evidentiary support, we conclude that the decision of the Full Board disqualifying Koewler from receiving unemployment insurance benefits is contrary to law. Reversed.

In Thomas A. Peel v. State of Indiana , a 6-page opinion, Judge Najam writes:
Thomas A. Peel appeals the trial court's denial of his motion to withdraw his guilty plea. Peel raises a single issue for our review, namely, whether the trial court abused its discretion when it denied Peel's motion. We hold that the court did not abuse its discretion in denying Peel's motion and, therefore, we affirm the court's judgment. * * *

Peel contends that the trial court abused its discretion when it denied his motion to withdraw his guilty plea. Specifically, Peel asserts that Indiana Code Section 35-35-1-4(b) does not apply to his motion to withdraw because when he made his motion the court had not yet entered judgment on his plea. We cannot agree. * * *

Accordingly, and contrary to his sole argument on appeal, Indiana Code Section 35-35-1-4(b) applied to Peel's motion to withdraw his guilty plea. Under the requirements of that statute, to withdraw his guilty plea Peel was required to tender a written, verified motion that presented specific facts to support the withdrawal of the guilty plea. “A defendant's failure to submit a verified, written motion to withdraw a guilty plea generally results in waiver of the issue of wrongful denial of the request.” Carter v. State, 739 N.E.2d 126, 128 n.3 (Ind. 2000). It is undisputed that Peel did not tender a proper writing to the trial court. As such, he has waived the issue of whether the trial court wrongfully denied his request.

NFP civil opinions today (1):

Rick W. Bagby, II v. Carla M. Bagby (NFP)

NFP criminal opinions today (3):

Vernon D. Hall v. State of Indiana (NFP)

Tyrone A. Thompson v. State of Indiana (NFP)

Donald L. Helton v. State of Indiana (NFP)

Posted by Marcia Oddi on July 7, 2011 11:40 AM
Posted to Ind. App.Ct. Decisions