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Wednesday, March 28, 2012

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

For publication opinions today (2):

In Juan M. Garrett v. State of Indiana, a 13-page opinion, Sr. Judge Barteau writes:

Juan M. Garrett appeals from the denial of his petition for post-conviction relief. He contends that his trial counsel and direct appeal counsel provided ineffective assistance by failing to challenge alleged violations of the prohibition against double jeopardy under the federal and state constitutions. We affirm. * * *

Because Garrett’s double jeopardy claims are without merit, he was not prejudiced by his trial and direct appeal attorneys’ failure to raise these claims. For these reasons, we are not left with a definite and firm conviction that the post-conviction court has made a mistake.

For the reasons stated above, we affirm the judgment of the post-conviction court.

In Janet Stewart v. Richmond Community Schools , a 6-page opinion, Sr. Judge Sharpnack writes:
Stewart argues that the evidence establishes that she is permanently and totally disabled and the Board’s decision must be reversed. The Board contends that Stewart has waived her claim of permanent and total disability because she did not appeal the Board’s determination that she was not permanently and totally disabled. * * *

Here, the Board’s reversal of the Member’s determination that Stewart was permanently and totally disabled is analogous to a ruling on temporary total disability as discussed in Cox. The parties fully argued the question of permanent and total disability, and nothing remained to be addressed after the Board issued its ruling. In fact, the Board’s determination that Stewart was not permanently and totally disabled is more definite than a determination of temporary total disability, because the status of temporary total disability is subject to further evidentiary developments. Furthermore, appellate review of the Board’s decision that Stewart was not permanently and totally disabled would have promoted judicial efficiency, because a reversal of the Board’s decision would have eliminated the need for further proceedings before the Member. Consequently, based on the holding in Cox, we conclude that the Board’s determination that Stewart was not permanently and totally disabled was a final award subject to appellate review. Stewart failed to seek appellate review of the Board’s determination. As a result, Stewart has waived any claim of error related to the Board’s decision that she is not permanently and totally disabled. The Board has presented a prima facie case in support of its claim of waiver and we therefore find no reversible error.

NFP civil opinions today (1):

C. Richard Marshall v. Kenneth W. Heider (NFP)

NFP criminal opinions today (2):

Teresa Yates v. State of Indiana (NFP)

Stuart Warren Lacy v. State of Indiana (NFP)

Posted by Marcia Oddi on March 28, 2012 12:38 PM
Posted to Ind. Sup.Ct. Decisions