Monday, May 07, 2012
Ind. Decisions - "While ordinarily Rule 65(E) would require certification of the opinion prior to action by the trial court ..., courts have inherent authority to require immediate compliance with their orders and decrees to give effective relief."
Last Friday, May 4th, a panel of the Court of Appeals heard this case:
10:30 AM - James Ripps vs. State of Indiana (15A01-1109-CR-436) - James Ripps was convicted of child molesting and sentenced to eight years with six years and 300 days of his sentence suspended to probation. Among the conditions of his probation were that he not reside within one thousand feet of a school property and that he inform all persons living at his place of residence of his conviction. On May 27, 2011, the State filed a notice of probation violation alleging that Ripps had violated both of these conditions of his probation. Following a hearing, the trial court revoked Ripps’s probation and ordered that he serve the remainder of his suspended sentence. Ripps appeals the sentence, arguing that revoking his entire sentence was an abuse of discretion. The Scheduled Panel Members are: Chief Judge Robb, Judge Baker and Senior Judge Shepard. [Where: Franklin Community High School, Performing Arts Center, 2600 Cumberland Drive, Franklin, Indiana]Two things to note right off. The oral argument was held in Franklin, so there is no videocast. And the panel is made up of the Chief Judge of the COA, the former Chief Judge, and the man who was until a few weeks ago the Chief Justice of the State of Indiana.
And one more remarkable thing. Last Friday afternoon the panel issued a 2-page Order that concludes:
Having reviewed the matter, the Court FINDS AND ORDERS AS FOLLOWS:
1. This Court held oral argument this morning and having read all the briefs and deliberated on the issues, we conclude that Ripps has adequately demonstrated that revoking his probation on the present basis was an abuse of discretion.
2. While ordinarily Indiana Appellate Rule 65(E) would require certification of the opinion prior to action by the trial court, in equity and law, courts have inherent authority to require immediate compliance with their orders and decrees in order to give effective relief. Noble County v. Rogers, 745 N.E.2d 194, 198 (Ind. 2001); State ex rel. Brubalcer v. Pritchard, 236 Ind. 222, 226-27, 138 N.E.2d 233, 235 (1956). A formal opinion will follow in due course. Accordingly, we direct the trial court to order Rípps’ release forthwith.
The facts of the Ripp case, as set out in the Order, are worth reading, particularly in light of the recent press focus on sex offender registries:
Appellant James Ripps is a 69-year-old man with terminal prostate cancer, congestive heart failure and obstructive pulmonary disease among other maladies.[Many of you will recall that Bei Bei Shuai was not so fortunate. See this post from Feb. 14, 2012. The trial court refused a bond hearing on the basis that Ind. R. App. P. 65(E) forbids reliance on a COA opinion prior to certification, even though the COA on Feb. 8, 2012 had reversed the denial of her motion for bail and remanded for determination of the amount of bail. Ms. Shuai remains in jail.]
He has been serving probation from 2006 child molesting charges that were based on events in 1997 or 1998. The trial court at one point revoked Ripps' probation on grounds that he lived too close to a public park, and Ripps served more than a year as executed time before it became apparent that under Pollard v. State, 908 N.E.2d 1145 (Ind. 2009), applying the 2006 statutes on registration and residency violated the Ex Post Facto Clause. Ripps was ordered released.
When Ripps returned from prison after this ruling, he moved into an assisted living facility in Milan, Indiana, where his medical conditions could be managed. Unsure whether he needed to register, he reported his new whereabouts to the Ripley County Sheriff. The Sheriff determined that the nursing home was 980 feet from the local library and told Ripps he needed to move.
As Ripps was preparing to move somewhere new in order to stay in compliance, the Prosecutor filed for revocation again, contending that the library was a "youth center" and that living in the nursing home violated the terms of Ripps' probation conditions, even though the condition in question could not be charged as a crime under Pollard. The trial court agreed and revoked the entire remainder of Ripps' original eight-year sentence (namely, the better part of three years).
Ripps' contention on appeal is that ordering him to serve all the back-up time was an abuse of discretion, in light of his terminal health condition, his having wrongly served prison time, the very technical nature of the violation (980 feet), the fact that the authorities only having learned of Ripps' living arrangements because he went to the Sheriff to report his location, and his having been about to move when he was charged anew.
Ind. Decisions - Transfer list for week ending May 4, 2012
[Search all the Transfer Lists: The ILB feature, "Search the ILB Transfer Lists," allows you to do just that, back to Feb. 2004. Check it out. Read the instructions. Note that the search is now current through the Feb. 24, 2012 list.]
Here is the Clerk's transfer list for the week ending Friday, May 4, 2012. It is two pages (and 20 cases) long.
Two transfers were granted last week:
- Mary Alice Manley and Gary Manley v. Ryan J. Sherer, M.D., and Sherer Family Medicine, P.C. - This is Dec. 30, 2011 COA opinion reversing the trial court’s grant of Sherer's motion for summary judgment.
- Gerald P. VanPatten v. State of Indiana - This is 2-1 NFP Feb. 14, 2012 COA opinion dealing with the admissibility of evidence in a child molesting case.
Ind. Courts - "Disbarred lawyer charged with forgery"
SOUTH BEND -- A disbarred attorney faces criminal charges for forging names on legal documents and filing fraudulent tax returns while he was under suspension.Here is the disbarrment order from April 1, 2010.
Rodney P. Sniadecki was indicted by a grand jury Friday on three counts of forgery stemming from the filing of court documents for clients signed under the names of other attorneys and filing fraudulent tax returns while operating a mortgage brokerage in the same building as his law office -- all while he was suspended.
Sniadecki, who practiced law as a sole practitioner in Mishawaka and South Bend, was suspended in November 2007 from practicing law for six months.
Ind. Decisions - Court of Appeals issues 0 today (and 5 NFP)
For publication opinions today (0):
NFP civil opinions today (1):
NFP criminal opinions today (4):
Ind. Courts - Ceremonial Swearing-In Ceremony for new Justice Mark S. Massa today
From the news release:
Mark Massa will be sworn-in as Indiana’s 107th Justice at 2 PM on Monday, May 7th in Indianapolis.The ceremony will be videocast. Watch it here at 2 PM.
The one-hour ceremony will include remarks from Governor Mitch Daniels, former gubernatorial advisor Mark Lubbers and former Marion County Prosecutor Scott Newman. Governor Daniels named Mr. Massa to succeed Chief Justice Randall T. Shepard, who retired in March.
Catch-up: What did you miss over the weekend from the ILB?
Below is the answer to "What did you miss over the weekend from the ILB?"
But first, something I totally missed! The ILB's first entry was on March 16, 2003. That means the ILB is now well over 9 years old! (The first year of the ILB, from March 16, 2003 to Jan. 29, 2004, is accessible here.)
So, Happy Belated Birthday, ILB!
If you value the ILB, then please make the move to supporting the ILB, today!
From Sunday, May 6, 2012:
- Ind. Courts - "The system by which judges are 'elected' to the Marion County Superior Court is broken."
Ind. Decisions - Upcoming oral arguments this week and next
This week's oral arguments before the Supreme Court (week of 5/7/12):
Thursday, May 10th
- 9:00 AM - Indiana Department of State Revenue v. Virginia Garwood, et al. (82S10-1203-TA-171) - The Department of State Revenue issued jeopardy tax assessments to the Garwoods in connection with the Garwoods’ business breeding and selling dogs. The Tax Court denied the Department’s motion to dismiss the Garwoods’ original tax appeal. Indiana Dep’t of State Revenue v. Garwood, 939 N.E.2d 1150 (Ind. Tax Ct. 2010). Later, the Tax Court granted summary judgment to the Garwoods, holding the jeopardy assessments were void as a matter of law. Indiana Dep’t of State Revenue v. Garwood, 953 N.E.2d 682 (Ind. Tax Ct. 2011). The Supreme Court has granted a petition for review.
ILB: See this long list of earlier ILB entries, the most recent, from Aug. 25, 2011, headed "Court rules state overstepped by taking dogs to recoup taxes." Here is the ILB summary of the August 19, 2011 Tax Court opinion.
- 9:45 AM - Abby Allen, et al. v. Clarian Health Partners, Inc. (49S02-1203-CT-140) - Uninsured medical patients brought a putative class action for breach of contract against Clarian, alleging that the rates billed by Clarian to its uninsured patients are unreasonable and unenforceable. The trial court granted Clarian’s motion to dismiss for failure to state a claim. The Court of Appeals reversed and remanded, holding among other things that Indiana law implies a reasonable charge for services under these circumstances and that the reasonable value of the services rendered to the plaintiffs in this case requires determination by a fact-finder. Allen v. Clarian Health Partners, Inc., 955 N.E.2d 804 (Ind. Ct. App. 2011), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
ILB: See this list of ILB entries, many headed "Clarian Health sued over high charges: Patients claim bills for services insurance doesn't cover are unreasonable." Here is the Oct. 12, 2011 COA opinion.
- 10:30 AM - Michael and Katherine Dodd v. American Family Mutual Insurance Co. (12S02-1203-CT-170) - After American Family denied the Dodds’ fire loss claim, the Dodds brought suit alleging, among other things, breach of contract. The trial court awarded summary judgment to American Family, holding among other things that no coverage was owed due to material misrepresentations in the insurance application. The Court of Appeals affirmed as to certain claims but reversed and remanded on the breach of contract claim, holding a material issue of fact exists whether American Family effectively voided the policy. Dodd v. American Family Mut. Ins. Co., 956 N.E.2d 769 (Ind. Ct. App. 2011), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
ILB: Here is the Novemeber 3, 2011 COA opinion.
Next week's oral arguments before the Supreme Court (week of 5/14/12):
Monday, May 14th
- 1:00 PM - Indiana Department of State Revenue v. Miller Brewing Company (49S10-1203-TA-136) - The Department of State Revenue denied Miller’s request for a refund of taxes Miller paid on certain carrier-pickup sales, sales in which an Indiana customer submitted purchase orders to Miller’s headquarters in Wisconsin and the Indiana customer would arrange for and hire third-party common carriers to pick up products at Miller’s Ohio brewery. In this appeal, the Tax Court granted summary judgment to Miller after deciding that the carrier-pickup sales are not Indiana sales and therefore not allocable to Indiana. Miller Brewing v. Ind. Dep’t of State Revenue, 955 N.E.2d 865 (Ind. Tax Ct. 2011). The Supreme Court has granted a petition for review of the Tax Court decision.
ILB: This is a 12-page August 11, 2011 Tax Court opinion by Sr. Judge Fisher.
- 1:45 PM - National Wine & Spirits, Inc. v. Ernst & Young, LLP (49S02-1203-CT-137) - Corporate clients filed claims, including a claim of deception, against accountants based on the conduct of the accountants when presenting documents during an earlier arbitration session involving the parties. The Marion Superior Court granted the accountants summary judgment, but the Court of Appeals reversed, concluding that material issues of fact remain concerning the deception claim. National Wine & Spirits, Inc. v. Ernst & Young, LLP, 954 N.E.2d 1017 (Ind. Ct. App. 2011), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
ILB: This is a Sept. 15, 2011 COA opinion.
Webcasts of Supreme Court oral arguments are available here.
This week's oral arguments before the Court of Appeals (week of 5/7/12):
Monday, May 7th
- 10:00 AM - In Re: Prosecutor's Subpoenas Regarding S.H. and S.C. (73A01-1109-CR-468) - S.C. gave birth at her home. Shortly after birth, the baby showed signs of injury. The State asked the court to grant use immunity so the parents could be compelled to submit to interrogation about the incident. The trial court granted the State’s petition, and the parents appeal on the ground a prosecutor should not be able to circumvent their constitutional right to remain silent during a pre-charge investigation by granting use immunity. The Scheduled Panel Members are: Judges Baker, May and Brown. [Where: Loogootee High School, 201 Brooks Avenue, Loogootee, Indiana]
Next week's oral arguments before the Court of Appeals (week of 5/14/12):
Thursday, May 17th
- 10:00 AM - Town of Zionsville, et al v. Hamilton County Airport Authority (49A05-1107-PL-374) - The Town of Zionsville, Indiana, and the Zionsville Area Commission appeal the trial court’s judgment in favor of the Hamilton County Airport Authority. On appeal, the Town and the Area Commission contend that they, rather than the Airport Authority, have jurisdiction over zoning and planning decisions at the Indianapolis Executive Airport. The Scheduled Panel Members are: Judges Darden, Barnes and Senior Judge Shepard. [Where: Court of Appeal Courtroom (WEBCAST)]
ONLY those Court of Appeals oral arguments presented in the Supreme or Court of Appeals Courtrooms will be accessible via videocast.
The past COA webcasts which have been webcast are accessible here.
NOTE: For a printable version of this list of upcoming oral arguments, click on the date in the next line. Then select "Print" from your browser.