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Friday, October 07, 2011

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

For publication opinions today (3):

In Joseph A. Taylor v. Alan P. Finnan, an 8-page opinion in a pro se appeal, Judge Crone writes:

Joseph A. Taylor is currently incarcerated in Pendleton Correctional Facility, and he filed a petition for writ of habeas corpus in Madison Circuit Court. The petition alleged that his convictions for attempted voluntary manslaughter, burglary, two counts of criminal confinement, and battery are void because his trial attorney was not admitted to practice law in Indiana. The trial court reviewed his petition pursuant to Indiana Code Section 34-58-1-2, which requires courts to review complaints and petitions filed by offenders to determine whether they are frivolous. The court determined that Taylor’s petition should be considered a petition for post-conviction relief and therefore should have been filed in Floyd County, where Taylor was convicted and sentenced. The court therefore dismissed Taylor’s petition.1 Although we agree with the trial court that Taylor’s claim should proceed as a petition for post-conviction relief, Post-Conviction Rule 1(1)(c) dictates that the court should have transferred the case to Floyd County rather than dismiss it. Therefore, we reverse and remand with instructions to transfer the case to Floyd County.
In Lisa A. Davis v. Review Board of the Indiana Department of Workforce Development and VOCA of Indiana LLC, a 9-page opinion, Judge Najam writes:
Lisa A. Davis, pro se, appeals the decision of the Review Board of the Indiana Department of Workforce Development (“Review Board”), which affirmed the decision of the administrative law judge (“ALJ”) determining that she had been terminated for cause and, therefore, was not eligible for unemployment benefits. We consider the following issues for review: 1. Whether the Review Board abused its discretion when it refused to reinstate Davis’ appeal before the ALJ to allow Davis to participate in the hearing. 2. Whether the Review Board erred when it determined that Davis had been terminated for just cause. We affirm. * * *

Davis had an affirmative duty to provide a telephone number, and that requirement was not unreasonable. Her failure to participate in the telephonic hearing resulted entirely from her disregard for explicit instructions that she provide the ALJ with her telephone number. Thus, Davis has not shown good cause for her failure to appear at the hearing, and she has not shown that the Review Board abused its discretion when it denied her request to reinstate her appeal. * * *

Based on its finding that Davis had violated the employer’s policies, the Review Board ultimately found that Davis’ employment was terminated for cause. That finding is reasonable.

In James Fernbach v. State of Indiana , a 17-page opinion, Judge Mathias writes:
James Fernbach was convicted in Ripley Circuit Court of two counts of Class A felony attempted murder and sentenced to a total of sixty years incarceration. Fernbach appeals and presents two issues, which we restate as: (1) whether the jury clearly erred in finding Fernbach guilty but mentally ill instead of not guilty by reason of insanity; and (2) whether the sentence imposed by the trial court is inappropriate. We affirm. * * *

We do not doubt that Fernbach suffers from some form of mental illness, and it is our sincere hope that he receives adequate treatment for his mental illness while in the custody of the Department of Correction. But the question is not whether we think Fernbach was insane at the time of the shootings. The question is whether there was sufficient evidence of probative value supporting the jury’s conclusion that Fernbach was not insane at the time of his crimes. Under the facts and circumstances in the present case, we are unable to say that the jury’s conclusion was clearly erroneous.

NFP civil opinions today (1):

Kelley Seibert d/b/a Seibert's Kennel v. Rick Bryant (NFP)

NFP criminal opinions today (2):

Jerramy Moore v. State of Indiana (NFP)

Bane Elliott v. State of Indiana (NFP)

Posted by Marcia Oddi on October 7, 2011 10:56 AM
Posted to Ind. App.Ct. Decisions