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Wednesday, March 21, 2012

Ind. Decisions - Court of Appeals issues 3 today (and 2 NFP)

For publication opinions today (3):

In Bill Musgrave v. Squaw Creek Coal Co. and Indiana Dept. of Natural Resources , a 22-page opinion, Judge Bailey writes:

Bil Musgrave (“Musgrave”), a former coal miner, appeals the trial court’s order in favor of Squaw Creek Coal Company (“SCCC”) and the Indiana Department of Natural Resources (“DNR”) on SCCC’s petition for judicial review. SCCC petitioned the trial court for judicial review of an order issued by an Indiana Natural Resources Commission (“Commission”) Administrative Law Judge (“ALJ”) vacating the DNR’s decision to release certain portions of SCCC’s reclamation bond on its surface mining permit, and the trial court reversed. The DNR cross-appeals the trial court’s order. We affirm. * * *

The trial court had jurisdiction to consider SCCC’s petition for judicial review and did not err by refusing to dismiss it. Musgrave is not collaterally estopped from challenging the DNR’s decision to release the bond on Permit S-008 because the jurisdictional issue regarding Alcoa’s hazardous wastes was not necessarily adjudicated in the prior proceeding. There is no genuine issue of material fact that SCCC met the phase III release requirements of I-SMCRA. SCCC has also satisfied the requirements of the Indiana Administrative Code and its own permit. The trial court’s order reversing the ALJ’s order and remanding for entry of judgment in favor of SCCC and the DNR is affirmed.

In Michael J. Griffin v. State of Indiana , a 13-page opinion, Judge Bailey writes:
Michael J. Griffin (“Griffin”) appeals his conviction and sentence for Murder, a felony. We affirm the conviction but revise the sentence to forty-five years. * * *

A person who commits murder has a sentencing range of between forty-five years and sixty-five years, with the advisory sentence being fifty-five years. Ind. Code § 35-50-2-3. Griffin asks that we reduce his advisory sentence to the minimum sentence, citing his military service, his past law-abiding conduct, and his cooperation with police officers in their investigation. The Indiana Constitution authorizes independent appellate review, although a trial court may have acted within its lawful discretion in determining a sentence.

In Kristine Bunch v. State of Indiana , a 63-page, 2-1 opinion, Chief Judge Robb writes:
Kristine Bunch was convicted by a jury in 1996 of felony murder for the death of her young son, Anthony (“Tony”), in a fire at their mobile home and sentenced to sixty years.1 In 2006, Bunch began pursuing post-conviction relief, which was ultimately denied by the post-conviction court in 2010. In this appeal from the denial of post-conviction relief, Bunch raises three issues that we expand and restate as four: 1) whether the post-conviction court erred in concluding fire victim toxicology evidence offered at the post-conviction hearing was not newly-discovered evidence; 2) whether the post-conviction court erred in concluding fire investigation technique evidence offered at the post-conviction hearing was not newly-discovered evidence; 3) whether the post-conviction court erred in denying her relief on the basis of a failure by the State to turn over exculpatory evidence in contravention of the dictates of Brady v. Maryland; and 4) whether the post-conviction court erred in denying her relief because of ineffective assistance of trial counsel. We conclude the fire victim toxicology evidence does constitute newly-discovered evidence and the post-conviction court clearly erred in denying Bunch relief on this claim. We also conclude the State's failure to turn over a report from the ATF testing of floor samples violates Brady and the post-conviction court also clearly erred in denying Bunch relief on this claim. Because either of these two errors warrants a new trial, we need not address the remaining issues. We reverse and remand for a new trial. * * *

The post-conviction court clearly erred in determining Bunch was not entitled to a new trial on the basis of the fire victim toxicology analysis evidence, as the evidence meets each of the nine requirements to be newly-discovered evidence. The post-conviction court also clearly erred in determining Bunch was not entitled to a new trial on the basis of a Brady violation by the State. Because our resolution of these issues is dispositive, we do not address Bunch's remaining newly-discovered evidence claim or her claim of ineffective assistance of counsel. We reverse the post-conviction court's denial of Bunch's petition for post-conviction relief, and remand for a new trial.

Reversed and remanded.

NAJAM, J., concurs.
CRONE, J., dissents with separate opinion. [that begins, at p. 49 of 63] “To prevail on appeal from the denial of post-conviction relief, a petitioner must show that the evidence as a whole leads unerringly and unmistakably to a conclusion opposite that reached by the post-conviction court.” Kubsch, 934 N.E.2d at 1144. I believe that Bunch has failed to meet this burden as to any of her claims, and therefore I respectfully dissent.

ILB: For background on the Bunch ("arson science on trial") case, start with this ILB entry and this entry, both from July 13, 2011.

NFP civil opinions today (0):

NFP criminal opinions today (2):

Jody Brewster v. State of Indiana (NFP)

John W. Kimbrough v. State of Indiana (NFP) - see 3/22/12 story in NWI Times headed "Appeals court reduces Gary child molester's prison term by 40 years."

Posted by Marcia Oddi on March 21, 2012 10:19 AM
Posted to Ind. App.Ct. Decisions